CHAPTER IV.

REASON OF THE THING.

XXXIV. THE next question which arises in the prosecution of our inquiries into the sources of International Jurisprudence is this-How are the principles of Natural or Revealed Law to be applied to States?

Though States are properly and by a necessary metaphor treated as moral persons, and as the subjects of those rights and duties which naturally spring from the mutual relations of individuals; nevertheless it must be recollected that a State is actually a different thing from an individual person. Reason, therefore, which governs the application of common principles to diverse subjects, and demands, therefore, a different application of principles intrinsically the same (a) to the State and to the Individual, may be regarded as a distinct source of International Law.

This application must be made justly, and in a manner (b) suitable to this actual difference; and in order to effect this, "the reason of the thing," which has been already enumerated as one of the sources of International Law-"necessitas "finis quæ jus facit in moralibus" (c)-must in all cases be considered.

Vattel, following and improving upon Wolff, expresses himself upon this point with his usual clearness, and more than his usual force (d). There are many cases, he observes,

(a) Vattel, Préface, pp. 22, 23.

(b) Karà Tην Vπtokeiμévnv üλnv.—Arist. Eth. lib. i. c. 3; Wolff, Jus Gentium, Præf.

(c) Grot. de J. B. et P. l. ii. c. v. 24, s. 2.

(d) Vattel, ib. et Prélim, s. 6.

in which Natural Law cannot decide between nation and nation as it would between individual and individual. It is necessary to learn the mode of applying the law in a manner agreeable to the subject; and it is the art of doing this according to justice, founded on right reason, which makes International Law a particular science. It must, as Grotius says (e), be “recta illatio ex naturæ principiis procedens" which guides the national conscience in its international duties.

XXXV. The most strenuous-it might be said the most vehement-advocate for this source of International Jurisprudence is Bynkershoek. There is no dissertation of his upon any subject of International Jurisprudence which does not teem with references to it. "Ratio" and "Usus " are, according to him, the two props which sustain the whole building; and "Recta ratio" is "Juris gentium magistra."

The tendency of this author, who ranks in the first class of jurists, is rather perhaps to undervalue the authority both of his predecessors and of the tribunals of his own country. His opinion on this matter, however, construed by reference to the context, and subject to the qualification which it must receive from his frequent reliance upon precedents, and upon the opinions both of jurists and civilians, contains in reality nothing objectionable or inconsistent with the doctrine of other writers (f) with respect to the international authority due to these precedents and these opinions.

Bynkershoek was very far from meaning to convey the notion that whenever a question arose between nations, either of the contending parties was at liberty to solve it arbitrarily, according to its own notions of convenience or by an independent process of reasoning. On the contrary, in every case of doubt, the reason which long usage had sanctioned was to prevail; and the authorities of writers and of precedents were also recognised as leading to a

(e) Proleg. s. 40.

(f) Vattel, Prélim, s. 6.

just conclusion of Law. But he more especially recognized the fitness of one authority to direct and guide the Reason of States in the adjustment of their mutual relations; that authority was the written reason of the Roman Law.

His predecessors indeed, in every page of their writings, had assumed as unquestionable the homage due to this collection of the maxims deducible from right reason and natural justice. None, however, have spoken more strongly with respect to it than Bynkershoek: "Non quod in iis," he says, quæ sola ratio commendat a jure Romano ad jus gentium "non tuta sit collectio" (g).

66

66

And again: "Quamvis non de populi Romani, sed de gentium jurisprudentia agamus, non abs re tamen erit de "jure Romano quædam præmonuisse, cum qui id audit vocem "fere omnium gentium videatur audire” (h).

Again: "Abstine commodo si damnum metuis, ipsa juris gentium, non sola Ulpiani vox est” (i).

XXXVI. The Roman Law may in truth be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, historically speaking, the actual basis; and it has been remarked with equal force and elegance by an English civilian, “that

66

although whatever we read of in the text of the Civil Law "was not intended by the Roman legislators to reach or "direct beyond the bounds of the Roman empire, neither "could they prescribe any law to other nations which were "in no subjection to them. Yet since (j) there is

"such 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

(g) Quæstiones Juris Publici, 1. i. c. iii.

(h) De Foro Legat. c. vi.

(i) Quæst. J. P. c. viii. in fine. The passage cited from Ulpian will be found Dig. lib. xvii. t. ii. s. 23.-Pro socio-" abstine commodo quod per servum accessit, si damnum petis."

(j) Albericus Gentilis, 1. i.; de Jure Belli, c. i.

"justice still provided (k) for; what should hinder but that, "the nature of affairs being the same, the same general rule "of justice, and dictates of reason, may be as fitly accom❝modated to foreigners dealing with one another (as it is "clear 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 consider"able altogether" (7).

66

In the case of the Maria (m), Lord Stowell expresses surprise that Vattel should mention a rule of International Law "as a law merely modern, when it is remembered that it is a "principle not only of the Civil Law (on which a great part "of the Law of Nations is founded), but of the private "jurisprudence of most countries in Europe—that a contu"macious refusal to submit to fair inquiry infers all the "penalties of convicted guilt."

XXXVII. Independently of the historical value of the Roman Law as explanatory of the terms and sense of treaties, and of the language of jurists, its importance as a repository of decisions, the spirit of which almost always, and the letter of which very frequently, is applicable to the controversies of independent States, can scarcely be overstated (n).

(k) "Mirum tamen est hanc novam prudentiam, Romanos, a quibus ad omnes populos juris fecialis, justitiæ fontes purissimi manarunt, antea semper latuisse."-Bod. de Rep. 1. v. c. vi. p. 594.

(1) Wiseman's Excellency of the Civil Law, p. 110; Burke, Works, vol. viii. 185: Letters on a Reg. Peace.

(m) 1 C. Rob. Adm. Rep. p. 363.

(n) I am glad to find that the authority of Professor Mancini confirms the opinion which I have expressed :—

"D'altra parte, evocata la memoria del vecchio imperio de' Cesari, e ridestato per opera delle nostre Università lo studio del Dritto romano, l'autorità di questo antico deposito della sapienza italica venne risorgendo da per tutto, e finì (giovamento immenso alla civiltà avvenire !) per riguardarsi come un dritto comune obbligatorio di tutte le nazioni civili."-Della Nazionalità. Prelezione al corso di Dritto, etc., Torino, 1851, p. 15.

From this rich treasury of the principles of universal jurisprudence, it will generally be found that the deficiencies of precedent usage, and express international authority, may be supplied.

Throughout the greater portion of Christendom it presents to each State what may be fairly termed their own consent, bound up in the municipal jurisprudence of their own country; and this not merely to the nations of Europe, whose codes are built on the Civil Law, but to their numerous Colonies, and to the independent States which have sprung from those Colonies, and which cover the globe.

And so we find that the Roman law was more than once referred to as an authority, upon the international question of the Free Navigation of Boundary Rivers, by the President and diplomatic ministers of the United States of North America, in the discussion which took place between that Republic and the kingdom of Spain, as to the navigation of the Mississippi, in the year 1792. And to all nations, whatsoever and wheresoever, this Law presents the unbiassed judgment of the calmest reason, tempered by equity, and rendered perfect, humanly speaking, by the most careful and patient industry that has ever been practically applied to the affairs of civilized man.

It may be fairly said, that many International disputes in time of peace might be adjusted by this arbiter, assisted by the helps, and modified by the other sources which will presently be considered; certainly it may be most truly affirmed, that the greater number of controversies between nations would find a just solution in this comprehensive system of practical equity. "Dixi sæpius," said Leibnitz, post scripta Geometrarum nihil exstare quod vi ac subtili"tate cum Romanorum scriptis comparari possit: tantum "nervi inest, tantum profunditatis nec uspiam juris "naturalis præclare exculti uberiora vestigia deprehendas; "et ubi ab eo recessum est, sive ob formularum ductus, sive "ex majorum traditis, sive ob leges novas, ipsæ consequentiæ, ex nova hypothesi æternis rectæ rationis dictaminibus

66