The great work of Grotius on the laws of war still con- Rutherforth. tinued to form the principal text book for instruction in most European universities in that part of the science of morals which relates to the rules of justice. One of the best commentaries of this sort is that published in 1754 by Rutherforth under the title of Institutes of Natural Law.i The greater part of this work is taken up with discussions relating to ethics and political law. But the ninth chapter of the second book is occupied with topics exclusively belonging to the law of nations properly so called.

In this division of his work the author examines the position of Grotius which considers the law of nations as a positive law deriving its authority from the consent of all or of most nations. His commentator concludes, as we have already seen, that the law of nations is only the law of nature applied, in consequence of a positive agreement amongst

intelligitur ex perpetua, quodam modo, paciscendi edicendique consuetudine: pactis enim Principes sæpe id egerunt in casum belli, sæpe etiam edictis contra quoscunque, flagrante bello. Dixi, ex perpetua quodammodo consuetudine, quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non mutat. (Bynkershoek, Q. J. Pub. lib. i. cap. x.)

In the preface to this treatise, Bynkershoek asserts the supremacy of reason over authority in the science of international law. "Nulla ullorum hominum auctoritas ibi valet, si ratio repugnet. Non Grotius, non Puffendorfius, non Interpretes, qui in utrumque commentati sunt, me convincerint si non convincerit ratio, quæ in Jure Gentium difiniendo fere utramque paginem facit. Inde est quod auctoritabus conservandis fere abstinuerim, non difficulter alioquin earum mole potuissem implere et onerase hos libros. Sæpe quidem Grotio et Puffendorfio testimonium denuntiavi, sed non alia ratione, quam quod illi in Jure publico principatum teneant, et aliorum omnium familiam ducant, silentio fere præteritis minorum Juris Gentium Interpretibus. Ab utriusque tamen sententia recessi, ubi ipsa ratio videbatur recedere. Hanc præcipue in consilium adhibui, et, nisi illa vincat, nihil vicerit in omni Quæstione Juris publici." (Q. J. Pub. lib. i. Ad Lectorem.)

Institutes of Natural Law, being the substance of a course of lectures on Grotius de Jure Belli et Pacis, read in St John's College, Cambridge, by T. Rutherforth, D. D., Archdeacon of Essex, etc 2 vols. 8vo. London, 1754.

§ 8. Minor

mankind, to the collective bodies of civil societies as to moral agents, and to the several members of such societies as to parts of these bodies. It is the law of nature applied by positive consent to the artificial persons of civil societies: and consequently the dictates of it are only the dictates of right reason, and may be collected by arguing from the nature of things, and from the condition and circumstances of mankind when they are formed into such societies. The history of what has passed from time to time amongst the several nations of the world, may likewise be of some use in this inquiry not because any constant and uninterrupted practice in matters which are indifferent by the law of nature, is to be collected from thence; but because we shall then find what has been generally approved, and what has been generally condemned in the variable and contradictory practice of nations. So also the judgment and testimony of skillful persons will help to point out the law of nations; because what is approved by men of prudence, and honesty, and experience, is more likely to be conformable to the dictates of right reason than what is approved of by the vulgar, and unthinking, and dissolute. And the testimony of the former will be of weight, as it will be an evidence, not only of their own sentiments, but likewise of what they have found upon diligent inquiry to be the general sentiment of the civilized part of mankind.

We shall here briefly notice several minor public jurists of this period.

Barbeyrac, by his accurate translations into the French public jurists. language, of Grotius, Puffendorf, and Bynkershoek, contributed to popularize, and more widely to diffuse a knowledge of the science of international law, whilst he improved it by the valuable annotations with which he enriched these works.

Previous to the appearance of Vattel's work the Chevalier de Réal had published a book under the title of Science du Gouvernement, the fifth volume of which contains a summary of the positive law of nations of considerable

merit, compiled from the works of the classical jurists, and from modern examples of what had occurred in the intercourse of European states.k

The Abbé Mably, who had been retained by Cardinal Tencin to draw up for the use of that minister memorials and reports, extracted from these papers a historical account of the treaties and negotiations which had taken place, from the treaty of Westphalia inclusive, which he published in 1748, under the title of Droit public de l'Europe fondé sur les Traités. He was at first refused permission to publish this work in France, and the official person to whom he applied asked him: Qui êtes vous M. l'Abbé, pour écrire sur les intérêts des nations? Etes vous ministre ou ambassadeur ?" He was reduced to the necessity of publishing in Holland, but other editions subsequently appeared at Paris. Réal criticises the title given by Mably to his work: "Le titre de Droit public de l'Europe, que l'auteur a donné à son ouvrage, est vicieux. L'Europe n'a point de droit public; mais chaque nation de l'Europe en a un, et la matière que l'auteur a traitée se rapporte au droit des Gens." (Science du Gouvernement, tom. viii. p. 521.) He however praises the work as being distinguished from other collections of diplomatic acts by its analytical method enlivened by historical details relieving the usual dryness of such compilations.

Johann Gottlieb Heinecke, better known by the name of Heineccius, besides his well known elegant works upon the Roman law, published in 1738 at Halle his Elementa Juris Naturæ et Gentium, in which the subject of international law is incidentally touched as a branch of what he calls jus sociale. He also wrote prelections upon Grotius.

La Science du Gouvernement, tome cinquième contenant le Droit des Gens, qui traite des Ambassades, de la Guerre, des Traités, des Titres, des Prérogatives, des Prétentions, et des Droits respectifs des Souverains; par M. de Real, Grand Sénéchal de Forcalquier, Paris, 1754.

nations.

and Puffendorf, and a dissertation upon a very important portion of the maritime law of nations, under the title De Navibus ob Vecturam Vetitarum Mercium Commissis which we shall have occasion hereafter to quote. Sir James Mackintosh calls Heineccius "the best writer of elementary books with which I am acquainted, on any subject."

Valin's excellent Commentaire sur l'Ordonnance de la Marine, published in 1760, and his Traité des Prises which appeared in 1763, are too well known to render any particular account of these learned works necessary in this place. Of the same character is the Tratado juridico-politico sobre las Presas maritimas, published at Cadiz in 1746, by D. Carlos Abreu, and of which a translation in French, with valuable notes by M. Bonnemant, appeared at Paris in 1802. Pothier also commented those parts of the Ordonnance de la Marine which relate to maritime captures in his Traité de Proprieté.

The two maritime wars terminated by the peace of Aix $9. Maritime law of la Chapelle, 1748, and that of Paris, 1763, gave birth to multiplied questions respecting belligerent and neutral rights as to navigation and commerce. All the maritime powers, parties to the treaties of Utrecht, were also parties to the first mentioned war. The stipulations contained in those treaties derogating from the pre-existing law in favour of neutral commerce and navigation, consequently never became applicable as between the contracting parties; the casus fœderis that one or more of them should remain at peace, whilst the others were engaged in war, not having arisen. Nor was the benefit of these stipulations extended by them, to such nations as remained neutral. Each belligerent state adhered to its own exposition of the law of nations, as the rule by which it was guided in its conduct towards neutrals. Those maritime powers which had

Mackintosh, Discourse on the Study of the Law of Nature and Nations, p. 32, Lond. ed. 1800.

adopted the maxins of the Consolato del Mare relating to captures at sea, adhered to those maxims, except so far as they were modified by particular treaties with the Baltic powers, who remained neutral in the war between the southern and western states of Europe.

France made an essential change in her maritime legislation, approximating it more nearly to that of the Consolato del Mare. The ordinance of the 21st October, 1744, exempted from capture neutral vessels laden with enemy's goods; subjected the enemy goods only to confiscation; and restored the vessel with the residue of the cargo, except contraband articles. But the same ordinance revived two remarkable restraints upon the freedom of neutral commerce, which were contained in the preceding ordinance of the 23d July, 1704.

1. All goods, the growth, produce, or manufacture of the enemy's country were made liable to capture and confiscation, except in neutral vessels navigating directly from the enemy's port where the goods were laden to a port of their own country.

2. Neutral vessels were prohibited from carrying a cargo from one to another port of an enemy, whatever might be the origin of the goods, or to whomsoever they might belong.m

France had concluded in 1716, three years after the peace of Utrecht, a treaty of navigation and commerce with the Hanse towns, by which the concession made to these confederated republics by the treaty of 1655 was revoked, and neutral goods taken in the ships of an enemy were again rendered liable to confiscation, as well as enemy's goods in neutral vessels, the vessels only being exempt in the latter case."

- Valin, Traité des Prises, ch. 5, sec. 6, No. 5, 10-17.

n By the 22d article of the treaty of 1716, it was stipulated: "Les vaisseaux des Villes anséatiques, sur les quels il se trouvera des marchandises appartenantes aux ennemis de sa Majesté, ne pourront être retenus, amenés,