relation, rendered applicable, when they manifestly rendered inapplicable, the strict civil law of the Roman citizen.

In the Institutes, the Digest, and the Code, we are therefore enabled to study a system of Jurisprudence which avowedly passed over the limits of the positive law of the State in which it sprung up; a Jurisprudence intended to be applicable to the world.

Secondly, We study in it a system of Jurisprudence. Nothing can more advance the culture of Private International Law, than the study, not of the letter, but of the spirit, of Roman Jurisprudence, which, because it recognized the duty of applying to jura acquired without its limits, or by others than its own citizens, a law founded upon general principles, has become the basis of the law of Christendom.

The law of England and the United States of North America, is not properly called by Story the Common Law, in a Treatise on Private International Law.

If there be any Common Law of States upon this subject, it is, for the reasons already given, furnished by the Roman Law.

Huber justly remarks, that though you may look in vain for rules eo nomine, on the Conflict of Laws in the repositories of Roman Jurisprudence, yet you will find rules applicable to the subject. "Regula tamen fundamentales, secundum quas hujus rei (i. e. conflictus legum) judicium regi debet, ex ipso jure Romano videntur esse petendæ." (a)

(a) Prælect. II.

The sculptor and the painter, who are worthy of the name, study the works of the ancient masters, not as the object of literal and servile copy, but of reverential and careful enquiry into the principles of truth by which these works have been immortalized.

In like manner, the Jurist ought to study the Roman Law, searching into those principles of truth, which, under the guidance of an intimate and practical acquaintance with the nature of legal relations, have rendered it an everlasting monument of the people whose genius brought it forth.

THESE Four Volumes of Commentaries are now brought to an end. Of the various notices and criticisms upon the three already published, there are only two on which I wish, at parting with my reader, to make a remark.

I. The notice of Professor Mohl, (a) in his elaborate work on the History and Literature of Sciences connected with the Policy of States. I am gratified not merely by his favourable opinion generally of my work, but still more by his recognition of the soundness of the principles upon which the work is planned, and of the labour and pains expended upon it. He has travelled over the same road, and he knows the difficulties and toils of the journey. His criticism was written when the First Volume only had been published. I hope he will find that the defect which he points out is remedied, as far as the nature of the subject will permit, in the Second and Third Volumes.

(a) Die Geschichte und Literatur der Staatswissenschaften, Robert von Mohl, I. 391. Erlangen, 1855. This work is in three volumes.

II. An essay on International Law in the last number of the Edinburgh Review. Of the Reviewer's criticism on my work I say nothing: but he has made, he thinks, a great discovery as to the opinions and system of Grotius; indeed, on this discovery he rests the merit of his review. This discovery is not only what is popularly called a mare's nest, but also unjust to the character of a very great man, and moreover likely to inflict an injury to the jurisprudence in which I take a deep interest.

These are the reviewer's words:-"The result has been to discover that the revolution wrought by him (Grotius) consisted in transferring the chief grounds of the law of nations from the ancient theoretic and territorial basis-somewhat mitigated by the family humanity of Catholicity-to the Protestant and personal ground of the human will. Hence the term jus gentium voluntarium, which Grotius had been the first to introduce, and which marks throughout his chaos of quotation and adoption the new voice of inspiration that gave him value and vitality."

. The reviewer then remarks on the fact that all the writers since Grotius have been, without a single original exception, Germans, or generally of the Teutonic race. 'Is it that the Germans were a people of no foreign intercourse, and no domestic stimulus from politics of public life?" "What, then, should lead these writers to agitate the law of nations?" "Is it, then, that that law, as now resolved into its true principles, a law of personality, resistance, will, and warfare, has anything congenial to this people?"

To call International Law "a law of personalty, resistance, will, and warfare," is a confusion of ideas which results in something very like nonsense; and the theory about German International Jurists is very indifferent history.

First. The existence of the German Confederation of States, Protestant and Catholic, supplies at once no very recondite reason why Germany should have produced the greater number of International Jurists.

Secondly. There have been, since the time of Grotius, French (I do not include Vattel), Italian, and Spanish writers of considerable authority upon International Law, to say nothing of those jurists who occupy a kind of border line between Public and Private International Law, of whom, as of the Roman Law, the reviewer would, I dare say, candidly admit, as is evident, that he knew next to nothing.

Thirdly. There is the very awkward fact that the most eminent and original of the successors of Grotius is to be found among the Dutch (the reviewer seems to have forgotten that Grotius was a Dutchman). Yes; but the Dutch, the reviewer would say, are included in my category. Be it so; does he seriously mean to say that the Dutch were "a people of no foreign intercourse, and no domestic stimulus from politics of public life?" A little reflection would have reminded him of the notorious truth, that the exact reverse is historical fact.

Next, for the great discovery about Grotius himself. It is an error, and a mischievous error, because it tends to lower the authority of that great man, by weakening the basis upon which he placed the mutual obligations of States, as the basis of the Civil Law of a State would be weakened by one who denied that conscience enforced obedience to it.

In the first place, Grotius himself says, that in the use of the phrase jus gentium voluntarium, he means-to do what? To introduce a Protestant discovery forsooth? No; to tread in the steps of Aristotle!

"Juris ita accepti optima partitio est, qua apud Aristotelem exstat, ut sit aliud jus naturale, aliud voluntarium, quod ille legitimum vocat, legis vocabulo strictius posito, interdum et Tò év Táţei constitutum." (Lib i. c. i. ix.)

"the

In the second place, the reviewer altogether misapprehends the meaning of jus voluntarium; it does not mean Protestant and personal ground of the human will." It means instituted as distinguished from natural law.

Jus voluntarium is, Grotius says, vel humanum vel divinum (ib. xiii.). Jus humanum he divides into (1.) jus civile; (2.) jus gentium; distinguishing the latter from jus naturale, in

language which at the same time distinctly admits that the moral law of nature is the primary source of the Jus Gentium: Latius autem patens est jus gentium, id est quod gentium omnium aut multarum voluntate vim obliquandi accepit; multarum addidi, quia vix ullum jus reperitur extra jus naturale, quod ipsum quoque gentium dici potest, omnibus gentibus commune." (b. xiv.).

This jus gentium is to be proved, he says, like the jus civile of a particular State, namely―(1.) by usage; (2.) by the writings of jurists (usu et testimonio peritorum).

In plain language Grotius says, International Law, apart from the consideration of the Law of God, (including that which is written on the conscience by the finger of God, and that which is especially revealed,) which is the fountain of all laws, is derived from the consent of independent States, which make up the community of States,-as the civil law is derived from the consent of the people, which makes up the community of that State; and this consent of States in the matter of International Law is to be proved by usage and the testimony of writers, where there is no express law, as in the case of treaties, as the Civil Law of a State is to be proved in the absence of express Statute or Code.

The human law of all societies is, of course, derived from human will; that is, from consent founded on human will. It really required no ghost or reviewer to tell us that-Grotius knew that every thinker and writer on jurisprudence for two thousand years had known this-he knew also that when he wrote, no discovery, Protestant or Catholic, was to be made in morality or religion-he knew that "all human laws are, properly speaking, only declaratory, that they may alter the mode and application, but have no power over the substance, of original justice." (a) And he, therefore, said in a passage the reviewer ought to have known, "in jure gentium jus naturæ includitur."

(a) Burke, xi. 351.