course of states, and in modifying and determining the prin ciples of international law. Hence the stipulations of treaties between highly civilized nations form an important branch of the general law of nations. (Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 9; Vattel, Droit des Gens, prelim., § 24; Wolfius, Jus Gentium, proleg., 325; Polson, Law of Nations, § 1; Manning, Law of Nations, pp. 74-75; Bello, Derecho Internacional, No. Prel, § 5; Riquelme, Derecho Pub. Int., liv. 1, tit. 1, ch. 1; Heffter, Droit International, § 5; Wildman, Int. Law, vol. 1, ch. 1; Ortolan, Diplomatie de la Mer, liv. 1, ch. 4.)

§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." As 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 civilized nations generally, or at least by the particular nations which are effected in any way by the act. (Wheaton, Elem. Inter. Law, pt. 1, ch. 1, § 9; Story, Miscel. Writings, p. 536; Vattel, Droit des Gens, prelim., $25; Heffler, Droit International, §5; Bello, Derecho Internacional, No. Prel., §5; Wildman, International Law, vol. 1, ch. 1; Polson, Law of Nations, sec. 1; Manning, Law of Nations, pp. 67 et seq.; The Herstelder, 1 Rob. Rep., p. 115.)

§ 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 civilized 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 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 authorize 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. (Vattel, Droit des Gens, prelim., § 26; Martens, Precis du Droit des Gens, § 6; Wildman, International Law, vol. 1, ch. 1; Manning, Law of Nations, pp. 61-73; Fennings vs. Lord Grenville, 1 Taunton Rep., p. 246.)

§ 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 law of nations, which they call the voluntary law of nations to designate that universal voluntary law of usage, or of custom, which has been established and sanctioned by the frequency of its recognition and the numbers who have approved it. From this sub-division they would exclude all usages which are confined to particular periods or to particular nations and countries. (Vattel, Droit des Gens, prelim., §§ 25-27: Wolfius, Jus Gentium, proleg. § 25; Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 9, first edition, § 13; Chitty, Com. Law, pp. 28, 29; Wildman, Int. Law, vol. 1, ch. 1; Wheaton, Hist. Law of Nations, p. 139; Bello, Derecho Internacional, No. Prelim. § 4.)

§ 11. 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. (Pinheiro Ferreira, Notes sur Vattel, tom. 3, p. 22; Wheaton, Elm. Int. Law, pt. 1, ch. 1, § 9, first edition, § 13; Wheaton, Hist. Law of Nations, p. 189; Wildman, Int. Law, vol. 1, p. 33.)

§ 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 civilization 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 has produced what is termed international law private,— jus gentium privatum,-as distinguished from international law public; that is 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. (Phillimore, On Int. Law, vol. 1, §§ 140, 141; Foelix, Droit Int. Privé, tit. prel. chs. 1, 3; The Maria, 1 Rob. Rep., pp. 367, 368, 376; Cushing, Opin. of U. S. Att'ys. Genl., vol. 7, p. 18; Martens, Precis du Droit des Gens, §§ 3-5; Bowyer, Universal Public Law, ch. 4; Massé, Droit Commercial, etc., tome 1, §45; Westlake, Private Int. Law, ch. 1, §1; Heffter, Droit International, § 2.)

§ 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 recognized 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 law-giver and interpreter, carrying home its sanctions to every breast, by the inevitable punisnment 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 civilized 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. (Wheaton, Elm. Int. Law, pt. 1, ch. 1, § 10; Montesquieu, Esprit des Lois, liv. 1, ch. 3; Ward, Hist. Law of Nations, vol. 1, ch. 1; Grotius, de Jur. Bel. ac Pac., lib. 1, cap. 1, § 14; Leibnitz, Juris. Gent., pref.; Manning, Law of Nations, p. 59; Martens, Precis du Droit des Gens, §9; Bowyer, Universal Public Law, chs. 5, 7; Mackintosh, Miscellaneous Works, p. 183.)

§ 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 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 honor, 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. (Wildman, International Law, vol. 1, p. 32; Polson, Law of Nations, 4; Wheuton, Elements Int. Law, pt. 1, ch. 1, § 10; Bentham, Morals and Legislation, vol. 2, p. 256; Austin, Province of Jurisprudence, pp. 147, 207; Manning, Law of Nations, p. 4; Sedgwick, On Stat. and Con. Law, pp. 222-223; Bello, Derecho Internacional, No. Prel., §4; Heffter, Droit International, § 2.)

§ 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 cognizance 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. (Phillimore, On Int. Law, vol. 1, § 353; Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 15; Wildman, Int. Law, vol. 1, p. 32; Polson, Law of Nations, § 4; Manning, Law of Nations, p. 76.)

§ 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 offenses committed. It is