States of Barbary. The independence and integrity of the Ottoman Empire have been long regarded as forming essential elements in the European balance of power, and, as such, have recently become the objects of conventional stipulations between the Christian States of Europe and that Empire, which may be considered as bringing it within the pale of the public law of the former.1 (b)

1 Wheaton's Hist. Law of Nations, p. 583.

(b) [It was formerly held that in the intercourse between Christian and Mohammedan nations, the latter were entitled to a very relaxed application of the principles established by the States of Christendom to regulate their mutual relations. All recent negotiations, however, between the Sultan and Christian States have been conducted with reference to that law of nations, which is recognized by the civilized powers of Europe and America, and since 1826 reforms have been made in the internal government of Turkey, which have been supposed to afford to foreign nations a guarantee for her conventional engagements. Though the Turkish Empire was not represented at the Congress of Vienna, or at any subsequent congress convened for the purpose of considering the general interests of Europe, the Christian Powers have, for upwards of two centuries, had treaties of commerce with the Porte, and since 1791 they have repeatedly interposed to effect peace between Turkey and one of their number, especially Russia. In 1827, France, Great Britain, and Russia, joined in a treaty to compel the Sublime Porte to recognize the independence of Greece, while in 1840 the Western Powers interfered as well to save the Ottoman Empire from being dismembered by the aggressions of the Pacha of Egypt, as from surrendering its independence to the exclusive protectorate of Russia. At this time, (July, 1854,) a contest is going on in which England and France, with the avowed acquiescence of Austria and Prussia, are united, professedly, for the purpose of maintaining Turkey as an independent State, essential, as they allege, to the political equilibrium of Europe, against the Emperor of Russia, who not only asserts his claim, sanctioned by all recent treaties, to a protectorate in Moldavia, Wallachia, and Servia, which provinces enjoy special privileges, but contends for the right of intervention, as based on repeated conventions, going back to the treaty of Kutschouc-Kaynardgi, of 1774, (Martens Recueil des Traités, t. ii. p. 297,) in behalf of his co-religionists of the Greek Church generally, constituting three fourths of the European subjects of the Porte. The influence that Austria, France, and England, as well as Russia, have at different times exercised, as respects even the strictly internal relations of the Sultan to his subjects, and in matters of municipal administration, as well as the peculiar provisions, by which jurisdiction is still recognized in the ministers and consuls of the Christian Powers over their citizens and subjects in the countries of the East, including the protection accorded by them to Franks, though not of their own nationality, renders it difficult to apply to the questions, which arise between Turkey and other Powers, the rules derived from the international relations of those States, which reject all interference from abroad in affairs of domestic cognizance.]

The same remark may be applied to the recent diplomatic transactions between the Chinese Empire and the Christian nations of Europe and America, in which the former has been compelled to abandon its inveterate anti-commercial and antisocial principles, and to acknowledge the independence and equality of other nations in the mutual intercourse of war and peace.

§ 11. Definition of in

law.

International law, as understood among civilized ternational nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society, existing among independent nations; with such definitions and modifications as may be established by general consent.1

§ 12.

The various sources of international law in these Sources of different branches are the following:

internation

al law.

1. Text writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.

Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.

2. Treaties of peace, alliance, and commerce declaring, modifying, or defining the preexisting international law.

What has been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties, varying from the general usage and custom of nations, cannot alter the international law, yet an almost perpetual succession of

1 Madison, Examination of the British Doctrine which subjects to Capture a Neutral Trade not open in Time of Peace, p. 41. London Ed. 1806.

treaties, establishing a particular rule, will go very far towards proving what that law is on a disputed point. Some of the most important modifications and improvements in the modern law of nations have thus originated in treaties.1

"Treaties," says Mr. Madison, "may be considered under several relations to the law of nations, according to the several questions to be decided by them."

"They may be considered as simply repeating or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which they are, first, a law between the parties themselves, and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered a voluntary or positive law of nations." 2

3. Ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals.

The marine ordinances of a State may be regarded, not only as historical evidences of its practice with regard to the rights of maritime war, but also as showing the views of its jurists with respect to the rules generally recognized as conformable to the universal law of nations. The usage of nations, which constitutes the law of nations, has not yet established an impartial tribunal for determining the validity of maritime captures. Each belligerent State refers the jurisdiction over such cases to the courts of admiralty established under its own authority within its own territory, with a final resort to a supreme appellate tribunal, under the direct control of the executive government. The rule by which the prize courts thus constituted are bound to proceed in adjudicating such cases, is not the municipal law of their own country, but the general law of nations, and the particular treaties by which their own country is bound to other States. They may be left to gather the general law of nations from its ordinary sources in the authority of institutional writers;

I Bynkershoek, Quest. Jur. Pub. lib. i. cap. 10.

2 Madison, Examination of the British Doctrine, &c. p. 39.

or they may be furnished with a positive rule by their own sovereign, in the form of ordinances, framed according to what their compilers understood to be the just principles of international law.

The theory of these ordinances is well explained by an eminent English civilian of our own times. "When," says Sir William Grant, "Louis XIV. published his famous ordinance of 1681, nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law as then understood and received in France. I say as understood in France, for although the law of nations ought to be the same in every country, yet as the tribunals which administer the law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since attempted it was not, at the period now referred to, supposed that one State could make or alter the law of nations, but it was judged convenient to establish certain principles of decision, partly for the purpose of giving a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was. The French courts have well and properly understood the effect of the ordinances of Louis XIV. They have not taken them as positive rules binding upon neutrals; but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation."

4. The adjudications of international tribunals, such as boards of arbitration and courts of prize.

As between these two sources of international law, greater

! Marshall on Insurance, vol. i. 425. The commentary of Valin upon the marine ordinance of Louis XIV., published in 1760, contains a most valuable body of maritime law, from which the English writers and judges, especially Lord Mansfield, have borrowed very freely, and which is often cited by Sir W. Scott (Lord Stowell) in his judgments in the High Court of Admiralty. Valin also published, in 1763, a separate Traité des Prises, which contains a complete collection of the French prize ordinances down to that period.

weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide, than to those of admiralty courts established by and dependent on the instructions of one nation only. (a)

5. Another depository of international law is to be found in the written opinions of official jurists, given confidentially to their own governments. Only a small portion of the controversies which arise between States become public. Before one State requires redress from another, for injuries sustained by itself, or its subjects, it generally acts as an individual would do in a similar situation. It consults its legal advisers, and is guided by their opinion as to the law of the case. Where that opinion has been adverse to the sovereign client, and has been acted on, and the State which submitted to be bound by it was more powerful than its opponent in the dispute, we may confidently assume that the law of nations, such as it was then supposed to be, has been correctly laid down. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law.1 (b)

(a) [Mr. Wheaton published in his "Life of William Pinkney," who was a member of the joint British and American commission, under the treaty of 1794, the opinions delivered by Mr. Pinkney on the questions of international law, involved in the various reclamations before that tribunal. See Wheaton's Life of Pinkney, pp. 193-372.]

1 Senior, Edinburgh Rev. No. 156, art. 1, p. 311.

The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court of Admiralty in the reign of Charles II., in answer to questions submitted to him by the King or by the Privy Council relating to prize causes, were published as an Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.) They form a rich collection of precedents in the maritime law of nations, the value of which is enhanced by the circumstance that the greater part of these opinions were given when England was neutral, and was consequently interested in maintaining the right of neutral commerce and navigation. The decisions they contain are dictated by a spirit of impartiality and equity, which does the more honor to their author as they were addressed to a monarch who gave but little encouragement to those virtues, and as Jenkins himself was too much of a courtier to practice them, except in his judicial capacity. Madison, Examina. tion of the British Doctrine, &c., p. 113. Lond. edit. 1806.

(b) [The publicity which attends all transactions in the United States has led to the printing of a large portion of the diplomatic papers, which have been occa