annulled by a violation of the terms of the treaty, or a variation of them by consent, on the part of the party Guaranty of treaty of peace does not extend to a war arising Of the commencement and duration of treaties Ratification essential to the validity of a treaty The supposed rule de rebus sic stantibus not to be supported 175 Treaties are not all annulled by war Treaties in respect of belligerent relations are brought into 1st Rule. Treaties are to be construed according to the grammatical sense of their words 2nd Rule. Words of art are to be construed ac- cording to their technical meaning 3rd Rule. Stipulations are to be taken most strongly Excess of commission by the captain of a commissioned vessel To p. 8, n. (b), add Grot. ii. 5, xxxii.—iii. 7; Buron v. Denman, 2 Exch. Rep. 163. INSTITUTES ΟΙ INTERNATIONAL LAW. CHAPTER I. OF THE NATURE AND SOURCES OF INTERNATIONAL LAW. INTERNATIONAL law is the customary law, which determines the rights and regulates the intercourse of independent states in peace and in war. As Grotius defines it: it is the law, which obtains between sovereigns, founded on custom and implied compact (a). And in another place, the law that has sprung up amongst all or many states from mutual consent; and again, the unwritten law which the consent of nations hath established (b). An examination of the several parts of this definition will serve to shew the limits of the subject, and the divisions, of which it is capable. The first branch of it excludes from its subject every thing, which is not of the nature of law. Hence neither do treaties form any part of its elements; nor do the rules of abstract propriety, which are commonly called the law of nature. (a) Proleg. 1. Jus illud quod inter populos plures aut populorum rectores intercedit moribus et pacto tacito introductum. (b) Proleg. 17, 26. Jura inter civitatis aut omnes aut plerasque ex consensu nata. Jura non scripta quæ gentium consensus constituit. B 2 1st. International rights are either derived from the common law of nations, or are acquired by treaty. Treaties or the contracts of nations are recognized and enforced by international law; but they no more form part of it, than the contracts of private persons form part of the municipal law, by which they are enforced (c). We must take care not to confound those rules, which properly belong to the law of nations; with those, which are founded upon the municipal laws of states, or upon their treaties (d). Treaties are declaratory of international law, so far as they imply or set forth its principles; but in derogation of it between the contracting parties; so far as their legal rights are varied by their mutual stipulations. The common law of nations can only be deduced from reason and usage. Usage is derived from the perpetual current of decisions and treaties. Treaties, that depart from the custom, do not alter the law of nations (e). By a confusion of terms they have been styled conventional law, which is but another term for the law of nations; but they are in truth conventional obligations recognised by law. 2ndly. The law of nature forms no part of international law. The term is borrowed from the Roman lawyers, who seem to have divided it into primary and secondary (f). The primary law according to them consisted of those instincts, which are common to all animals, as natural affection and the like. The secondary law consisted of those institutions, which natural reason has established amongst all mankind; and it was also (c) Puff. ii. 3, xxiii. (d) Grot. iii. 2, vii. Cavendum est ne confundamus ea, quæ juris gentium sunt proprie et ea quæ jure civili aut pactis populorum constituuntur. (e) Jus gentium commune, non aliter licet discere, quam ex ratione et usu. Usus intelligitur ex perpetuâ quodammodo paciscendi edicendique consuetudine. Dixi ex perpetuâ quodammodo consuetudine, quod unum forte alterumvi pactum, quod a consuetudine recedit, jus gentium non mutat. Bynk. Q. J. P. x. (f) Ff. i. 1, 3; Inst. 1, 2, i. |