CHAPTER I.

FARTHER ILLUSTRATIONS OF THE CULTIVATION OF PUBLIC INTERNATIONAL LAW.

It is rather singular that the English people, or that portion of the population who have been legislators, or who have practised the art or cultivated the science of law, while they made truly great and successful exertions for the establishment and improvement of their internal institutions, their public or constitutional law, and their private civil and criminal law for the administration of justice among individuals, should comparatively have paid so little attention to the Law of Nations, or what has been recently denominated International Law, embracing the external juridical relations, the reciprocal legal rights and obligations of separate independent

states.

In their public or constitutional law, the English people appear to have hitherto excelled all the other nations of modern Europe; and are justly entitled to be proud, especially in the present times, of their constitution, which, whether it be termed a limited monarchy or an aristocratic republic, exhibits a system of regulated liberty, reared on a popular basis, and firm in the steady attachment of the great body of the people; and, though defective in many respects, as all human institutions have been, and seem destined to be, yet possessing in itself the means of correcting abuses, and of self-improvement.

Whether the English people have been equally successful in the formation of their criminal and private civil law, is perhaps a more doubtful question. Some eminently learned and able foreigners, who on other occasions have shown their impartiality and discernment, have remarked that England is "fière de ses vieilles coutumes, et dédaigneuse de toute forme étrangère ;" and with regard to English lawyers, that "la loi n'est pour eux, qu'une profession." But without stopping here to inquire whether there be any truth in such remarks, the great attention paid by the English people to their internal criminal law, and private civil jurisprudence, is sufficiently apparent from the voluminous statutes enacted from time to time by the legislature, and from the gradual formation of their now very extensive and complicated systems of common law and equity; in the construction of which the English judges and lawyers adopted a different and perhaps more independent course than that pursued by the Continental nations, and rejecting, from an early period, (shall we say from the fifteenth century?) the aid of Roman experience, as exhibited in the remains of the works of the unquestionably great lawyers of that wonderful people, resolved of themselves to evolve and deduce, from the juridical experience of the nation itself, the rules and principles of its internal jurisprudence.

To the devotion of such high talents and acute discernment, and of so much learning and industry to the formation, not merely of the constitutional law, but also of the systems of common law and equity, the omission and neglect of the English lawyers to cultivate international law, as a science, (as we shall see more fully in

the sequel,) forms a striking contrast. It does not appear that any systematic course of preparatory education was ever either provided by the state, or even required by Government, for the individuals who were to be employed to carry on the international and diplomatic agency and business of the English or British people. And to these causes, perhaps, are to be attributed, as consequences, the fact of England having had so few able negotiators, and the trite, though perhaps too true, observation, that Britain has frequently lost by the pen what she had gained by the sword; or lost, by her unskilful negotiation, advantages which she had fairly and honourably acquired in the course of her zealous exertions for the maintenance of the independence of nations, and in virtue of her military and naval skill and prowess: thus exhibiting an example of proud disinterestedness, not called for even as a moral or ethical duty, and not perhaps consistent with practical wisdom, or the general interests of mankind.*

In these circumstances we may again take a cursory view of international law generally,-noticing the mode of its cultivation, tracing its origin and development, and endeavouring to ascertain its basis and fundamental principles, contemplating it in its two great component parts -common consuetudinary law, and conventional law, marking their characteristic and distinctive attributes. In these discussions we shall, of course, reject all legal fictions-all suppositions of social contracts, which never did, nor perhaps could, take place, and other such hypothetical theories; and we shall endeavour to proceed solely upon observation and experience, adhering to that

* What sacrifices were uselessly made by Great Britain at the general peace of 1815, such as the cession of Java to the Dutch!

mode of inductive reasoning which has been so successfully employed in the material sciences, such as mechanics, astronomy, and chemistry. We now propose to contemplate generally the reciprocal rights and obligations of nations, in their collective or corporate capacity, and in their more public intercourse, forming what has been called by the French, "Droit Public Externe."

I. Of the Cultivation of International Law generally.

The earliest attempts, in modern times, to discuss scientifically the Law of Nature and Nations, appear to have been made towards the close of what are called the Middle Ages, and are to be found in the writings of certain Italian and Spanish theologians, such as Vasquez and Suarez. But for an account of these authors, which is now merely a matter of curiosity, and for an interesting view of the leading causes which concurred in modifying and improving the law of nations in modern Europe, we may refer the English reader to Mr Plumer Ward's History of the Law of Nations prior to the Age of Grotius, published in 1795.

Of Grotius, the celebrated father of the Law of Nations, as he is usually called, it would here be superfluous to say anything, after the able and full discussion of the merits of that illustrious man, and of the influence his writings had upon the literature of modern Europe, with which Mr Hallam, some years ago, favoured the British public.

Pufendorff, it is well known, followed Grotius; and his writings also had great influence on the age in which