nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation,—so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her.
§21. Foundation of the voluntary law of nations.
Since nations are free, independent, and equal,—and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties,—the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation, may be <lxiv> done by any other; and they ought, in human society, to be considered as possessing equal rights.
Each nation in fact maintains that she has justice on her side in every dispute that happens to arise: and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience: but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society.
It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable; because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it, constitute what Monsieur Wolf calls “the voluntary law of nations”; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law.
§22. Right of nations against the infractors of the law of nations.
The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquillity, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation.* Now all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which nature has established between them, or who directly attacks the welfare and safety of that society.
But care must be taken not to extend that right to the <lxv> prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which nature has established between them; and so far bound, that, when any one of them violates those laws, the others have a right to repress her. The conduct of each nation, therefore, is no farther subject to the controul of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.
§24. Conventional law of nations, or law of treaties.
The several engagements into which nations may enter, produce a new kind of law of nations, called conventional, or of treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject in a treatise on the law of nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history.
§25. Customary law of nations.
Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the customary law of nations, or the custom of nations. This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it,—that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance: and, with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful.
§26. General rule respecting that law.
When a custom or usage is generally established, either between all the civilised nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other,—if that custom is in its own nature in-<lxvi>different, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains any thing unjust or unlawful, it is not obligatory: on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorise her to violate the law of nature.
These three kinds of law of nations, the voluntary, the conventional, and the customary, together constitute the positive law of nations. For they all proceed from the will of nations,—the voluntary from their presumed consent, the conventional from an express consent, and the customary from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of positive law of nations.
We shall be careful to distinguish them from the natural or necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law, which they are to observe towards each other, differs in certain instances from the maxims of the internal law, which nevertheless remain always obligatory in point of conscience. As to the rights introduced by treaties or by custom, there is no room to apprehend that any one will confound them with the natural law of nations. They form that species of law of nations which authors have distinguished by the name of arbitrary.
