all natural justice, and rely on what has been denominated the right of the strongest. England has always been prompt to acknowledge the authorities both of universal practice and of eminent writers. In the before-mentioned case of Triquet and others against Bath (1), Lord Mansfield went on to state it, as the declaration of Lord Talbot, that the law of nations was to be collected from the practice of different nations and the authority of writers: "accordingly." continues Lord Mansfield," he argued and determined from "such instances, and the authority of Grotius, Barbeyrac, "Binkershoek, Wiquefort, &c., there being no English writer "of eminence upon the subject." The same principles are also laid down by elementary writers of high authority (2). To the names of Grotius, Barbeyrac, and Wiquefort, may be added those of Puffendorf, Wolf, Vattel, Selden, Valin, Clerac, Pothier, Burlamaqué, Emerigon, Roccus, Casasegis, Loccenius, Santerna, Maline, and Molloy. There are yet other authors of old time, not in so great credit as these, but whose works still deserve and enjoy considerable reputation; and of late several living writers have published treatises of high estimation for accuracy and ability, but wanting, of course, that authoritative weight which antiquity and long acquiescence bestow. What has been said of these elementary works, as the great sources of international law, should be understood only with respect to those principles which are of universal and permanent obligation, and fall under the heads of the natural or of the voluntary law. For, of course, those laws which are merely customary or conventional, are not to be found completely detailed in any elementary treatises. There are accidental allusions indeed to particular provisions of them, scattered up and down in almost all these works; but, as Vattel has observed, it was not to be expected that any such essay should contain explicit details on a subject so liable to perpetual variation; (1) 3 Burr. 1481; ante, 33. See also Viner's Abridg. Merch. nor will it be consistent with the plan of the present undertaking to treat it very minutely. (1) The principles of natural law are immutable, for they are the principles of original justice and honour, founded, as Vattel expresses it, on the nature of things and the nature of man (2). The principles of voluntary law are not to be changed without universal consent; for they are only the principles of original justice and honour, reduced into practical rules, and guarded by necessary forms. But the regulations of mere customary law, as we have seen, may be changed at any time, upon reasonable notice, by any nation resolving to withdraw her consent from the general agreement on which each custom rests, though a few individuals of such nation cannot, without the authority of the state, of their own accord alter such customary law so as to affect other persons (3). There will probably be occasion to notice some of the provisions of this law, in treating certain topics which fall within the latter divisions of the work. In the meantime it will suffice to offer a short historical enumeration of those mercantile codes of customary law, which the states of Europe have considered to be of the highest authority in their mutual dealings, as records or evidences of their ancient consent to particular usages. Almost all the provisions of these codes relate exclusively to maritime affairs; for, in consequence of the superior cheapness of water-carriage, and of the maritime situation of several among the chief commercial states, the greatest part of the international trade has been usually conducted by sea. The earliest system of marine law was compiled by the Rhodians about 900 years before the christian æra. A collection, bearing the denomination of Rhodian laws, is to be found in Vinnius; but it is believed to be spurious. If the other commercial states of antiquity had any maritime institutions, they are not now extant. It was towards the end of the eleventh century, about the time of the first crusade, that the earliest code of more modern sea-laws was compiled. This code was (1) Vattel, Prelim. 65. s. 24, 25. (2) Vattel, Prelim. 64, 65. s. 22, 23. s. 8. (3) Fennings v. Ld. Grenville, 1 Taunt. 248. arranged by the people of Amalphi: it is thought to have been principally collected from the Rhodian institutions, and appears to have been generally received, during a considerable period, in the countries bordering on the Mediterranean. But in process of time, as the maritime states, which gradually arose in Europe, began to set up codes of their own, great inconvenience was felt from the discordance of the various enactments; and a new collection, compiled from all those which had gone before, was established, as Grotius informs us (1), by the authority of almost all the sovereigns of Europe: this new collection was entitled Consolato del Mare. In the thirteenth century it was received as law in Italy, Germany, France, and the Greek empire; and Vinnius affirms that most of the marine laws in Spain, Italy, France, and England, are borrowed from it. It seems to be considered as a branch of international law; and, in spite of certain defects, its regulations are of high authority in all the maritime states of Europe. Some differences of opinion have existed as to the authority which first established the celebrated Laws of Oleron: however, they were indisputably promul gated about the time of Richard the first, and are held to be of great authority. Of great authority also, and of equally uncertain date, are the ordinances made by the merchants and masters of Wisburg, a city in the island of Gothland, anciently much celebrated for its commerce. They appear however to have been promulgated during some part of the thirteenth century. Another system of laws, drawn up by the deputies of the Hanseatic league in 1597, and confirmed with additions in 1614, has obtained much consideration in the maritime jurisprudence of nations (2). But the most complete and comprehensive system of marine law, is the famous ordinance of marine of Louis the Fourteenth, published in 1681. This excellent code was compiled and arranged by a very masterly hand, under the inspection of Colbert the celebrated minister of that prince, upon an attentive revision of all the ancient sea-laws of France and other countries, with the assistance of the most learned men of the time; and upon the consultation with the different parlia (1) Grotius, b. 3. c. 1. 8. 5. note 6. (2) See remarks on this code, 2 Ward's Law of Nations, 276 to ments, the courts of admiralty, and the chambers of commerce, in France. It forms a system of whatever experience and the wisdom of ages had pronounced to be most just and convenient in the marine institution of the maritime states of Europe: and though it contains many new regulations, suggested by motives of national interest, yet it has hitherto been esteemed a code of great authority upon all questions of maritime jurisprudence. Lord Mansfield, who appears to have taken much pains to obtain the best information, and to possess himself of the soundest principles of marine law and of the law of insurance, seems to have drawn much of his knowledge upon these subjects from this ordinance, and from the elaborate and useful commentary of Valin. This may be perceived in many of his judgments upon questions of insurance, though his lordship does not always think it necessary to cite his authority (1). By the practice of modern Europe, full and explicit commercial treaties are usually entered into, declaring in express terms the rules which shall govern the intercourse of the respective states; so that questions upon the natural law of nations, and the universal voluntary law and customary law, are less likely to arise than in former times; but still discussions upon these subjects do occasionally arise; and we shall find that it is then the course to consult these authorities upon the subject, and hence the neces- . sity of noticing them in this work. (2) If this law natural of nations, or that which is voluntary or customary, as distinguished from treaties, be violated, as by the illegal confiscation or seizure in another state of the effects of the subjects of Great Britain, the course has sometimes been to petition His Majesty that the damage be ascertained by the Court of Admiralty, and that intimation of the amount be given to the minister of the state where the confiscation took place, and then to (1) 1 Marshal on Insurance, Prelim. Dis. 18. (2) It was from these, and other similar resources, that Lord Mansfield framed the celebrated letter of the duke of Newcastle to the king of Prussia's secretary, which is considered as a standard of authority upon the law of nations, as far as it respects the right to seize enemies property on board neutral ships, in certain cases, in time of war, See Holliday's Life of Ld. Mansfield, vol. 2. pp. 424, &c. and Collectanea Juridica, 1 vol. 129. See post, Appendix. See also the case of Viveash v. Becker, 3 Maule and Sel. 284. in which Lord Ellenborough quotes several of these authors, to ascertain the law of nations upon the privilege of consuls. Of commercial treaties, and by governed. demand restitution; and if not complied with, then letters of marque and reprisal may be issued, or the matter may be the just ground of declaring war. (1) The same liability to perpetual fluctuation, which makes it what principles impossible to find the customary law declared express and entire, in any authentic collection, makes it also impossible to find the conventional law explicitly and comprehensively declared for every breach of an existing condition, every fresh compact, every eruption of hostility, will usually dissolve the frame and very existence of a treaty. There are, however, some generally acknowledged principles to be observed in the formation of treaties, and some rules of construction established, which claim our particular notice. It has been observed, that in ancient times the knowledge of this conventional law was thought one of the greatest praises that could be bestowed on a name loaded with all the honours that eminence in the arts of peace and war can confer; and that the knowledge of them is still necessary, not only to negotiators and statesmen, but to merchants and others, in various situations in which they may be placed (2). We will therefore consider the general principles on which a treaty may be framed, its objects, and the rights and obligation it creates, and how they may be annulled. It is observable that a commercial treaty, definitely setling and encouraging the transactions in trade between the subjects of two or more states, must be one of the most efectual modes of increasing and securing the welfare of each state; and this was so felt, even in the, earlier times, that a commercial treaty is stated by Lord Coke to be one of the few compacts that may with propriety be made with an infidel (3). The mere general liberty of trade, such as it is acknowledged at present in Europe, being too vague to secure to a nation all the advantages that it is necessary it should derive from its trade, commercial powers have been obliged, or have found it their interest, to have recourse to treaties for their mutual (1) See several authorities, Com. Dig. Prerogative, B. 4. 2 Chalmer's Col. Op. 252-327. 330 -333. See post, as to letters of marque and reprisal. (2) Mackintosh Dis. L. of Nations, 64, 65. (3) 4 Coke's Inst. 155. 2 Ward's L. Nat. 325, 6. |