the other hand, no single nation can introduce a new principle into this system.

The Supreme Court of the United States said on this point in the case of The Antelope: "

10

"As no nation can prescribe a rule for others, none can make a law of nations."

Again, in a later case," the same court said:

"Undoubtedly, no single nation can change the law of the sea. The law is of universal obligation, and no statute of one or two nations; it rests upon the common 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. 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 first 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 parts 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 10 10 Wheaton, 122.

"The Scotia, 14 Wall, 187.

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, expressed 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 libelants complain took place.

"This is not giving to the statute of any nation extra-territorial 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 general basis of international law was also stated by the Supreme Court in the case of Ware vs. Hylton,12 as follows:

"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

13 Dallas, 227.

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 obligatory on those nations who have adopted it."

SECTION 4. SOURCES OF INTERNATIONAL LAW.

If then there is no common superior which can prescribe principles of international law, and such principles cannot be prescribed by an individual nation, what are the sources from which the principles of this branch of the law have arisen?

The answer to this question must be in the form of an enumeration rather than a definition, and it must be remembered that wherever a rule of international law may originate, it only becomes binding by the force of custom and through general acquies

cence.

The following enumeration of the sources of international law has been given by a United States official,13 in his recent work on this subject:

The Roman Law.
The Jus Gentium.

Custom and Usage.

Treaties and Conventions.

The Municipal Law of States.

The Judgments of International Courts, or Boards of Arbitration.

The Decisions of Municipal Courts upon Questions

The Diplomatic Correspondence of States, State
Papers, Foreign Relations, etc.

General Histories; The Histories of Important
Epochs; Biographies of Eminent Statesmen.
The Works of Text Writers.

International Public Opinion.

The Supreme Court of the United States has said on this point:

"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." 14

Some of the more important of these sources of international law will be discussed separately in the succeeding sections.

SECTION 5. ROMAN LAW AND MUNICIPAL LAW.

Although, as has been stated, no single nation can establish any principle of international law, still systems 14 Thirty Hogsheads Sugar vs. Boyle, 9 Cranch, 198.

Vol. XII.-2.

of private law are often resorted to, to aid in the solution of questions of international law. This is particularly true of the great system of Roman law.

"As it was the only system of law with which the earlier writers on international law were familiar, and as its principles seemed to be sufficiently general, in character and scope, to apply to the reciprocal relations of states, its authority was frequently invoked by them in the preparation of their treatises.” 15

As various portions of the system of international law are constantly administered in the regular courts of the different nations, the decisions in such cases constitute an important source of authority on such portions of international law. That international law is part of the law of the United States has been repeatedly decided by the Supreme Court of the United States.

"International law, in its widest and most comprehensive sense-including not only questions of right between nations, governed by what has been appropriately called the law of nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nationis part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination." 16

"The laws which the citizens of the United States are to obey in regard to intercourse with a nation or people with which they are at war are laws of the 15 Davis on International Law, 16 Hilton vs. Guyot, 159 U. S., 163. page 20.