established in 1706 between the Montenegrins and the Emperor Peter the Great of Russia. The Montenegrins placed themselves formally under the Protection of Russia and took the oath of allegiance to the Czar, since which period it has been usual for the successor of each Vladika to receive consecration at St. Petersburg, and his consecration as Bishop has been a virtual investiture of his office as Vladika. It is stated by some writers 32 that the Vladika, who succeeded in 1830, refused the Episcopal dignity and was a lay Chief. The more correct account is as follows-On the death of Pietro I. on the 30th Oct. 1830, his nephew whom he had recommended as his successor, being only fifteen years of age, was admitted into Holy Orders, but being too young to take the reins of Government, or receive the Episcopal dignity, a locum tenens was appointed, and Sr. Ivanovich was sent from St. Petersburg to govern the Country, until the consecration of the new Vladika. This took place at St. Petersburg on 18th August, 1833,33 after which the youthful Vladika returned to his own Country and carried on the Government until his death in 1851, when he was succeeded by Daniel I, The Prince who perished by the hand of an assassin in 1860. It was the late Prince Daniel I, whose early education was carried on at Vienna and not at St. Petersburg, who once more separated the secular functions of the office of Prince from the spiritual functions of the office of Bishop. His Code of Laws promulgated at Tzetenie, 23 April, 1855, purports to be issued under of Monte negro no longer Bishop. 32 Phillimore's International Law, Tom. I. § 94. 33 Wilkinson's Dalmatia and Montenegro, I. p. 464. 34 A German translation of this Code has been published at Vienna under title of Gesetzbuch Danieli I. Fürsten und Gebieters von Montenegro und der Berda. Wien, 1859. Verlag von Friederich Manz. the hand of Daniel Prince of Montenegro and Prince of Berda, the latter title being taken from the Eastern division of the Country. Since the Peace of 1815 the Montenegrins have been constantly at war with the Ottoman Porte, and the latter Power has made the most determined efforts to reduce them to submission both in 1839 and in 1852. On the latter occasion Russia and Austria employed their good offices on behalf of the Montenegrins, whilst France and Great Britain counselled the Porte to respect the de facto Independence of Montenegro, without abandoning its de jure Title over the Country. The Montenegrins have, however, never obtained the recognition of their Independence as a Nation, and at the Congress of Paris (1856) the Otto- Congress man Plenipotentiary took occasion to declare that "the Sublime Porte considers Montenegro to be an integral part of the Ottoman Empire, but that it has no intention to alter the actual state of things in that Country." "35 35 Protocol of Conference 25 and 26 March, 1856. Martens, N. R. Général, XV. p. 736. 738. of Paris. Natural and Posi CHAPTER V. · SOURCES OF THE LAW OF NATIONS. Natural and Positive Law-Natural Law of Nations-Positive or Voluntary Law of Nations-Vattel's Subdivision of Positive LawCustomary and Conventional Law-Identity of the Law of Nations with the Law of Nature, according to Hobbes and Puffendorf-The Law of Nations a Special Science, according to De Wolff and Vattel-Essential Difference between Nations and Individual Human Beings-The Law of Nature-Identical Natural Law of Rude and Civilised Nations-Growth of the Positive Law of NationsStudy of the Law of Nations in England-Courts of the Law of Nations Customary or Consuetudinary Law of Nations-Customary Relations with Non-Christian Powers Exceptional-The Primary Principles of European Public Law applied to Mahommedan States -The Diplomatic Science Conventional Law of Nations-Views of Martens and others contrasted with those of Schmalz and others— Ortolan's View of the Effect of Conventions on General Law— Wheaton's Earlier and Later Views-Illustration as to Contraband of War-Declaration of Maritime Law at Paris, 16 April, 1856— Preambles and Recitals of a Declaratory Character-Objections to the Idea of any Law, as such, between Nations-International Morality distinct from the Law of Nations. $74. THE proper and immediate subjects of the tive Law. Law of Nations being those political communities. which are in a state of Independence, and the test of their Independence being their aptitude or capacity to discharge the obligations of Natural Society towards other political communities and to regulate the mode of discharging those obligations without the consent of any Political Superior, the rules which result from their mutual relations, and which govern their intercourse, resolve themselves into Natural rules and Positive rules, and the aggregate body of those rules, which admit of being enforced, constitute the Law of Nations in the most extensive sense of the term. The Law of Nations accordingly divides itself into 3 2 Nations. 75. The Natural Law of Nations is founded on Natural the Nature of Independent States, as such, and is the Law of result of the relations observed to exist in Nature between Nations as Independent Communities. The Positive Law of Nations, on the other hand, is based on the consent of Nations, and is the result of the relations instituted between them by their own free will. The sanction of the Natural Law of Nations is found in the fact that its violation terminates the existence of an Independent State, as such. The sanction of the Positive Law of Nations is found in the isolation of the State which disregards it. The obligation of the former is involuntary, whereas the obligation of the latter is consensual, and the consent of Nations to it is either substantially evidenced by A priori, si ostendatur rei alicujus convenientia aut disconvenientia necessaria cum natura rationali et sociali. A posteriori vero, si non certissima fide, certe probabiliter admodum, juris naturalis colligitur id, quod apud omnes gentes, aut moratiores omnes tale esse creditur. Nam universalis effectus universalem requirit causam ; talis autem existimationis causa vix ulla videtur esse posse præter sensum ipsum, communis qui dicitur. Grotius de Jure Belli et Pacis, L. I. c. 1. § 12. 1 Natural Law, according to Puffendorf, is that which is so exactly fitted to suit with the rational and social nature of man, that human kind cannot maintain an honest and peaceful Fellowship without it. Positive Law, on the other hand, he writes, is sometimes called by the name of Voluntary, because no positive law has such an agreeableness with Human Nature as to be necessary in general for the preservation of mankind, or as to be known or discovered without the help of express and peculiar promulgation. Law of Nature and of Nations, B. I. c. 4. § 18. 2 Esse autem aliquid juris naturalis probari solet ab eo quod prius est, tum ab eo quod posterius, quarum probandi rationum illa subtilior est, hæc popularior. 3 Pacto obligamur; lege obligati tenemur. Pactum obligat per se; lex obligatum tenet virtute pacti universalis de præstanda obedientia. Hobbes de Civ. Imperium, c. 14. § 2. Positive or Law of their unvarying practice, or has been formally recorded in some Public Act or Convention. §76. Grotius in constructing his system of Public Voluntary Law had perceived that certain rules of International Nations. Life, which were universally observed, could not be fairly deduced from any admitted principles of Natural Right. He concluded accordingly that they had been introduced by the Consent of Nations, and rested upon Custom and tacit Compact (moribus et pacto tacito introductum.) It was this entire Body of Law which Grotius comprised under the head of Jus Gentium Voluntarium or Jus Constitutum.5 De Wolff, on the other hand, distinguished the Jus Voluntarium from the Jus Pactitium and Jus Consuetudinarium, and whilst Grotius considered the Voluntary Law of Nations to be based upon the general consent of Nations as evidenced by their practice, De Wolff regarded it as a body of rules deduced from the nature of the Social Union amongst Nations, and from the operation of which no civilised Nation can withdraw itself. De Wolff accordingly held the Voluntary Law of Nations to be universally binding upon civilised Nations, whilst the obligation of the Customary Law of Nations was limited to those Nations, amongst whom it had been established by long usage. De Wolff in establishing the foundations of that species of the Law of Nations which he termed Vo 4 Sed sicut cujusque civitatis 5 Grotius divided Voluntary as distinguished from Natural Law, into law directly instituted by God and law instituted by Man, but he considered the instituted Law of God, as far as Nations are regarded, to be confined to the Jewish Nation. De Jure Belli et Pacis, L. I. c. 1. § 15, 16. |