derived by it in the same manner as municipal law; viz. firstly, from the positive legislation of the state in reference to relations which are international in their character; that is, relations arising out of the existence of foreign states, and from the recognition of their authority to give laws and hold jurisdiction over persons and things. Such legislation must be recognized by the tribunal on the authority of the state alone to which it belongs, whether it be made by the state singly, or jointly with other states, in the form of treaties and agreements. Secondly: from the recognition of natural law by such criteria or expositions of that law, applied to the same international relations, as may be supposed to be adopted by the state to which the tribunal belongs, and whose will it executes in the administration of international law as well as of the municipal: and these are the same as are adopted in ascertaining the municipal law-decisions of preceding tribunals having the same national authority, the writings of private jurists, and the laws and decisions and customs of all other states;' comprehending herein, also, the recognition of universal jurisprudence, the science of a law of nations historically known: which recognition by judicial tribunals is particularly manifest and necessary in the administration of private international law, as will be shown in the following chapter. International law, thus applied by the judicial tribunals of any state, is only to be distinguished from the municipal law of that state in the nature of the relations which it affects; it is identified with it in respect to its authority over all persons within the jurisdiction of the state."

Grotius; B. et P. Proleg., § 40, Lib. I., c. i., § 12, 14. I. Kent's Comm., 18, 19. Reddie: Hist. View L. of Marit. Com., 26, 27, 426, 429. Hoffman's Course of Legal Study, vol. i., p. 415-16. Burge: Col. and For. Law, vol. i., xvi. Ram, on Legal Judgment, p. 94. Phillimore; Internat. L., p. 61.

It is only civilized nations, or those of a certain kind of culture, that are thus recognized by their several tribunals as the sources of universal jurisprudence. See Selden: De J. Nat. &c., Lib. i., c. vi., who designates them as "gentes moratiores," in the language of Grotius: B. et P., Lib. i., 12, 2. Phillimore: Int. L., c. iii. Heffter designates his work-Das Heutige Europäische Völkerrecht.

This discrimination between different nations as sources of jural rules, is not an a priori assumption by the tribunal making it. It is rather a part of the customary law of the state whose will the tribunal is bound to apply. This act of a judicial tribunal must not be confounded with the sovereign legislative act of a state in adopting a foreign law, as when in the XII. tables, the Romans adopted some of the laws of Greece. Dig. L. I., Tit. 2, c. 2, § 4; "peterentur leges a Græcis civitatibus." This point is more fully considered in the second chapter.

37. From the conditions necessary to the existence of a relation between states, or from the fact that though composed of natural persons, each subject to the power of society, they have a distinct existence and power of action in respect to each other, as well as in respect to private individuals, any rule which would decide on the relations of states, as such, towards each other, and maintain their correlative rights and duties, would be an international law. But from the nature of states and their mutual independence, there is no such rule, taking the word law in the strict sense; and the application of such a rule or law could not be made by the judicial tribunals of any state or nation. A coercive determination of these rights and obligations can be expected only from the autonomic force of the parties to whom this law may attribute them.

But from the reciprocal assertion and acknowledgment which all states or nations have in fact made of principles of natural reason, or from that course of practice which is supposed to be founded on a reciprocal reference to such principles in their relations with each other, and from the consideration actually allowed to the ethical views of some private authors in reference to such national practice, an exposition of natural law has arisen, which corresponds with the common law, or judicially ascertained municipal (national) law of any one state, having in practice the character of a rule of action for states; determining their relations to each other, and the correlative rights and obligations of each, though there is no tribunal to decide between them in its application; that is, no tribunal which can enforce the rights and obligations, arising under it, in particular cases.1

§ 38. Rules thus recognized form a part of universal jurisprudence, (law of nations in that sense,) to which states or nations reciprocally refer as to an international law having an existence

1 Even Mr. Reddie, who distinguishes the existence of a universal jurisprudence operating as part of the coercive private law of each several nation, seems to hold that there is a law derived in the same manner, and operating on the state as a political person, having the same kind of authority. See Inquiries Elem. &c., 2d ed., p. 456, and Inq. in International Law, 2d ed., 439, 456.

Wheaton, in his El. of International Law, § 10, cites Heffter as taking the same view; but in the last ed. of Das Europäische Völkerrecht der Gegenwart, Berlin, 1855, p. 2, n. 2, the latter author says that Mr. Wheaton has misconceived his meaning.

independent of their several juridical assent. In its origin, this law, of which nations are then taken to be the subjects, is identified with the law applied by judicial tribunals as an interpretation of the law of natural reason between private persons, in both municipal (internal) and international law,-the law of nations, in the sense of private law judicially recognised because existing among all nations. And though it is a law for those nations only in the imperfect sense of the word, it may be called a part of positive law, or be included in jurisprudence-the science of positive law, when the term positive is used not to indicate the coercive quality, but the quality of being an ascertained rule,—a rule having an objective existence independently of the subjective conception of any one state or nation, or of any private person or persons; a rule which is not necessarily the true law of nature or of natural right, but that which many states have agreed in applying for such.' As such it is referred to by sovereign nations for public law, and is enforced by judicial tribunals for private law, being binding on those tribunals until contravened or disallowed by the several juridical action of the states to which they belong, or for which they exercise the judicial function.

39. It is always consistent for sovereign powers to reconsider their own previous judgment in respect to any application of the law of nature. This may be done by single sovereignties in either division of the municipal (internal) law, constituting, in private law, social change or reform,' and in public law, civil or political change or revolution: in either of which forms the

1 The controversial writings of publicists on these questions of definition are noted in all the treatises on international public law. Though it may be difficult to estimate the actual influence of professed metaphysicians on these subjects, (compare Wheaton: Hist. of the Law of Nations, p. 749, and Heffter: Europ. Völkerr., § 9,) it is probable that the distinctions made by Kant, Fichte and Hegel, in their juristical writings, have led to a greater accuracy of expression on these topics. It is worthy of notice that the positions taken by some later authors correspond in a remarkable degree with those of Suarez the Jesuit, one of the earliest writers. That attention to them has been renewed is shown by the proposal of M. Greuse, of Brussels, to republish the entire works of Suarez.

"Souvent les

2 B. Constant: Cours de Politique, Euvres, Tom. i., p. 174, n. dépositaires du pouvoir sont partis du principe que la justice existait avant les lois, pour soumettre les individus à des lois rétroactives, ou pour les priver du bénéfice des lois existantes; couvrant de la sorte d'un feint respect pour la justice la plus révoltante des iniquités. Tant il importe sur les objets de ce genre, de se garder d'axiomes non définis."

change may be either gradual or sudden, peaceful or violent.'

Or this reconsideration may be made by sovereign national powers in international law; either in that law which each state applies by its own tribunals to persons in international relations, for the private international law, or those reciprocal rules of intercourse, which, as the parties to be governed by the rule, they may mutually adopt for public international law, (in the imperfect sense of a law.) Both which divisions of international law have been constantly changed and extended during the time of recorded history, according to altered views of natural equity.

Universal jurisprudence or the law of nations, whether taken to be a rule determining the relations of states or of private persons, being thus a consequence of the juridical action of states or nations, is always liable to changes, which (from the a priori principle before stated, viz. that the legislative action of states is always juridical or jural, that is conformed to natural reason) must be taken to be progress or improvement.❜

§ 40. Under the preceding view of the nature and extent of the law, every action and relation which is the subject of jurisprudence may be taken to be determined either by international or by municipal (national) law.

The rights of persons, though all relative in respect to other persons owing or bound to corresponding obligations, may be distinguished as rights in correspondence with obligations on the part of the community at large, or as rights correspondent to obligations on the part of particular persons.'

1 Revolution is resistance against the legal possessor of sovereign power. But it is founded on the assertion of a share of sovereignty, or right of supreme control, in the revolutionist, (a right above law,) and in case of success, the change, whether ethically rightful or not, becomes lawful, by being the act of the actual sovereign.

Suarez: de Legib. et Deo Legisl., ch. 20, § 6, 8. Doctor and Student, p. 63: "For though the law called jus gentium be much necessary for the people, yet it may be changed."

Whewell: El. Mor. and Pol., § 1143. "The law of nations, including in this international law, is subject to the conditions of which we have already spoken as belonging to the law of any one nation. It is capable of progressive standards: it is fixed for a given time, and obligatory while it is fixed: but it must acknowledge the authority of morality, and must, in order to conform to the moral nature of man, become constantly more and more moral. The progress of international law in this respect is more slow and irregular than that of a well guided national law, &c." And compare Savigny's Vocation of our age for Legislation and Jurisprudence, Hayward's Translation, p. 134.

* Reddie's Inquiries Elem. &c., p. 171. See citation, ante, page 20, note: “But

The first class may be called individual rights, as belonging to persons each necessarily or absolutely recognized before the law as individual members of society. The individual rights of persons, (called by Blackstone, absolute,) have ordinarily been taken to be three, denominated: the right of personal liberty; the right of personal security; and the right of property.'

The second class may be called relative rights, as belonging to persons in consequence of a relation established between them and others, not necessarily arising from their being individual members of the community.

These relative rights have been classed as the rights of parent and child; of husband and wife; of master and servant.

Both individual and relative rights, considered with reference to the persons to whom they are attributed, may be called private rights; while, in view of their existence in relation to the supreme power of society or the state, and the persons of whom it is composed, they may also be termed civil and public rights. 41. From the nature of law, in its ordinary sense, including the idea of inferiority and subjection, corresponding with superiority and authority, the term a right implies a liberty in the person to whom the right is attributed; jus est facultas agendi. The idea of freedom associated with the idea of law, or legal freedom, as the condition of a person, consists in the

though rights and obligations are in reality and correctly, the relations of individual persons to other individuals, they are plainly correlative terms. And it is manifest, in the first place, that they may exist between any one individual, or a definite number of individuals, and all other individuals generally and indefinitely, the right being positive against all others, adversus omnes, and the obligation on all others being only negative. Or they may exist between particular individuals, and instead of being adversus omnes, directed against all other individuals indefinitely, may exist or be directed only against one or more particular individuals, who are under corresponding obligation, not merely negative not to interfere, but positive to do, or bear, or suffer something for the behoof of the person having the right." And see Austin: Prov. of Jurisp., Appendix, xxiv., xxv., definitions of rights in rem and in personam. Also, Mackeldey Compend. Mod. Civil Law, Introd., §§ 15, 16.

Civil

1 Dr. Lieber denominates such rights primordial. Pol. Eth., vol. i., p. 218. Lib. and Self Gov., vol. i., p. 52. The terms absolute or primordial convey the idea of rights anterior or independent of positive law as herein before defined: rights existing under some independent law of nature: which, as before shown, has no existence, -no judicial recognition in jurisprudence, as independent of positive law. Primordial is a term liable to the same objections which Dr. Lieber advances against the term absolute in the place referred to. He also uses the term individual as a synonym. P. E., vol. i., p. 402: "We speak of individual primordial rights." Droits individuels is a common term in this sense with the French jurists. Ahrens: Naturrecht, p. 160. speaks of Individuellen Rechte.