it morally competent to any assemblage of States to make treaties or adopt customs which contravene that Law.

Positive Law, whether National or International, being only declaratory, (q) may add to, but cannot take from the prohibitions of Divine Law. “Civilis ratio civilia quidem jura corrumpere potest, naturalia non utique"(r) is the language of Roman Law; and is in harmony with the voice of International Jurisprudence, as uttered by Wolff: "Absit vero, ut existimes, jus gentium voluntarium ab earum voluntate ita proficisci, ut libera sit earum in eodem *condendo voluntas, et stet pro ratione sola voluntas, nullâ habitâ ratione juris naturalis." ."(s)

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Upon this principle we may unhesitatingly condemn as illegal and invalid all secret articles in treaties opposed to the stipulations which are openly expressed. Upon this principle it is clear that a custom of countries to destroy and plunder foreigners shipwrecked upon their shores must always, and under all circumstances be an outrage upon the rights of nations. So with respect to an usage of imprisoning strangers who have innocently arrived in time of peace, under a lawful flag, into a foreign port, on the ground that they are free men of that particular colour or complexion, which disquiets the slaveholder of the country, inasmuch as his slaves, being of the same colour and complexion, are, by the presence of the free strangers, reminded of the possibility of becoming free also; so, if there existed in a country under the government of an autocrat a law or custom of imprisoning all strangers having peaceably arrived from a country under a republican form of government-any usage of this or the like kind, however inveterate, however sanctioned by Municipal Law, however accordant with national feeling, must always be a grievous violation of International Justice. Upon the same principle Grotius condemns the violation of women in time of war, as an undoubted breach of International Law among all Christian nations. (t) In the same manner and for the same reason he denies that captives can be lawfully made slaves, and either sold or condemned to the labour of slaves.

(q) "It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please, or that laws can derive any authority from their institution merely, and independent of the quality of the subject matter. All human laws are, properly speaking, only declaratory. They may alter the mode and application, but have no power over the substance of original justice."-Burke's Treatise on the Popery Laws.

"That power which, to the legitimate, must be according to that immutable law in which will and reason are the same."-Burke's Works, vol. v. p. 180 (Thoughts on the French Revolution).

(7) Instit. de Legit, Aguat. 1. iii.

(s) Wolff, Jus Gent. Præf.

(t) The prohibition even among heathen nations was, he observes, "Jus gentium, non omnium, sed meliorum;" but amongst Christian nations, he proclaims it as an undoubted principle: "Atque id inter Christianos observari par est, non tantum ut disciplinæ militaris partem sed et at partem juris gentium-id est ut qui pudicitiam vi losit, quamvis in bello, ubique pænæ sit obnoxius."-lib. iii. c.

V. S. 2.

"Sed et Christianis in universum placuit bello inter ipsos orto captos servos non fieri, ita ut vendi possunt ad operas urgeri, et alia pati quæ servorum sunt atque ita hoc saltem quemquam exiguum est perfecit reverentia Christianæ legis."-lib. iii. c. vii. s. 9.

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*XXXV. This branch of the subject may be well concluded

by the invocation of some high authorities from the jurisprudence of all countries, in support of the foregoing opinion.

Grotius, says emphatically: "Nimirum humana jura multa constituere possunt præter naturam, contra nihil.” (u)

John Voet speaks with great energy to the same effect: "Quod si contra recta rationis dictamen gentes usu quædam introduxerint, non ea jus gentium rectè dixeris, sed pessimam potiùs morum humani generis corruptelam."(x)

Suarez, who has discussed the philosophy of law in a chapter which contains the germ of most that has been written upon the subject, says: "Leges autem ad jus gentium pertinentes veræ leges sunt, ut explicatum manet, propinquiores sunt legi naturali quam leges civiles ideoque impossibile est esse contrarias æquitati naturali."(y)

Wolff, speaking of his own time, says: "Omnium ferè animos occupavit perversa illa opinio, quasi fons juris gentium sit utilitas propria : unde contingit, id potentiæ coæquari. Damnamus hoc in privatis, damnamus in rectore civitatis; sed æque idem damnandum est in gentibus."(z)

Mackintosh nobly sums up this great argument: "The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most. abstract and elementary maxim of moral philosophy, and the most complicated controversies of civil or public law, there subsists a connection. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty."(a)

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*CHAPTER IV.

REASON OF THE THING.

XXXVI. The next question which arises in the prosecution of our inquiries into the sources of International Jurisprudence is this-How are the principles of Natural or Revealed Law to be applied to States?

Though States are properly and by a necessary metaphor treated as moral persons, and as the subjects of those rights and duties which naturally spring from the mutual relations of individuals and self-conscious agents; nevertheless it must be recollected that a State is actually a different thing from an individual person. Reason, therefore, which governs the application of common principles to diverse subjects, may be

(u) De. J. B. et P. lib. ii. c. vi. s. 6.

(2) Comment. ad Pand. de Just. et Jure, t. i. s. 19.

(y) Lib. ii. c. xx. s. 3: De Lege Eternâ et Naturali ac Jure Gentium.

z) Jus Gent. s. 163.

(a) Discourse on the Law of Nature and Nations.

regarded as a distinct source of International Law, and demands, therefore, a different application of principles intrinsically the same.(a)

This application must be made justly, and in a manner(b) suitable to this actual difference; and in order to effect this, the reason of the thing," which has been already enumerated as one of the sources of International Law" necessitas finis quæ jus facit in moralibus”(c)— must in all cases be considered.

Vattel, following and improving upon Wolff, expresses himself upon this point with his usual clearness, and more than his usual force.(d) There are many cases, he observes, *in which Natural Law can[*30] not decide between nation and nation as it would between individual and individual. It is necessary to learn the mode of applying the law in a manner agreeable to the subject; and it is the art of doing this according to justice, founded on right reason, which makes International Law a particular science. It must, as Grotius says, (e) be "recta illatio ex naturæ principiis procedens" which guides the national conscience in its international duties.

XXXVII. The most strenuous-it might be said the most vehement -advocate for this source of International Jurisprudence is Bynkershoek. There is no dissertation of his upon any subject of International Jurisprudence which does not teem with references to it. "Ratio" and "Usus" are, according to him, the two props which sustain the whole building; and "Recta ratio" is "Juris gentium magistra."

The tendency of this author, who ranks in the first class of jurists, is rather perhaps to undervalue the authority both of his predecessors and of the tribunals of his own country. His opinion on this matter, however, construed by reference to the context, and subject to the qualification which it must receive from his frequent reliance upon precedents, and upon the opinions both of jurists and civilians, contains in reality nothing objectionable or inconsistent with the doctrine of other writers(f) with respect to the international authority due to these precedents and these opinions.

Bynkershoek was very far from meaning to convey the notion that whenever a question arose between nations, either of the contending parties was at liberty to solve it arbitrarily, according to its own notions. of convenience or by an independent process of reasoning. On the contrary, in every case of doubt, the reason which long usage had sactioned was to prevail; and the authorities of writers and of precedents were also recognised as leading to a *just conclusion of Law. But he more especially recognised the fitness of one authority to direct and [*31] guide the Reason of States in the adjustment of their mutual relations; that authority was the written reason of the Roman Law.

His predecessors indeed, in every page of their writings, had assumed as unquestionable the homage due to this collection of the maxims

(a) Vattel, Préface, p. 22, 23.

(b) Kara Thν dпоKειμevny λnv.-Arist. Eth. i.; Wolff, Jus Gentium, Præf.

Grot. de J. B. et P. 1. ii. c. v. 24, s. 2.

(d) Vattel, ib. et Prélim. s. 6.

(e) Proleg. s. 40.

(ƒ) Vattel, Prélim. s. 6. And see Appendix to this Work.

deducible from right reason and natural justice. None, however, have spoken more strongly with respect to it than Bynkershoek: «Non quod, in iis,” he says, quæ sola ratio commendat a jure Romano ad jus gentium non tuta sit collectio.”(g)

And again: "Quamvis non de populi Romani, sed de gentium jurisprudentiâ agamus non abs re tamen erit de jure Romano quædam præmonuisse, cum qui id audit vocem feré omnium gentium videatur audire." (h)

Again: "Abstine commodo si damnum metuis, ipsa juris gentium, non sola Ulpiani vox est.(i)

XXXVIII. The Roman Law may in truth be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, historically speaking, the actual basis; and it has been remarked with equal force and elegance by an English civilian, "That although whatever we read of in the text of the Civil Law was not intended by the Roman legislators to reach or direct beyond the bounds of the Roman empire, neither could they prescribe any law to other nations which were in no subjection to them. . . Yet since (j) there is such a strong stream of natural reason continually flowing in the channel of the Roman Laws, and that there is no affair or business known to any part of the world now which the Roman empire dealt not in before, and their *justice still provided() [*32] for; what should hinder but that, the nature of affairs being the same, the same general rule of justice, and dictates of reason, may be as fitly accommodated to foreigners dealing with one another (as it is clear that they have been by the civilians of all ages,) as to those of one and the same nation, when one common reason is a guide and a light to them both; for it is not the persons, but the case, and the reason therein, that is considerable altogether."()

In the case of the Maria, (m) Lord Stowell expresses surprise that Vattel should mention a rule of International Law as a law merely modern, when it is remembered that it is a principle not only of the Civil Law (on which a great part of the Law of Nations is founded,) but of the private jurisprudence of most countries in Europe that a contumacious refusal to submit to fair inquiry infers all the penalties of convicted guilt."

XXXIX. Independently of the historical value of the Roman Law as explanatory of the terms and sense of treaties, and of the language of jurists, its importance as a repository of decisions, the spirit of which

Quæstiones Juris Publici, 1. i. c. iii.

(h) De Foro Legat. c. vi.

(i) Quæst. J. P. c. viii. in fine. The passage cited from Ulpian will be found Dig. lib. xvii. t. ii., s. 23.—Pro socio—" abstine commodo, quod per servum accessit, si damnum petis."

(j) Albericus Gentilis, 1. i.; de Jure Belli, c. i.

(k) "Mirum tamen est hanc novam prudentiam, Romanos, à quibus ad omnes populos juris fecialis, justitiæ fontes purissimi manarunt, antea semper latuisse." Bod. de Rep. 1. v. c. vi. p. 594. ·

(7) Wiseman's Excellency of the Civil Law, p. 110; Burke, viii. 185; Letters on a Reg. Peace.

(m) 1 Robinson's Adm. Rep. p. 363.

almost always, and the letter of which very frequently, is applicable to the controversies of independent States, can scarcely be over-stated.

From this rich treasury of the principles of universal jurisprudence, it will generally be found that the deficiencies of precedent usage, and express international authority, may be supplied.

Throughout the greater portion of Christendom it presents to each State what may be fairly termed their own consent, bound up in the municipal jurisprudence of their own country; *and this not [ *33] merely to the nations of Europe, whose codes are built on the Civil Law, but to their numerous Colonies, and to the independent States which have sprung from those Colonies, and which cover the globe.

And so we find that the Roman Law was more than once referred to as an authority, upon the international question of the Free Navigation of Boundary Rivers, by the president and diplomatic ministers of the United States of North America, in the discussion which took place between this Republic and the kingdom of Spain, as to the navigation of the Mississippi, in the year 1792; and to all nations, whatsoever and wheresoever, this law presents the unbiassed judgment of the calmest reason, tempered by equity, and rendered perfect, humanly speaking, by the most careful and patient industry that has ever been practically applied to the affairs of civilized man.

It may be fairly said, that almost all International disputes in time of peace might be adjusted by this providentially appointed arbiter, assisted by the helps, and modified by the other sources which will presently be considered; certainly it may be most truly affirmed, that the greater number of controversies between nations would find a just solution in this comprehensive system of practical equity, "Dixi sæpius," said Leibnitz, "post scripta Geometrarum nihil exstare quod vi ac subtilitate cum Romanorum scriptis comparari possit: tantum nervi inest tantum profunditatis . . . . . nec uspiam juris naturalis præclarè exculti uberiora vestigia deprehendas; et ubi ab eo recessum est, sive ob formularum ductus, sive ex majorum traditis, sive ob leges novas, ipsæ consequentiæ ex novâ Hypothesi æternis rectæ rationis dictaminibus additæ, mirabili ingenio nec minore firmitate deducuntur."(n)

So the English civilian before quoted observes:(o) " And moreover, by, as it were, a general consent of nations, *there is an appealing to, and [*34] a resting in, the voice and judgment of the Civil Law in these cases. between nation and nation. The reason whereof is, because any thing that is irrational, unnatural, absurd, partial, unjust, immodest, ignoble, treacherous, or unfaithful, that law abhorreth; and for that it is the most perfect image and representation of nature, and of the equity and reason nature prescribes to humane actions, that was ever yet presented or set forth to the world in a law."

In the negotiations between the United States of North America and Spain relative to the navigation of the Mississipi, the provisions of the (n) Op. iv. 254.

Wiseman's Excellency of the Civil Law, p. 110; Burke, viii. 185, Letters on a Reg. Peace.