§ 8. The customary law of nations embodies, says Mr. Justice Story, 'those usages which the continued habit of nations has sanctioned for their mutual interest and convenience.' this law is founded on the tacit or implied consent of nations as deduced from their intercourse with each other, in order to determine whether any particular act is sanctioned or forbidden by this law, we must inquire whether it has been approved or disapproved by civilised nations generally, or at least by the particular nations which are affected in any way by the act.1

6

9. Customs which are lawful and innocent are binding upon the States which have adopted them; but those which are unjust and illegal, and in violation of natural and Divine law, have no binding force. When a custom is generally established,' says Vattel, 'either between all the civilised nations of the world, or only between those of a certain continent, as of Europe for example, or between those which have most frequent intercourse with each other; if that custom is in its own nature indifferent, and much more if it be useful and reasonable, it becomes obligatory on all the nations in question, which are considered as having given. their consent to it, and are bound to observe it toward each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains anything unlawful or unjust, it is not obligatory; on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorise a violation of the law of nature.'

The foregoing remark of Vattel, that the customary law of nations may be varied or abandoned at pleasure, such variation or abandonment being previously notified, must be limited to the peculiar customs of particular States in their intercourse with other nations, and cannot be applied to general law, or what he calls the voluntary law of nations, which is founded on general usage or implied consent, as described in the next paragraph.2

§ 10. Wolfius, and his abridger, Vattel, distinguish between particular and general usages, and confine the term customary to the former, and introduce a third division of the positive

1 Story, Miscel. Writings, p. 536; the 'Herstelder,' 1 Rob., 115. 2 Vattel, Droit des Gens, prélim., 6; Fennings v. Lord Granville, 1 Taunt. R., 246.

law of nations, which they call the voluntary law of nations, to designate that universal voluntary law of usage, or of custom, which has heen established and sanctioned by the frequency of its recognition and the numbers who have approved it. From this subdivision they would exclude all usages which are confined to particular periods or to particular nations and countries.1

§ II. This division of the positive law of nations, by Vattel, into voluntary, conventional, and customary laws, has been objected to by some as improper, and calculated to confuse rather than to elucidate the subject. It was adopted by Wheaton in the first edition of his elements of international law, but afterward rejected by him on the ground that the term 'voluntary law of nations' more properly designated the genus, including all the rules introduced by positive consent, for the regulation of international conduct, and should be divided into two species-conventional law and customary law-the former being introduced by treaty, and the latter by usage; the former by express consent, and the latter by tacit consent between nations. Notwithstanding this objection, we think the divisions of Vattel not entirely without foundation, and, at least, as worthy of consideration. His terms, however, are not well chosen.2

§ 12. Other publicists have made still further and different divisions and subdivisions of this branch of international jurisprudence. Of these we shall mention but one, which not only seems to be well founded, but to point out distinctions which it is important to observe. The custom and usage of nations have established certain rights which are called absolute, or rights stricti juris, while, at the same time, increasing civilisation has, in other respects, mitigated the severity of these rights by the usage of comity-comitas gentium-by which is understood the rule of convenience, as distinguished from abstract right. Again, with regard to the intercourse of individual members of different States, this comity bas produced what is termed international law private-jus gentium privatum-as distinguished from international law public, that is

1 Vattel, Droit des Gens., prélim., §§ 25-27; Wolfius, Jus Gentium, proleg., § 25; Chitty, Com. Law, pp. 28, 29.

2 Pinheiro-Ferreira, Notes sur Vattel, tom. iii. p. 22; Wheaton, Elem. Int. Law, pt. i. ch. i. § 9, first edition, § 13.

to say, rules having reference, not to the relations of States among themselves, but the relations of individuals of one State to the laws and institutions of other States.1

§ 13. It is admitted by all, that there is no universal or immutable law of nations, binding upon the whole human race, which all mankind in all ages and countries have recognised and obeyed. Nevertheless, there are certain principles of action, a certain distinction between right and wrong,between justice and injustice, a certain divine or natural law, or rule of right reason, which, in the words of Cicero, 'is congenial to the feelings of nature, diffused among all men, uniform, eternal, commanding us to our duty, and prohibiting every violation of it,-one eternal and immortal law, which can neither be repealed nor derogated from, addressing itself to all nations and all ages, deriving its authority from the common Sovereign of the universe, seeking no other lawgiver and interpreter, carrying home its sanctions to every breast, by the inevitable punishment he inflicts on its transgressors."

It is to these principles, or rule of right reason, or natural law, that all other laws, whether founded on custom or treaty, must be referred, and their binding force determined. If in accordance with the spirit of this natural law, or if innocent in themselves, they are binding upon all who have adopted them; but if they are in violation of this law, and are unjust in their nature and effects, they are without force. The principles of natural justice, applied to the conduct of States, considered as moral beings, must therefore constitute the foundation upon which the customs, usages, and conventions of civilised and Christian nations are erected into a grand and lofty temple. The character and durability of the structure must depend upon the skill of the architect, and the nature of the materials; but the foundation is as broad as the principles of justice, and as immutable as the law of God.

§ 14. It must not be inferred, that because there is no immutable law of nations absolutely binding upon all mankind, that the rules of international intercourse established by

1 Phillimore, On Int. Law, vol. i. §§ 140, 141; Foelix, Droit Int. Privé, tit. prél. chs. i., iii.; the Maria,' 1 Rob. 367; Cushing, Opin. of U. S. Attys. Genl., vol. vii. p. 18; Westlake, Private Int. Law, ch. i. § 1; Heffter, Droit International, § 2.

general consent and sanctioned by reason, are not obligatory upon States, and may be violated with impunity. These rules cannot, perhaps, with strict propriety be called laws, in the sense of commands proceeding from an authority competent in all cases to enforce obedience or punish violations. But, like the laws of honour, they are rules of conduct imposed by public opinion, and are enforced by appropriate sanctions. They are, therefore, by their analogy to positive commands, properly termed laws; and they are enforced, not only by moral sanctions, but by the fear of provoking general hostility, and incurring its evils, in case of violating maxims which are generally received and respected among nations.1

§ 15. Moreover, the law of nations provides, in a measure, for the enforcement of its rules, and the punishment of a violation of its maxims. Certain offences against this law, as piracy for example, wheresoever and by whomsoever committed, are within the cognisance of the judicial power of every State; for, being regarded as the common enemies of all mankind, any one may lawfully capture pirates upon the high seas, and the tribunals of any State, within whose territorial jurisdiction they may be brought, can try and punish them for their crimes. And in case of smaller offences, where the accused must be sent to the tribunals of his own country for trial, or where other States can exercise no jurisdiction whatever, the moral obligation of a State to punish its subjects for offences against international law is so strong that no one can habitually neglect to do so with impunity. A State which should openly violate, or permit its subjects to violate, the well-established and generally received maxims of this law, would not only lose its standing among nations, but would provoke universal reprobation and hostility.

§ 16. Publicists have discussed the question whether States are liable to punishment for offences against international law. While all admit that these bodies politic are capable of rights and liable to obligations, some contend that they can never be subjects of criminal law, and, therefore, that no punishment can be inflicted on them for offences committed. It is probably true that States cannot be punished, in the strict techni

1 Wildman, International Law, vol. i. p. 32; Bentham, Morals and Legislation, vol. ii. p. 256; Austin, Province of Jurisprudence, pp. 147, 207; Sedgwick, On Stat. and Con. Law, pp. 222–223.

cal sense of that term. Nevertheless, if one State be injured or insulted by another, it may seek redress by war, and require not only indemnity for the past, but security for the future; and in order to attain this object, it may destroy the property of the offending State and take away its territory. These acts are not, in the strict sense of that term, acts of punishment, but directly or indirectly, acts of self-defence; and the State which resorts to such measures against another, can justify its conduct only on the ground of their being necessary, for the preservation of its own rights, the welfare of other States, or the peace of the world. They are not defensible as punishments due and inflicted upon the offender, for one State has no authority to punish the offences of another. Nevertheless, they are, with respect to the offending State, to all intents and purposes, punishments.1

§ 17. In the present imperfect state of international law, which recognises the obligatory force of no written code, and acknowledges no permanent judicial expositor of its principles, we must necessarily resort to the precedents collected from history, the opinions of jurisconsults, and the decisions of tribunals, in order to ascertain what these principles are, and to determine what are the proper rules for their application. Some of these principles and rules have been settled for ages, and have the force of positive laws which no one will now venture to dispute or call into question; while others are admitted only by particular States, and cannot be regarded as binding upon any one which has not adopted them. The sources of international law are therefore as various as the subjects to which its rules are applied; and, in deducing these rules, we should distinguish between those which are applicable only to particular States, and those which are obligatory upon all. We will now proceed to point out some of these sources, and to discuss their character and authority.

§ 18. The first source from which are deduced the rules of conduct which ought to be observed between nations, is the Divine law, or principle of justice, which has been defined 'a constant and perpetual disposition to render every man his due.' The peculiar nature of the society existing among independent States, renders it more difficult to apply this prin

1 Phillimore, On Int. Law, vol. i. § 11; Pinheiro-Ferreira, Com. sur Vattel, verb. 'punir;' Savigny, System des Röm. Rechts, b. ii. pp. 94–96.