PRELIMI- ventional law of na The several engagements into which nations may enter produce a new kind of law of nations, called Conventional, ? 24. Con- or of Treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations tions, or law is not a universal but a particular law. All that can be done of treaties. on this subject, in a treatise on the Law of Nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history. ? 25. Cus of nations. Certain maxims and customs, consecrated by long use, and tomary law observed by nations in their mutual intercourse with each other as a kind of law, form the Customary Law of Nations, or the Custom of Nations. (8) This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations, that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it; that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance and with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful. 2 26. Gene ral rule respecting that law. When a custom or usage is generally established, either between all the civilized nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other; if that custom is in its own nature indifferent, [lxvi] and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. (9) But if that custom contains any thing unjust or unlawful, it is not obligatory; on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorize her to violate the law of nature. (8) From the authorities cited in Benest v. Pipon, Knapp's Rep. 67, it seems, that most nations agree, that twenty years' uninterrupted usage (for twenty years is evidence as well of publie and general customs or practices as of private rights) is sufficient to sustain the same.-C. (9) As to this position, see further, Marten's L. N. 356, and Fennings v. Lord Grenville, 1 Taunton's Rep. 248. There must be a reasonable notification, in point of time, of the intention not to be bound by the customary law. Ibid. and 1 Chitty's Criminal Law 29, 35, 92. -C. tive law of nations. These three kinds of law of nations, the Voluntary, the PRELIMIConventional, and the Customary, together constitute the NARIES. Positive Law of Nations.(10) For they all proceed from ? 27. Posithe will of Nations; the Voluntary from their presumed consent, the Conventional from an express consent, a the Customary from tacit consent; and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of Positive Law of Nations. We shall be careful to distinguish them from the Natural or Necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the Necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the Voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law which they are to observe towards each other differs in certain instances from the maxims of the Internal law, which nevertheless remains always obligatory in point of conscience. As to the rights introduced by Treaties or by Custom, there is no room to apprehend that any one will confound them with the Natural law of nations. They form that species of law of nations which authors have distinguished by the name of Arbitrary. respecting To furnish the reader beforehand with a general direction ? 28. Generespecting the distinction between the Necessary and the ral maxim Voluntary law, let us here observe, that, as the Necessary the use of law is always obligatory on the conscience, a nation ought the necesnever to lose sight of it in deliberating on the line of conduct sary and she is to pursue in order to fulfil her duty; but when there the volunis question of examining what she may demand of other tary law. states, she must consult the Voluntary law, whose maxims. are devoted to the safety and advantage of the universal society of mankind. (10) See Division of Laws of Nations, ante, lvii. n. (2).—C. 63 BOOK I. OF NATIONS CONSIDERED IN THEMSELVES. CHAP. I. OF NATIONS OR SOVEREIGN STATES.(10) A NATION or a state is, as has been said at the beginning? 1. Of the of this work, a body politic, or a society of men united to- state and of gether for the purpose of promoting their mutual safety and sovereignty. advantage by their combined strength. From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a Public Authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the Sovereignty; and he or they who are invested with it are the Sovereign.(10) (10) the body It is evident, that, by the very act of the civil or political ? 2. The association, each citizen subjects himself to the authority of authority of the entire body, in every thing that relates to the common politic over welfare. The authority of all over each member, therefore, the memessentially belongs to the body politic, or state; but the ex-bers. ercise of that authority may be placed in different hands, according as the society may have ordained. several [2] If the body of the nation keep in its own hands the em- ? 3. Of the pire, or the right to command, it is a Popular government, a Democracy; if it intrust it to a certain number of citizens, vernment. to a senate, it establishes an Aristocratic republic; finally, if it confide the government to a single person, the state becomes a Monarchy.(11.) These three kinds of government may be variously combined and modified. We shall not here enter into the par (10) The student desirous of enlarg- ferent Governments; and see Cours de ing his knowledge upon this subject Droit Public Interne et Externe, Paris, should read Locke on Government; De A. D. 1830.-C. Lolme on the Constitution; 1 Bla. Com. 47; Sedgwick's Commentaries thereon; and Chitty Junior's Prerogatives of the Crown as regards Sovereignty and dif (11) See the advantages and disadvantages of each of those forms of government shortly considered. 1 Bla. Com. 49, 50.-C. BOOK I. I. ticulars; this subject belonging to the public universal law :* CHAP. I for the object of the present work, it is sufficient to establish the general principles necessary for the decision of those disputes that may arise between nations. 84. What Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign reign states. State. Its rights are naturally the same as those of any other are sove state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws. ? 5. Of We ought, therefore, to account as sovereign states those states bound which have united themselves to another more powerful, by by unequal an unequal alliance, in which, as Aristotle says, to the more powerful is given more honour, and to the weaker, more assistance. alliance. The conditions of those unequal alliances may be infinitely varied. But whatever they are, provided the inferior ally reserve to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state, that keeps up an intercourse with others under the authority of the law of nations. 26. Or by Consequently a weak state, which, in order to provide for treaties of its safety, places itself under the protection of a more powerprotection. ful one, and engages, in return, to perform several offices [3] equivalent to that protection, without however divesting itself of the right of government and sovereignty,—that state, I say, does not, on this account, cease to rank among the sovereigns who acknowledge no other law than that of nations. (12) Nor shall we examine which of those different kinds of government is the best. It will be sufficient to say in general, that the monarchical form appears preferable to every other, provided the power of the sovereign be limited, and not absolute,-qui [principatus] tum demum regius est, si intra modestia et mediocritatis fines se contineat, excessu potestatis, quam imprudentes in dies augere satagunt, minuitur, penitusque corrumpitur. Nos stulti, majoris, potentiæ specie decepti, dilabimur in contrarium, non satis considerantes eam demum tutam esse potentiam quæ viribus modum imponit. The maxim has both truth and wisdom on its side. The author here quotes the saying of Theopompus, king of Sparta, who, returning to his house amidst the acclamations of the people, after the establishment of the Ephori-"You will leave to your children (said his wife) an authority di minished through your fault." "True," replied the king: "I shall leave them a smaller portion of it; but it will rest upon a firmer basis." The Lacedæmonians, during a certain period, had two chiefs to whom they very improperly gave the title of kings. They were magistrates, who possessed a very limited power, and whom it was not unusual to cite before the tribunal of justice,-to arrest,-to condemn to death.-Sweden acts with less impropriety in continuing to bestow on her chief the title of king, although she has circumscribed his power within very narrow bounds. He shares not his authority with a colleague, he is hereditary, and the state has, from time immemorial, borne the title of a kingdom.-Edit. A. D. 1797. (12) This and other rules respecting smaller states sometimes form the subject of consideration even in the Municipal Courts. In case of a re |