probably true that states cannot be punished, in the strict technical sense of that term. Nevertheless, if one state be injured or insulted by another, it may seek redress by war, and require not only indemnity for the past, but security for the future; and in order to attain this object, it may destroy the property of the offending state and take away its territory. These acts are not, in the strict sense of that term, acts of punishment, but, directly or indirectly, acts of self defense; and the state which resorts to such measures against another, can justify its conduct only on the ground of their being necessary, for the preservation of its own rights, the welfare of other states, or the peace of the world. They are not defensible as punishments due and inflicted upon the offender, for one state has no authority to punish the offenses of another. Nevertheless, they are, with respect to the offending state, to all intents and purposes, punishments. (Vattel, Droit des Gens, liv. 2, ch. 1, §4; Phillimore, On Int. Law, vol. 1, § 11; Pinheiro Ferreira, Com. sur Vattel, verb punir; Savigny, System des Rom. Rechts, B. 2, pp. 94-96; Wildman, Int. Law, vol. 1, p. 32.)

§ 17. In the present imperfect state of international law, which recognizes the obligatory force of no written code, and acknowledges no permanent judicial expositor of its principles, we must necessarily resort to the precedents collected from history, the opinions of jurisconsults, and the decisions of tribunals, in order to ascertain what these principles are, and to determine what are the proper rules for their application. Some of these principles and rules have been settled for ages, and have the force of positive laws which no one will now venture to dispute or call in question; while others are admitted only by particular states, and cannot be regarded as binding upon any one which has not adopted them. The sources of international law are therefore as various as the subjects to which its rules are applied; and, in deducing these rules, we should distinguish between those which are applicable only to particular states, and those which are obligatory upon all. We will now proceed to point out some of these sources, and to discuss their character and authority. (Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 10: Wildman, International Law, vol. 1, p. 32; Manning, Law of Nations, p. 76;

Bello, Derecho Internacional, No. Prel., § 32; Heffter, Droit International, § 2; Vattel, Droit des Gens, prel. § 1, Chitty's note; Austin, Prov. of Jurisprudence, pp. 147, 148, 207, 208.)

§ 18. The first source from which are deduced the rules of conduct which ought to be observed between nations, is the divine law, or principle of justice, which has been defined "a constant and perpetual disposition to render every man his due." The peculiar nature of the society existing among independent states, renders it more difficult to apply this principle to them than to individual members of the same state; and there is, therefore, less uniformity of opinion with respect to the rules of international law properly deducible from it, than with respect to the rules of moral law governing the intercourse of individual men. It is, perhaps, more properly speaking, the test by which the rules of positive international law are to be judged, rather than the source from which these rules themselves are deduced. (Justinian, Institutes, lib. 1, tit. 1; Phillimore, On Int. Law, vol. 1, § 23; Dymond, Prin. of Morality, Essay 1, pt. 2, ch. 4; Manning, Law of Nations, pp. 57-58; Cotelle, Droit des Gens, pt. 1; Heineccius, Elementa Juris Nat. et Gent., lib. 1, cap. 1, § 12.)

§ 19. Grotius lays down the broad principle that the positive law of nations may add to, but cannot subtract from the law of nature. "Nimirum humana jura multa constituere possunt praeter naturam, contra nihil." Voet, Suarez and Wolfius express themselves to the same effect. Burke says: "All human laws are, properly speaking, only declaratory. They may alter the mode and application, but have no power over the substance of original justice." Mackintosh says: "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 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." Vattel considers "justice as the basis of all society;" and that, although natural law cannot decide

between nation and nation, as it would between individual and individual, yet the rules of international law must be according to justice, founded on right reason. (Phillimore, On Int. Law, vol. 1, § 35; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 6, §6; Voet, Comm. ad Pand., lib. 1, § 19; Suarez, De Legibus, etc., lib. 2, cap. 20, § 3; Wolfius, Juris Gentium, § 163; Vattel, Droit des Gens, liv. 2, chap. 5, § 63; Heffter, Droit Inter. national, § 2; Mackintosh, Miscellaneous Works, p. 183.)

§ 20. The history of transactions relating to the intercourse of states, both in peace and war, is one of the most fruitful sources of international law. What is called the voluntary, or positive law of nations, is mainly derived from usage and custom, and to determine these we must have recourse to the history of what has passed from time to time among the several nations of the world; not that history will afford us the record of any constant and uninterrupted practice, but because we shall there find what has been generally approved and what has been generally condemned in the variable and contradictory practice of nations; "for," in the words of Grotius, "such a universal approbation must arise from some universal principle, and this universal principle can be nothing else but the common sense or reason of mankind." (Grotius, de Jur. Bel. ac Pac., lib. 1, cap. 1, § 12; Wheaton, Elem. Int. Law, pt. 1, ch. 1, §4; Rutherforth, Institutes, b. 1, ch. 9, §§ 1-6; Phillimore, On Int. Law, vol. 1, §§ 49 et seq.; Polson, Law of Nations, § 3; Heffter, Droit International, §§ 6–9.)

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§ 21. It will generally be found that the deficiencies of precedent, usage, and express international authority, may be supplied from the rich treasury of the Roman Civil Law. Indeed, the greater number of controversies between states would find a just solution in this comprehensive system of practical equity, which furnishes principles of universal jurisprudence, applicable alike to individuals and to states. though," says Wiseman, "the civil law was not intended by the Roman legislators to reach or direct beyond the bounds of the Roman empire, * * yet, since there is a strong stream of natural reason continually flowing in the channel of the Roman laws, and that there is no affair or business known to any part of the world now which the Roman empire dealt not in before, and their justice still provided for,

what should hinder but that the nature of affairs, being the same, the same general rules of justice and dictates of reason may be as fitly accommodated to foreigners dealing with one another, (as it is clear that they have been by the civilians of all ages,) as to those of one and the same nation, when one common reason is a guide and a light to them both; for it is not the persons, but the case, and the reason therein, that is considerable altogether." (Phillimore, on Int. Law, vol. 1, § 38; Wiseman, Excellency of the Civil Law, p. 110; Burke, the Works of, vol. 2, Letters on a Regicide Peace; The Maria, 1 Rob. Rep., p. 363; Bynkershoek, De Foro Legatorum, ch. 6; Wildman, Int. Law, vol. 1, p. 31; Heffter, Droit International, ᎦᏚ 6, 9.)

§ 22. According to the present law and practice of nations, the seat of judicial authority of prize courts is located in the belligerent country, and they are dependent, in a measure, upon the laws and institutions of the particular states by which they are established. In this respect they are ex parte tribunals. But the subjects of their adjudication, are, without distinction, matters relating to the citizens and property of their own states, of neutrals, and of the belligerant country; and the law itself, by which their decisions should be governed, has no locality, and it is the duty of such a court to determine questions which come before it exactly as it would determine them by sitting in the neutral or belligerent country, the rights of whose citizens are to be adjudicated upon. In theory, therefore, such courts are regarded as international tribunals. But the practice has not at all times corresponded with this theory, and, on this account, it is necessary to rigidly investigate the principles upon which these adjudications are founded, and the reasonings by which they are supported. With this caution in their use, the books of admiralty reports may become an instructive source of information respecting the practical rules of international law. It is also necessary to continually bear in mind the distinction between cases decided upon local law and institutions, and those decided upon general principles, which should govern the intercourse of independent states. Moreover, in great maritime states, which depend for their glory and safety upon their navy, a court will feel, though perhaps unconsciously,

the influence of a national bias in favor of the captor. This remark, we think, is particularly applicable to the very able and learned decisions of the British admiralty. (Kent, Com. on Am. Law, vol. 1, p. 68; Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 12; Duer, On Iusurance, vol. 1, p. 644, note; Phillimore, On Int. Law, vol. 1, § 59; The Maria, 1 Rob. Rep., p. 350; The Recovery, 6 Dod. Rep., p. 349; Polson, Law of Nations, sec. 3; Wildman, Int. Law, vol. 1, p. 36.)

§ 23. Greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the several states between which they are to decide, than to those of admiralty courts established by, and dependent, in some measure, on the instructions of a single state; provided that the judges and umpires of these mixed tribunals possess the same character, ability and learning, as the judges of admiralty. But, unfortunaty, this has not generally been the case; and the decisions of these boards of arbitration have too often been mere compromises of differences, rather than the elucidation of principles of international law, founded upon the true basis of international justice and supported by right reason. Nevertheless, these adjudications furnish a fruitful source of international law, and may always be consulted with profit and instruction. (Wheaton, Elem. Int. Law, pt.1, ch. 1, § 12; Phillimore, On Int. Law, vol. 1, § 59; Polson Law of Nations, sec. 3; Report of Decisions of Com. between U. S. and Great Britain, 1856.)

§ 24. The ordinances and commercial laws of particular states, and the rules prescribed for the conduct of their commissioned cruisers and prize tribunals, may also be referred to for illustrations of the voluntary law of nations, as understood and practised by such states. They, however, should be investigated with caution, and are received only as particular admissions of general principles. Nevertheless, some of the most important modifications and improvements in the modern law of nations have thus originated in the ordinances and commercial regulations, the proclamations and manifestos of particular states. "These public documents furnish, at all events," says Phillimore, "decisive evidence against any state which afterward departs from the principles which it has thus deliberately invoked; and, in every case, thus