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existing, and endeavored to make it appear that his conduct could be so explained as to be in conformity with such moral sense. As hypocrisy is the tribute which vice pays to virtue, so the manifestoes in that stormy era may be regarded as the tributes paid by ambition to an international moral sense. The congress of Vienna strove to justify its action by the same appeal. Cavour, when leading in the revolt against the settlement of the congress of Vienna, issued paper after paper in which the course of Italy was justified on moral grounds, and the civilized nations of the world were called upon to approve the righteousness of the uprising. The letters of secretaries of state to their diplomatic agents in foreign lands, lands, written for the purpose of being read to the authorities of the state in which such agents are resident, are appeals of the same class; and if we take up the volumes containing the diplomatic correspondence of the United States, as published from year to year-and what is said in reference to this country in this respect is applicable to all other countries—we shall find that by far the greater part of their contents, omitting the merely narrative portions, consists in appeals to the moral If the existence of the common law is shown by the fact that though unwritten, and therefore in a measure unprecise, it is appealed to by all litigants in states in which such a common law exists, then the existence of a common moral sense among nations may be shown by the appeals to it made in all cases in which there are supposed national wrongs to redress or national rights to vindicate. And whatever may be the opinion of speculative thinkers, there is no case on record of a statesman, dealing practically with diplomacy, who has not over and over again appealed to this moral sense of nations ast an existing fact.1

sense.

§ 122. It is not, however, to be supposed that international jurisprudence does not rest, in a measure, on positive law. It does, though the positive law on which it falls back is not that of a code which remains binding until repealed by the body by which it was enacted.

International law cisions and

based on de

on common consent.

No more striking example of the of the United States during the late position in the text can be found than civil war. that in the diplomatic correspondence

If we examine the decisions of our courts on any question of international law, we shall find the ruling to rest on positive law, though not of a law absolutely and finally imposed by a congress of nations. In the first place, a court is bound by a treaty adopted in conformity to the prescriptions of the lex fori. If our Federal government, for instance, should duly execute with a foreign power a treaty providing that privateering should be illegal as between the two powers, our courts would be bound to hold the treaty the supreme law of the land. In the second place, if our courts and those of England should unite in declaring any proposition of international law to be binding, there is a strong presumption in favor of the correctness of such a proposition. It is a matter of regret that the same respect cannot be paid to the decisions of continental courts, the judges who give such decisions not being bound by any system of precedent. This defect, however, is compensated for by the treatises of eminent jurists; and it may be held to be settled that rules which are adopted by the weight of authority among jurists, and which are accepted by English and American courts, are to be regarded as incorporated in our public international law. In the third place, a custom which has been generally adopted among civilized nations may be regarded as a part of public international law. If, for instance, the great majority of civilized states should denounce the reducing of prisoners into captivity, or the use of poison as an engine of mischief, we should have a right to regard the positions so taken as part of public international law; and, in fact, it is in this way that public international law has been in the main built up. There are, however, two important distinctions to be observed: (1) Rules of public international law, in order to lose their effect, need not be solemnly repealed by the parties enacting them. The rules of the congress of Vienna, for instance, ceased to be effective when repudiated by even a minority of the principal powers by whom they had been adopted. (2) Unanimity is not necessary to establish a rule in public international law. If it were, few

1 Infra, § 383.

of the Institute of International Law

2 In this connection the proceedings deserve particular study.

Supra, § 14.

such rules could be established. It would be always a matter of doubt whether all the states requisite to unanimity had been consulted, since there will always be some states whose claims to be recognized as authoritative in such respects are doubted. And there are no rules of which we can say they have been adopted either by treaty or by usage on the part of all states entitled to speak on such an issue. The question is one of weight of authority; and this question must be decided in each country on the concrete case. It may be added that, as between any two countries, a rule may be adopted, though not of general acceptance. Common consent, also, may be inferred from recitals in proclamations of sovereigns, and from statutes passed by legislative bodies having jurisdiction, from maritime ordinances, as well as from the decisions of courts.1

1 The usages which obtain between nations as an aggregate are as much a part of international law as are the usages prevalent in a nation a part of national law. In this sense we are to understand the maxim of Bynkershoek: "Ipsum jus gentium, quod oritur e pactis tacitis et præsumptis quae ratio et usus inducunt." (Quæs. Jur. Pub., I. iii. c. x.)

Lord Stowell rests his judgment in the Santa Cruz on a "law of habit, a law of usage, a standing and known principle on the subject in all civilized and commercial countries." 1 C. Rob. Ad. 61. It was ruled in this case that custom may modify a treaty. That a local law of neutrality does not bind internationally, see infra, § 241.

Codification of international law has been proposed in high quarters, but, for the reasons above suggested (see supra, § 114), it would be difficult to give any code a permanent cosmopolitan force. But, while this is the case, it is impossible to be blind to the great value, as independent treatises, of Mr. David Dudley Field's proposed code, and of Bluntschli's "Moderne Völker

recht als Rechtsbuch dargestellt" (Nordlingen, 3d ed., 1878). Mr. Bentham (Bowring's ed., vol. viii.) has given us also some valuable material for the same purpose; and Holtzendorff (op. cit., 1204) refers us to a paper to the same effect by Prof. Katchenowsky, of Charkow. From Mancini, also, we have a treatise entitled "Vocazione del nostio secolo per la riforma e codificazione del diritto delle gente," 1872, and from Bulmering an essay on "Kodification des Völkerrechts," 1874. Holtzendorff, while holding that as to the police of the seas, the slave-trade, the fisheries, the submarine telegraph, the diplomatic service, and private international law, there might be codification, maintains that it would be impracticable in respect to annexation or aggrandizement of states, the recognition of new states, or the intervention in the affairs of other states. I do not think that private international law could be the subject of present codification. As to expatriation, or civil status, for instance, we are not, by any means, ripe for a settlement. See, as to codification, supra, § 114.

Not neces

that there

should be a

court to enforce it.

§ 123. Mr. Hall, in his treatise on International Law (London, 1880), declares that "International law sary to law consists in certain rules of conduct which modern civilized states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforceable by appropriate means in case of infringement. These rules," he goes on to say, "may be considered to be an imperfect attempt to give effect to an absolute right which is assumed to exist and to be capable of being discovered; or they may be looked upon simply as a reflection of the moral development and the external life of the particular nations which are governed by them." By Mr. Hall, the second view is assumed to be correct, and in this Mr. Pollock' concurs. This position does not differ widely from that expressed in the preceding pages in reference to national law. National law, it is there stated, is the product of a nation's conscience and needs. It is law before it is formulated by legislation or judicial decision, just as custom is law before so formulated, and, when formulated by judicial decision, is declared to govern cases which occurred before such decision. It is not, in such cases, declared that the custom was the custom of everybody, but simply that it was a general custom; nor, if it was an established custom, is it necessary, as we have seen, that it should have existed from time immemorial. So it is with international law. It is not absolute, nor can it be pretended, as was once erroneously supposed to be the case with the common law, that it existed at some prior period in perfect symmetry, and only requires excavation to bring it to light. It is based on the customary law of nations, just as national law is on the customary law of individuals. But it cannot be said that international law is not law because it cannot be enforced. Whenever international law becomes an incident in litigation it is as capable of being enforced as is customary law. When piracy, for instance, is prosecuted in our courts, they resort

1 Essays, etc., 1882.

2 Supra, § 16.

to the law of nations to know what it is; and so with innumerable questions relative to the relation of neutrals to belligerents, and to the inviolability of national ships and territory. A prize court, in fact, may be defined to be a court to enforce the law of nations; and so, in some of its lines of adjudication, may be held to be the supreme court of the United States. It is true that, when relating to matters out of the sphere of litigation, the law of nations cannot be enforced by judicial decision. It is not peculiar in this. It is a part of the common law that a man may defend himself when attacked, but there is no legal process requiring him to exercise this right. There are certain rights that can only be vindicated by force on the part of those aggrieved, and by the sympathy, if not the aid, of right-minded bystanders. This is the case with the rights of nations not the subjects of litigation. It cannot be said that there is, no law in this relation because there is no court to enforce such law. An aggrieved nation, like an aggrieved individual, may vindicate its rights by force in all cases in which there is no aid to be obtained from the courts. And an aggrieved nation will, as a general rule, find aid, if it be in the right, from other nations, just as an aggrieved individual will, as a general rule, find aid, if he be in the right, from other individuals.1 Nor is this all. There is no process of formal sequestration, it is true, by which an offending nation can be placed under the ban of civilization. But it may be excluded from all diplomatic and commercial relations with other states, and in this way a punishment may be inflicted not unlike the punishment of exile or of sequestration imposed on individuals.

II. HISTORY.

Inprimitive

times no in

124. The primitive idea of nationality was absolute independence. It is true that a confederation between. particular states was frequently instituted, to which the particular members composing it were loyal as long as they found it convenient; but where there

1 See as dissenting from position of text, 2 Steph. Hist. Cr. Law, 34-6;

ternational

law recog

nized.

and remarks of Lord Coleridge in R. v. Keyn, L. R. 2 Ex. D. 63.

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