writers, says Mr. Justice Story, rarely explain the principles of public law with the minute distinctions which legal precision requires. Many of the most important doctrines of the Prize Courts will not be found to be treated of, or ever glanced at, in the elaborate treatises of Grotius, or Puffendorf, or Vattel. A striking instance is their total silence as to the illegality and penal consequences of a trade with the public enemy. Even Bynkershoek, who writes professedly on prize law, is deficient in many important doctrines which every day regulates the decrees of prize tribunals, and the complexity of modern commerce has added incalculably to the number, as well as the intricacy of questions of national law. In what publicist are to be found the doctrines as to the illegality of carrying enemy's dispatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy? Where are transfers in transitu pronounced to be illegal? Where are accurately or systematically stated all the circumstances which impress upon a neutral, a general, or limited hostile character, either by reason of his domicil, his territorial possessions, or his connexion with a house of trade in the enemy's country (c). Although the text writers do not contain the doctrines referred to by Mr. Justice Story, they contain the principles upon which they are founded. Legal reasoning fills half the pages of international law (d); and these doctrines are derived from legal reason applying rules established by general usage to cases which are new in their circumstances. Grotius, in discussing the rights of ambassadors, lays down the rule, that when the extent of international usage is rendered doubtful by conflicting precedents, it must be ascertained by the judgment of the learned, and by legal analogy; recurrendum tum ad sapientum judicia, tum ad conjecturas (e). It

(c) The Nereide, 9 Cranch, 388.

(d) Alber. Gent. de jur bel. ii. xviii.; Bynk. Q. J. P. Præf. F. L. iii. (e) Grot. ii. 18, iv. 2.

would be impossible otherwise to determine between conflicting precedents which of them conform to international usage, and which violate it. If this principle were not admitted every breach of international law would annul its authority, whereas the legal consequence of such breach is to deprive the party committing it of the benefit of the rule which he violates. All cases that are within the same reason are within the same law. All law is resolvable into general principles; the cases which may arise under new combinations of circumstances leading to an extended application of principles ancient and recognised, by just corollaries may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken, the practice is not new, nor is justly chargeable with being an innovation on the ancient law (ƒ). Elementary writers on the law of nations can only lay down the general principles of law, and it becomes the duty of Courts to lay down rules for the proper application of these principles. Bynkershoek appears to express doubts whether reasoning from analogy be allowable in international law. But an examination of the passages shews that he only condemns the abuse of analogy for the purpose of inventing principles, or of extending them beyond the limits within which usage has restrained them. He does not mean to exclude analogy, when applied not to principles but to rules; for that would be to exclude the only test by which it is possible to ascertain their soundness, or the correctness of their application. In cases, says Sir William Scott, where the Court has little authority to resort to, it has to collect the law of nations from such sources as reason supported in some slight degree by the practice of nations may appear to point out (g). In exploring an unbeaten path, says Chief Justice Marshall, with few if any aids from precedents or written law, the Court has found it necessary to rely much

(f) The Atalanta, 6 Rob. 458.
(g) The Adonis, 5 Rob. 259.

on general principles and a train of reasoning founded on cases in some degree analogous (g).

The deficiencies of elementary writers are supplied by the decisions of international tribunals. The most valuable collections of these decisions are contained in Valin's Treatise on the French Prize Code, and in the reports of cases decided in the English Court of Admiralty, and in the Supreme Court of the United States. The judgments of Lord Stowell, in the Admiralty Court of England, have been held up as models of judicial eloquence (h); and making some allowance for figurativeness of expression, and redundancy of language, this praise does not seem exaggerated. In Chief Justice Marshall and Mr. Justice Story, the Supreme Court of the United States have furnished judges not unworthy to be his rivals. There is scarcely a decision in the English Prize Courts on any general question of public right, that has not received the express approbation and sanction of the American Courts (i). To ascertain the unwritten law of nations, says Chief Justice Marshall, we resort to the great principles of reason and justice; but as these principles will be differently understood by different nations under different circumstances, we consider them as being in some degree fixed by a series of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of every country shew how the law of nations in the given case is understood in that country, and will be considered in adopting the rule, which is to prevail in this. Without taking a comparative view of the justice or fairness of the rules established in the British Courts, and of those established in the Courts of other nations; these are circumstances not to

(g) Schooner Exchange, 7 Cranch, 136, vid. Bynk. F. L. iii. p. 151. (h) La Jeune Eugenie, 2 Mason, 456.

(i) Kent Comm. i. 66.

be excluded from our consideration, which give to these rules a claim to our attention, which we cannot entirely disregard. The United States have at one time formed a component part of the British Empire; their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. It will not be advanced, in consequence of this former relation between the countries, that any obvious misconstruction of public law, made by the British Courts, will be considered as furnishing a rule for the American Courts, or that any recent rule of the British Courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations (j).

International law naturally divides itself into two branches; first, international rights in time of peace; secondly, international rights in time of war. These two divisions will furnish the subjects of the following chapters. Grotius has inverted this order, and has treated first of the rights of war, and there is great temptation to follow his example. For the rights of war only have been made the subject of judicial decisions, and are capable of being treated with legal accuracy. But as the rights of war arise from a violation of the rights of peace, it seems that the former cannot be treated with propriety, till the latter have been ascertained.

(j) Bentzon v. Boyle, 9 Cranch, 198, et vid. the dictum of Story, J., 8 Cranch, 135.

38

CHAPTER II.

OF INDEPENDENT STATES AND THEIR TERRITORIES.

THE subject of international law has been defined to be the rights of independent states and their sovereigns. In this definition the word sovereign must be understood to comprise every form of sovereignty by which the will of a state is represented in its intercourse with foreign powers, whether it reside in one or more and be designated by the style of king, emperor, senate, or any other title (a). Subjectum commune civitatis est civitas: subjectum proprium est persona una pluresve, per cujusque gentis legibus ac moribus (b). Est populi liberi et regis, qui vere rex sit eadem ratio (c). Qui jus verum imperandi habet, sive is rex sit, sive senatus sive populus (d), idem jus eadem que ratio est procerum (e).

The rights of sovereignty are divided into those, which are internal and permanent, and those which are external and occasional (ƒ).

Occasional rights of sovereignty consist of the employment of public ministers, and consuls: of the right of concluding treaties, of the right of reprisals, and the right of making war (g). The internal and permanent rights of sovereignty

(a) Vatt. i. 40.

(b) Grot. i. 7, iii.

(c) Grot. i. 3, xxi.

(d) Grot. i. 4, xviii.—xix. i. 3, viii. 6; Vatt. i. 57—ii. 38.

(e) Grot. i. 3, viii. 6.

(f) Heinecc. El. ii. 136, 137.

(g) Heinecc. El. ii. 137; Wicq. i. ss. ii. and iv. p. 86.