L A W. 



615 



C;: '. -. 

 tnt 



3 Form* 

 f| 



..-, ,: 1 



derogatory to the legislature, and inconsistent with li- 

 berty. It is only in favourable cases that a liberal in- 

 terpretation can be allowed ; in all others the evil 

 should be tolerated until an express enactment can be 

 made to suppress it. 



31. (12.) But a custom perfectly established by a 

 king succession of examples, and thus unequivocably 

 adopted by the people, supplies the defect (which in 

 this case must be supposed to be intentional ) of the 

 enactment, holds the place of a statute, and becomes 

 tacitly a law by prescription. 



32. (13.) To enable courts of law to arrive at a just 

 and accurate decision, forms of procedure are indis- 

 pensable. The misfortune is, that it is the interest of 

 practitioners, sometimes of the judge, to multiply these 

 form*, and to baffle every attempt of the most upright 

 magistrate, as well as of the legislature, to simplify and 



abridge them. Thus forms are every where so nume- Law. 

 rous as to embarrass the operation of the very laws 1 *~T"'' 

 which have established them ; a suit becomes an inhe- 

 ritance ; property remains uncertain; and the parties 

 and their heirs are ruined in their endeavours to- ascer- 

 tain the right. 



33. (14.) After the example of the Athenians, such H. Revision 

 laws should from time to time be carefully collected as of the law*. 

 are superannuated, contradictory, or useless, that the 

 national code may thus be purified and diminished, lest 

 that contempt which awaits or has already overtaken 

 such laws, should like a gangrene overspread those 

 also which are truly excellent. Yet let this reforma* 

 tion be wrought with much precaution and solemnity, 

 that the people may perceive the sacredness of the law, 

 which requires so much formality even to correct it. 



PART If. OF THE LAW OF NATIONS. 



*-. 



fnlroductiin. 



if them- 1. EACH nation being considered as a moral being 

 ! of living in a state of nature, the obligations of one nation 

 towards another are no more than those of individuals 

 modi Bed and applied to nations ; and this is what is 

 called the natural lam of nations. It is universal and 

 Hccenartf, because all nations are obliged by it, and whe- 

 ther they will or no. The foundation of this natural, 

 mmitertnl, and necestary law, is the relation which a hu- 

 man being, a* such, bears to God, to himself, and to 

 the rest of the species. Henre writers on internation- 

 al law commonly begin with a statement of the obliga- 

 tions arising from these three relations, or a view of the 

 lam of mature ; and this law they apply as the rule in 

 all questions between independent states, where speci- 

 al convention or custom is silent. For thb part of the 

 foundation of international law, we refer the reader to our 

 articles HrtKiiov (Natural), and MOIIAL PHILOSOPHY. 

 t ?. But as the simple law of nature is insufficient, 

 even in questions between individuals, and still less be- 

 tween nations when they come to have intercourse 

 and to carry on commerce with one another, their com- 

 mon interest obliges them to soften the rigour of the 

 law of nature, to render it more determinate, and to 

 depart from that perfect equality of rights which must 

 eyer, according to that law, be considered as extending 

 itelf even to the weakest These changes take place 

 -tue of conventions ( express or tacit) or of simple 

 n. The whole of the rights and obligations thus 

 established between two nation-, form the potilivt law 

 of nations between them. It is called positive, particu- 

 lar, or arbitrary, in opposition to the natural, universal, 

 and neceary law. 



3. On the example of two nations, all the nations of 

 Europe n > ommon consent, make treaties to 



regulate t> >Tit rights ; and then these general 



treaties would form a code which might be called the 

 ponitive law of nations. But there never yet existed 

 such a general treaty, either between all the powers 

 rope or even a majority of them. In this sense, 

 then, there exists no positive law of nations, and per- 

 haps none ouch ever will exist. 



But on the other hind it it clear, that whnt has be- 

 rome law between two or three, or even the majority 

 of the powers of Europe, either by treaty, or from cus- 

 tom, can produce neither rights nor obligations among 

 the rut. However, by comparing the treaties which 



ritcd. 



the powers of Europe have made with one another, 

 we discover certain principles that have been almost 

 universally adopted by the different powers that have 

 made treaties on the same subjects. It is similar with 

 respect to custom a custom received among the majori- 

 ty of the powers of Europe, particularly among the 

 great powers (when it is not founded upon their particu- 

 lar constitutions) is naturally adopted by other powers, 

 as far as it cnn apply to them ; and, in general, all na- 

 tions give a certain degree of attention to the customs 

 admitted by others, although it cannot be proved that 

 they have ever been admitted by themselves. It is \ 

 true, we cannot say as much of express conventions. 

 It nevertheless often happens, that a treaty made with 

 a particular power serves as a model for the treaties 

 of the same sort to be made with other powers ; and 

 very often what takes place in one nation in virtue of 

 treaty, is admitted in others as a custom : so that, in 

 many points, the law of nations is founded on treaty in 

 one country, and on custom in another. 



It is then the aggregate of the rights and obligations 

 established among the nations of Europe (or the majo- 

 rity of them) whether by particular but uniform trea- 

 ties, by tacit convention, or by custom, which forms the 

 general positive law of nation?. 



*. We find some vestiges of a positive law of nations i ts history. 

 among the ancients, particularly among the Greeks and 

 Romans ; but it is needless for us to go back so far. 

 The political situation of Europe is so much changed, 

 since the fifth century in particular; the introduction 

 of the Christian religion, of the hierarchical system, and 

 .ill its other important consequences ; the invention of 

 gunpowder ; the discovery of America, and of the -pas- 

 sage to the East Indies ; the ever increasing taste for 

 pomp and luxury ; the jealous ambition of powerful 

 states ; the multiplication of all sorts of alliances ; and 

 the introduction of the custom of sending ambassadors 

 in ordinary ; have had such an influence in forming 

 our present law of nations, that, in general, it is neces- 

 sary to go no farther back than the middle centuries of 

 the Christian era : and, indeed, on many points, no in- 

 formation can be obtained by going farther back than 

 the time of Henry the Great, the peace of Westpha- 

 lia, or even the beginning of the 18th century. 



It is, then, in the general history of Europe during 

 the latter centuries, and of the particular states of which 

 it is composed, that we must look for the existing law 

 of nations. 



