ciple 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.1

§ 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 præter 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.2

§ 20. The history of transactions relating to the intercourse of States, both in peace and war, is one of the most faithful 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

1 Justinian, Institutes, lib. i. tit. i.

2 Grotius, De Jur. Bel. ac Pac., lib. ii. cap. vi. § 6; Voet, Comm. ad Pand., lib. i. § 19; Suarez, De Legibus, etc., lib. ii. cap. xx. § 3; Wolfius, Juris Gentium, § 163; Vattel, Droit des Gens, liv. ii. chap. v. § 63; Mackintosh, Miscellaneous Works, p. 183.

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.' 1

§ 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. Although,' 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 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 reasons therein, that is considerable altogether?" 2

§ 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 belligerent 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

1 Grotius, De Fur. Bel. ac Pac., lib. i. cap. i. § 12.

2 Wiseman, Excellency of the Civil Law, p. 110; Burke, Works, vol. ii., Letters on a Regicide Peace; the Maria' 1 Rob. 363.

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 maritime States, a court will feel, though perhaps unconsciously, the influence of a national bias in favour of the captor.1

§ 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, unfortunately, 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.2

§ 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

1 Kent, Com. on Am. Law, vol. i. p. 68; the 'Maria,' 1 Rob. 350; the 'Recovery,' 6 Dod. R., 349; and see vol. ii. p. 412.

2 Report of Decisions of Com. between U. S. and Great Britain, 1856; The decision of the arbitrators assembled at the Conference of Geneva, 1872, to determine on the 'Alabama' case, is an example of the above.

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 manifestoes 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 clearly recognize the fact that a system of law exists, which ought to regulate and control the international relations of every State.' '

§ 25. The same remarks are applicable to the decisions of local courts. The adjudications of questions arising from international relations by such tribunals are not obligatory upon other States, except so far as they conform to general principles and established usages; but as many questions can be decided only in this way, we may derive from this source many rules relative to the positive or practical law of nations. Such decisions, however, from their very nature, are of very limited authority, as expositions of the rules of international law; but the reasons given by the judges, and the precedents referred to in their opinions, furnish a vast fund of information on the particular points discussed. And where such opinions result from a liberal and enlarged inquiry, the decisions are well calculated to strengthen and embellish the conclusions of reason.2

§ 26. Another source, and perhaps the most fruitful of all, is formed of the works of text-writers of approved authority, showing the usage of nations, or the general opinion, respecting their mutual conduct, with the definitions and modifications introduced by general consent. As a general rule, authors of text-books and treatises on international law have risen above the local interests and prejudices which too often influence the writings of diplomatists, and even the decisions of courts, and have treated the subject in a philosophical spirit worthy of all commendation, and which causes their opinions to be referred to as authority on all disputed ques

1 Polson, Law of Nations, § 3; Phillimore, On Int. Law, vol. i. § 57 ; the Santa Cruz,' 1 Rob. 61.

2 Duer, On Insurance, vol. i. p. 479; Griswold v. Waddington, 15 Johns. R., 57; 16 Johns. R.. 438.

tions. Of course we cannot expect to find a complete uniformity of opinions in these writers, but there is a very general concurrence of views on all the great and leading principles which they have discussed. In case where the principal jurists agree,' says Kent, 'the presumption will be very great in favour of the validity of their maxims; and no civilised nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law.' Sir James Mackintosh, in his speech on the annexation of Genoa to the kingdom of Sardinia, says: '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 civilised usage, receives a new accession from every statesman who appeals to their writings, and from every year in which no contrary practice is established, or hostile principles avowed . . . I have never heard their principles questioned, but by those whose flagitious policy they had by anticipation condemned.' 1

§ 27. But it is not entirely upon their unanimity of opinion on great principles that the authority of text-writers has so great weight in the settlement of controversies between States. As a general rule, reference is made to those who wrote before the cause of the controversy arose, and who are therefore impartial. Moreover, it may be that the text-writers belonging to the very country which is urging a demand, have, in advance, pronounced against it. If the authority of Zouch,' says Phillimore, of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England; if Valin, Domat, Pothier, and Vattel be opposed to the pretensions of France; if Grotius and Bynkershoek confute the claim of Holland; Puffendorf that of Sweden; if 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)

1 Kent, Com. on Am. Law, vol. i. p. 19; Mackintosh, Miscel. Works, p. 704; Suarez, De Legibus, lib. vi. ; the Maria,' 1 Rob. 360; Wheaton, Elem. Int. Law, pt. i. ch. i. § 12; Bello, Derecho Internacional, No. Prel. 87.