APPENDIX TO PART FIRST. 25 



say, tlie internal public law of each nation or state can not be regarded 

 as an external and absolute law, to which others must submit. 



Hence it results that, in order to fix the limits at which the law of 

 nations stops, it is absolutely necessary to have recourse to the various 

 elements that can give it birth. These elements are: 



1. The general principles of natural law, constituting the primitive 

 law which is the outgrowth of the presumable consent of nations; 



2. The law of custom, constituting the secondary law that emanates 

 from tacit consent; 



3. Conventional law, likewise constituting the secondary law which 

 arises from expressed consent. 



The origins of international law are therefore three in number: 



1. The reason and the consience of what is just and unjust, inde- 

 pendent of any prescription ; 



2. Custom; 



3. Public treaties. 



The principles, practices, and usages of the law of nations, in accord 

 ancewith these limits, regulate the conduct of nations, and it is for this 

 reason that in their generality they constitute international law. 



Conventional law may abrogate the law of custom, but it loses its 

 character as a law if it establishes provisions at variance with . natural 

 law. 



Although in the philosophical order natural law occupies the first 

 place, yet in the practical order of external relations, when questions 

 are to be decided or negotiations conducted, its rank is no longer the 

 same; in these cases the obligations contracted in the name of conven- 

 tional law, in virtue of existing treaties, are considered in the first 

 place. If such treaties are lacking, the law of custom establishes the 

 rule; and when there are neither treaties to invoke nor customs to fol- 

 low, it is usual to proceed in accordance with what reason establishes 

 as just, and with the simple principle of natural law. 



When external public law derives its origin from the law of conven- 

 tion and custom, it constitutes what publicists designate as positive or 

 secondary international law; when it is derived merely from the prin- 

 ciples of natural law, it is called the primitive law of nations. 



[From Burlamaqui "The Principles of Natural and Politic Law." Translated by- 

 Nugent, 1823, Part n, ch. vi, pages 135, 136.] 



IV. All societies are formed by the concurrence or union of the wills 

 of several persons with a view of acquiring some advantage. Hence 

 it is that societies are considered as bodies, and receive the appellation 

 of moral persons. * * * 



V. This being supposed, the establishment of states introduces a 

 kind of society amongst them, similar to that which is naturally 

 between men; and the same reasons which induce men to maintain 

 union among themselves, ought likewise to engage nations or their 

 sovereigns to keep up a good understanding with one another. 



It is necessary, therefore, there should be some law among nations to 

 serve as a rule for mutual commerce. JSTow this law can be nothing 

 else but the law of nature itself, which is then distinguished by the 

 name of the law of nations. Natural late, says Hobbes, very justly 

 (De Cive, cap. 14, sec. 4), is divided into the natural law of man and the 

 natural late of states; and the latter is what ive call law of nations. 

 Thus natural law and the law of nations are in reality one and the 

 same thing, and differ only by an external denomination. We must 

 therefore say that the law of nations, properly so called, and considered 

 as a law proceeding from a superior, is nothing else but the law of na- 



