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. 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 :(z) " 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. See important remarks of Mably, Droit Public, vol. iii. pp. 350, 351; and Wheaton, Hist. p. 171, note.

(z) 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(e) 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.

(e) 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 International 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)—

[*55]

"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 Commentaries, 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.

(b) 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

When Grotius wrote his immortal work he derived but little help(c) from any predecessor in the noble career which *he chose for himself. Albericus Gentilis, Arthur Duck, and Suarez had in[*59] deed 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.(ƒ)

"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 fæderibus, 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.

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