bunals of both belligerents professed to administer, and with very few exceptions did administer, the law as already expounded by these Courts.

The seal of Courts of Admiralty, being also Courts of International Law, is judicially taken notice of, without positive proof of its authenticity, by the Courts of all Nations (o).

(0) Yeaton v. Fry, 5 Cranch's (American) Rep. 335, 343 (Ch. J. Marshall); Thompson v. Stewart, 3 Conn. (American) Rep. 171; 2 Kent's Commentaries, 121, note. But the rule is different as to the seal of other foreign courts: Delafield v. Hand, 3 Johns. (American) Rep. 310; Desobrey v. Laistre, 2 Harr. & Johns. (American) Rep. 192.

Henry v. Adey, 3 East, 221: "In an action upon a judgment obtained in the island of Grenada, the plaintiff, at the trial before Lord Ellenborough, C. J., at the sittings after last term at Guildhall, proved the handwriting of the Judge of the Court subscribed to the instrument purporting to be the judgment of the Court, but could not prove that the seal affixed to it was the seal of the island; for want of which proof the plaintiff was nonsuited." The Court, on an application to set aside the nonsuit, upheld it.

CHAPTER VII.

WRITERS ON INTERNATIONAL LAW.

LVIII. THE consent of nations is further evidenced by the concurrent testimony of great writers (a) upon International Jurisprudence. The works of some of them have become recognized digests of the principles of the science; and to them every civilized country yields great, if not implicit, homage (b).

When Grotius wrote his immortal work he derived but little help (e) from any predecessor in the noble career which

(a) See some very sensible remarks on this head, by M. Ortolan, Diplomatie de la Mer, 1. i. c. iv. t. i. p. 74, &c.

"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," are placed as the second branch of International Law by Wheaton.—El. of Int. Law, vol. i. p. 59.

(b) The English courts of Common Law, and English commentators upon that law, both in cases of public and private International Law, have been in the habit of referring to other works of these foreign authors, as containing evidence of the law to be administered in England: e. g. see Comyn's Digest, tit. Ambassador, where Grotius is cited. See the authorities cited by Lord Mansfield in the cases relating to ambassadorial privileges, mentioned in a later part of this work; and see the whole part of this work on Comity, or Private International Law. Lord Mansfield, in fact, built up the fabric of English Commercial Law upon the foundation of the principles contained in the works of foreign jurists. In the Admiralty and Ecclesiastical Courts, these works had been always referred to as authorities. It is by these courts indeed, and the practitioners therein, that the study of Civil and International Law was alone preserved from perishing in these Islands: the seed was sown and kept alive in them, which subsequently bore fruit of which no country need be ashamed. See Preface, by Dr. Phillimore, to Sir G. Lee's Reports.

(c) Grotü Prolegomena, xxiii., as to the auxilia scripti which he had. "Solent autem gentium sententiæ de eo quod inter illos justum esse debet triplici modo manifestari, moribus scilicet et usu, pactis et fœde

he chose for himself. Albericus Gentilis, Arthur Duck, and Suarez had indeed left him materials of which he fully availed himself, as well as of the labours of publicists like Ayala and Bacon, and of the commentators on the Civil and Canon Law; but he may be almost said to have himself laid the foundation of that great pillar of International Law-the authority of International Jurists. His own book, one of the firmest barriers yet erected by Christendom against barbarism, and the works of some subsequent writers upon the same subject, have long obtained the honour of being the repositories to which nations have recourse for argument to justify their acts or fortify their claims. They are, indeed, with the modifications that reason and usage apply, admitted umpires in International disputes; and this fact has greatly contributed, and still does contribute, to clothe the Law of Nations, more and more, with the precision and certainty of positive and municipal law.

The value ascribed to the opinion (d) of each writer, in the event of there being a difference between them, is a point upon which it is impossible to lay down a precise rule; but among the criteria of it will be the length of time by which it is, as it were, consecrated, the period when it was expressed, the reasoning upon which it rests, the usage by which it has been since strengthened, and to the previous existence of which it testifies (e).

ribus, et tacitâ approbatione juris regularum, a prudentibus ex ipsis rerum causis per interpretationem et per rationem deductarum."Warnkönig, Doctrina Juris Philosophica Aphorismis Distincta (a most valuable little work), s. 146, p. 190.

(d) No rule of International Law exists like that of the Imperial Law of Rome, which decided that the opinions of Papinianus, Paulus, Gaius, Ulpianus, and Modestinus should have the force of law: that, in points where they differed, the opinion of the majority, and, where they were equally divided, the side on which Papinianus was found, should prevail.-Th. Cod. i. 4, De Responsis Prudentum L. un. ; Ib. ix. 3, L. un. Pr. de Sent. Pass.; Cod. ix. 51, 13 de Sent. Pass.; Mühlenbruch, Doctr. Pand. Pr. s. 8.

(e) Vattel cited "as a witness as well as a lawyer."-The Maria, 1 Rob. Adm. Rep. p. 363. See the case generally on this point.

When, on the other hand, their authority, in the absence of any contrary usage or convention, may be safely said to be binding upon all nations: "All writers upon the Law "of Nations unanimously acknowledge it," is not the least of Lord Stowell's arguments for the Belligerent's right of search (f).

"In cases where the principal jurists agree, the presump"tion will be very great in favour of the solidity of their "maxims; and no civilized nation that does not arrogantly "set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers of "International Law" (g).

And how great is the advantage of this, that a controversy between France and England should be capable of being referred to principles laid down by an arbitrator who existed long before the disunion arose, and whom it is impossible to accuse of partiality! This remark supposes the reference made to a neutral jurist, belonging to neither country; but the advantage is not so limited-it may be that the authorities. belonging to the very country which is urging a demand will be found to pronounce against it.

If the authority of Zouch, of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England—if Valin, Domat, Pothier, and Vattel (h) be opposed to the pretensions of France-if Grotius and Bynkershoek confute the claim of Holland - Puffendorff (i) that of Sweden - if

(f) The Maria, 1 Rob. Adm, Rep. p. 360. (g) Kent's Commentaries, vol. i. p. 19.

(h) "I stand with confidence upon all fair principles of reason— upon the distinct authority of Vattel-upon the Institutes of other great maritime countries as well as those of our own countries-when I venture to lay it down that, by the Law of Nations," &c.-The Maria, 3 Rob. Adm. Rep. p. 369 (Lord Stowell).

(i) So, in the case of the Swedish convoy, Lord Stowell said: "If authority is required, I have authority-and not the less weighty in this question for being Swedish authority; I mean the opinion of that distinguished person-one of the most distinguished which that country (fertile as it has been of eminent men) has ever produced-I mean

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."

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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 Burvot v. Barbut, upon a motion to discharge the defendant (who 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 ob"jection against allowing privilege to a minister personally?' —whether an agent of commerce, or even a consul, was "entitled to the privileges of a public minister? '—' what was

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Baron Puffendorff. . 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."