general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected." 1

This law has commonly been called the jus gentium in the Latin, droit des gens in the French, and law of nations in the English language. It was more accurately termed the jus inter gentes, the law between or among nations, for the first time, by Dr. Zouch, an English civilian and writer on the science, distinguished in the celebrated controversy between the civil and common lawyers during the reign of Charles II., as to the extent of the Admiralty jurisdiction. He introduced this term as more appropriate to express the real scope and object of this law. An equivalent term in the French language was subsequently proposed by Chancellor D'Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought properly to be termed le droit entre les gens.3 The term international law has been since proposed by Mr. Bentham as well adapted to express in our language, "in a more significant manner that branch of jurisprudence, which commonly goes under the name of law of nations, a denomination so uncharacteristic, that were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence." 4 The terms international law and droit international have now taken root in the English and French languages, and are constantly used in all discussions connected with the science, and we cannot agree with Heffter in proscribing them. (a)

1 Austin, Province of Jurisprudence determined, pp. 147, 207.

2 Zouch, Juris et judicii fecialis, sive juris inter gentes. Lond. 1650.

8 Euvres de D'Aguesseau, tome ii. p. 337. Ed. 1773.

4 Bentham, Morals and Legislation, vol. ii. p. 256.

(a) [M. Fœlix, who in other respects commends most highly this work, objects to the application of the term "international law," as it is used by Mr. Wheaton, to the principles which govern the reciprocal relations of States, established by usage or treaties, and which, as he contends, are only properly designated as the "law of nations," droit des gens. He appropriates international law, to indicate the collection of principles, which serve to determine the cases of conflict between the private or internal laws of different States, that is to say, to the branch of jurisprudence which constitutes the subject of Judge Story's Conflict of Laws, and of his own Treatise. "On appelle droit international l'ensemble des régles reconnues comme raison de décider des conflits entre le droit privé des diverses nations;

Opinion of According to Savigny, "there may exist between Savigny. different nations the same community of ideas which contributes to form the positive unwritten law (das positive Recht) of a particular nation. This community of ideas, founded upon a common origin and religious faith, constitutes international law as we see it existing among the Christian States of Europe, a law which was not unknown to the people of antiquity, and which we find among the Romans under the name of jus feciale. International law may therefore be considered as a positive law, but as an imperfect positive law, (eine unvollendete Rechtsbildung,) both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the State and a judicial authority competent to enforce the law. The progress of civilization, founded on Christianity, has gradually conducted us to observe a law analogous to this in our intercourse with all the nations of the globe, whatever may be their religious faith, and without reciprocity on their part." 1

It may be remarked, in confirmation of this view, that the more recent intercourse between the Christian nations of Europe and America and the Mohammedan and Pagan nations of Asia and Africa indicates a disposition, on the part of the latter, to renounce their peculiar international usages and adopt those of Christendom. The rights of legation have been recognized by, and reciprocally extended to, Turkey, Persia, Egypt, and the

en d'autres termes, le droit international se compose des régles relatives à l'application des lois civiles ou criminelles d'un état dans le territoire d'un état étranger." Fœlix, Du conflit des lois de differentes nations on du droit international, chap. 1, § 1, et note 1. Polsen, a late English writer, objects to the title International Law, as used in this treatise, as an unnecessary change from the former nomenclature. Polsen, Principles of the Law of Nations, p. 1. On the other hand, Mr. Manning says, that "the phrase international law is now in common currency, a definite and expressive term, of which Mr. Bentham claims the fatherhood, and which is almost the only term of his new political nomenclature that has passed into general circulation." Manning's Commentaries of the Law of Nations, p. 2. The term is, also, adopted by Hautefeuille, the author of one of the ablest treatises on the science that has appeared in France, and who thus defines it: "Le droit international est celui qui règle et régit les relations des peuples entre eux." Hautefeuille, Droits des nations neutres, tom. 1, p. 3.]

1 Savigny, System des heutigen Römischen Rechts, 1 B'd, 1 Buch, Kap. ii. § 11.

States of Barbary. The independence and integrity of the Ottoman Empire have been long regarded as forming essential elements in the European balance of power, and, as such, have recently become the objects of conventional stipulations between the Christian States of Europe and that Empire, which may be considered as bringing it within the pale of the public law of the former.1 (b)

1 Wheaton's Hist. Law of Nations, p. 583.

(b) [It was formerly held that in the intercourse between Christian and Mohammedan nations, the latter were entitled to a very relaxed application of the principles established by the States of Christendom to regulate their mutual relations. All recent negotiations, however, between the Sultan and Christian States have been conducted with reference to that law of nations, which is recognized by the civilized powers of Europe and America, and since 1826 reforms have been made in the internal government of Turkey, which have been supposed to afford to foreign nations a guarantee for her conventional engagements. Though the Turkish Empire was not represented at the Congress of Vienna, or at any subsequent congress convened for the purpose of considering the general interests of Europe, the Christian Powers have, for upwards of two centuries, had treaties of commerce with the Porte, and since 1791 they have repeatedly interposed to effect peace between Turkey and one of their number, especially Russia. In 1827, France, Great Britain, and Russia, joined in a treaty to compel the Sublime Porte to recognize the independence of Greece, while in 1840 the Western Powers interfered as well to save the Ottoman Empire from being dismembered by the aggressions of the Pacha of Egypt, as from surrendering its independence to the exclusive protectorate of Russia. At this time, (July, 1854,) a contest is going on in which England and France, with the avowed acquiescence of Austria and Prussia, are united, professedly, for the purpose of maintaining Turkey as an independent State, essential, as they allege, to the political equilibrium of Europe, against the Emperor of Russia, who not only asserts his claim, sanctioned by all recent treaties, to a protectorate in Moldavia, Wallachia, and Servia, which provinces enjoy special privileges, but contends for the right of intervention, as based on repeated conventions, going back to the treaty of Kutschouc-Kaynardgi, of 1774, (Martens-Recueil des Traités, t. ii. p. 297,) in behalf of his co-religionists of the Greek Church generally, constituting three fourths of the European subjects of the Porte. The influence that Austria, France, and England, as well as Russia, have at different times exercised, as respects even the strictly internal relations of the Sultan to his subjects, and in matters of municipal administration, as well as the peculiar provisions, by which jurisdiction is still recognized in the ministers and consuls of the Christian Powers over their citizens and subjects in the countries of the East, including the protection accorded by them to Franks, though not of their own nationality, renders it difficult to apply to the questions, which arise between Turkey and other Powers, the rules derived from the international relations of those States, which reject all interference from abroad in affairs of domestic cognizance.]

The same remark may be applied to the recent diplomatic transactions between the Chinese Empire and the Christian nations of Europe and America, in which the former has been compelled to abandon its inveterate anti-commercial and antisocial principles, and to acknowledge the independence and equality of other nations in the mutual intercourse of war and peace.

nition of in

law.

§ 11. Defi- . International law, as understood among civilized ternational nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society, existing among independent nations; with such definitions and modifications as may be established by general consent.1

$12.

The various sources of international law in these Sources of different branches are the following:

internation

al law.

1. Text writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.

Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.

2. Treaties of peace, alliance, and commerce declaring, modifying, or defining the preexisting international law.

What has been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties, varying from the general usage and custom of nations, cannot alter the international law, yet an almost perpetual succession of

1 Madison, Examination of the British Doctrine which subjects to Capture a Neutral Trade not open in Time of Peace, p. 41. London Ed. 1806.

treaties, establishing a particular rule, will go very far towards proving what that law is on a disputed point. Some of the most important modifications and improvements in the modern law of nations have thus originated in treaties.'

"Treaties," says Mr. Madison, "may be considered under several relations to the law of nations, according to the several questions to be decided by them."

"They may be considered as simply repeating or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which they are, first, a law between the parties themselves, and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered a voluntary or positive law of nations." 2

3. Ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals.

The marine ordinances of a State may be regarded, not only as historical evidences of its practice with regard to the rights of maritime war, but also as showing the views of its jurists with respect to the rules generally recognized as conformable to the universal law of nations. The usage of nations, which constitutes the law of nations, has not yet established an impartial tribunal for determining the validity of maritime captures. Each belligerent State refers the jurisdiction over such cases to the courts of admiralty established under its own authority within its own territory, with a final resort to a supreme appellate tribunal, under the direct control of the executive government. The rule by which the prize courts thus constituted are bound to proceed in adjudicating such cases, is not the municipal law of their own country, but the general law of nations, and the particular treaties by which their own country is bound to other States. They may be left to gather the general law of nations from its ordinary sources in the authority of institutional writers;

1 Bynkershoek, Quest. Jur. Pub. lib. i. cap. 10.

2 Madison, Examination of the British Doctrine, &c. p. 39.