66 66 66 66 principle and authority. It is said that, on principle, the security and consummation of the capture is as complete in "a neutral port as in the port of the belligerent himself. On "the mere principle of security it may perhaps be so; but "it is to be remembered that this is a matter not to be governed by abstract principles alone; the use and practice "of nations have intervened, and shifted the matter from its "foundations of that species: the expression which Grotius "uses on these occasions (Placuit gentibus) is, in my opinion, perfectly correct, intimating that there is a use and practice "of nations, to which we are now expected to conform ” (¿). In another case (j), he says: "This is a position in which "I am justified by the general practice of mankind, and the practice of mankind forms one great branch of the law of "nations." Throughout his celebrated judgment in The Maria (k) he relies invariably upon " the law and practice of "nations." And again, in The Santa Cruz, after having observed that there is no statute of the British Parliament upon the subject of Prize which directly applies to recapture, he continues: "But there is a law of habit, a law of usage, a 66 66 standing and known principle, on the subject in all civilized "and commercial countries: it is the common practice of "European States in every war to issue proclamations and "edicts on the subject of Prize; but till they appear, Courts "of Admiralty have a law and a usage on which they proceed, from habit and ancient practice, as regularly as they afterwards conform to the express regulations of their "prize acts" (1). 66 66 Similar expressions abound in the luminous expositions of International Law which these judgments afford. (1) The Henrick and Maria, 4 Rob. Adm. Rep. pp. 54, 55. (j) The Progress, 7 Rob. Adm. Rep. 220. (k) 1 Robinson's Adm. Rep. 350, 362, &c. See, too, Flad Oyen, Ib. 140, 141. (1) 1 Robinson's Adm. Rep. p. 61. The Mercurius, 1 Rob. Adm. Rep. p. 82: "Under the modern law of nations." 66 The Maria, Ib. 371 a: According to the modern understanding of the law of nations." The Santa Cruz, 1 Rob. Adm. Rep. p. 65: The Elsebe, 4 Ib. p. 421. XLIV. The Law of Nations has received continual accessions and improvements since the first cultivation of it in the Christian world; not only have evil customs been abrogated, but the rigour of many ancient customs has been softened and relaxed in their application, without any departure from the principle on which they were founded. This effect is happily described by Lord Stowell; when speaking of contraband articles found on board a neutral vessel, he says, "I do not "know that under the present practice of the Law of "Nations, a contraband cargo can affect the ship. By the "ancient law of Europe, such a consequence would have "ensued; nor can it be said that such a penalty was unjust, "or not supported by the general analogies of law, for the "owner of the ship has engaged it in an unlawful commerce. "But in the modern practice of the Courts of Admiralty "of this country, and I believe of other nations also, a "milder rule has been adopted" (m). On the other hand, usage has decided that many things are contraband in naval war concerning which there had formerly been much dispute. Valin says honestly and boldly in his Commentaries, "De droit ces choses sont de contrabande aujourd'hui et depuis le commencement de ce siècle, ce qui n'était pas "autrefois néanmoins" (n). There must be, however, a reciprocity (o) in the conduct of the nation demanding from another nation the privilege of these mitigations introduced by usage into the ancient Law; and a nation may be estopped by its usage from claiming the benefit of a principle of the Law of Nations which would operate in its favour. 66 XLV. Such is the influence of universal usage, that it will in some measure affect even the stipulations of a treaty made long prior to the commencement of that usage, and at a time when the law, which has been since settled, was in a state of fluctuation and controversy (p). (m) The Ringende Jacob, 1 Rob. Adm. Rep. p. 90. In 1654, a treaty was entered into between England and Portugal, by which, among other things, both countries mutually bound themselves not to suffer the ships and goods of the other taken by enemies, and carried into the ports of the other, to be conveyed away from the original owners or proprietors. "Now, I have no scruple in saying" (observes Lord Stowell, in 1798), " that this is an Article incapable of being carried into literal execution, according to the modern. understanding of the Law of Nations, for no neutral country can interpose to wrest from a belligerent prizes lawfully taken" (q). This is, perhaps, the strongest instance that could be cited, of what civilians call the "consuetudo obrogatoria" (r). 66 66 66 XLVI. So the establishment of Courts of the Law of Nations in all civilized countries in time of war, is an institution introduced by civilized usage, and binding upon all civilized countries. Neutral Nations in time of War have now no right (s), when they are injured, to exact compensation from the countrymen of the aggressors (t), though the Barbary States were said by Lord Stowell to do so, "under a Law of Nations "now peculiar to themselves" (u). Neither in time of Peace are Nations entitled to have recourse to Reprisals, until reparation for the injury sustained has been formally asked and denied, both of the proper tribunal, and of the government, in re minimè dubia. These points, however, will receive a fuller discussion in another part of this work. (q) The Santa Cruz, 1 Rob. Adm. Rep. pp. 49, 64. See also vol. ii. p. 732, of Sir Leoline Jenkins's Works. (r) Savigny, System des Römischen Rechts, b. i. 195. Bynkershoek, de Foro Legat. c. xix. s. 7. (s) Bynkershoek, Observationes Juris Romani, c. ii. vol. ii.: "Propul satio vis atque injuriæ quo sensu juri gentium tribuatur.” Ib. (t) The Maria, 1 Rob. Adm. Rep. p. 373; The Walsingham Packet, P. 83; The Snipe and others, Edwards's Adm. Rep. p. 412. (u) The Kinder Kinder, 2 Rob. Adm. Rep. p. 88. CHAPTER VI. HISTORY. XLVII. Such being the influence of usage upon International Law (a), it becomes of importance to ascertain where the repositories, and what the evidence, may be of this great source of International Law. XLVIII. (1.) In the enumeration of these, History, unless the term be too general, necessarily takes the first place. It supplies, according to Grotius, both example and authoritative judgments-of which the latter owe their weight to the general acceptance which they have obtained, whilst the former are more or less valuable according as they are more or less derived from epochs and Nations more or less entitled to universal respect (b). It is scarcely necessary to guard against the error which Grotius, in another part of his work, denounces-that instances recorded in History, merely by virtue of being so recorded, constitute precedents of International Law (c). History is a record of the injustice, evil passions, and folly, as well as of the justice, virtues, and wisdom of Nations. The necessities of the epoch in which Grotius wrote left him (a) "Quamquam enim nec sit exemplis judicandum, et aurea ea dicitur Justiniani lex, ab exemplis tamen duci probabilem conjecturam certum est, et in dubio judicandum imo est exemplis ; et cum itum in consuetudinem est. Neque enim mutare decet quæ certam observantiam semper habuerunt, et firmiùs judicium creditur, quod plurimorum sententiis confirmatur."-Albericus Gentilis, lib. i. c. ii. De Jure Belli. (b) Grot. Proleg. s. xlvi.: "Historia duplicem habent usum, qui nostri sit argumenti: nam et exempla suppeditant et judicia. Exempla quo meliorum sunt temporum ac populorum eo plus habent auctoritatis; ideo Græca et Romana vetera cæteris prætulimus. Nec spernenda judicia, præsertim consentientia; jus enim naturæ, ut diximus, aliquo modo inde probatur; jus vero gentium non est ut aliter probetur." The Flad Oyen, 1 Rob. Adm. Rep. p. 141. (c) "Solet et illud quæri an jure talionis interfici, aut malè tractari legatus possit ab eo veniens, qui tale quid patraverit. Et sunt quidem ultionis talis exempla in historiis satis multa: sed nimirum historia little or no choice in selecting his examples and precedents chiefly from the antiquity of Greece and Rome. This is not the case with his successors; they have far ampler and far apter materials. But the edifice is not the weaker for the breadth and depth of the classical foundations laid by the first architect; and the principle which guided him is in this, as in most other instances, most valuable to the later and, in spite of their advantages, inferior builders. XLIX. (2.) Secondly, the consent of Nations is evidenced by the contents of Treaties, which for this, as well as for other reasons, constitute a most important part of International Law (d). L. Upon this point there is one observation which merits, from its importance, precedence over all others. It is this: No treaty between two or more Nations can affect the general principles of International Law prejudicially to the interest of other Nations not parties to such covenant; at the same time, the contracting parties (e) may introduce into a treaty expressions so generally worded as to be either explanatory of a previously contested point of law, or declaratory of the future interpretation of it, or in other ways frame the covenants of the Treaty between themselves so as to lay down an universal principle binding on them, at least, in their intercourse with the rest of the world. Nowhere will this important doctrine be found laid down with greater non tantum quæ justè, sed et quæ iniquè, iracundè, impotenter facta sunt, memorant."-Grot. 1. ii. c. xviii. 7. (d) "All this body of old conventions, composing the vast and voluminous collection called the Corps diplomatique, forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world. In these treasures are to be found the usual relations of peace and amity in civilized Europe."-Letters on a Regicide Peace, Burke's Works, ix. 235. (e) "Usus intelligitur ex perpetua, quodam modo, paciscendi edicendique consuetudine; pactis enim principes sæpe id egerunt in casum belli, sæpe etiam edictis contra quoscunque, flagrante bello. Dixi, ex perpetua quodam modo consuetudine, quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non mutat."-Bynkershoek, Questiones Juris Publici, 1. i. c. x. Wheaton's El. of Int. Law, i. 60. |