"religione exercenda quam judicia exerceri solent;" and again, "bellum pacis causa suscipitur" (f).

XV. When by use of the Legal Means of War the Right has been obtained or secured, or the Injury redressed -post juris consecutionem-the normal state of peace is reestablished.

A consideration of the negotiations which precede, and the consequences which follow, the Ratification of Peace will conclude that portion of this work which relates to Public International Law.

XVI. We have hitherto spoken of Public International Law (jus publicum inter gentes—jus pacis), which governs the mutual relations of States with respect to their Public Rights and Duties; but, as States are composed of Individuals, and as individuals are impelled by nature and allowed by usage to visit and to dwell in States in which they were not born, and to which they do not owe a natural allegiance, and as they must and do enter into transactions and contract obligations, civil, moral, and religious, with the inhabitants of other States, and as States must take some cognizance of these transactions and obligations, and as the municipal law of the country cannot, in many instances at least, be applied with justice to the relations subsisting between the native and the foreigner-from these causes a system of Private International Law, a "jus gentium "privatum," has sprung up, which has taken deep root among Christian, though it more or less exists among all, nations.

The distinction, however, between the two branches of International Jurisprudence is extremely important. It is this:

The obligationes juris privati inter gentes are not-as the

(f) Grotius, de J. B. et P. lib. i. c. i. s. 1.

"Le mal que nous faisons à l'agresseur n'est point notre but: nous agissons en vue de notre salut, nous usons de notre droit; et l'agresseur est seul coupable du mal qu'il s'attire."- Vattel, liv. ii. c. ii. s. 18.

Taylor's Civil Law, p. 131.

obligationes juris publici inter gentes are-the result of legal necessity, but of social convenience, and they are called by the name of Comity-comitas gentium.

It is within the absolute competence of a State to refuse permission to foreigners to enter into transactions with its subjects, or to allow them to do so, being forewarned that the municipal law of the land will be applied to them (g); therefore a breach of comity cannot, strictly speaking, furnish a casus belli, or justify a recourse to war, any more than a discourtesy or breach of a natural duty, simply as such, can furnish ground for the private action of one individual against another (h).

For a want of Comity towards the individual subjects of a foreign State, reciprocity of treatment by the State whose subject has been injured, is, after remonstrance has been exhausted, the only legitimate remedy; whereas the breach of a rule of Public International Law constitutes a casus belli, and justifies in the last resort a recourse to war.

It is proposed to treat the subject of Comity or Private International Law next in order to the subject of Public International Law.

(g) Neyron, Principes du Droit des Gens européens, 1. clxxi. c. vi. s. 177.

Barbeyrac, Ad Grotium, 1. ii. c. ii. s. 13.

(h) Vattel, liv. ii. c. i. s. 10.

CHAPTER III.

SOURCES OF INTERNATIONAL LAW.

XVII. IT is proposed in this chapter to trace the source and ascertain the character of those laws which govern the mutual relations of independent States in their intercourse with each other.

XVIII. International Law has been said, by one profoundly conversant with this branch of jurisprudence, to be made up of a good deal of complex reasoning, and, though derived from very simple principles, altogether to comprise a very artificial system (a).

XIX. What are the depositories of this reasoning and these principles? What are the authorities to which reference must be made for the adjustment of disputes arising upon their construction, or their application to particular instances? What are in fact the fountains of International Jurisprudence-" dijudicationum fontes?"-to borrow the just expression of Grotius. These are questions which meet us on the threshold of this science, and which require as precise and definite an answer as the peculiar nature of the subject will permit (b).

XX. Grotius enumerates these sources as being "ipsa natura, leges divinæ, mores, et pacta ”(c).

(a) Lord Stowell: The Hurtige Hane, 3 C. Rob. Adm. Rep. 326. (6) Arist. Eth. lib. i. c. 3 ; Πεπαιδευμένου γάρ ἐστιν, ἐπὶ τοσοῦτον τἀκριβὲς ἐπιζητεῖν καθ' ἕκαστον γένος, ἐφ' ὅσον ἡ τοῦ πράγματος φύσις ἐπιδέχεται· παραπλήσιον γὰρ φαίνεται, μαθηματικοῦ τε πιθανολογοῦντος ἀποδέχεσθαι, καὶ ῥητορικὸν ἀποδείξεις ἀπαιτεῖν.

(c) Prolegom.: "By the Law of Nature and Nations and by the Law Divine, which is the perfection of the other two."-Lord Bacon, Of an Holy War.

In 1753, the British Government made an answer to a memorial of the Prussian Government (d) which was termed by Montesquieu réponse sans réplique (e), and which has been generally recognized as one of the ablest expositions of international law ever embodied in a state paper. In this memorable document, "The Law of Nations " is said to be "founded upon justice, equity, convenience, and the reason "of the thing, and confirmed by long usage.”

XXI. These two statements may be said to embrace the substance of all that can be said on this subject. An attempt must now be made to examine in detail, though not precisely in the same order, each of the individual sources set forth in the foregoing citations.

XXII. Moral persons are governed partly by Divine Law (leges divina), which includes natural law-partly, by positive instituted human law, which includes written and unwritten law or custom (jus scriptum, non scriptum, consuetudo).

States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly by Divine, and partly by positive law. Divine Law is either (1) that which is written by the finger of God on the heart of man, when it is called Natural Law; or (2) that which has been miraculously made known to him, when it is called revealed, or Christian law (f).

XXIII. The Primary Source, then, of International Jurisprudence is Divine Law. Of the two branches of Divine Law which have been mentioned, natural law, called by jurists jus primarium, is to be first considered. "In jure gen“tium” (g), Grotius says, "jus naturæ includitur;" and, again, "jure primo gentium quod et naturale dicitur."

All civilized heathen nations have recognized this law as

(d) Cabinet of Scarce and Celebrated Tracts, 1 vol. (Edinburgh). (e) Lettres persanes, liv. xlv.

(ƒ) Arist. Eth. lib. v. c. 7. St. Paul's Ep. to the Romans, ii. 14, 15. (g) Mare Liberum, lib. v.; Merlin, Rep. de Jurispr. tom. v. p. 291. "Hanc autem quæstionem ad jus Naturæ ideo retulimus, quia ex historiis

binding upon themselves in their internal relations. They called it the unwritten, the innate law-the law of which mortals had a Divine intuition (h)-the law which was begotten and had its footsteps in heaven, which could not be altered by human will (i), which secured the sanctity of all obligations-the law which natural reason has rendered binding upon all mankind (k).

XXIV. It has been often said that the civilized heathen nations of old, the Greeks and Romans, recognized no such law in their external relations; that is, in their intercourse with themselves or with other nations. But this conclusion is founded on slender and insufficient premises, chiefly upon the absence of distinct treatises on the subject, on the want of a distinct phrase expressing the modern term international law-on the etymological meaning of words-on the use of 'jus gentium" in the repositories of Roman law, as an expression identical with jus naturæ—and on the practical contempt for the law, exhibited in the unbounded ambition and unjustifiable conquests of ancient Rome.

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XXV. Nevertheless, we know that Aristotle passed a severe censure upon those nations who would confine the cultivation of justice within the limits of their own territories and neglect the exercise of it in their intercourse with other nations (1). Thucydides (m) prefers the same charge against

nihil comperire potuimus ea de re jure voluntario gentium esse constitutum."-Grot. 1. iii. v. 5.

(h) Arist. Rhet. b. i. c. 13: "Idiov μèv tòv ékáσтois ¿piσμévov πρоs αὑτούς· καὶ τοῦτον τὸν μὲν ἄγραφον, τὸν δὲ γεγραμμένον. Κοινὸν δὲ τὸν κατὰ φύσιν· ἔστι γὰρ, ὃ μαντεύονται τι πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, καν μηδεμία κοινωνία πρὸς ἀλλήλους ᾖ, μηδὲ συνθήκη.

(i) Soph. Antig. v. 450-7; vinodes vóμoi, Ed. Tyr. 866.

(k) Cic. Pro Milone, 3; De Rep. 1. iii. c. 22.

(1) Αὐτοὶ μὲν γὰρ παρ' αὐτοῖς τὸ δικαίως ἄρκειν ζητοῦσι, πρὸς δὲ τοὺς ἄλλους οὐδὲν μέλει τῶν δικαίων.—Polit. lib. vii. c. 2. And when he is discussing the different ends of different kinds of oratory, and observing that the speaker in the public assembly dwells on the inexpediency and not the immorality of a particular course of action: ὡς δ ̓ οὐκ ἄδικον τοὺς ἀστυγείτονας καταδουλοῦσθαι, καὶ τοὺς μηδὲν ἀδικοῦντας, πολλάκις οὐδὲν φροντίζουσιν.—Rhet. tom. i. c. 3,

(m) Hist. lib. v.