according to the usages universally observed by such states, would present a character singularly inconsistent and anomalous." Mr. Webster, Sec. of State, to Mr. Thompson, minister to Mexico, April 15, 1842, Webster's Works, VI. 437. If a government "confesses itself unable or unwilling to conform to those international obligations which must exist between established governments of friendly states, it would thereby confess that it is not entitled to be regarded or recognized as a sovereign and independent power." Mr. Evarts, Sec. of State, to Mr. Foster, August 2, 1877, MS. Instr., Mexico, A municipal decree, whether executive, legislative, or judicial, contravening the law of nations has no extraterritorial force. Mr. Fish, Sec. of State, to Mr. Wing, April 19, 1871, MS. Inst. Ecuador, I. 270; In 1888 the Congress of Ecuador passed a law declaring, among other things, that the nation was not responsible for losses and damages caused by the enemy, either in a civil or an international war, or by mobs, riots, or mutinies; nor for losses and damages caused by the Government in its military operations, or in the measures which it might adopt for the restoration of public order; nor for losses or damages consequent upon measures adopted by the Government toward natives or foreigners, involving their arrest, banishment, imprisonment, detention, or extradition, whenever the exigencies of public order or a compliance with treaties with neighboring nations. should require such action; and that no person, whether native or foreign, should have any right of indemnity in such cases. The diplomatic corps at Quito protested against the act as "contrary to the law of nations." The Government of the United States, when advised of the provisions of the statute, pronounced them "generally and substantially subversive of the principles of international law by which, and not by domestic legislation, the ultimate liability of governments to one another must be determined;" and declared that "by such a declaration of rules for the guidance of her conduct in international relations Ecuador places herself outside of the pale of international intercourse." Mr. Rives, Assist. Sec. of State, to Mr. McGarr, Oct. 24, 1888, For. Rel. 1888, Part 1, p. 490; Mr. Rives, Acting Sec. of State, to Mr. Walker, Oct. 23, 1888, For. Rel. 1888, Part 1, p. 492. The statesmen and jurists of the United States do not regard international law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations. This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of international law, and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by governments and lawyers of the civilized sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of international law places herself outside the circle of civilized nations." Maine, International Law, 37-38. This interpretation by Sir Henry Maine of the position of the United States is strikingly sagracious, since it expresses that position in terms substantially the same as those employed by the Department of State in the case of Ecuador (supra), almost at the moment when his work was issuing from the press and naturally without knowledge of its contents. Sir Henry Maine discusses, at pp. 38-45, Queen . Keyn, often called the case of the Franconia, L. R. 2 Exch. Div. 63, a case which, though often referred to as denying the authority of international law, was decided "upon grounds of municipal and not of international law." (Hall, Int. Law, 4th ed. 213, note.) See also, as to the origin and obligation of international law, Phillimore, Int. Law, 1st ed., preface, and 2d ed., I. 75–77; Black, At.-Gen. (1859), 9 Op. 358. The law of nations is to be tried by the test of usage. That which has received the assent of all must be the law of all." Effect of usage. Marshall, C. J., The Antelope (1825), 10 Wheat. 66, 120–121. Referring to the statement of Lord Stowell, in The Young Jacob and Johanna, 1 C. Rob. 20, that a certain custom which had been observed in former wars "was a rule of comity only, and not of legal decision," the court said: "Assuming the phrase 'legal decision' to have been there used in the sense in which courts are accustomed to use it, as equivalent to judicial decision,' it is true that, so far as appears, there had been no such decision on the point in England. The word comity' was appar- ently used by Lord Stowell as synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As was well said by Sir James Mackintosh, In the present century a slow and silent but very substantial mitigation has taken place in the practice of war, and in proportion as that mitigated practice has received the sanction, of time it is raised from the rank of mere usage, and becomes a part of the law of nations.' Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360." Gray, J., delivering the opinion of the court, The Paqueta Habana (1900), 175 U. S. 694, holding that coast-fishing vessels, engaged in catching and bringing in fresh fish, are exempt from capture as prize of war. The italics in the above passage are the editor's. "As international law is a product of the special civilization of modern Europe, and forms a highly artificial system of Presumption as to which the principles can not be supposed to be underassent. stood or recognized by countries differently civilized, such states only can be presumed to be subject to it as are inheritors of that civilization. They have lived, and are living, under law, and a positive act of withdrawal would be required to free them from its restraints. But states outside European civilization must formally enter into the circle of law-governed countries. They must do something with the acquiescence of the latter, or of some of them, which amounts to an acceptance of the law in its entirety beyond all possibility of misconstruction. It is not enough consequently that they shall enter into arrangements by treaty identical with arrangements made by law-governed powers, nor that they shall do acts, like sending and receiving permanent embassies, which are compatible with ignorance or rejection of law. * ** "When a new state comes into existence its position is regulated by like considerations. If by its origin it inherits European civilization the presumption is so high that it intends to conform to law that the first act purporting to be a state act which is done by it, unaccompanied by warning of intention not to conform, must be taken as indicating an intention to conform, and brings it consequently within the sphere of law. If, on the other hand, it falls by its origin into the class of states outside European civilization, it can, of course, only leave them by a formal act of the kind already mentioned. "A tendency has shown itself of late to conduct relations with states which are outside the sphere of international law to a certain extent in accordance with its rules; and a tendency has also shown itself on the part of such states to expect that European countries shall behave in conformity with the standard which they have themselves set up. Thus China, after France had blockaded Formosa in 1884, communicated her expectation that England would prevent French ships from coaling in British ports. Tacitly, and by inference from a series of acts, states in the position of China may in the long run be brought within the realm of law; but it would be unfair and impossible to assume, inferentially, acceptance of law as a whole from isolated acts or even from frequently repeated acts of a certain kind." Hall, Int. Law, 4th ed., 42-44. Formerly the states that were subject and those that were not subject to international law were respectively classed as Christian and non-Christian. By Art. VII. of the treaty of Paris of March 30, 1856, however, Turkey was expressly "admitted to participate in the advantages of the public law and system of concert of Europe." (Hertslet, Map of Europe by Treaty, II. 1254.) By the new treaties which went into effect in July and August, 1899, “Japan's position as a fully independent sovereign power is assured." (President McKinley, Annual Message, Dec. 5, 1899.) Japan's admission into the "circle of law-governed countries" was preceded by various acts by which she recognized the obligations of international law. In August, 1870, during the war between France and Germany, she issued a declaration of neutrality. (For. Rel. 1870, 188.) In 1886 the Emperor formally adhered to the Geneva Convention. By an imperial decree of March 19, 1887, the rules of maritime law embodied in the Declaration of Paris of 1856 were declared to be in force in the empire. On August 21, 1894, during the war with China, a law was promulgated for the organization of a prize court which was established at Sasebo. This law was based chiefly on the British and German prize acts; and there was subsequently promulgated a prize act, founded on the works of Professor Holland and Sir Godfrey Lushington, the rules of the Institute of International Law of 1882, and the instructions of the French navy of 1870. In the work of adaptation, however, Japan made one salutary improvement; she abolished the interest of the individual captor in the prize. (See Ariga, La Guerre sino-japonaise au point de vue du droit international; Takahashi, Cases on International Law during the Chino-Japanese War; Siebold, Japan's Accession to the Comity of Nations.) To Hall's statement that China, in 1884, expressed the expectation that England would prevent French ships from coaling in British ports, it is proper to add that the British Government recognized the belligerent rights of China as well as of France, and acknowledged toward both the obligations of neutrality, issuing to that end instructions for the enforcement of the foreign enlistment act. (Br. & For. State Papers, LXXVI. 1884–1885, 434.) Judicial declara tions. II. PART OF THE LAW OF THE LAND. § 2. * * The "privilege of foreign ministers and their domestic servants depends upon the law of nations. The act of parliament of 7 Anne, c. 12, is declaratory of it. All that is new in this act is the clause which gives a summary jurisdiction for the punishment of the infractors of this law. But the act was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England,' and the infraction criminal, nor intended to vary an iota from it. I remember in a case before Lord Talbot, the matter * * * * * was very elaborately argued at the bar, and a solemn, deliberate opinion given by the court. Lord Talbot declared a clear opinion, "That the law of nations, in its full extent, was part of the law of England.' 'That the act of Parliament was declaratory;' * * * 'that the law of nations was to be collected from the practice of different nations, and the authority of writers. Accordingly he argued and determined from such instances and the authority of Grotius, Barbeyrac, Binkershoek, Wiquefort, etc., there being no English writer of eminence upon the subject. I was counsel in this case, and have a full note of it. I remember, too, Lord Hardwicke's declaring his opinion to the same effect, and denying that Lord Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England." Lord Mansfield, Triquet . Bath (1764), 3 Burrows, 1478. To the same effect, The Emperor of Austria r. Day and Kossuth (1861), 2 Giffard, 628. See Blackstone, Comm., B. IV., ch. 5, p. 67; Coxe, Judicial Power and Unconstitutional Legislation, generally. The "law of nations" being "in its full extent" a "part of the law" of Pennsylvania, to be "collected from the practice of different nations and the authority of writers,” a citizen of France was tried, convicted, and sentenced at common law for an assault on the secretary of legation of France in the French minister's dwelling, and an assault and battery on the same person in the streets. Respublica r. De Longchamps, court of oyer and terminer at Philadelphia (1784), 1 Dallas, 111. The same principle is stated by Lincoln, At.-Gen. (1802), 5 Op., Appendix, 691. "If it be the will of the Government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the Government will manifest that will by passing an act for the purpose. Till such an act be passed, the court is bound by the law of nations, which is a part of the law of the land." Marshall, C. J., The Nereide (1815), 9 Cranch, 388, 423. Opinions of states men. "The law of nations makes an integral part of the laws of the land." * * * Mr. Jefferson, Sec. of State, to Mr. Genet, French Minister, June 5, 1793, "A question may be raised-Does this customary law of nations, as established in Europe, bind the United States? An affirmative answer to this is warranted by conclusive reasons. "1. The United States, when a member of the British Empire, were, in this capacity, a party to that law, and not having dissented from it, |