When Grotius wrote his immortal work he derived but little help(c) from any predecessor in the noble career which he chose for [*59] himself. Albericus Gentilis, Arthur Duck, and Suarez had indeed left him materials of which he fully availed himself, as well as of the labours of publicists like Ayala and Bacon, and of the commentators on the Civil and Canon Law; but he may be almost said to have himself laid the foundation of that great pillar of International Law—the authority of International Jurists. His own book, one of the firmest barriers yet erected by Christendom against barbarism, and the works of some subsequent writers upon the same subject, have long obtained the honour of being the repositories to which nations have recourse for argument to justify their acts or fortify their claims. They are indeed, with the modifications that reason and usage apply, admitted umpires in International disputes; and this fact has greatly contributed, and still does contribute, to clothe the Law of Nations, more and more, with the precision and certainty of positive and municipal law.

The value ascribed to the opinion(d) of each writer, in the event of there being a difference between them, is a point upon which it is impossible to lay down a precise rule; but among the criteria of it will be the length of time by which it is, as it were, consecrated, the period when it was expressed, the reasoning upon which it rests, the usage by which it has been since strengthened, and to the previous existence of which it testifies.(e)

*When, on the other hand, their authority, in the absence of any contrary usage or convention, may be safely said to be bind- [*60] ing upon all nations: "All writers upon the Law of Nations unanimously acknowledge it," is not the least of Lord Stowell's arguments for the belligerent's right of search.(f)

"In cases where the principal jurists agree, the presumption will be very great in favour of the solidity of their maxims: and no civilized nation that does not arrogantly set all ordinary law and justice at defi

ralty and Ecclesiastical Courts, these works had been always referred to as authorities. It is by these courts indeed, and the practitioners therein, that the study of Civil and International Law was alone preserved from perishing in these islands: the seed was sown and kept alive in them, which subsequently bore fruit of which no country need be ashamed.--See Preface, by Dr. Phillimore, to Sir G. Lee's Reports.

(c) Grotii Prolegomena, xxiii., as to the auxilia scripti which he had.

"Solent autem gentium sententiæ de eo quod inter illos justem esse debent triplici modo manifestari moribus scilicet et usu, pactis et fœderibus, et tacitâ approbatione juris regularum a prudentibus ex ipsis rerum causis per interpretationem et per rationem deductarum."-Warnkoenig, Doctrina Juris Philosophica Aphorismis Distincta (a most valuable little work,) s. 146, p. 190.

(d) No rule of International Law exists like that of the Imperial Law of Rome, which decided that the opinions of Papinianus, Paulus, Gaius, Ulpianus, and Modestinus should have the force of law; that, in points where they differed, the opinion of the majority, and, where they were equally divided, the side on which Papinianus was found, should prevail.--Th. Cod. i. 4, De Responsis Prudentum L. un.; Ib. ix. 3, L. un. Pr. de Sent. Pass.; Cod. ix. 51, 13 de Sent Pass.; Muhlenbruch, Doctr. Pand. Pr. s. 8.

(e) Vattel cited "as a witness as well as a lawyer."-The Maria, 1 Rob. Adm. Rep. p. 363. See the case generally on this point.

(f) The Maria, 1 Rob. Adm. Rep. p. 360.

ance will venture to disregard the uniform sense of the established writers of International law."(g)

And how great is the advantage of this, that a controversy between France and England should be capable of being referred to principles laid down by an arbitrator who existed long before the disunion arose, and whom it is impossible to accuse of partiality! This remark supposes the reference made to a neutral jurist, belonging to neither country; but the advantage is not so limited-it may be that the authorities belonging to the very country which is urging a demand will be found to pronounce against it.

If the authority of Zouch, of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England-if Valin, Domat, Pothier, and Vattel(h) be opposed to the pretensions of France-if Grotius and Bynkershoek confute the claim of Holland-Puffendorff (i) that of Sweden--if *Heineccius, Leibnitz, and Wolff array themselves [*61] against Germany-if Story, Wheaton, and Kent condemn the act of America, it cannot be supposed (except, indeed, in the particular epoch of a Revolution, when all regard to law is trampled underfoot) that the argumentum ad patriam would not prevail--at all events, it cannot be doubted that it ought to prevail, and should the country relying upon such authority be compelled to resort to arms, that the guilt of the war would rest upon the antagonist refusing to be bound by it.

It is with reference to the authority of jurists that we find Lord Stowell using such expressions as these: "It is the necessary consequence acknowledged in all books." "The institution (i. e. of a particular state with respect to a matter of the Law of Nations) must conform to the text law, and likewise to the constant usage upon this matter;" and again, "all writers upon the Law of Nations unanimously acknowledge it, without the exception of even Hubner himself, the great champion of neutral privileges."

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And Lord Mansfield, deciding a case in which the privileges of the attendant of an ambassador were concerned, said- I remember, in a case before Lord Talbot, of Burvot v. Barbut, upon a motion to discharge the defendant (who was in execution for not performing a decree) because he was agent of commerce, commissioned by the king of Prussia, and received here as such,' the matter was very elaborately argued at the bar, and a solemn, deliberate opinion given by the court. These questions arose and were discussed: Whether a minister could, by any act

(g) Kent's Commentaries, vol. i. p. 19.

(h) "I stand with confidence upon all fair principles of reason-upon the distinct authority of Vattel-upon the Institutes of other great maritime countries as well a those of our own countries-when I venture to lay it down that, by the Law of Nations," &c.-The Maria, 3 Rob. Adm. Rep. p. 369 (Lord Stowell.)

(i) So, in the case of the Swedish convoy, Lord Stowell said: "If authority is required, I have authority-and not the less weighty in this question for being Swedish authority; I mean the opinion of that distinguished person-one of the most distinguished which that country (fertile as it has been of eminent men) has ever produced-I mean Baron Puffendorff. In the opinion, then of this wise and virtuous Swede his words are memorable. I do not overrate their importance when I pronounce them to be well entitled to the attention of his country."

or acts, waive his privilege ?'-' whether being a trader was any objection against allowing privilege to a minister personally?—whether an agent of commerce, or even a consul, was entitled to the privileges of a public minister?'- what was the rule of decision?' Lord Talbot declared a clear opinion, That the Law of Nations, in its [*62]

full extent, was part of the law of England;' that the Act of Parliament was declaratory, and occasioned by a particular incident;' that the Law of Nations was to be collected from the practice of different nations, and the authority of writers.' Accordingly, he argued and determined from such instances, and the authority of Grotius, Barbeyrac, Bynkershoek, Wiquefort, &c., there being no English writer of eminence upon the subject.(k)

In truth, a reverence for the opinions of accredited writers upon Public and International Law has been a distinguishing characteristic of statesmen in all countries, and perhaps especially of those who have deserved that appellation in this kingdom.

It has been felt, and eloquently expressed by them, that though these writers were not infallible, nevertheless, "the methodized reasonings of the great publicists and jurists formed the digest and jurisprudence of the Christian world;" that their works contained principles which influenced every state, and constituted the permanent and embodied voice of all civilized communities; and that upon their decisions depended one. of the best securities for the observance and preservation of right in the society of nations.

Sir James Mackintosh, in his speech on the annexation of Genoa to the kingdom of Sardinia, touched upon this important subject, in the following well-weighed and emphatic terms: "It is not my disposition to overrate the authority of this class of writers, or to consider authority in any case as a substitute for reason. But these eminent writers were,

at least, necessarily impartial. Their weight, as bearing testimony to general sentiment and civilized usage, receives a new accession from every statesman who appeals to their *writings, and from every [ *63] year in which no contrary practice is established, or hostile principles avowed. Their works are thus attested by successive generations to be records of the customs of the best times, and depositories of the deliberate and permanent judgments of the more enlightened part of mankind. Add to this, that their authority is usually invoked by the feeble, and despised by those who are strong enough to need no aid from moral sentiment, and to bid defiance to justice. I have never heard their principles questioned, but by those whose flagitious policy they had by anticipation condemned."(7)

In the same spirit Cicero had long ago observed: "Qui peritis non putat esse obtemperandum, non homines lodit sed leges ac jura labefactat." (m)

(k) Triquet and Others v. Bath, Peach and Others v. Same, 3 Burrows's Rep.

1480.

Burke's Work, vol. xiii. p. 235, Letters on a Regicide Peace.

(7) The Miscellaneous Works of Sir J. Mackintosh, vol. iii. p. 342.

(m) Cicero, pro Cocinâ, ss. 23–25.

Suarez has the following remarks concerning what he designates the doctrinalis

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*CHAPTER VIII.

RECAPITULATION OF SOURCES OF INTERNATIONAL LAW.

THE sources, then, from which International Jurisprudence is derived, are these:

1. The Divine Law, in both its branches-namely: The principles of Eternal Justice implanted by God in all moral and social creatures, of which nations are the aggregate, and of which governments are the International Organs

2. The Revealed Will of God, enforcing and extending these principles of Natural Justice.

3. Reason, which governs the application of these principles to particular cases, itself guided and fortified by a constant reference to analogous cases and to the "written reason" embodied in the text of the Roman Law, and in the works of Commentators thereupon.

4. The universal consent of nations, both as expressed (1) by positive compact or treaty, and (2) as implied by usage, custom, and practice : such usage, custom, and practice being evidenced in various ways-by precedents recorded in History, by being embodied and recorded in Treaties; in public documents of States; in the Marine Ordinances of States; in the decisions of International Tribunals; in the works of eminent writers upon International Jurisprudence.

LXI. It may be well to illustrate by an example the practical application of the principles of International Law dérived from the sources which have been enumerated in the preceding pages.

In 1839, the Emperor of China seized the opium of certain British merchants at Canton. Reparation was demanded by Great Britain, and on the refusal of it, war followed between the two countries. Peace being made, and the reparation promised, a question arose, Whe[ *65 ] ther, according to the principles of International Law, the measure of compensation which one government ought to demand of another for the forcible seizure of the property of its subjects with the cost price of the property, or its market price at the place of seizure?

This curious and important question between a Christian and civilized Heathen nation might have been impartially answered by a reference to the principles of the Roman Law, and to the commentaries of foreign jurists, aided by the analogy derived from similar cases adjudicated upon between subject and subject, both in England and other countries. The decision which these authorities pronounced would have furnished no un

interpretatio of Laws: "De hâc igitur interpretatione certum est, non habere vim legis, quia non procedit à potestate jurisdictionis, sed à scientiâ, et judicio prudentum; et ideo dicimus per se non inducere obligatiodem. Quia verò in omni arte judicium peritorum in illa magnam inducit probabilitatem, ideo etiam in hac legum humanarum interpretatione hæc doctrinalis interpretatio magnum habet authoritatis pondus. In quo varii gradus esse possunt; nam si in alicujus legis intelligentiâ omnes interpretes conveniant, faciunt humanam certitudinem, et regulariter loquendo, etiam inducunt obligationem servandi legem, et utendi illâ in praxi juxta talem interpretationem."-De Legibus, lib. vi.

fair measure of the redress due from the Chinese government to the subjects of Great Britain.

The claims of the British government on behalf of her merchant subjects might have been supported by the following arguments: First, the obligations which the Chinese Government would have incurred if they had simply constituted themselves the purchasers of the opium, and deferred the payment till the period of the treaty; and, Secondly, the obligations which they incurred by the act of violence, and the character of wrong-doers with which that act clothed them.

As to the first point, then-that is to say, let the Chinese be considered simply as debtors, who had delayed the fulfilment of their contract till the price of the article had fallen in the market. Perhaps the portion of the Roman Law which, on account of its acknowledged wisdom and equity, is most generally incorporated into the municipal codes of Europe is that which relates to obligations. One of the most celebrated expounders of this branch of Jurisprudence is Pothier. In the third article of the second chapter, and first part of his Treatise, he considers "des dommages, et intérêts résultans, soit de l'inexécution des obligations, soit du retard apporté à leur exécution." And he begins by defining his subject thus: "On appelle dommages et intérêts, la perte que quelqu'un a faite, et le gain qu'il a manqué de faire: c'est la

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définition qu'en donne la loi (13 Ff. Rat. rem hab.) Quantùm [*66]

meâ interfuit id est quantum mihi abest, quantùmque lucrari potui.” The result of his examination of this law is, that in all cases, even where the debtor is guilty of no bad faith, he shall be compelled to idemnify the creditor both for the actual loss which he has sustained, and for the gain which it may reasonably be supposed that he would have made, had he not been impeded by his engagement. In cases of bad faith, the rule is much more severe.

A particular kind of action was known to the Roman Law, in cases where the price or value of a thing in which one person was indebted to another was sought in lieu of the thing itself, payment of which had been delayed. The action was called, for an antiquated reason which need not be discussed, Condictio triticaria ;(a) and it is most learnedly treated by J. Voet, who says, it is necessary to consider, first, whether the value of the thing is the principal object of the suit, or whether the thing itself be the principal object, and the value only the necessary substitute, under the circumstances. If it be the value of the thing, if the price was to be paid in money, the law, he says, is clear-the sum due is to be measured by the value of the article at the time when the obligation was first contracted, not at the time when the payment was enforced.(b) If the thing itself be the principal object of the suit, its value should be estimated, either by that which it was worth at the time of beginning the suit (litis contestatio), or at the time the sentence was

(a) Dig. de Condic. Tritic. xiii. iii. 1.

Neque aliam contrahentes videri possunt æstimationem adeoque quantitatem pecuniariam respexisse, quam quæ fuit eo tempore, quo primitus obligatio nascebatur, sive bonæ fidei sive stricti juris negotium sit."-Voet, ad Pand. I. xiii. tit. iii.