"additæ, mirabili ingenio nec minore firmitate dedu"cuntur "(o).

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So the English civilian before quoted observes (p): “And, "moreover, by, as it were, a general consent of nations, "there is an appealing to, and a resting in, the voice and 'judgment of the Civil Law in these cases between nation "and nation. The reason whereof is, because any thing "that is irrational, unnatural, absurd, partial, unjust, im"modest, ignoble, treacherous, or unfaithful, that law "abhorreth; and for that it is the most perfect image and representation of nature, and of the equity and reason "nature prescribes to humane actions, that was ever yet "presented or set forth to the world in a law."

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In the negotiations between the United States of North America and Spain which have been already mentioned, the provisions of the 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 (q).

XXXVIII. 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 (r). It is the "solida et

(0) Op. iv. 254.

(p) Wiseman's Excellency of the Civil Law, p. 110; Burke, Works, vol. viii., 185 : Letters on a Reg. Peace.

(q) Wheaton's Hist. pp. 510, 511; Waites' American State Papers, x. 135-140; Instit. 1. ii. t. i. ss. 1–5.

(r) Grotius, de J. B. et P. 1. iii. c. ix. s. 1, De Postliminio: "Accuratius hæc res a veteribus Romanis tractata est, sed sæpe confuse nimis, ita ut quæ juris gentium, quæque civilis Romani esse vellent,

"mascula ratio" of Bynkershoek 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 Gebroeders, 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 (s).

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 (t).

norum propria non potuit constituere jus gentium," &c.

Heineccius, Prælect. ad Grotium, Proæmium, 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.

(8) 3 C. Rob. Adm. Rep. pp. 338, 348, 349.

(t) 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—a case on the law of Hindoo adoption.

XXXIX. Analogy (u) has great influence in the decision of International 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 circumstances of the precedents appealed to and those of the cases in dispute.

(u) Bynkershoek, de Foro Leg. c. iii. p. 446.

"By the ancient law of Europe, such a consequence (i. e. the condemnation of the ship on account of a contraband cargo) would have ensued; nor can it be said that such a penalty was unjust, or not supported by the general analogies of law."-Lord Stowell, The Maria, 1 C. Rob. Adm. Rep. 90.

"Is qui jurisdictioni 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 qua 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 nova 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 development of the law." See some good observations on the use of analogy in the English Law in the cases of Mirehouse v. Rennell, 8 Bingham Rep. 518; Bond v. Hopkins, 1 Schoales and Lefroy Rep. 429.

CHAPTER V.

CONSENT OF NATIONS.

XL. 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 or Common 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.

XLI. 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 in"troductum" (b),-according to Grotius; or, in the precise

(a) "Quum enim gentes nulla superiore in terris contineantur, sunt illis pro legibus, quæ ipsi sibi dixêre; vel scriptis tabulis vel moribus introductis, qui sæpe scripturis istis comprobantur."-Leibnitz, Dissertatio 11, "De actorum publicorum usu atque de principiis juris naturæ et gentium," &c., s. i. p. 310.

"Sed sicut cujusque civitatis jura utilitatem suæ civitatis respiciunt, ita inter civitates aut omnes, aut plerasque, ex consensu jura quædam nasci potuerunt; et nata apparent, quæ utilitatem respicerent non cœtuum singulorum, sed magnæ illius universitatis. Et hoc jus est quod jus gentium dicitur, quoties id nomen a jure naturali distinguimus.- Grot. de J. B. et P. Proleg. s. 17.

(b) Groti 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).

XLII. Customs and usages which have long subsisted between 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 defeasance 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 affect any right or interest of foreigners, "unless they are founded upon principles, and impose regula

(c) Quæstiones Juris Publici, 1. iii. c. x. Again he says, "Ut in omni argumento, quod de jure gentium est, ratio et usus faciunt utramque paginam."-Ib. c. v.

(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 usage 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."-The Flad Oyen, 1 C. Rob. Adm. Rep. pp. 139-146. See, too, Vattel, ii. 1. iv. c. vii. s. 106.

Bynkershoek, de Foro 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 through the kingdom, says, "Nec quicquam magis erit contra præsumtam si non testatam mentem gentium.”