circuit Court was overruled, and these principles of the law of nations were recognised by the supreme Court in the case of the Antelope (n). Slavery, says Chief Justice Marshall, in delivering the judgment of the Court, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things that is thus produced by general consent cannot be pronounced unlawful. Throughout Christendom this harsh rule has been exploded, and is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force, and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations, that prisoners are slaves. Can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims? Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts and the general assent of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question is decided in favour of the legality of the trade. Both Europe and Africa embarked in it, and for nearly two centuries it was carried on without opposition and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished either personally or by deprivation of property. In this commerce thus sanctioned by universal assent, every nation has an equal right to engage. How is this right to be lost? Each may renounce it for its own people, but can this renunciation effect others? No principle of public law is

(n) 10 Wheaton, 120.

more generally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightly impose a rule upon another. Each legislates for itself, but its legislation can affect itself alone. A right which is vested in all by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. These authorities seem to be sufficient to shew that the law of nature is no part of the law of nations.

Of all rights which have been discussed by public writers as part of the law of nature, the most chimerical are the supposed rights of necessity (o), which are a mere excuse for wrong. The discussion of them is futile, for it is absurd to attempt to regulate the exigencies of necessity, which when real admits of no rule.

3rdly. The custom of nations is the law of nations. For the rules prescribed by their will can only be promulgated by their practice. The law of nations, says Grotius, is that which derives its force from the will of all or many nations. It is proved in the same manner as the unwritten law of a particular state, by general usage and the opinions of persons learned in· the law (p). The general consent of nations is the foundation of international law. It holds a middle place between the law of nature and municipal law, and is of higher authority than the latter, as it cannot be altered without the same general consent, whereby it was constituted (g). To determine the

(0) Vatt. ii. 119, et seq. 170.

(p) Grot. 1, i. xiv. 1, 2. Jus gentium est, quod gentium omnium aut multarum voluntate vim obligandi accepit. Probatur autem pari modo, quo jus non scriptum civile, usu perpetuo et testimonio peritorum, et vid. Vatt. Prelim. 25.

(1) Wicq. i. 808.

law of nations it is sufficient to know what rules are established by general usage, though it may not be easy to discern the reason thereof (r). The law of nations, says Bynkershoek, rests upon precedents, and the concurrence of different nations in the same rules (s). Usage is the best if not the only interpreter of the rules of international law (t). The law of nations arises from tacit and implied compacts, inferred from reason and usage (u). The law of nations is the law of human society, resting upon implied compacts (v). If you deny the authority of usage and the prescription arising therefrom, which constitutes the law of nations, produce any other laws on which they are agreed; or if that cannot be done, shew the authority by which laws can be sanctioned without such agreement (w). We must carefully distinguish between the usage of nations which now exists and the usage which formerly obtained, for the principal part of the law of nations rests only on usage (x). Ancient precedents and ancient treaties extant in Greek and Latin historians have their value; but the law of nations changes with the usage of nations. Reason, it is true, is always the same, but where the result of reasoning is ambiguous, as it often is, the law of nations must be inferred from established usage. Many rules formerly formed part of the law of nations which are no longer allowed. For instance, the law of nations

(r) Wicq. i. 245.

(8) F. L. iii. Jus gentium se tuetur exemplis, et comparatione rerum a diversis gentibus sæpe eodem modo judicatarum.

(t) F. L. viii. Usus optimus, si non unicus, earum rerum interpres. (u) Q. J. P. ii. x. Jus gentium oritur e pactis tacitis et præsumptis, quæ ratio et usus inducunt.

(0) F. L. xviii. Jus societatis humanæ, quæ pactis tacitis inducitur. (w) Q. J. P. ii. ix. Si tollas consuetudinem, et inde natam præscriptionem, quæ intergentes jus facit; cedo alias regulas, de quibus intergentes convenit; aut si non conveniat, cedo auctoritatem, qua illas obtineri liceat.

(x) Q. J. P. ii. vii. Inter mores gentium, quæ nunc sunt et olim fuerent solicitè distinguendum est; nam moribus censetur præcipua pars juris gentium.

now requires ratification as essential to the validity of treaties, though the negotiator has not exceeded his instructions (y).

In discussing the law of nations we must defer to the usage of nations and not rely upon our own reasoning. Different rules may be equally supported by reason, but that reason ought to prevail which is sanctioned by the usage of nations (2). Reason and usage determine these questions: reasons may be produced on either side, but those reasons ought to prevail which usage has sanctioned, for the law of nations is founded upon the usage of nations (a). The nature and sources of the law of nations, its rules and distinctions have formed the subject of volumes. He will not be wrong, who follows the old lawyers and holds it to be, that which reason has induced, if not all nations, at least the most civilized, to observe in their intercourse with each other. It rests therefore on the double foundation of reason and usage, and depends upon precedents and the analogies which are to be deduced from the comparison thereof. Herein it is distinguishable from the law of nature, which depends not upon precedent, but upon instinct. All controversies respecting the law of nations terminate in this one result: that, what reason dictates to nations, and which by precedent is grown into usage, is the only law of those who are subject to no other. Men being reasonable beings must

(y) De Rebus Bell. Præf. Vetera exempla et vetera gentium pacta, quæ apud historicos Græcos et Latinos extant habent sane suum pretium; sed ut mores gentium mutantur sic et mutatur jus gentium. Ratio quidem semper est eadem, sed ubi illa ambigua est, ut sæpe est, in utranque partem; ex perpetuo fere usu jus gentium cestimandum est. Plurima olim juris gentium fuerent, qua nunc non sunt, ut est in ratihibitione pactorum, etiam si ex mandato principis inita fuerunt.

(z) F. L. Præf. In controversiâ, quæ de jure gentium est; sequamur consuetudinem gentium, nec soli sapiamus ex nostro ingenio. Scio ex solâ ratione aliud atque aliud placere posse: sed scio eam rationem vincere, quam usus probavit.

(a) F. L. vii. Rationes pro utraque sententiâ expedivi, quæ præveleant nunc quæstionis est. Illæ autem prævalebunt, quas usus probavit, nam inde est jus gentium.

needs find some rules, which reason commends to them as fit to be observed by mutual consent; which, when they have grown into usage are reciprocally binding. Hence arise the laws of war and peace, of treaties, embassies, and commerce (b).

The phrase of Grotius, says Lord Stowell, placuit gentibus, is quite correct (c). Grotius uses a variety of phrases having an invariable meaning to express the binding principle and the only foundation of international law. He speaks of its rules as belonging to the voluntary law of nations established by the will of all or of many nations, as being introduced by usage and implied compact (d), by practice and tacit consent (e). The phrase, placuit gentibus, expresses precisely the same sense as appears from his remarks on the language of

(b) F. L. iii. Jus gentium quale sit et unde sit, quibus regulis contineatur, et quas distinctiones patiatur, integris libris pertractatum est. Non erraverit, qui veteres juris auctores secutus id esse dixerit, quod ratione præeunte inter gentes servatur, si non inter omnes, inter plerasque certe et moratiores. Duo igitur ejus quasi fulcra sunt ratio et usus. Id ipsum mihi descripsisse videtur Seneca epistola 120. Nobis inquit, videtur observatio collegisse et rerum sæpe factarum inter se collatio per analogiam nostro intellectu et honestum et bonum judicante. Et ea ratione a jure naturæ distinxisse videtur, quod non usui ascribit epistola 121. Nam postquam instinctum naturalem, quod in animalibus est, exposuisset; mox addit, ex quo apparet non usu ad hoc perveniri, sed naturali amore salutis suæ. Quicquid autem aut quam varie et quam auxie de jure gentium disputetur, eo semper causa recidit; ut quod ratio dictavit gentibus, quodque illæ rerum sæpe factarum collatione inter se observant, unicum jus sit eorum, qui alio jure non reguntur. Si omnes homines nomines sint, id est, ratione utautur, non fieri potest aliter, quin ratio iis quædam suadeat et imperet, quæ mutuo quasi consensu servanda sunt; et quæ deinde in usum conversa gentes inter se obligant: et sine quo jure, nec bellum, nec pax, nec fœdera, nec legationes, nec commercia intelliguntur.

(c) The Henrick and Maria, 4 Rob. 54.

(d) Proleg. 1. Moribus et pacto tacito introductum. 1, i. xiv. Jus gentium voluntarium, quod gentium omnium aut multarum voluntate vim obligandi accepit.

(e) iii. 2, ii. More et tacito consensu.