Roman Law were cited with respect to the public character of rivers, to the use of the shores as incident to the use of the water, and to the occasional extension of this incidental right, when circumstances rendered it necessary that the cargo should be removed further inland, the shores being, for some reason, an unsafe place of deposit."(p) XL. It is hardly necessary to guard against the supposition that what has been said applies to the technical and formal parts of the Roman Code, the "formularum ductus" just mentioned, or to those which related exclusively to the particular policy of the empire; but it should be remarked, that an error of this description tinged the early writings. upon International law, and tended to bring the science itself into disrepute.(g) It is the "solida et mascula ratio" *of Bynkershoek [*35] which must guide and enforce the application of it to the affairs of independent nations. Besides the actual compilations of Roman Law, the Commentaries upon them for the like reason of their comprehensiveness, impartiality, wisdom, and enlarged equity-are of great use and constant service in elucidating the rules of justice between nations. For instance, every writer on the Law of Embassy relies for the elementary propositions relating to it upon the Commentary of Huber on the Civil Law; and so Lord Stowell, in the case of the Twee Gebræders, fortified his judgment as to the legal marks of territory, and the evidence by which it is to be supported, by reference to the opinions of Farrinacius Gail and Loccenius.() The decisions contained in the Roman Law may often form a safe guide even between nations in whose Municipal Code it has no root; in the interpretation, for example, of agreements, express or tacit, between European and Asiatic nations, and in the equitable resolution of doubts and difficulties unforeseen and unprovided for by the letter of any compact.(s) XLI. Analogy(t) has great influence in the decision of International (p) Wheaton's Hist. pp. 510, 511; Waites' American State Papers, x. 135-140; Instit. 1. ii. t. i. ss. 1-5. (g) Grotius, de J. B. et P. 1. iii. c. ix. s. 1, De Postliminio: "Accuratius hæc res a veteribus Romanis tractata est, sed sæpe confusè nimis, ita ut quæ juris gentium, quæque civiles Romani esse vellent, lector nequiret distinguere." iv. s. 2; "Sed hæc ratio Romanorum propria non potuit constituere jus gentium," &c. Heineccius, Prælect. ad Grotium, Promium, s. 54, and in his work Jus Naturæ et Gentium Præfatio, p. 14, shows how the "Glossatores" erred in their application of portions of the Roman law to International questions. It will be seen when the subject of embassies is treated of, into how serious an error the English civilians were led by applying the text of the Roman law respecting legati as the rule of International law upon the question of the privileges of the ambassador of Mary Queen of Scots. r) 3 Robinson's Adm. Rep. 338. 348, 349. The learned judges of the English Privy Council, in deciding questions arising out of the law and customs of Hindostan, have made reference to the analogies furnished by Roman law-Sootragun Satputty v. Sabitra Dye, 2 Knapp's Privy Council Reports (Lord Wynford)—a case on the law of Hindoo adoption. (t) Bynkershoek, de Foro Leg. c. iii. p. 446. By the ancient law of Europe, such a consequence (i. e. the condemnation of a ship on account of a contraband cargo) would have ensued; nor can it be said 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 circum' [*36] stances of the precedents appealed to and those of the cases in dispute. XLII. 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 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. XLIII. 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 introductum," (6)-according to Grotius; or, in the precise that such a penalty was unjust, or not supported by the general analogies of law.”. Lord Stowell, The Maria, 1 Rob. Adm. Rep. 90. "Is qui jurisdctioni 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 quâ 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 novæ 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 developmeat of the law." See some good observations on the use of the analogy in the English Law in the cases of Mirehouse v. Rennell, 8 Bingham's Rep. 518; Bond v. Hopkins, 1 Schoales and Lefroy, Rep. 429. (a) "Quum enim gentes nullâ superiore in terris contineantur, sunt illis pro legibus, ipsi sibi dixêre; vel scriptis tabulis vel moribus introductis, qui sæpe scripturis istis comprobrantur."-Leibnitz, Dissertatio 11. "De actorum publicorum usu atque de principiis juris naturâ et gentium," &c.-S. i. p. 310. "Sed sicut cujusque civitatis jura utilitatem suæ civitates respiciunt, ita inter civitates aut omnes, aut plerasque, ex consensu jura quædam nasci potuerunt; et nata apparet quæ utilitatem respicerent non cæterum singulorum, sed magnæ illius universitatis. Et hoc jus est quod jus gentium dicitur, quoties id nomen à 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) *XLIV. Customs and usages which have long subsisted be[*38] tween 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 defeazance 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 effect any right or interest of foreigners, unless they are founded upon principles, and impose regulations 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 [*39] 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 (e) Quæstionum Juris Publici, 1. iii. c. x. mento, quod de jure gentium est, ratio et Ib. c. v. Again he says, "Ut in omni arguusus faciunt utramque paginam.". (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 usages 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."-Flad Oyen, 1 Rob. 139-146. See, too, Vattel, ii. 1. iv. c. vii. s. 106. Bynkershoek, de Foro de 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 though the kingdom, says, "Nec quicquam magis erit contra præsumtam si non testatam mentem gentium." (e) 2 Dodson's Admiralty Reports, p. 239. (ƒ) De J. B. et P. 1. ii. c. xviii. 4, s. 5; 1. iii. c. vi. 3; c. vii. 5. s. 2. (g) Lib. iii. c. vii. 9. s. 1. "Hoc saltem legis."-Ib. perfecit reverentia Christianæ As to preserving women from violence: "Atque id inter Christianos observari par est non tantùm ut disciplinæ militaris partem, sed et ut partem juris gentium.". Lib. iii. c. v. xix. s. 2; cf. The Flad Oyen, 1 Rob. Adm. Rep. 141 (Lord Stowell.) 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) XLV. 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 [*40] 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 counties: 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 they afterwards conform to the express regulations of their prize acts.”(7) (h) Wheaton's History of the Law of Nations, p. 429. () The Progress, 7 Rob. Adm. Rep. 220. (k) 1 Robinson's Adm. Rep. 350. 362, &c. See, too, Flad Oyen, Ib. 140, 141. (7) 1 Robinson's Adm. Rep. p. 61. The Mercurius, 1 Rob. Adm. Rep. p. 82: "Under the modern law of nations." Similar expressions abound in the luminous expositions of International Law which these judgments afford. *XLVI. The Law of Nations has received continual acces[*41] sions and improvements since the first cultivation of it in the Christian world; not only have evil customs been abrogated, but the rigour of many ancient customs has been softened and relaxed in their application, without any departure from the principle on which they were founded. This effect is happily described by Lord Stowell; when speaking of contraband articles found on board a neutral vessel, he says, "I do not know that, under the present practice of the Law of Nations, a contraband cargo can effect the ship. By the ancient law of Europe, such a consequence would have ensued; nor can it be said that such a penalty was unjust, or not supported by the general analogies of law, for the owner of the ship has engaged it in an unlawful commerce. But in the modern practice of the Courts of Admiralty of this country, and I believe of other nations also, a milder rule has been adopted.”(m) On the other hand, usage has decided that many things are contraband in naval war concerning which there had formerly been much dispute. Valin says honestly and boldly in his Commentaries, "De droit ces choses sont de contrabande aujourd'hui et depuis le commencement de ce siécle, ce qui n'était pas autrefois neanmoins."(n) There must be, however, a reciprocity(o) in the conduct of the nation demanding from another nation the privilege of these mitigations introduced by usage into the ancient Law; and a nation may be estopped by its usage from claiming the benefit of a principle of the Law of Nations which would operate in its favour. XLVII. Such is the influence of universal usage, that it will in some measure affect even the stipulations of a treaty made long prior to the commencement of that usage, and at a time when the law which has been since settled, was in a state of fluctuation and controversy.(p) *In 1654, a treaty was entered into between England and [ *42 ] Portugal, by which, among other things, both countries mutu ally bound themselves not to suffer the ships and goods of the other taken by enemies, and carried into the ports of the other, to be conveyed away from the original owners or proprietors. "Now, I have no scruple in saying" (observes Lord Stowell, in 1798,)" that this is an Article incapable of being carried into literal execution, according to the modern understanding of the Law of Nations, for no neutral country can interpose to wrest from a belligerent prizes lawfully taken."(q) This is perhaps the, strongest instance that could be cited, of what civilians call the "consuetudo obrogatoria."(r) The Maria, Ib. 371, a: "According to the modern understanding of the law of nations." The Santa Cruz, 1 Rob. Adm. Rep. p. 65; The Elsebe, 4 Ib. p. 421. (m) The Ringende Jacob, 1 Rob. Adm. Rep. p. 90. (n) Ordonnance de la Marine, 1. iii. t. ix. art. xi. (0) The Santa Cruz, 1 Rob. Adm. Rep. pp. 49, 64. (p) The Maria, 1 Rob. Adm. Rep. pp. 371-373. The Santa Cruz, 1 Rob. Adm. Rep. pp. 49, 64. See also vol. ii. p. 732, of Sir Leoline Jenkins's Works. (r) Savigny, System des Römischen Rechts, b. i. 195. Bynkershoek, do Foro Legat. c. xix. s. 7. |