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"the rule of decision?' Lord Talbot declared a clear opi"nion, That the Law of Nations, in its full extent, was "part of the law of England;' that the Act of Parlia"❝ment was declaratory, and occasioned by a particular inci"dent; 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).

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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 66 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

(k) Triquet and Others v. Bath, Peach and Others v. Same, 3 Burrows' Rep. 1480.

Burke's Works, vol. viii. p. 235, Letters on a Regicide Peace.

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writings, and from every year in which no contrary practice "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).

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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 à potestate jurisdictionis, sed à scientia, et judicio prudentum; et ideo dicimus per se non inducere obligationem. Quia verò 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 subject thus: "On appelle dommages et intérêts, la perte "que quelqu'un a faite, et le gain qu'il a manqué de faire :

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"c'est la définition qu'en donne la loi (13 Ff. Rat. rem hab.)— Quantùm meâ interfuit, id est quantum mihi abest, quan"tùmque lucrari potui." The result of his examination of this law is, that in all cases, even where the debtor is guilty of no bad faith, he shall be compelled to indemnify the creditor both for the actual loss which he has sustained, and for the gain which it may reasonably be supposed that he would have made, had he not been impeded by his engagement. In cases of bad faith, the rule is much more severe.

A particular kind of action was known to the Roman Law, in cases where the price or value of a thing in which one person was indebted to another was sought in lieu of the thing itself, payment of which had been delayed. The action was called, for an antiquated reason which need not be discussed, Condictio triticaria (a); and it is most learnedly treated by J. Voet, who says, it is necessary to consider, first, whether the value of the thing is the principal object of the suit, or whether the thing itself be the principal object, and the value only the necessary substitute, under the circumstances. If it be the value of the thing, if the price was to be paid in money, the law, he says, is clear-the sum due is to be measured by the value of the article at the time when the obligation was first contracted, not at the time when the payment was enforced (b). If the thing itself be the principal object of the suit, its value should be estimated, either by that which it was worth at the time of beginning the suit (litis contestatio), or at the time the sentence was pronounced (condemnationis tempus); provided always that no delay has been caused by the party against whom the suit is brought, because then " dubium non est, quin frustratio moratori, et non alteri obesse debeat; ac propterea, si inter moram et "litem contestatam remve, judicatam res pluris valuerit, quam

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(a) Dig. de Condic. Tritic. xiii. iii. 1.

(b) "Neque aliam contrahentes videri possunt æstimationem adeoque quantitatem pecuniariam respexisse, quam quæ fuit eo tempore, quo primitus obligatio nascebatur, sive bonæ fidei sive stricti juris negotium sit"-Voet, ad Pand. 1. xiii. tit. iii.

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