has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes (i).

There the practice of nations is various, there is no rule operating with the proper force and authority of a general law. Mere unity of principle forms no uniform rule to regulate the general practice. Were the public opinion of European states agreed on any principle, as fit to form a rule of the law of nations, it by no means follows, that any one nation would be under an obligation to observe it. That obligation could arise only from a reciprocity (j) of practice in other nations; for, from the very circumstance of the prevalence of a different rule among other nations, it would become only not lawful, but necessary for that one nation to pursue a different conduct. It cannot be supposed to be the duty of any country to make itself a martyr to speculative propriety, were that established on clearer demonstration than such questions will generally admit. Where mere abstract propriety, therefore, is on one side, and real practical justice on the other; the rule of substantial justice must be held to be the true rule of the law of nations between independent states; that is to say, the rule to which civilized nations attending to just principles ought to adhere, and rest secure in the reliance of receiving reciprocal justice in their turn. If this reliance should be disappointed redress must be sought in retaliation, which in the disputes of independent states is not to be considered as vindictive retaliation, but as the just and equal measure of civil retribution (k). This will be their ultimate security, and it is a security suffi

(1) Flad Oyen, 1 Rob. 139.

(j) Grot. iii. 1, viii. 2; Domat Tr. des Loix, xi. 39; Valin Comment. ni. 9, x.; Vattel Prelim. 25-1. 11, 21, 36, 47; Answer to Pruss. Men. 1 Collec. Jurid. 146; Bynk. F. L. iii; Abstine commodo, si damnum metuis, ipsa juris gentium, non sola Ulpiani vox est Bynk. Q. J. P. viii.

(k) Cf. Vatt. ii. 341.

cient to warrant the reliance. For the transactions of states cannot be balanced by minute arithmetic (1); something must on all occasions be hazarded on just and liberal presumptions (m).

The evidence of the custom of nations is to be collected from laws and ordinances; from treaties, so far as they are declaratory of the law of nations; from the works of text writers, and from the judgments of international tribunals. Of collections of laws the most celebrated, and perhaps the only one, with the exception of the ordinances of Louis the 14th, that contains anything properly belonging to international law, is the Consolato del Mare. The origin of this venerable work is lost in the obscurity of its antiquity. All that has been written upon it, seems only to prove the impossibility of ascertaining the date or authors of its original compilation. The Italian edition states with a precision, which is in itself suspicious, the periods and places at which it was successively received and adopted by different nations. But this account will not bear examination, and it has been proved by reference to historical facts, that all its dates are either fabulous or incorrect (n). Being a collection of maritime customs there can be no doubt that these customs had been established by maritime usage long before they were collected in the Consolato, and its authority is little concerned in determining when and by whom the collection was made. The oldest edition is in the Catalan (0) language, printed in Barcelona in 1502, by order of the consuls of that city, from various ancient manuscripts. It seems pro

(1) Cf. Grot. ii. 23, i.—ii. 4, iii.

(m) Santa Cruz, 1 Rob. 50.

(n) Capmany, Mem. Hist. de Barcel. ii. 2, p. 178, lib. de cons. disc xix.

(0) Capmany, lib. de cons. disc. xxii.; Emerig. Tr. des Ass. Pref. p. 6. It appears that Capmany had seen a still older edition, which made him doubt between the claims of Barcelona and Valentia. The question is of little importance, but the weight of evidence appears to preponderate in favour of Barcelona. Capm. lib. de cons. disc. Append.

bable that the compilation contained in these manuscripts was made towards the middle of the thirteenth century (p). Grotius states, that the Consolato is a collection of ancient maritime ordinances established by Greek and German emperors; by the Kings of France, Spain, Syria, Cyprus, Majorca, and Minorca, and by the republics of Venice and Genoa (q). By calling it a collection of institutions or ordinances Grotius perhaps intended to intimate, that it had been recognized by the sovereign authority of these states (r). For the whole body of the work, though it has prefixed and appended to it the rules of proceeding in the Consular Court of Valencia, and the municipal regulations of Barcelona, consists entirely of the ancient customs of the sea, gathered from the experience of ancient mariners. This appears throughout the whole work and more especially from its opening sentence, which is in these words "These are the good rules and the good customs concerning the business of the sea, which the sage men, who voyage about the world took upon themselves to deliver to our ancestors in the books of the knowledge of good customs." In language the Consolato is barbarous and antiquated, in substance rude and inartificial, applying rules of plain sense and natural equity to maritime controversies. It is to be considered as a collection of the customs of the sea, generally received and allowed by European states (s). It is hardly necessary to notice the rash assertion of Mr. Hubner, that the contents of the Consolato are mere private ordinances binding on none, but the subject of those sovereigns, by whom they were promulgated. This writer, says Emerigon, having found in the 274th chapter principles irreconcileable with his system, con

(p) Capmany, lib. de cons. discur. § ii.

(g) Grot. iii. 1, v. (n) 6.

() Giannone apud Cap. disc. p. xxxii.

(5) Capman disc. xxii. xxv. et seq.; Emer. Trait. d. Ass. Præf. 6, and the authorities there collected.

ceived a prejudice against the whole work. But if he had examined it with care, he would have perceived that the decisions therein contained are founded on the law of nations. For this reason they have been generally allowed and approved of by all countries, and have furnished ample materials to the compilers of the ordinance of 1681. In spite of the Gothic dress that sometimes disfigures them, it is impossible not to admire the spirit of justice and equity in which they are conceived (t)

Of text writers, Grotius (who is styled by Gravina fax juris gentium, and by Bynkershoek ó μsyao and princeps juris publici magister) is incomparably the first in learning, judgment, and civil genius. His book is characterized by Heineccius in language which becomes one man of genius in speaking of another: opus quo nullum unquam sol vidit illustrius; et quod vivet, quamdiu studiis præclaris honos inter mortales erit (u). When Grotius began his work, the law of nations was in its rudiments, and he had little beyond his own resources to assist him in completing it. The rules which he has laid down derive their authority from adoption into the usage of nations; such is his authority that he has been generally followed by subsequent writers (v). Being aware that this usage is the only foundation of international law, he strove to strengthen his authority by an appeal to the concurrent opinions of writers of all countries, ages, and professions; historians, poets, philosophers, and divines, considering such concurrence to arise either from uniformity of natural reason, which he deemed the foundation of the law of nature, or from uniformity of usage, which is the foundation of international law (w).

(t) Tr. des. Ass. Præf. 7; Capm. disc. xxx.

(u) Heinecc. Prælec. in Grot.

(v) Bynk. F. L. viii.; Tanta est Grotii auctoritas ut hunc præeuntem facilè alii sequuntur.

(w) Grot. proleg. i. 17, 26, 40, 46, l. i. 1, xiv. §§ 1 & 2.

But he principally relied on the civil law, on which great part of the law of nations is founded (x). The civil law, says Sir Robert Wiseman, an eminent practitioner in the Court of Admiralty, is an auxiliary supplement, or a knowledge assisting in the administration of right and justice between nation and nation, where a local law is of no authority at all. Grotius, the ornament of his age for learning and wisdom, undertaking in his most singular book, De jure belli et pacis, to set down the several heads of that law which serves to direct those great transactions of peace and war between nation and nation, and to reconcile their differences, professes to have borrowed towards the perfecting of that admirable work much from the books of the civil law; because, saith he, they often make very clear discoveries of the law of nature, and do give frequent instances both of that law and of the law of nations also. So that although whatever we read 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 there is such a strong stream of natural reason continually flowing in the channel of the Roman laws, what should hinder but that the same general rule of justice and dictates of reason may be also fitly accommodated to foreigners dealing with one another (as it is plain 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 both? All those writers that handle and treat of those controversial things, which frequently come to be disputed between one nation and another, as they are all civilians; so though they do make use of other authorities besides, yet the strongest and most convincing arguments that they bring to resolve them by,

(1) Per Sir W. Scott, arg. Maria, 1 Rob. 363; Kent Comm. i. pp. 11, 12.