XXXIX. Analogy (u) has great influence in the decision of International as well as of Municipal tribunals; that is to say, the application of the principle of a rule, which has been adopted in certain former cases, to govern others of a similar character as yet undetermined. Of course the justice and force of this application must chiefly depend, in each case, on the closeness of the parallel between the circumstances of the precedents appealed to and those of the cases in dispute.

(u) Bynkershoek, de Foro Leg. c. iii. p. 446.

"By the ancient law of Europe, such a consequence (i. e. the condemnation of the ship on account of a contraband cargo) would have ensued; nor can it be said that such a penalty was unjust, or not supported by the general analogies of law."-Lord Stowell, The Maria, 1 C. Rob. Adm. Rep. 90.

"Is qui jurisdictioni præest ad similia procedere et ita jus dicere debet."-Dig. 1. i. t. iii. s. 12.

"Semper quasi hoc legibus inesse credi oportet, ut ad eas quoque personas et ad eas res pertinerent, quæ quandoque similes erunt."

Ib. 27.

"De quibus causis scriptis legibus non utimur, id custodiri oportet, quod moribus et consuetudine inductum est: et si qua in re hoc deficeret, tunc quod proximum et consequens est.”—Ib. 32.

"Si quid in edicto positum non inveniatur, hoc ad ejus regulas ejusque conjecturas et imitationes possit nova instruere auctoritas."-Cod. 1. i. t. xvii. 2, 18.

Savigny, R. R. i. s. 46; Auslegung der Gesetze-Analogie.

Bowyer's Readings, p. 88: "Analogy is the instrument of the progress and development of the law." See some good observations on the use of analogy in the English Law in the cases of Mirehouse v. Rennell, 8 Bingham Rep. 518; Bond v. Hopkins, 1 Schoales and Lefroy Rep. 429.

CHAPTER V.

CONSENT OF NATIONS.

XL. THE next and only other source of International Law is the consent of Nations. The obligations of Natural and Revealed Law exist independently of consent of men or nations, and although the latter acknowledge no one superior upon earth, they, nevertheless, owe obedience to the laws which they have agreed to prescribe to themselves, as the rules of their intercourse both in peace and war (a).

How and where is this consent expressed? It is not indeed to be found in any one written code : but this may be the case with the Municipal or Common Law of any country, as it was till lately with the institutions of every European nation, and as it is now with those of Great Britain.

XLI. This consent is expressed in two ways:- 1. It is openly expressed by being embodied in positive conventions or treaties. 2. It is tacitly expressed by long usage, practice, custom,-" Jus moribus et tacito pacto in"troductum" (b),-according to Grotius; or, in the precise

(a) "Quum enim gentes nulla superiore in terris contineantur, sunt illis pro legibus, quæ ipsi sibi dixêre; vel scriptis tabulis vel moribus introductis, qui sæpe scripturis istis comprobantur."-Leibnitz, Dissertatio 11, "De actorum publicorum usu atque de principiis juris naturæ et gentium," &c., s. i. p. 310.

"Sed sicut cujusque civitatis jura utilitatem suæ civitatis respiciunt, ita inter civitates aut omnes, aut plerasque, ex consensu jura quædam nasci potuerunt; et nata apparent, quæ utilitatem respicerent non cœtuum singulorum, sed magnæ illius universitatis. Et hoc jus est quod jus gentium dicitur, quoties id nomen a jure naturali distinguimus.-Grot. de J. B. et P. Proleg. s. 17.

(b) Grotii Proleg. s. 1, de Jure B. et P.

language of Bynkershoek, “Ipsum jus gentium, quod oritur e "pactis tacitis et præsumptis quæ ratio et usus inducunt" (c).

XLII. Customs and usages which have long subsisted between nations constitute a law to them: "Nec negamus," says Grotius, "mores vim pacti accipere "(d). Each State has a right to count upon the presumption of their continuance : in no instance are they to be lightly departed from by any single nation; never without due notice conveyed to other countries, and then only in those cases in which it may be competent to a nation so to act.

For instance, a State may refuse-though it would be a defeasance of comity bordering upon hostility-to receive the resident Ambassador of another State; but if it does receive him, it must accord to him the full privileges of his station: they are secured to him by the universal consent of all nations, which it is not competent to any individual nation at her pleasure to abrogate or deny.

So in the case of the Louis, Lord Stowell reversed the sentence of a Vice-Admiralty Court, which had condemned a French ship for being employed in the slave trade, and resisting the search of a British cruiser, saying, "that "neither a British Act of Parliament, nor any Commission "founded on it, can affect any right or interest of foreigners, "unless they are founded upon principles, and impose regula

(c) Quæstiones Juris Publici, 1. iii. c. x. Again he says, "Ut in omni argumento, quod de jure gentium est, ratio et usus faciunt utramque paginam."-Ib. c. v.

(d) Lib. ii. c. v. s. 24, p. 259. "It is my duty not to admit that, because one nation has thought proper to depart from the common usage of the world, and to meet the notice of mankind in a new and unprecedented manner, I am, on that account, under the necessity of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance, independent of all practice, from the earliest history of mankind."-The Flad Oyen, 1 C. Rob. Adm. Rep. pp. 139-146. See, too, Vattel, ii. l. iv. c. vii. s. 106.

Bynkershoek, de Foro Legatorum, c. v. ad fin., speaking of the attempt to subject a foreign prince to a municipal tribunal by seizing some trifling property of his as it passed through the kingdom, says, "Nec quicquam magis erit contra præsumtam si non testatam mentem gentium."

"tions that are consistent with the Law of Nations.

That "is the only Law which Great Britain can apply to them; "and the generality of any terms employed in an Act of "Parliament must be narrowed in construction by a religious "adherence thereto " (e).

The force of International Custom is emphatically expressed by Grotius in the phrase often repeated by him, "Placuit gentibus" (f); and still more in the phrase, "Christianis in universum placuit "(g). Bynkershoek speaks of "illa perpetuo usu inter diversos sui juris populos "observata consuetudo," and repeatedly of the "gentium "usus" as one of the two pillars of International Law.

Prince Talleyrand, in his note (19th December, 1814) to the Congress of Vienna, expostulated upon the violation of International Law contained in the arrangements which sanctioned the fresh partition of Poland, and the annexation of parts of Saxony to Prussia. He said that such arrangements would tend to establish the principle "that the "nations of Europe are united to each other by no other moral "ties than those which unite them to the islanders of the "Pacific; that they live among each other under the pure law "of nature, and that what is called the Public Law of Europe "does not exist; since although all the civil societies of the "earth are, wholly or partially, governed by usages which "constitute laws, the customs which are established between "the nations of Europe, and which they have universally, constantly, and reciprocally observed for three centuries, "do not form a law for them; in one word, that there is no "other law but that of force" (h).

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(e) 2 Dodson Adm. Rep. p. 239.

(f) De J. B. et P. 1. ii. c. xviii. 4, s. 5; l. iii. c. vi. 3; c. vii. 5, s. 2. (g) Lib. iii. c. vii. 9, s. 1. "Hoc saltem perfecit reverentia Christianæ legis."-Ib.

As to preserving women from violence: "Atque id inter Christianos observari par est, non tantum ut disciplinæ militaris partem, sed et ut partem juris gentium.”—Lib. iii. c. v. xix. s. 2; cf. The Flad Oyen, 1 C. Rob. Adm. Rep. 141 (Lord Stowell).

(h) Wheaton's History of the Law of Nations, p. 429. Klüber, Acten des Wiener Congresses, Band vii. s. 48.

XLIII. Lord Stowell frequently expressed his entire concurrence with the opinions of preceding jurists as to the great and inestimable influence of Custom upon the Rights and Duties of Nations. Speaking of the condemnation of a ship in a neutral country, he says: "It has been " contended that such a sentence is perfectly legal, both on "principle and authority. It is said that, on principle, the "security and consummation of the capture is as complete in "a neutral port as in the port of the belligerent himself. On "the mere principle of security it may perhaps be so; but "it is to be remembered that this is a matter not to be "governed by abstract principles alone; the use and practice "of nations have intervened, and shifted the matter from its "foundations of that species: the expression which Grotius "uses on these occasions (placuit gentibus) is, in my opinion, "perfectly correct, intimating that there is a use and practice "of nations, to which we are now expected to conform " (i).

In another case (j), he says: "This is a position in which "I am justified by the general practice of mankind, and the

practice of mankind forms one great branch of the law of "nations." Throughout his celebrated judgment in The Maria (k) he relies invariably upon "the law and practice of "nations." And again, in The Santa Cruz, after having observed that there is no statute of the British Parliament upon the subject of Prize which directly applies to recapture, he continues: "But there is a law of habit, a law of usage, a "standing and known principle, on the subject in all civilized "and commercial countries: it is the common practice of "European States in every war to issue proclamations and "edicts on the subject of Prize; but till they appear, Courts "of Admiralty have a law and a usage on which they "proceed, from habit and ancient practice, as regularly as

(i) The Henrick and Maria, 4 C. Rob. Adm. Rep. pp. 54, 55. (1) The Progress, 7 C. Rob. Adm. Rep. p. 220.

(k) 1 C. Rob. Adm. Rep. pp. 350, 362, &c. See too The Flad Oyen, Ib. 140, 141.