judgment and practice of nations, which must be looked to for exposition of these subjects; and when in a treaty an enumeration is made of particular articles, or particular matters, according to the nature of the treaty, this is held to be done in order to prevent misunderstanding, and not to warrant the inference, that the articles or matters excepted from the enumeration should be considered as tacitly sanctioned thereby the rule "Exceptio confirmat regulam" is not applicable to cases of this description.(9) LVII. The consent of Nations is also evidenced by the Proclamations or Manifestoes() issued by the governments of States to the subjects of them upon the breaking out of war. These frequently contain, not only expositions of the causes which have led to this result, but also a defence of the government, founded upon a reference to the principles of International Law, in declaring an offensive or undertaking a defensive war. These public documents furnish, at all events, decisive evidence(s) against any state which afterwards departs from the principles which it has thus deliberately and solemnly invoked; and in every case they clearly recognize the fact, that a system of law exists which ought to regulate and control the international relations of every state. LVIII. The Marine Ordinances or regulations of a State afford valuable testimony, first, as to the practice of the State itself upon this branch of International Law; and also, in some degree, as to the usage of Nations as generally recognized *at that time by the jurists [ *51] and statesmen, the legislative assemblies of the country which issued them.(t) When the institutes of great maritime countries agree upon a question of International Maritime Law, they constitute a tribunal from which there can rarely, if ever, be any appeal. Certain of these institutes, independently of their agreement or disagreement with other maritime codes, have always been held in the highest respect; and certainly no English writer or judge can be accused of national partiality for relying upon them.(u) These are the cele (9) The Ringende Jacob, 1 Rob. Adm. Rep. p. 92 (Lord Stowell). 7) The Santa Cruz, 1 Rob. Adm. Rep. 61. (s) The remarks which Eschines so forcibly urges as to the advantage of public records, and the testimony they bear to the character of public men, is equally applicable to states: “Καλόν, ὦ ἄνδρες Αθηναῖοι, καλὸν ἡ τῶν δημοσίων γραμμάτων φυλακή ἀκίνητον γάρ ἐστι καὶ οὐ συμμεταπίπτει τοῖς ἀυτομολοῦσιν ἐν τῇ πολιτείᾳ ἀλλ ̓ ἐπέδωκε τῷ δήμῳ, ὁπόταν βούληται, συνιδεῖν τοὺς πάλαι μὲν πονηρούς, ἐκ μεταβολῆς δ ̓ ἀξιοῦντας εἶναι χρηστους. -Eschin. Orat. Adv. Ctesiph. s. 75. (t) Wheaton states the proposition in a less limited shape.-Elements of Intern. Law, p. 101. See The Maria, passim, especially p. 368, 1 Rob. Adm. Rep.; The Hoop, 1 Rob. Adm. Rep. pp. 198, 199. (u) The Maria, passim. Oppenheim, System des Völkerrechts, kap. v. s. 8. "The venerable authority of the Consolato."-Lord Stowell, 5 Rob. Adm. Rep. p. 4, Henrick and Maria. "Il Consolato del Mare, cap. 273, expressly says, 'The enemy's goods found on board a friend's ship shall be confiscated;' and this is a book of great authority."-The Duke of Newcastle's Letters to M. Michel, note to first Proposition, p. 64. brated Consolato del Mare," with the commentary of Casaregis, and the French Ordonnance sur la Marine of 1681, with the commentary of Valin; and, due regard being had to the modern practice, the "Collection des Lois Maritimes Antérieures au XVIII.e Siècle," by Pardessus. LIX. The consent of Nations is also evidenced by the decisions of Prize Courts, and of the tribunals of International Law sitting in each country. It has been already observed, that in time of war, neutral States have a right to demand ex debito justitia(x) that there be courts for the administration of International Law sitting in the belligerent countries.(y) *The duties of those courts are faithfully described by Lord Stowell, in the case of the Swedish Convoy :(2) "In forming my [* 52] judgment, I trust that it has not for a moment escaped my anxious recollection what it is that the duty of my station calls for from me; namely, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the Law of Nations holds out, without distinction, to independent states, some happening to be neutral, and some belligerent: the seat of judicial authority is indeed locally here, in the belligerent country, according to the known law and practice of nations, but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character.” In another case,(a) he says: "It is to be recollected that this is a Court of the Law of Nations, though sitting here under the authority of the king of Great Britain. It belongs to other nations as well as to our own; and what foreigners have a right to demand from it is the administration of the Law of Nations simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence, to which it is well known they have at all times expressed no inconsiderable reluctance." It cannot be denied that this theory of judicial duty breathes the very spirit of pure and impartial justice. It is to be remembered, also, that the simple enunciation of such a theory is, to a certain extent, a guarantee for a corresponding practice on the part of the nation proclaiming it. It holds up the severest standard by which to measure *the decisions of the court; and it witnesses beforehand, as it were, [*53] against any deviation from the path of duty thus emphatically pointed out. The remark of Mr. Wheaton upon this theory, expounded, he admits, (x) The Snipe and others, Edwards' Adm. Rep.; also published separately. (y) See important remarks of Mably, Droit Public, vol. iii. pp. 350, 351; and Wheaton, Hist. p. 171, note. (2) The Maria, 1 Robinson, p. 350. (a) The Recovery, 6 Dodson's Adm. Rep. p. 349. by "one of the greatest of maritime judges," is, that those whose interests are affected by those adjudications will always doubt whether the practice corresponds with the theory-especially in the case of a great maritime country, whose judge must, he thinks, unconsciously feel the national bias in favour of whatever operates to the encouragement of the national navy. These judgments, however, he says, if the principles upon which they are founded be rigorously examined, may be an instructive source of information upon Prize Law; and he himself enumerates the adjudication of Boards of Arbitrators and Prize Courts" among the sources of International Law, ascribing greater weight to the former than to the latter authority. It is true that the value of the judgments referred to depends upon the principles, reasonings, and authorities upon which they rely; but it is the constant practice in these cases to state the data at length, as well as the judicial conclusion; and Mr. Wheaton himself does not suggest that the latter are often found inconsistent with the former. In the very elaborate letter addressed, March 28, 1843, to the British Government, by Mr. Webster, then Foreign Secretary to the United States, that eminent person, after contending that there is no distinction between the right of Visitation and the right of Search, observes: "If such well-known distinction exists, where are the proofs of it? What writers of authority on the public law, what adjudications in Courts of Admiralty, what public Treaties, recognise it ?”(b) As reference has been, and must afterwards be made, in the course of this work, to the judgments of Lord Stowell, and as it is important to mark the place which these are *entitled to occupy among the [ *54 ] sources of International Law, the opinion of American jurists with respect to them becomes valuable, and for many reasons. When they were delivered, the greater portion of Continental Europe was under the actual dominion, or at least the predominating influence of France, which then disregarded all the authorities of the ancient Law of Nations. These judgments contain frequent references to French writers upon Maritime Law, and to Vattel generally, as a work of the highest authority. The assent or dissent therefore of France, and the countries subject to France at that time, could not affect the merit of these decisions. The United States of North America, however, were naturally inclined to favour France from motives of gratitude. These States composed a free maritime nation, daily increasing in all the elements of national greatness and prosperity; occupying an immense territory in the new world; avowedly adhering to the system of International Law(c) as acknowledged and received at the time when they became an independent kingdom: they were themselves, during a portion of the momentous period over which these decisions extend, a Neutral Power, upon whom the principles laid down in them pressed, however justly, with great and acknowledged severity; and during another portion a Belligerent, (b) Wheaton's Hist. p. 711. (c) Commentaries upon American Law, by Mr. Chancellor Kent, vol. i. p. 1, citing instance of the 4th of December, 1781; Annals of Congress, vol. vii. 185. actuated by the keenest hostility against the country in which these judgments were delivered. The verdict of such a nation is unquestionably entitled to great weight in matters of International Law, and not open to the charge, with respect to this epoch at least, of partiality to the Prize Tribunals of Great Britain. For this reason, the opinion of Mr. Chancellor Kent upon the subject of Lord Stowell's judgments is very valuable. A portion of the Chancellor's work was devoted by him to the subject *of Inter[*55] national Jurisprudence, and it is certainly in no way inferior to the rest of the commentaries which have earned for him a very high legal reputation in the Western hemisphere; (d)— "In the investigation of the rules of the Modern Law of Nations, particularly with regard to the extensive field of maritime capture, reference is generally and freely made to the decisions of the English Courts. They are in the habit of taking accurate and comprehensive views of general jurisprudence, and they have been deservedly followed by the Courts of the United States on all the leading points of National Law. We have a series of judicial decisions, in England and in this country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthen and embellish the conclusions of reason. They contain more intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the loose dicta of elementary writers. When those courts in this country which are charged with the administration of International Law have differed from the English adjudications, we must take the law from domestic sources; but such an alternative is rarely to be met with; and there is scarcely a decision in the English Prize Courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our National Courts. We have attained the rank of a great commercial nation; and war, on our part, is carried on upon the same principles of maritime policy which have directed the forces, and animated the councils of the naval powers of Europe. When the United States formed a component part of the British Empire, our Prize Law and theirs was the same; and after the Revolution it continued to be the same as far as it was adapted to our circumstances, and was not varied by the [*56] power which was capable of changing it. The great value of a series of judicial decisions in prize cases, and on other questions depending on the Law of Nations, is, that they render certain and stable the loose general principles of that Law, and show their application, and how they are understood, in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and are presumptive, though not conclusive evidence of the Law in the given case.' "This was the language of the Supreme Court of the United States so late as 1815; and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly respected by that Court as enlightened commentaries on the Law of (d) Kent's Commentaries upon American Law, vol. i. p. 68. Nations, and affording a vast variety of instructive precedents for the application of the principles of that Law. Few names have obtained greater celebrity upon questions of International Law than that of Dr. Story; and with his opinion this branch of the subject may be concluded: "How few," he says, "have read with becoming reverence and zeal the decisions of that splendid jurist-the ornament, I will not say, of his own age or country, but of all ages and all countries; the intrepid supporter equally of neutral and belligerent rights; "the pure and spotless magistrate of nations, who has administered the dictates of universal jurisprudence with so much dignity and discretion in the Prize and Instance Courts of England!-Need I pronounce the name of Sir William Scott?" The seal of Courts of Admiralty, being also Courts of International Law, is judicially taken notice of, without positive proof of its authenticity, by the Courts of all Nations. (e) [*58] *CHAPTER VII. WRITERS ON INTERNATIONAL LAW. LX. THE consent of nations is further evidenced by the concurrent testimony of great writers(a) upon International Jurisprudence. The works of some of them have become recognised digests of the principles of the science; and to them every civilized country yields great, if not implicit homage.(b) (e) Yeaton v. Fry, 5 Cranch's (American) Rep. 335, 343 (Ch. J. Marshall); [*57] Thompson v. Stewart, 3 Conn. (American) Rep. 171; 2*Kent's Commen taries, 121, note. But the rule is different as to the seal of other foreign courts: Delafield v. Hand, 3 Johns. (American) Rep. 310; Desobrey v. Laistre, 2 Harr. & Johns. (American) Rep. 192. Henry v. Adey, 3 East 221: "In an action upon a judgment obtained in the island of Grenada, the plaintiff, at the trial before Lord Ellenborough, C. J., at the sittings after last term at Guildhall, proved the handwriting of the Judge of the Court subscribed to the instrument purporting to be the judgment of the Court, but could not prove that the seal affixed to it was the seal of the island; for want of which proof the plaintiff was nonsuited." The Court, on an application to set aside the nonsuit, upheld it. (a) See some very sensible remarks on this head, by M. Ortolan, Diplomatie de la Mer, 1. i. c. iv. t. i. p. 74, &c. "Text writers of authority showing what is the approved usage of nations, or the general opinion respecting their natural conduct, with the definitions and modifications introduced by general consent," are placed as the second branch of International Law by Wheaton.-El. of Int. Law, vol. i. p. 59. (6) The English Courts of Common Law, and English commentators upon that law, both in cases of public and private International Law, have been in the habit of referring to other works of these foreign authors, as containing evidence of the law to be administered in England: e. g. see Comyn's Digest, tit. Ambassador, where Grotius is cited. See the authorities cited by Lord Mansfield in the cases relating to ambassadorial privileges, mentioned in a later part of this work; and see the whole part of this work on Comity, or Private International Law. Lord Mansfield, in fact, built up the fabric of English Commercial Law upon the foundation of the principles contained in the works of foreign jurists. In the Admi |