of interna § 14. International law, as understood among civilized Definition nations, may be defined as consisting of those rules of tional law. conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent. (a)9 § 15. The various sources of international law in these different branches are the following: Sources of international law. 1. 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. 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 witnesses of the sentiments and usages of civilized nations, and the weight of their testimony (a) Madison, Examination of the British Doctrine which subjects to Capture a Neutral Trade not open in Time of Peace, 41. London ed. 1806. [ Halleck defines the Law of Nations to be "the rules of conduct regulating the intercourse of States." Halleck's Intern. Law, 42. Woolsey defines it as "the aggregate of the rules which Christian States acknowledge as obligatory in their relations to each other and to each other's subjects." Woolsey's Introd. § 5. Professor Cairns says: "International law is the formal expression of the public opinion of the civilized world respecting the rules of conduct which ought to govern the relations of independent nations, and is, consequently, derived from the source from which all public opinion flows, - the moral and intellectual convictions of mankind." Kent describes it as “that code of public instruction which defines the rights and prescribes the duties of nations in their intercourse with each other," and as existing "according to the general usages of nations." Kent's Comm. i. 1. "Self-protection and intercourse are the two sources of international law. They make it necessary; and the conception in man of justice, of rights and obligations, must follow, because he has a moral nature." Woolsey's Introd. § 6, note. Austin points out the fault of the older Continental writers in confounding rules of international morality, as, in their opinion, they should be, with the actual international law in operation among nations. Province of Jurisprudence, 235, note. Hautefeuille divides international law into two parts, which he calls primitif and secondaire,-the first containing, as he says, the principles, the absolute basis, of the law; and the second, the measures or provisions for calling up these principles and securing their execution. Droits des Nations Neutres i. 6-13. In the application of this theory, it will be found that the distinguished writer usually treats the primitive law, or the well or fountain of first principles, as of actual authority, where no express agreement departs from it; and so much of the practice of nations as consists in judicial decisions adopted, enforced, and acquiesced in, he considers as of less authority than the primitive law as it lies in the breast of the text-writers.] — D. 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. 2. Treaties of peace, alliance, and commerce declaring, modifying, or defining the pre-existing international law. What has been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties, varying from the general usage and custom of nations, cannot alter the international law, yet an almost perpetual succession of treaties, establishing a particular rule, will go very far towards proving what that law is on a disputed point. Some of the most important modifications and improvements in the modern law of nations have thus originated in treaties. (a) "Treaties," says Mr. Madison, "may be considered under several relations to the law of nations, according to the several questions to be decided by them." "They may be considered as simply repeating or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which they are, first, a law between the parties themselves, and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered a voluntary or positive law of nations." (b) 3. Ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals. The marine ordinances of a State may be regarded, not only as historical evidences of its practice with regard to the rights of maritime war, but also as showing the views of its jurists with respect to the rules generally recognized as conformable to the universal law of nations. The usage of nations, which constitutes the law of nations, has not yet established an impartial tribunal for determining the validity of maritime captures. Each belligerent State refers the jurisdiction over such cases to the courts of admiralty established under its own authority within (a) Bynkershoek, Quest. Jur. Pub. lib. i. cap. 10. (b) Madison, Examination of the British Doctrine, &c., 39. its own territory, with a final resort to a supreme appellate tribunal, under the direct control of the executive government. The rule by which the prize courts thus constituted are bound to proceed in adjudicating such cases, is not the municipal law of their own country, but the general law of nations, and the particular treaties by which their own country is bound to other States. They may be left to gather the general law of nations from its ordinary sources in the authority of institutional writers; or they may be furnished with a positive rule by their own sovereign, in the form of ordinances, framed according to what their compilers understood to be the just principles of international law.10 The theory of these ordinances is well explained by an eminent English civilian of our own times. "When," says Sir William Grant, "Louis XIV. published his famous ordinance of 1681, nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law as then understood and received in France. I say as understood in France, for although the law of nations ought to be the same in every country, yet as the tribunals which administer the law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since attempted it was not, at the period now referred to, supposed that one State could make or alter the law of nations, but it was judged convenient [10 In the United States, the prize jurisdiction is not given to commissions appointed by the executive government, but to the regular and standing courts of the republic, whose judges have a permanent and independent tenure, being appointed by the President, confirmed by the Senate, and holding for life, subject to be removed only upon conviction after impeachment. In matters of prize law, the rules laid down by their own government on the subject, whether as interpretations of the rules of war, or as deviations from them, are binding upon the courts. In the absence of such, they must presume their government intends to act in conformity with the practice of nations. A rule of war, adopted by the proper constitutional authority, must be accepted by the court as the actual rule for the nation in that war, adopted on its international responsibility. These are familiar principles; and except as they give it color, it cannot be said that the prize courts of the United States "are under the direct control of the executive government." All that can be said is, that, whatever under our Constitution, in its division of functions between legislative, judicial, and executive departments, is a competent legislative or executive function in respect to the acts or rules of war, is binding on the prize courts.]-D. to establish certain principles of decision, partly for the purpose of giving a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was. The French courts have well and properly understood the effect of the ordinances of Louis XIV. They have not taken them as positive rules binding upon neutrals; but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation." (c) 4. The adjudications of international tribunals, such as boards of arbitration and courts of prize. As between these two sources of international law, greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide, than to those of admiralty courts established by and dependent on the instructions of one nation only. 5. Another depository of international law is to be found in the written opinions of official jurists, given confidentially to their own governments. Only a small portion of the controversies which arise between States become public. Before one State requires redress from another, for injuries sustained by itself, or its subjects, it generally acts as an individual would do in a similar situation. It consults its legal advisers, and is guided by their opinion as to the law of the case. Where that opinion has been adverse to the sovereign client, and has been acted on, and the State which submitted to be bound by it was more powerful than its opponent in the dispute, we may confidently assume that the law of nations, such as it was then supposed to be, has been correctly laid down. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law. (d) (c) Marshall on Insurance, i. 425. The commentary of Valin upon the marine ordinance of Louis XIV., published in 1760, contains a most valuable body of maritime law, from which the English writers and judges, especially Lord Mansfield, have borrowed very freely, and which is often cited by Sir W. Scott (Lord Stowell) in his judgments in the High Court of Admiralty. Valin also published, in 1763, a separate Traité des Prises, which contains a complete collection of the French prize ordinances down to that period. (d) Senior, Edinburgh Review, No. 156, art. 1, p. 211. The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court of Admiralty in the reign of Charles II., in answer to questions submitted to him by 26 6. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations, may conclude this enumeration of the sources of international law.11 the King or by the Privy Council, relating to prize causes, were published as an Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.) They form a rich collection of precedents in the maritime law of nations, the value of which is enhanced by the circumstance that the greater part of these opinions were given when England was neutral, and was consequently interested in maintaining the right of neutral commerce and navigation. The decisions they contain are dictated by a spirit of impartiality and equity, which does the more honor to their author as they were addressed to a monarch who gave but little encouragement to those virtues, and as Jenkins himself was too much of a courtier to practise them, except in his judicial capacity. Madison, Examination of the British Doctrine, &c., 113. Lond. edit. 1806. [11 Sources of International Law. — Commentators seem agreed as to what are the sources of international law. They differ as to the relative importance and authority of these sources. Hautefeuille, especially, gives little weight to the decisions of prize courts, and places far before them the speculations of writers. It is noticeable that continental writers incline the same way, although they may not go as far; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i.e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are, at the same time, the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions; and even those portions of the opinions of the court itself, not necessary to the decision of the cause before it, are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The continental writers, on the other hand,-living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law, are led by their education to look to but one authoritative source of law, the decrees of legislators; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision. With the English and American lawyer or scholar, it is the habit of life to consider a decision by a judicial tribunal, on an actual case, as ordinarily the best attainable evidence of what the law applicable to that case is. The fact that parties have been engaged in actual conflict, in which property, character, or life, have been staked upon the law of that case, and learned counsel employed, creates a probability that the law has been thoroughly examined, and shown in the various lights in which open contestation tends to place it. It is thought, too, that the law evoked by actual cases, after they have arisen and been presented, with all their consequences, is more likely to be practical, than the mere abstract speculations of the wisest. The court, too, in ascertaining the law and applying it, beside having the aids referred to, is acting under the sanctions of public official duty on a matter known to involve interests, which the law it shall declare will settle finally; and with the |