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THE idea underlying this volume is that international law is part of the English common law; that as such it passed with the English colonists to America; that when, in consequence of a successful rebellion, they were admitted to the family of nations, the new republic recognized international law as completely as international law recognized the new republic. Municipal law it was in England; municipal law it remained and is in the United States. No opinion is expressed on the vexed question whether it is law in the abstract; our courts, state and federal, take judicial cognizance of its existence, and in appropriate cases enforce it, so that for the American student or practitioner it is domestic or municipal law.
If English and American courts of justice enforce international law, and have repeatedly done so in the past two centuries, there must be, and, in fact, there is, a mass of judicial decision on this subject. There should be the same reason for respecting precedent in this as in other branches of the law; and beyond doubt in suits involving a question of international law a case in point is cited and followed, unless overruled or distinguished from the case under consideration. Judicial decisions, then, are an important and indispensable source of authority in international law.
It is the judgment that is authoritative, although the obiter dictum of a distinguished judge is entitled to respect. The opinion of a textbook writer is valuable; but, like the dictum, it is not in itself law. It is at best a statement of the underlying principle of the law or a digest or summary of cases on the subject with which the text-book deals. The opinions of diplomats likewise carry great weight; but the diplomatist does not and cannot consider the question at issue with the impartiality of a judge, for he is influenced by the interests of his country.
For these reasons the cases here printed have been selected from the reported decisions of English and American courts; and opinions of text-book writers and extracts from diplomatic correspondence * do not appear in the text.1
1 The above paragraphs are retained from the preface to a collection of cases on international law prepared by the present editor, and published in 1902.
Opinions of writers, extracts from diplomatic correspondence and the literature on the subject are not included; they will be found in John Bassett Moore's Digest of International Law (1906).
Later opinions, extracts from diplomatic correspondence and literature on the subject are covered by George A. Finch's Analytical Index to the American Journal of International Law (1921).
A single reference, covering every page of the present volume, is made to these two works.
The statement that international law formed a part of the common law of England, and that as such it passed to the United States with that law of which it formed a part, can be based upon judicial decision before the separation of the American colonies from the mother country, upon the authority of the accredited commentator upon the Laws of England, the seventh edition of whose work, containing this statement, appeared in the fateful year of 1775, and upon the authority of Alexander Hamilton, whose opinion as to the law of his country would seem to be conclusive. Thus, Lord Chancellor Talbot was reported by Lord Mansfield to have "declared," in Barbuit's Case, "a clear opinion 'that the law of nations, in its full extent, was part of the law of England.'
There can be no doubt about Lord Talbot's opinion, as Lord Mansfield added that he was "counsel in this case" and that he had "a full note of it." Triquet v. Bath, 3 Burrow, 1478, 1482 (1764).
Lord Mansfield himself held, in his own person, in the case of Heathfield v. Chilton, that "the privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England." Heathfield v. Chilton, 4 Burrow, 2016 (1767).
His Lordship was familiar with the law of nations at an early period of his career, for the Barbuit Case, in which he appeared as counsel, was decided in 1737. As Solicitor General he put his name, some sixteen years later, to the declaration that the law of nations is "founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage❞—a definition quoted with approval by Mr. Elihu Root as leading counsel for the United States in the North Atlantic Fisheries dispute, decided by a tribunal of The Hague in 1910.
Sir William Blackstone stated as a matter of course in the fourth book of his Commentaries, published in 1765, that "the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land."
Sir William Blackstone was also familiar with the law of nations, because the year before this part of his Commentaries was published he had appeared as leading counsel for the plaintiff in the case of Triquet v. Bath. Indeed, in the course of his opinion Lord Mansfield took occasion to say that "Mr. Blackstone's principles are right."
In the letters of Camillus, published in 1795, Mr. Hamilton maintained that an affirmative answer should be given to the question which he himself put: "Does this customary law of nations, as established in Europe, bind the United States ?"
In behalf of the affirmative answer he advanced the following reasons, which he himself called conclusive:
"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, when they became independent, they are to be considered as having continued a party to it.
“2. The common law of England, which was and is in force in each of these states, adopts the law of nations, the positive equally with the natural, as a part of itself."
The fact that later judges may be inclined to consider Lord Mansfield's statement as too sweeping cannot detract from the binding effect at the time of its delivery of the unanimous decision of the court over which he presided. But, however Lord Mansfield may have fared at the hands of his successors, Hamilton's authority is unshaken. For did not Mr. Justice Gray say, only a few years ago, in delivering the opinion of the court in the case of The Paquete Habana, decided in 1899, and in language which is a paraphrase, if it cannot be considered as a direct quotation from Sir William Blackstone, that "international law is a 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." 175 U. S. 677, 700, 20 Sup. Ct. 290, 44 L. Ed. 320 (1899).
The late Sir Henry Maine spoke as an historian, as well as a man of affairs, when he said, in his lectures on International Law, delivered in 1887, before the University of Cambridge: "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 itself outside the circle of civilized nations." International Law, London, 1888, pp. 37, 38.
It is to be hoped that the views attributed to the statesmen and jurists of the United States may ultimately prevail in all parts of the world. In the editor's opinion they will because they should. If he is mistaken in this, he nevertheless prefers to be generously wrong than to be niggardly right.
International law seems to have stood fairly well the strain of war. It is no doubt true that the belligerent practices of nations have not squared with their peaceful professions. Nevertheless the law of nations emerges from the World War as a system with foundations unimpaired, although the structure bears outward marks of violence and unsightly scars, which only time can cover.
The prediction, however, of the late William Edward Hall, set out at length in the preface to the third edition of his Treatise on Interna
tional Law, dated August 1, 1889, exactly twenty-five years to the day before the outbreak of the World War, has stood the test of what is commonly called the greatest of all wars.
"Probably in the next great war," he said, "the questions which have accumulated during the last half century and more will all be given their answers at once. Some hates, moreover, will crave for satisfaction; much envy and greed will be at work; but above all, and at the bottom of all, there will be the hard sense of necessity. Whole nations will be in the field; the commerce of the world may be on the sea to win or lose; national existences will be at stake; men will be tempted to do anything which will shorten hostilities and tend to a decisive issue. Conduct in the next great war will certainly be hard; it is very doubtful if it will be scrupulous, whether on the part of belligerents or neutrals; and most likely the next war will be great. But there can be very little doubt that, if the next war is unscrupulously waged, it also will be followed by a reaction towards increased stringency of law. In a community, as in an individual, passionate excess is followed by a reaction of lassitude and to some extent of conscience. On the whole, the collective seems to exert itself in this way more surely than the individual conscience; and in things within the scope of international law, conscience, if it works less impulsively, can at least work more freely than in home affairs. Continuing temptation ceases with the war. At any rate it is a matter of experience that times in which international law has been seriously disregarded have been followed by periods in which the European conscience has done penance by putting itself under straiter obligations than those which it before acknowledged. There is no reason to suppose that things will be otherwise in the future. I therefore look forward with much misgiving to the manner in which the next great war will be waged, but with no misgiving at all as to the character of the rules which will be acknowledged ten years after its termination, by comparison with the rules now considered to exist."
Whether we admit it with open eyes, or ostrich-like bury our heads in the sand, there is such a thing as justice, independent of the State, above it and beyond it, although the formulation of its principles may change according to time, place, and circumstances. This is not the language of mere theory, or of idle speculation. It is apparently the view of the Supreme Court of the United States. As late as 1880, that august tribunal, "speaking of the universal law of reason, justice, and conscience, of which the law of nations is necessarily a part," quoted with approval, the language of Cicero: "Nor is it one thing at Rome and another at Athens, one now and another in future, but among all nations it is, and in all time will be, eternally and immutably the same." From this opinion, delivered by Mr. Justice Swayne, on behalf of the court, in the case of Wilson v. McNamee, 102 U. S. 572, 574, 26 L. Ed. 234, there was no recorded expression of dissent on the part of any of its members.
From this justice nations must derive their rules of law. And this is so, although they may affect to consider themselves the source instead. of the agent whereby the principles of justice, expressed and made visible in rules of law, enter the minds and the thoughts of men before they pervade the practice of nations.
The topics here selected are, in the editor's opinion, calculated to give the student a knowledge of the fundamental principles of international law, and the cases will, it is hoped, furnish him training in the discovery of those principles and in their application to the concrete problems of international life as they present themselves to courts of justice and to tribunals of arbitration.
The facts of the case may be new, the rule of law may seem to be new, and the decision is necessarily so; but the principle of justice which the rule of law announces is old. "For out of the old fields must come the new corn," as Sir Edward Coke says in his report of Calvin's Case, 7 Reports, 3 B. (1608).
To the same effect is the language of Sir William Scott, later Lord Stowell, which is sufficiently broad and comprehensive to include future agencies, whether they operate under sea or in the air:
"I am warranted to hold, that it is an act which will affect the vehicle, without any fear of incurring the imputation, which is sometimes strangely cast upon this court, that it is guilty of interpolations in the law of nations. If the court took upon itself to assume principles in themselves novel, it might justly incur such an imputation; but to apply established principles to new cases cannot surely be so considered. All law is resolvable into general principles. The cases which may arise under new combinations of circumstances, leading to an extended application of principles, ancient and recognized, by just corollaries, may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken, the practice is not new, nor is it justly chargeable with being an innovation on the ancient law, when, in fact, the court does nothing more than apply old principles to new circumstances." The Atlanta, 6 C. Rob. 440, 458 (1808).
And also from the bench a Chief Justice has more recently said:
"It was contended on behalf of the owners of the Prometheus that the term 'law,' as applied to this recognized system of principles and rules known as international law, is an inexact expression; that there is, in other words, no such thing as international law; that there can be no such law binding upon all nations, inasmuch as there is no sanction for such law; that is to say, that there is no means by which obedience to such law can be imposed upon any given nation refusing obedience thereto. I do not concur in that contention. In my opinion a law may be established and become international-that is to say, binding upon all nations-by the agreement of such nations to be bound thereby, although it may be impossible to enforce obedience thereto by