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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
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 Judgments of International Courts, or Boards of Arbitration.
The Decisions of Municipal Courts upon Questions
of International Law.
See "The Elements of International Law, with an Account of its Origin, Sources, and Historical Development," George B. Davis, Lieut. Col.,
and Deputy-Advocate Gen. U. S. A., Professor of Law at the United States Military Academy (1900).
The Diplomatic Correspondence of States, State
General Histories; The Histories of Important
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 Thirty Hogsheads Sugar vs. Boyle, 9 Cranch, 198.
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 nation— is 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 on International Law, 18 Hilton vs. Guyot, 159 U. S., 163.
15 Davis page 20.
United States. These laws will be unwritten international law, if nothing be adopted or announced to the contrary; or the express regulations of the government when it sees fit to make them. But in both cases it is the law of the United States for the time being, whether written or unwritten." 17
SECTION 6. TREATIES, DIPLOMATIC RELATIONS, ETC.
As one nation cannot by its own will create new principles of international law, so two states cannot do so by any agreement or treaty. Treaties or diplomatic correspondence, however, may be important as evidence of what the international law on the subject is, and may also establish precedents, which if followed by other countries, may ripen into law.
SECTION 7. INTERNATIONAL PUBLIC OPINION.
A source of international law which has recently become of importance is "international public opinion." In former times when the king was the state this source could of course be of no importance, but has developed with the growth of free governments. So recent has been its development that Davis is the first of prominent writers on the subject to mention it.
SECTION 8. WORKS OF TEXT WRITERS.
"The writings of those who have made the history and development of international usages a subject of special study will always constitute our chief source of knowledge upon the subject. The earlier writers were roughly grouped into two schools. One, made up chiefly of Continental authors, who were familiar with "Bradley J., in New York Life Ins.
Co. vs. Hendren, 92 U. S., 288.