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"Absit vero, ut existimes, jus gentium voluntarium ab earum voluntate ita proficisci, ut libera sit earum in eodem "condendo voluntas, et stet pro ratione sola voluntas, nulla "habita ratione juris naturalis " (p).

Upon this principle we may unhesitatingly condemn as illegal and invalid all secret articles in treaties opposed to the stipulations which are openly expressed. Upon this principle it is clear that a custom of countries to destroy and plunder foreigners shipwrecked upon their shores must always, and under all circumstances, be an outrage upon the rights of Nations. So with respect to an usage of imprisoning strangers who have innocently arrived in time of peace, under a lawful flag, into a foreign port, on the ground that they are free men of that particular colour or complexion, which disquiets the slaveholder of the country, inasmuch as his slaves, being of the same colour and complexion, are, by the presence of the free strangers, reminded of the possibility of becoming free also; so, if there existed in a country under the government of an autocrat a law or custom of imprisoning all strangers having peaceably arrived from a country under a republican form of government-any usage of this or the like kind, however inveterate, however sanctioned by Municipal Law, however accordant with national feeling, must always be a grievous violation of International Justice. Upon the same principle Grotius condemns the violation of women in time of war, as an undoubted breach of International Law among all Christian nations (7). In

(p) Wolff, Jus Gent. Præf.

(q) The prohibition even among heathen nations was, he observes, "Jus gentium, non omnium, sed meliorum;" but amongst Christian nations, he proclaims it as an undoubted principle: "Atque id inter Christianos observari par est, non tantum ut disciplinæ militaris partem sed et ut partem juris gentium-id est ut qui pudicitiam vi læsit, quamvis in bello, ubique pœnæ sit obnoxius.”—Lib. iii. c. v. s. 2.

"Sed et Christianis in universum placuit bello inter ipos orto captos servos non fieri, ita ut vendi possunt, ad operas urgeri, et alia pati quæ servorum sunt, atque ita hoc saltem, quanquam exiguum est, perfecit reverentia Christianæ legis.”—Lib. iii. c. vii. s. 9.

the same manner and for the same reason he denies that captives can be lawfully made slaves, and either sold or condemned to the labour of slaves.

XXXIII. This branch of the subject may be well concluded by the invocation of some high authorities from the jurisprudence of all countries, in support of the foregoing opinion.

Grotius says emphatically: "Nimirum humana jura multa "constituere possunt præter naturam, contra nihil" (r).

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John Voet speaks with great energy to the same effect: Quod si contra rectæ rationis dictamen gentes usu quædam "introduxerint, non ea jus gentium recte dixeris, sed pessi"mam potius morum humani generis corruptelam" (s).

Suarez, who has discussed the philosophy of law in a chapter which contains the germ of most that has been written upon the subject, says: "Leges autem ad jus "gentium pertinentes veræ leges sunt, ut explicatum "manet, propinquiores sunt legi naturali quam leges "civiles, ideoque impossibile est esse contrarias æquitati "naturali" (t).

Wolff, speaking of his own time, says: "Omnium fere "animos occupavit perversa illa opinio, quasi fons juris "gentium sit utilitas propria: unde contingit, id potentiæ "coæquari. Damnamus hoc in privatis, damnamus in "rectore civitatis; sed æque idem damnandum est in gen"tibus" (u).

Mackintosh nobly sums up this great argument: "The "duties of men, of subjects, of princes, of lawgivers, of magistrates, and of States, are all parts of one consistent "system of universal morality. Between the most abstract "and elementary maxim of moral philosophy, and the most "complicated controversies of civil or public law, there "subsists a connection. The principle of justice, deeply

(r) De J. B. et P. lib. ii. c. vi. s. 6.

(8) Comment. ad Pand. de Just. et Jure, t. i. s. 19.

(4) Lib. ii. c. xx. s. 3: "De Lege Eterna et Naturali ac Jure Gentium." (u) Jus Gent. s. 163.

"rooted in the nature and interest of man, pervades the "whole system, and is discoverable in every part of it, even "to its minutest ramification in a legal formality, or in the "construction of an article in a treaty "(x).

(x) Discourse on the Law of Nature and Nations.

CHAPTER IV.

REASON OF THE THING.

XXXIV. THE next question which arises in the prosecution of our inquiries into the sources of International Jurisprudence is this-How are the principles of Natural or Revealed Law to be applied to States?

Though States are properly and by a necessary metaphor treated as moral persons, and as the subjects of those rights and duties which naturally spring from the mutual relations of individuals; nevertheless it must be recollected that a State is actually a different thing from an individual person. Reason, therefore, which governs the application of common principles to diverse subjects, and demands, therefore, a different application of principles intrinsically the same (a) to the State and to the Individual, may be regarded as a distinct source of International Law.

This application must be made justly, and in a manner (b) suitable to this actual difference; and in order to effect this, "the reason of the thing," which has been already enumerated as one of the sources of International Law-"necessitas "finis quæ jus facit in moralibus " (c)—must in all cases be considered.

Vattel, following and improving upon Wolff, expresses himself upon this point with his usual clearness, and more than his usual force (d). There are many cases, he observes,

(a) Vattel, Préface, pp. 22, 23.

(b) Karà την Vπokeiμévŋv üλŋv.—Arist. Eth. lib. i. c. 3; Wolff, Jus Gentium, Præf.

(c) Grot. de J. B. et P. 1. ii. c. v. 24, s. 2.

(d) Vattel, ib. et Prélim. s. 6.

in which Natural Law cannot decide between nation and nation as it would between individual and individual. It is necessary to learn the mode of applying the law in a manner agreeable to the subject; and it is the art of doing this according to justice, founded on right reason, which makes International Law a particular science. It must, as Grotius says (e), be "recta illatio ex naturæ principiis procedens " which guides the national conscience in its international duties.

XXXV. The most strenuous-it might be said the most vehement-advocate for this source of International Jurisprudence is Bynkershoek. There is no dissertation of his upon any subject of International Jurisprudence which does not teem with references to it. "Ratio" and "Usus " are, according to him, the two props which sustain the whole building; and "Recta ratio" is "Juris gentium magistra."

The tendency of this author, who ranks in the first class of jurists, is rather perhaps to undervalue the authority both of his predecessors and of the tribunals of his own country. His opinion on this matter, however, construed by reference to the context, and subject to the qualification which it must receive from his frequent reliance upon precedents, and upon the opinions both of jurists and civilians, contains in reality nothing objectionable or inconsistent with the doctrine of other writers (f) with respect to the international authority due to these precedents and these opinions.

Bynkershoek was very far from meaning to convey the notion that whenever a question arose between nations, either of the contending parties was at liberty to solve it arbitrarily, according to its own notions of convenience or by an independent process of reasoning. On the contrary, in every case of doubt, the reason which long usage had sanctioned was to prevail; and the authorities of writers and of precedents were also recognised as leading to a

(e) Proleg. s. 40.

(f) Vattel, Prélim, s. 6.