CHAPTER I. INTERNATIONAL LAW. I. ITS ORIGIN AND OBLIGATION, § 1. Early treatises. The term "international law." Nature and force of obligation. Presumption as to assent. II. PART OF THE LAW OF THE LAND, § 2. Judicial declarations. Opinions of statesmen. I. ITS ORIGIN AND OBLIGATION. § 1. There is no precise time at which it may be said that the body of rules which regulate, under the title of international Early treatises. law, the intercourse of nations, came into being. As a science it assumed a definite form in the sixteenth and seventeenth centuries, in the works of the great philosophical jurists, of whom Grotius is the most illustrious." These works are distinguished by the blending of moral principles as discovered by reason and revelation with positive law and custom as found in the jurisprudence of nations and their practices. The first constituted what was called the law of nature (jus natura); the second, the law of nations (jus gentium). Hence the title of some of the treatises-the Law of Nature and of a His great work, De Jure Belli ac Pacis, was published in 1625. He claims," says Whewell, "to be the first who had reduced International Law to the form of an art or science. Nor do I conceive that this claim goes beyond his due." (Grotius on the Rights of War and Peace: an abridged translation, editor's preface, X.) Professor Holland, referring to Albericus Gentilis's De Jure Belli libri tres (1598), states that these three books "supply the model and framework of the first and third books of Grotius," but adds: "I am by no means concerned to place Gentilis on a level with his undeniably greater follower." (Studies in Int. Law, 23.) See, also, Sir James Mackintosh, A Discourse on the Study of the Law of Nature and Nations; Westlake, Int. Law, 30-36; Walker, History of the Law of Nations, I., chap. iii.; Rivier, Note sur la Littérature du Droit des Gens avant la Publication du Jus Belli ac Pacis de Grotius, 1625. H. Doc. 551-1 1 Nations. Of the positive element of the new science the Roman civil law was the chief source, since it was the foundation of the jurisprudence of the countries of continental Europe, whose laws and practices were chiefly consulted. tional law." It is thus apparent that from the beginning the science in question denoted something more than the positive legislation The term "interna- of independent states, and the term "international law," which has in recent times so generally superseded the earlier titles, serves to emphasize this fact. It denotes a body of obligations which is, in a sense, independent of and superior to such legislation. The Government of the United States has on various occasions announced the principle that international law, as a system, is binding upon nations, not merely as something to which they may be tacitly assumed to have agreed, but also as a fundamental condition of their admission to full and equal participation in the intercourse of civilized states. Though on many subjects the rules of international law are clear and precise, yet, as often happens with municipal Sources of authority. law, the rule applicable to a particular case may be uncertain and difficult of ascertainment. In such cases an appeal is made to the authority of writers; to the provisions of treaties disclosing a consensus of opinion; to the laws and decrees of individual states regulating international conduct; to the decisions of international tribunals, such as boards of arbitration; and to the judgments of prize courts, and of ordinary municipal courts, purporting to be declaratory of the law of nations. "The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Marshall, C. J., Thirty Hogsheads of Sugar v. Boyle (1815), 9 Cranch, 191, 198. The intercourse of the United States with foreign nations, and the policy in regard to them, being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are, by a universally acknowledged principle of international law, obligatory upon every citizen of the Union. Kennett v. Chambers (1852), 14 Howard, 38. "Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law is supposed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League and of part of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9th, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part, at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place. This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations." The Scotia (1871), 14 Wall. 170, 187, Mr. Justice Strong delivering the opinion of the court. This case was one of a collision between an American and a British ship. See also The Scotland (1881), 105 U. S. 24; The New York (1899), 175 U. S. 187. "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their author concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113. 163, 164, 214, 215. 6 "Wheaton places among the principal sources of international law, "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.' As to these he forcibly observes: 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 witness 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.' Wheaton's International Law (8th ed.), § 15. "Chancellor Kent says: 'In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree the presumption will be very great in favor of the solidity of their maxims, and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.' 1 Kent Com., 18." Gray, J., delivering the opinion of the court, The Paquete Habana (1900), 175 U. S. 700. The municipal laws of a country can not change Nature and force of the law of nations so as to bind the subjects of another obligation. nation." Case of the Resolution, Federal court of appeals (1781), 2 Dallas, 1, 4. See Nations may, by their municipal law, facilitate or improve the execution of the law of nations by any means they shall think best, "provided the great universal law remains unaltered." McKean, C. J., in Ross r. Rittenhouse, supreme court of Pa. (1792), 2 Dallas, 66 When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." Wilson, J., in Ware v. Hylton (1796), 3 Dallas, 199, 281. "The law of nations may be considered of three kinds, to wit, general, conventional, or customary. The first is universal, or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal, and only binds those nations that have assented to it. The third is founded on TACIT consent, and is only obligatory on those nations who have adopted it." Chase, J., in Ware v. Hylton (1796), 3 Dallas, 199, 227. "An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Marshall, C. J., Murray v. Schooner Charming Betsey (1804), 2 Cranch, 64, 118. See also Talbot v. Seeman, 1 Cranch, 1; Little . Barreme (1804), 2 Cranch, 170. Undoubtedly no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the whole world. Like all the laws of nations it rests upon the consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world." 66 The Scotia (1871), 14 Wall. 170, 187. Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency among civilized states, and which have for their object the mitigation of the miseries of war. "No community can be allowed to enjoy the benefit of national character in modern times without submitting to all the duties which that character imposes. A Christian people who exercise sovereign power, who make treaties, maintain diplomatic relations with other states, and who should yet refuse to conduct their military operations |