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 Gebræders, 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).

XXXIX. Analogy (u) has great influence in the decision lector nequiret distinguere." . . . . iv. s. 2: "Sed hæc ratio Romanorum propria non potuit constituere jus gentium," &c.

Heineccius, Prælect. ad Grotium, Proœmium, 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 Robinson's Adm. Rep. 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 (Lord Wynford)—a case on the law of Hindoo adoption.

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

"By the ancient law of Europe, such a consequence (i. e. the condem

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 cach case, on the closeness of the parallel between the circumstances of the precedents appealed to and those of the cases in dispute.

nation 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 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's 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 language of Bynkershoek, "Ipsum jus gentium, quod oritur "pactis tacitis et præsumptis quæ ratio et usus inducunt "(c).

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(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 naturâ 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 à jure naturali distinguimus."—Grot. De J. B. et P. Proleg. s. 17.

(b) Grotii Proleg. s. 1, De Jure B. et P.

(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.

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 defeazance 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"tions that are consistent with the Law of Nations. That "is the only Law which Great Britain can apply to them; "and the generality of any terms employed in an Act of "Parliament must be narrowed in construction by a religious "adherence thereto "(e).

(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.”—Flad Oyen, 1 Rob. 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 testatum mentem gentium.” (e) 2 Dodson's Admiralty Reports, p. 239.

The force of International Custom is emphatically expressed by Grotius in the phrase often repeated by him, "Placuit gentibus" (f); and still more in the phrase, "Christianis in universum placuit" (g). Bynkershoek speaks of "Illa perpetuo usu inter diversos sui juris populos "observata consuetudo," and repeatedly of the "Gentium "usus" as one of the two pillars of International Law.

Prince Talleyrand, in his note (19th December, 1814) to the Congress of Vienna, expostulated upon the violation of International Law contained in the arrangements which sanctioned the fresh partition of Poland, and the annexation of parts of Saxony to Prussia. He said that such arrangements would tend to establish the principle, "That the "nations of Europe are united to each other by no other moral "ties than those which unite them to the islanders of the "Pacific; that they live among each other under the pure law "of nature, and that what is called the Public Law of Europe "does not exist; since although all the civil societies of the "earth are, wholly or partially, governed by usages which "constitute laws, the customs which are established between "the nations of Europe, and which they have universally, constantly, and reciprocally observed for three centuries, "do not form a law for them; in one word, that there is no "other law but that of force "(h).

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XLIII. Lord Stowell frequently expressed his entire concurrence with the opinions of preceding jurists as to the great and inestimable influence of Custom upon the Rights and Duties of Nations. Speaking of the condemnation of a ship in a neutral country, he says: "It has been " contended that such a sentence is perfectly legal, both on

(f) De J. B. et P. 1. ii. c. xviii. 4, s. 5; 1. iii. c. vi. 3; c. vii. 5, s. 2. (g) Lib. iii. c. vii. 9, s. 1. "Hoc saltem perfecit reverentia Christianæ legis."—Ib.

As to preserving women from violence: "Atque id inter Christianos observari par est non tantùm ut disciplinæ militaris partem, sed et ut partem juris gentium.”—Lib. iii. c. v. xix. s. 2; cf. The Flad Oyen, 1 Rob. Adm. Rep. 141 (Lord Stowell).

(h) Wheaton's History of the Law of Nations, p. 429. Klüber, Acten des Wiener Congresses, band vii. s. 48.