“is established, or hostile principles avowed. Their works "are thus attested by successive generations to be records of "the customs of the best times, and depositories of the deli"berate and permanent judgments of the more enlightened "part of mankind. Add to this, that their authority is "usually invoked by the feeble, and despised by those who are strong enough to need no aid from moral sentiment, "and to bid defiance to justice. I have never heard their "principles questioned, but by those whose flagitious policy "they had by anticipation condemned " (7). 66 In the same spirit Cicero had long ago observed: "Qui "peritis non putat esse obtemperandum, non homines lædit, "sed leges ac jura labefactat" (m). (1) The Miscellaneous Works of Sir J. Mackintosh, vol. iii. p. 342. (m) Cicero, pro Cæcina, ss. 23-25. Suarez has the following remarks concerning what he designates the doctrinalis interpretatio of Laws: "De hac igitur interpretatione certum est, non habere vim legis, quia non procedit a potestate jurisdictionis, sed a scientia, et judicio prudentum; et ideo dicimus per se non inducere obligationem. Quia vero in omni arte judicium peritorum in illa magnam inducit probabilitatem, ideo etiam in hac legum humanarum interpretatione hæc doctrinalis interpretatio magnum habet authoritatis pondus. In quo varii gradus esse possunt; nam si in alicujus legis intelligentia omnes interpretes conveniant, faciunt humanam certitudinem, et regulariter loquendo, etiam inducunt obligationem servandi legem, et utendi illa in praxi juxta talem interpretationem."De Legibus, lib. vi. CHAPTER VIII. RECAPITULATION OF SOURCES OF INTERNATIONAL LAW. THE sources, then, from which International Jurisprudence is derived, are these: 1. The Divine Law, in both its branches-namely: The principles of Eternal Justice implanted by God in all moral and social creatures, of which nations are the aggregate, and of which governments are the International Organs. 2. The Revealed Will of God, enforcing and extending these principles of Natural Justice. 3. Reason, which governs the application of these principles to particular cases, itself guided and fortified by a constant reference to analogous cases and to the written reason embodied in the text of the Roman Law, and in the works of Commentators thereupon. 4. The universal consent of Nations, both as expressed (1) by positive compact or treaty, and (2) as implied by usage, custom, and practice: such usage, custom, and practice being evidenced in various ways-by precedents recorded in History; by being embodied and recorded in Treaties; in public documents of States; in the Marine Ordinances of States; in the decisions of International Tribunals; in the Works of eminent writers upon International Jurisprudence. LIX. It may be well to illustrate by an example the practical application of the principles of International Law derived from the sources which have been enumerated in the preceding pages. In 1839, the Emperor of China seized the opium of certain British merchants at Canton. Reparation was demanded by Great Britain, and on the refusal of it, war followed between the two countries. Peace being made, and the reparation promised, a question arose, Whether, according to the principles of International Law, the measure of compensation which one government ought to demand of another for the forcible seizure of the property of its subjects was the cost price of the property, or its market price at the place of seizure? This curious and important question between a Christian and civilized Heathen nation might have been impartially answered by a reference to the principles of the Roman Law, and to the commentaries of foreign jurists, aided by the analogy derived from similar cases adjudicated upon between subject and subject, both in England and other countries. The decision which these authorities pronounced would have furnished no unfair measure of the redress due from the Chinese Government to the subjects of Great Britain. The claims of the British Government on behalf of her merchant subjects might have been supported by the following arguments: First, the obligations which the Chinese Government would have incurred if they had simply constituted themselves the purchasers of the opium, and deferred the payment till the period of the treaty; and, Secondly, the obligations which they incurred by the act of violence, and the character of wrong-doers with which that act clothed them. As to the first point, then-that is to say, let the Chinese be considered simply as debtors, who had delayed the fulfilment of their contract till the price of the article had fallen in the market. Perhaps the portion of the Roman Law which, on account of its acknowledged wisdom and equity, is most generally incorporated into the municipal codes of Europe, is that which relates to obligations. One of the most celebrated expounders of this branch of Jurisprudence is Pothier. In the third article of the second chapter, and first part of his Treatise, he considers "des dommages et intérêts résul"tant, soit de l'inexécution des obligations, soit du retard "apporté à leur exécution." And he begins by defining his 66 subject thus: " On appelle dommages et intérêts, la perte "que quelqu'un a faite, et le gain qu'il a manqué de faire: "c'est la définition qu'en donne la loi (13 Ff. Rat. rem hab.)— "Quantum mea interfuit, id est quantum mihi abest, quantumque lucrari potui." The result of his examination of this law is, that in all cases, even where the debtor is guilty of no bad faith, he shall be compelled to indemnify the creditor both for the actual loss which he has sustained, and for the gain which it may reasonably be supposed that he would have made, had he not been impeded by his engagement. In cases of bad faith, the rule is much more severe. A particular kind of action was known to the Roman Law, in cases where the price or value of a thing in which one person was indebted to another was sought in lieu of the thing itself, payment of which had been delayed. The action was called, for an antiquated reason which need not be discussed, Condictio triticaria (a); and it is most learnedly treated by J. Voet, who says, it is necessary to consider, first, whether the value of the thing is the principal object of the suit, or whether the thing itself be the principal object, and the value only the necessary substitute, under the circumstances. If it be the value of the thing, if the price was to be paid in money, the law, he says, is clear,- the sum due is to be measured by the value of the article at the time when the obligation was first contracted, not at the time when the payment was enforced (b). If the thing itself be the principal object of the suit, its value should be estimated, either by that which it was worth at the time of beginning the suit (litis contestatio), or at the time the sentence was pronounced (condemnationis tempus); provided always that no delay has been caused by the party against whom the suit is brought, (a) Dig. de Condic. Tritic. xiii. iii. 1. (b) "Neque aliam contrahentes videri possunt æstimationem adeoque quantitatem pecuniariam respexisse, quam quæ fuit eo tempore, quo primitus obligatio nascebatur, sive bonæ fidei sive stricti juris negotium sit"-Voet, ad Pand. 1. xiii. tit. iii. because then "dubium non est, quin frustratio moratori, et "non alteri obesse debeat; ac propterea, si inter moram et "litem contestatam remve judicatam res pluris valuerit, quam "ipso litis contestatæ vel condemnationis momento, reus in "id, quanti res plurimi fuit, a tempore moræ ad tempus litis "contestatæ, in stricti juris, aut rei judicatæ in bonæ fidei "judiciis, damnandus foret." There can be no doubt that the Chinese Government was the "Morator" in this case, or that, according to the maxim of jurisprudence which has been cited, it ought to have been condemned in the costs of the opium at the time it became possessed of that article, unless, between that period and the period of restitution, the opium had become of greater value; for the only doubt raised by Voet is, whether in cases of bona fides, the augmented price should be due. Again, from the time of the seizure, the Chinese Government became the Emptor; and whatever depreciation of price happened in the interim betwixt that time and the treaty, enured to the detriment of the purchasers, no maxim being clearer than "periculum rei vendita ad emptorem statim "pertinet" (c). Again, let the Chinese Government be considered, not as the actual purchasers, but as securities for the payment of the money, and let the question be tried by the principle of Commercial, which is quasi-International Jurisprudence. What is the value in which the insurer is bound to indemnify the insured-that of the goods at the time of their loss, or that of their invoice price? Emérigon, no light authority, is clear upon this point. He says (d), adopting the language of other writers: "En fait de prêt à la grosse et d'assurance, "on ne fait point attention à la valeur des effets au temps de "leur perte; mais seulement à ce qu'ils valoient au temps de "leur chargement." So the English law adopts the original value of the goods as the basis of the calculation of the (c) Vide passim, Dig. lib. xviii. tit. vi.; Cod. lib. iv. tit. xlviii. |