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 (c) 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 modificatious 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) Grotii Prolegomena, xxiii., as to the auxilia scripti which he had. "Solent autem gentium sententiæ de eo quod inter illas justum esse 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). debet triplici modo manifestari, moribus scilicet et usu, pactis et fœderibus, et tacita 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.; Muhlenbruch, Doctr. Pand. Pr. s. 8. (e) Vattel cited "as a witness as well as a lawyer."-The Maria, 1 C. 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 (ƒ). "In cases where the principal jurists agree," Chancellor Kent says, "the presumption 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 - Puffendorf (i) that of Sweden - if (f) The Maria, 1 C. 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, 1 C. Rob. Adm. Rep. p. 369. (1) 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." 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 Buvot "v. Barbut, upon a motion to discharge the defendant (who "was 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 objection against allowing privilege to a minister "personally ? '—whether an agent of commerce, or even "a consul, was entitled to the privileges of a public minis 66 66 Baron Puffendorf. . . . . 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." " "ter? what was the rule of decision?' Lord Talbot "declared a clear opinion, That the Law of Nations, in "its full extent, was part of the law of England; that "the Act of Parliament was declaratory, and occasioned "by a particular incident;' 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). In truth, a reverence for the opinions of accredited writers 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. 66 upon 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 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 "writings, and from every year in which no contrary practice (k) Triquet v. Bath, Peach v. Same, 3 Burrows' Rep. 1480. |