pronounced (condemnationis tempus); provided always that no delay has been caused by the party against whom the suit is brought, because then "dubium non est, quin frustratio moratori, et non alteri obesse debeat; ac propterea, si inter moram et litem contestatam remve, judicatam res pluris valuerit, quam *ipso litis contestatæ vel condemnationis [ *67] momento, reus in id, quanti res plurimi fuit, à tempore moræ ad tempus litis contestatæ, in stricti juris, aut rei judicatæ in bonæ fidei judiciis, damnandus foret."

There can be no doubt that the Chinese Government was the "Morator" in this case, or that, according to the maxim of jurisprudence which has been cited, it ought to have been condemned in the costs of the opium at the time it became possessed of that article, unless, between that period and the period of restitution, the opium had become of greater value; for the only doubt raised by Voet is, whether in cases. of bona fides, the augmented price should be due.

Again, from the time of the seizure, the Chinese Government became the Emptor; and whatever depreciation of price happened in the interim betwixt that time and the treaty, enured to the detriment of the purchasers, no maxim being clearer than "periculum rei venditæ ad emptorem statim pertinet."(c)

Again, let the Chinese government be considered, not as the actual purchasers, but as securities for the payment of the money, and let the question be tried by the principle of Commercial, which is quasi International Jurisprudence. What is the value in which the insurer is bound to indemnify the insured that of the goods at the time of their loss, or that of their invoice price? Emerigon, no light authority, is clear upon this point. He says, (d) adopting the language of other writers, "En fait de prêt à la Grosse et d'Assurance, on ne fait point attention à la valeur des effets au temps de leur perte; mais seulement à ce qu'ils valoient au temps de leur chargement." So the English law adopts the original value of the goods as the basis of the calculation of the amount in which the partial loss of the insured is to be indemnified by the insurer.(e) Secondly, as to the obligations which the Chinese Government [*68] *incurred by its act of violence, and by the character of a wrongdoer with which it thereby clothed itself; and if the language and spirit of Roman Jurisprudence was in favour of the claim of the opium owners against the Chinese Government, considered as simple debtors, or as securities for debtors, infinitely more was it in their favour against that government treated as wrong-doers.

And, first, as to the Civil Law, which throughout that chapter, "De obligationibus quæ ex delicto nascuntur," teems with analogies, and those of great force and directly bearing upon this subject.

When a party, wrongfully deprived, was reinstated in his property by the well-known decree of the Prætor, the "restitutio in integrum”—the law said, "Sive quid amiserit sive lucratus non sit, restitutio facienda est, etiamsi non ex bonis quid amissum sit;" and in cases of theft, where

(c) Vide passim, Dig. lib. xviii. tit. vi.; Cod. lib. iv. tit. xlviii.

(d) Tom. i. p. 262.

(e) Langhorn v. Allnutt, 4 Taunton's Reports, 511.

the sentence restored with heavy damages the stolen property, it also provided for the value of the property where it could not be so restored "æstimatione relatâ in id tempus quo furtum factum est.”(ƒ)

So by the "Lex Aquilia," where there had been "damnum injuriâ datum," in consequence of which the thing had diminished in value, the measure of restitution was "quanti ea res in anno plurimi fuit tantum domino dare damnetur;"(9) and again it is said, "placet ad id tempus spectandum quo res unqum plurimi fuit.” (h)

So Pothier, in the chapter already cited, after stating the mitigating circumstances attaching to transactions of bona fides, observes, (i) "Les principes que nous avons établis jusqu'à présent n'ont pas lieu, lorsque c'est le dol de mon débiteur qui a donné lieu à mes dommages et intérêts. En ce cas le débiteur est tenu indistinctement de tous les *dom[*69] mages et intérêts que j'ai soufferts, auxquels son dol a donné lieu, non-seulement de ceux que j'ai soufferts par rapport à la chose qui a fait l'objet du contrat, propter rem ipsam, mais de tous les dommages et intérêts que j'ai soufferts par rapport à mes autres biens, sans qu'il y ait lieu de distinguer et de discuter en ce cas, si le débiteur doit être censé s'y être soumis; car celui qui commet un dol s'oblige, velit, nolit, à la réparation de tout le tort que ce dol causera.

Grotius,(j) in that chapter of his work which treats "De damno injuriâ dato, et de obligationibus quæ ex delicto nascuntur," fully adopts these maxims of the civil law.

To the same effect are the instances cited by Sir John Davis,(k) in a very curious case, called "Le case de mixt moneys.' In that case the English Privy Council,(7) assisted by the Judges, seem to have said, that if a man, upon marriage, receives £1000 as a portion with his wife, paid in silver money, and the marriage is dissolved causâ precontractûs, so that the portion is to be restored, it must be restored in equal good silver money, though the state shall have depreciated the currency in the meantime;(m) so if a man recover £100 damages, and he levies that in good silver money, and that judgment is afterwards reversed, by which the party is put to restore back all he has received, the judgment creditor cannot liberate himself by merely restoring £100 in the debased currency. of the time, but he must give the very same currency that he had received.

To the same, or even to a stronger effect were the decisions of Lord Stowell(n) in restoring captured vessels which had been condemned by illegally constituted Courts in the West Indies. The ship and cargo were directed to be restored in value; and on reference being made to the registrar and *merchants, they took the invoice prices as the measure of the value, allowing upon it ten per cent. profit.

(f) Dig. de Furtis. xlvii. t. 2. 51.

(g) Dig. lib. ix. tit. ii. 23.

[*70]

Inst. iv. t. iii. (De Lege Aquiliâ.)

(h) Dig. lib. xiii. tit. i. 8. 1. De Condictione Furtivâ. (j) De. J. B. et P. lib. ii. c. xvii.

(1) Knapp, Privy Council Rep. vol. ii. p. 20.

(i) Lib. i. p. 72.

(k) Sir John Davis's Reports, p. 27.

(m) Conf. Burke, Thoughts on the French Revolution, v. 277. (n) The Lucy, 3 Robinson's Adm. Rep. p. 208.

JULY, 1854.-7

Nor was this a solitary case; it was, as the Queen's advocate of that day said, "A question in which a great number of cases, and very considerable amount of property, were involved.”(0)

Lastly, there was in favour of this position the elaborate judgment of Sir William Grant, in the case of Pilkington v. The Commissioners for claims on France. (p) The circumstances of that case were, that the Revolutionary Government had confiscated the debts owing from the subjects of France to those of Great Britain. By the Treaty of 1814, compensation was to be made to the latter. Between the decree of confiscation and the repeal of it, the assignats in which the debts were to be paid had been depreciated in value: it was disputed whether or no the depreciation should be charged to the French. Sir William Grant, after touching upon the curious question of depreciated currency as affecting the relations of debtor and creditor, observes: "I have said it is "unnecessary to consider whether the conclusion drawn by Vinnius or the decision in Davis's Reports be the correct one, for we think this has no analogy to the case of creditor and debtor. There is a wrong act done by the French Government; then they are to undo that wrong act, and to put the party into the same situation as if they never had done it. It is assumed to be a wrong act, not only in the Treaty, but in the repealing decree. They justify it only with reference to that which, as to this country, has a false foundation-namely, on the ground of what other Governments had done towards them, they having confiscated the property of French subjects; therefore they say, we thought ourselves justified at the time in retaliating upon the subjects of this country. That being destitute of foundation as to this country, the Republic themselves, in effect, confess that no such decree ought to have been made, as it affected the subjects of this country; therefore

[*71] it is not merely the case of a debtor paying a debt at the day it falls due, but it is the case of a wrong-doer, who must undo, and completely undo, the wrongful act he has done and if he has received the assignats at the value of 50d., he does not make compensation by returning an assignat which is only worth 20d.—he must make up the difference between the value of the assignat at different periods. * * * * If the act is to be undone, it must be completely undone, and the party is to be restored to the situation in which he was at the time the act to be undone took place."

If in the case of the British merchants and the Chinese government, the treaty had not specified the sum of six millions for the compensation, but merely promised in general terms to restore the value of the opium seized—then the principles of International Law which govern the construction of treaties, (2) would have entitled the original possessors of the opium to demand the most favourable interpretation which could be put upon the term "value.” .” (1)

The conclusion then to which we are led with respect to the case which has been discussed, from the application of the principles of International

The Lucy, 3 Robinson's Adm. Rep. p. 210.

(p) Knapp, Privy Council Rep. p. 19.

(g) Grotius, lib. ii. c. xiv.

(r) Vattel, t. ii. p. 33.

Law, derived from all the sources which have been enumerated, is this: That the British government would have been justified by the law of nations in demanding the cost price of the opium from the Chinese government, even if the depreciation in value of that article at the time. of the conclusion of the treaty had been the result of the usual fluctuations of commerce. It is obvious that this conclusion applied with increased force to a case where the diminished value was one of the consequences of the wrongful acts of that government itself.

*CHAPTER IX.

[*72]

OBJECTION THAT THERE IS NO LAW BECAUSE NO SUPERIOR. LXII. IT is sometimes said that there can be no law between nations because they acknowledge no common superior authority, no international executive capable of enforcing the precepts of International Law. This objection admits of various answers: First, it is a matter of fact that states and nations recognize the existence and independence of each other; and out of a recognized society of nations, as out of a society of individuals, Law must necessarily spring. The common rules of right approved by nations as regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position confounds two distinct things; namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cognizance of human law. (a) In like manner, international justice would not be the less deserving of that appellation, if the sanctions of it were wholly incapable of being enforced.

*How far and by what means they are capable of being exe[ *73] cuted are questions which have been already alluded to, and which will be more fully discussed in a subsequent portion of this work, when the international process of enforcing the execution of International justice by Negotiation, Treaties, Reprisals, or War comes under consideration.

But, irrespectively of any such means of enforcement, the law must remain.(6) God has willed the society of States as he has willed the

(a) Kant, Rechtslehre, s. 54, req.-Warnkoenig says, with much force and truth, "Nonne ex mutuâ inter sese invicem agnitione inter eas quædam constituitur societas, et probantur communes justi regulæ quæ verum jus efficiunt? miscet vir summus (i. e. Kant) juris sanctionem cum justi notione, eâque in re parum sibi constans esse videtur."-Doctrina Juris Philosophica, s. 147.

Brown's Philosophy of the Human Mind, vol. iv. pp. 396-7-8.

(6) Kaltenborn, Kritik des Völkerrechts, has a very good chapter on this head, entitled, Die Läugner des Völkerrechts, kap. vi. p. 306: "Mit Recht nennt Stein es einen kahlen und trostlosen Satz, das es kein Völkerrecht geben solle."

“Stahl

society of individuals. The dictates of the conscience of both may be violated on earth: but to the national, as to the individual conscience, the language of a profound philosopher is applicable: "Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world."(c)

Thirdly, most, if not all, civilized countries have incorporated into their own Municipal Law a recognition of the principles of International Law.

The United States of North America, almost contemporaneously with the assertion of their independence, (d) and the new Empire of Brazil, in 1820, proclaimed their national adherence to International Law: in England it has always been considered as a part of the law of the land.(e)

*Lastly, it may be observed on this head, that the History of [*74] the World, and especially of modern times, has been but incuriously and unprofitably read by him, who has not perceived the certain nemesis which overtakes the transgressors of International Justice; for to take but one instance-what an "Iliad of woes"(ƒ) did the precedent of the first partition of Poland open to the kingdoms who participated in that grievous infraction of International Law! The Roman law nobly expresses a great moral truth in the maxim-" Jurisjurandi contempta religio satis Deum habet ultorem."(g) The commentary of a wise and learned French jurist upon these words is remarkable, and may not inaptly close the first part of the work: "Paroles (he says) qu'on peut appliquer également à toute infraction des Loix naturelles. La justice de l'Auteur de ces Loix n'est pas moins armée contre ceux qui les transgressent, que contre les violateurs du serment, qui n'ajoute rien à l'obligation de les observer, ni à la force de nos engagements, et qui ne sert qu'à nous rappeler le souvenir de cette justice inexorable." (h)

(Rechtsphilosophie) erklärt, nicht alles Recht sei erzwingbar, unter Anderem nicht das Völkerrecht. Wenn man aber nur richtiger und allgemeiner Weise die Erzwingbarkeit als äussere Realisirbarkeit auffast, so ist auch das Völkerrecht erzwingbar zu nennen," pp. 307, 309, n.

(e) Bishop Butler (Sermon III.), On Human Nature.

"Si les Loix Naturelles ont assez de force pour régner sur les Rois même par la crainte de l'auteur de ces Loix, elles ne régnent pas moins entre les Rois ou entre les différentes nations comparées les unes avec les autres. Elles sont le seul appui ordinaire de ce droit qui merite proprement le nom de Droit des Gens; c'est à dire, de celui qui a lieu de Royaume à Royaume ou d'Etat à Etat."-Institution au Droit Public, xii. t. i. 498; Œuvres d'Aguesseau.

(d) " According to the general usages of Europe."-Kent, Comm. i. p. 1. e) Blackstone's Commentaries on the Laws of England, book iv. c. v.

(f) Burke, Letters on a Regicide peace.

g) Cod. lib. iv. t. i. 2, De Reb. Cred. et de Jurejurando (Alexander Ceverus). (h) D'Aguesseau, Ib. xiv. t. i. p. 500. See, too. p. 482.

"Auch ist di Erzwingbarkeit nict der einzige Charakter des Rechts, auch nicht sein wesentlichester-Dieser besteht vielmehr darin, das es Norm und Ordnung für alle menschlichen Gemein verhältnisse in allen Sphären und Dimensionem des privatan und des öffentlichen Lebens, mithin auch des socialen Verhältnisses der Völker und Staaten untereinander also Völkerrecht ist-Der Zwang geht nun aber von Gemeinschaft als solcher aus-Dies ist die Ordnung die Aufrecht erhalten werden soll-Das Rechtsleben ist das Gemeinleben, u. s. w.”—Kaltenborn, 310, ib.