Heineccius, Leibnitz, and Wolff array themselves against Germany-if Story, Wheaton, and Kent condemn the act of America, it cannot be supposed (except, indeed, in the particular epoch of a Revolution, when all regard to law is trampled under foot) that the argumentum ad patriam would not prevail-at all events, it cannot be doubted that it ought to prevail, and should the country relying upon such authority be compelled to resort to arms, that the guilt of the War would rest upon the antagonist refusing to be bound by it. It is with reference to the authority of jurists that we find Lord Stowell using such expressions as these: "It is the "necessary consequence acknowledged in all books." "The "institution (i.e. of a particular State with respect to a "matter of the Law of Nations) must conform to the text "law, and likewise to the constant usage upon this matter;" and again: "All writers upon the Law of Nations unani"mously acknowledge it, without the exception of even "Hubner himself, the great champion of neutral privileges.' 666 And Lord Mansfield, deciding a case in which the privileges of the attendant of an ambassador were concerned, said: "I remember, in a case before Lord Talbot, of Buvot "v. Barbut, upon a motion to discharge the defendant (who "was in execution for not performing a decree) 'because he was agent of commerce, commissioned by the King of Prussia, and received here as such,' the matter was very elaborately argued at the bar, and a solemn, deliberate 'opinion given by the court. These questions arose and "were discussed: Whether a minister could, by any act "or acts, waive his privilege?'-— whether being a trader "was any objection against allowing privilege to a minister personally?'-' whether an agent of commerce, or even a consul, was entitled to the privileges of a public minis 66 66 6 666 Baron Puffendorf. . . . . In the opinion, then, of this wise and virtuous Swede... his words are memorable. I do not overrate their importance when I pronounce them to be well entitled to the attention of his country." 6 "ter?' what was the rule of decision?' Lord Talbot "declared a clear opinion, That the Law of Nations, in "its full extent, was part of the law of England;' that "the Act of Parliament was declaratory, and occasioned "by a particular incident;''that the Law of Nations was "to be collected from the practice of different nations, and "the authority of writers.' Accordingly, he argued and "determined from such instances, and the authority of "Grotius, Barbeyrac, Bynkershoek, Wiquefort, &c., there "being no English writer of eminence upon the subject "(k). In truth, a reverence for the opinions of accredited writers upon Public and International Law has been a distinguishing characteristic of statesmen in all countries, and perhaps especially of those who have deserved that appellation in this kingdom. It has been felt, and eloquently expressed by them, that though these writers were not infallible, nevertheless, "the "methodized reasonings of the great publicists and jurists "formed the digest and jurisprudence of the Christian “world;" that their works contained principles which influenced every State, and constituted the permanent and embodied voice of all civilized communities; and that upon their decisions depended one of the best securities for the observance and preservation of right in the society of nations. Sir James Mackintosh, in his speech on the annexation of Genoa to the kingdom of Sardinia, touched upon this important subject, in the following well-weighed and emphatic terms: "It is not my disposition to overrate the authority "of this class of writers, or to consider authority in any case as a substitute for reason. But these eminent writers were, "at least, necessarily impartial. Their weight, as bearing "testimony to general sentiment and civilized usage, receives a new accession from every statesman who appeals to their "writings, and from every year in which no contrary practice 66 66 (k) Triquet v. Bath, Peach v. Same, 3 Burrows' Rep. 1480. 66 "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 " (1). 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 Cacina, 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 |