Page:Popular Science Monthly Volume 19.djvu/113

Rh with nations: they can not be bound but by their own consent; hence the treaties which form the basis of the positive law of nations. It is also by concurrence of wills that nations obligate themselves to observe certain rules looking to the conflicts likely to arise in the application of the particular laws of the different states. Agreements are not necessarily expressed; a tacit consent suffices to form an agreement. It is the same in international conventions: the greater part of those which form the basis of the law of nations are tacit agreements; the law of nations is principally a customary law, which is founded on the tacit consent of the peoples. That which is true of the law of nations is also true of the private international law: certain rules common to all nations can not be formed but by a concurrence of consent, express or implied. On this particular point the treaties are very few; and these, are particular agreements between the two states, having no relation but to the interests of the contracting parties. There remain only the customs which are established by implied general consent. This is almost the sole source of the private international law. There is, however, a vast difference between the international customs and the customs which form one of the sources of the civil law of each state. The latter have the force of law, until abrogated by some particular statutory enactment; they are the implied expression of the sovereign will of the nation they might be called tacit laws. Not so with the international customary right. Since it is a question of sovereignties, they can not, correctly speaking, be called laws; hence the nations could not be bound to recognize a legislative authority higher than their own. The international customs do not hold the place of laws—they hold the place of agreements; they are implied treaties. How are these implied treaties formed? This is a capital question, and as difficult as it is important. Ordinarily international customs are considered as being of the same nature as national customs. This is not the case: the former are tacit treaties, while the latter are tacit laws, and there is a great difference between treaties and laws; the treaties are formed by a concourse of wills, and the laws are promulgated by way of commandment; the treaties differ in their essence from laws; the conditions, therefore, under which tacit treaties can be formed should also differ from the conditions under which implied laws are formed. The intimate lien which exists between the private international law and the law of nations brings up a redoubtable problem. Is there a law of nations? Those who deny it have strong reasons for doubting. Can there be a law without a legislature; without a tribunal to apply the law, and without any authority to execute the sentence of the court? And, in this matter of the law of nations, where are the legislative, executive, and judicial powers? It may be said that right is necessarily anterior to the law, that it results from the nature of man and civil societies: if the relations between individuals are necessarily