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Vattel concludes that these three species of international law, the voluntary, the conventional, and the customary compose together the positive law of nations. They proceed from the will of nations; or (in the words of Wolf) "the voluntary, from their presumed consent; the conventional, from their express consent; and the customary, from their tacit consent." 1

It is almost superfluous to point out the confusion in this enumeration of the different species of international law, which might easily have been avoided by reserving the expression, "voluntary law of nations," to designate the genus, including all the rules introduced by positive consent, for the regulation of international conduct, and divided into the two species of 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.2

§ 10. System of Heffter.

According to Heffter, one of the most recent and distinguished public jurists of Germany, "the law of nations, jus gentium, in its most ancient and most extensive acceptation, as established by the Roman jurisprudence, is a law (Recht) founded upon the general usage and tacit consent of nations. This law is applied, not merely to regulate the mutual relations of States, but also of individuals, so far as concerns their respective rights and duties, having everywhere the same character and the same effect, and the origin and peculiar form of which are not derived from the positive institutions of any particular State." According to this writer, the jus gentium consists of two distinct branches :

1. Human rights in general, and those private relations which Sovereign States recognize in respect to individuals not subject to their authority.

2. The direct relations existing between those States themselves.

"In the modern world, this latter branch has exclusively received the denomination of law of nations, Völkerrecht, Droit des Gens, Jus Gentium. It may more properly be called external public law, to distinguish it from the internal public law of a

1 Droit des Gens, Préliminaries, § xxvii.; Wolf, Proleg. xxv.
2 Vattel, Droit des Gens, edit. de Pinheiro Ferreira, tom. iii. p. 22.

particular State. The first part of the ancient jus gentium has become confounded with the municipal law of each particular nation, without at the same time losing its original and essential character. This part of the science concerns, exclusively, certain rights of men in general, and those private relations which are considered as being under the protection of nations. It has been usually treated of under the denomination of private international law."

Heffter does not admit the term international law (droit international) lately introduced and generally adopted by the most recent writers. According to him this term does not sufficiently express the idea of the jus gentium of the Roman jurisconsults. He considers the law of nations as, a law common to all mankind, and which no people can refuse to acknowledge, and the protection of which may be claimed by all men and by all States. He places the foundation of this law on the incontestable principle that wherever there is a society, there must be a law obligatory on all its members; and he thence deduces the consequence that there must likewise be for the great society of nations an analogous law.

"Law in general (Recht im Allgemeinen) is the external freedom of the moral person. This law may be sanctioned and guaranteed by a superior authority, or it may derive its force from self-protection. The jus gentium is of the latter description. A nation associating itself with the general society of nations, thereby recognizes a law common to all nations by which its international relations are to be regulated. It cannot violate this law, without exposing itself to the danger of incurring the enmity of other nations, and without exposing to hazard its own existence. The motive which induces each particular nation to observe this law depends upon its persuasion that other nations will observe towards it the same law. The jus gentium is founded upon reciprocity of will. It has neither lawgiver nor supreme judge, since independent States acknowledge no superior human authority. Its organ and regulator is public opinion its supreme tribunal is history, which forms at once the rampart of justice and the Nemesis by whom injustice is avenged. Its sanction, or the obligation of all men to respect it, results from the moral order of the universe, which will not suffer nations and individuals to be isolated from each other, but

constantly tends to unite the whole family of mankind in one great harmonious society."'

There is

law of nations.

Is there a uniform law of, nations? There certainly no universal is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin. This distinction between the European law of nations and that of the other • races of mankind has long been remarked by the publicists. Grotius states that the jus gentium acquires its obligatory force from the positive consent of all nations, or at least of several. "I say of several, for except the natural law, which is also called the jus gentium, there is no other law which is common to all nations. It often happens, too, that what is the law of nations in one part of the world is not so in another, as we shall show in the proper place." 2 So also Bynkershoek, in the passage before cited, says that "the law of nations is that which is observed, in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized." 3 Leibnitz speaks of the voluntary law as established by the tacit consent of nations. "Not," says he, "that it

Heffter, Das Euröpäische Völkerrecht, § 2.

The learned Jesuit Saurez has anticipated this view of the moral obligation of the jus gentium. "Ratio hujus juris est, quia humanum genus, quamvis in varios populos et regna divisum, semper habeat aliquam unitatem, non solum specificam, sed etiam quasi politicam et moralem, quam indicat naturale præceptum mutui amoris et misericordiæ, quod ad omnes extenditur, etiam extraneos et cujuscunque nationis. Quapropter, licet unaquaque civitas perfecta, res-publica, aut regnum, sit in se communitas perfecta et suis membris constans, nihilominus quælibet illarum etiam membrum aliquo modo hujus universi prout genus humanum spectat. Nunquam enim illæ communitates adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine, et societate, ac communicatione, interdum ad melius esse majoremque utilitatem, interdum vero et ob moralem necessitatem. Hâc ergo ratione indigent aliquo jure, quo dirigantur et recte ordinentur in hoc genere communicationis et societatis. Et quamvis magnâ ex parte hoc fiat per rationem naturalem, non tamen sufficienter et immediatè quoad omnia: ideoque potuerunt usu earundem gentium introduci." Saurez, de Legibus et Deo Legislatore, lib. ii. cap. xix. n. g.

2 De Jur. Bel. ac Pac. lib. i. cap. 1, § xiv. 4.
3 Bynkershoek, De Foro Legatorum, Vid. supra.

is necessarily the law of all nations and of all times, since the Europeans and the Indians frequently differ from each other concerning the ideas which they have formed of international law, and even among us it may be changed by the lapse of time, of which there are numerous examples. The basis of international law is natural law, which has been modified according to times and local circumstances." Montesquieu, in his Esprit des Lois, says, that “ every nation has a law of nations

1

even the

Iroquois, who eat their prisoners, have one. They send and receive ambassadors; they know the laws of war and peace; the evil is, that their law of nations is not founded upon true principles." 2

There is then, according to these writers, no universal law of nations, such as Cicero describes in his treatise De Republica, binding upon the whole human race which all mankind in all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recognized in theory or in practice, have professed to obey, or have in fact obeyed.

An eminent French writer on the science of which we propose to treat, has questioned the propriety of using the term droit des gens (law of nations) as applicable to those rules of conduct which obtain between independent societies of men. He asserts "that there can be no droit (right) where there is no loi (law); and there is no law where there is no superior: without law, obligations, properly so called, cannot exist; there is only a moral obligation resulting from natural reason; such is the case between nation and nation. The word gens imitated from the Latin, does not signify in the French language either people or nations." 3

The same writer has made it the subject of serious reproach to the English language that it applies the term law to that system of rules which governs, or ought to govern, the conduct of nations in their mutual intercourse. His argument is, that law is a rule of conduct, deriving its obligation from sovereign authority, and

1 Leibnitz, Cod. Jur. Gent. diplom. Préf.

2 Esprit des Lois, liv. i. ch. 3.

3 Rayneval, Institutions du droit de la nature et des gens, Note 10 du 1r liv. p. viii.

binding only on those persons who are subject to that authority;-that nations, being independent of each other, acknowledge no common sovereign from whom they can receive the law; — that all the relative duties between nations result from right and wrong, from convention and usage, to neither of which can the term law be properly applied;—that this system of rules had been called by the Roman lawyers the jus gentium, and in all the languages of modern Europe, except the English language, the right of nations, or the laws of war and peace.'

That very distinguished legal reformer, Jeremy Bentham, had previously expressed the same doubt how far the rules of conduct which obtain between nations can with strict propriety be called laws. And one of his disciples has justly observed, that " laws, properly so called, are commands proceeding from a determinate rational being, or a determinate body of rational beings, to which is annexed an eventual evil as the sanction. Such is the law of nature, more properly called the law of God, or the divine law; and such are political human laws, prescribed by political superiors to persons in a state of subjection to their authority. But laws imposed by general opinion are styled laws by an analogical extension of the term. Such are the laws of honor imposed by opinions current in the fashionable world, and enforced by appropriate sanction. Such, also, are the laws which regulate the conduct of independent political societies in their mutual relations, and which are called the law of nations, or international law. This law obtaining between nations is not positive law; for every positive law is prescribed by a given superior or sovereign to a person or persons in a state of subjection to its author. The rule concerning the conduct of sovereign States, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking

1 Droit des gens, Fr. Dritto delli genti, Ital. Direito das Gentes, Portug. Völkerrecht, Germ. Volkenregt, Dutch. Folkeret, Dan. Folkrätt, Swed. 2 Bentham, Morals and Legislation, vol. ii. p. 256. Ed. 1823.

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