the force of law.18 Sometimes a custom or usage looks back to what a single state has found good in some line of activity in which it is particularly engaged. As was said in the case of The Scotia: "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 first of limited effect, but which, when generally adopted, became of universal obligation. The Rhodian law is supposed to have been the earliest system of maritime 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 part 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. This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is a 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." 19

18 Orlotan, Diplomatie de la Mer, liv. I, c. IV, 1.

"By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war." The Paquete Habana, 175

U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320.

19 14 Wall. 170, 20 L. Ed. 822.

Sir William Scott's decisions, the source of so much authority, are frequently based on custom. In the case of the Santa Cruz he says: "There is a law of habit, a law of usage, a standing and known principle on the subject in all civilized countries. It is the common practice of European States in every war to issue proclamations and edicts on the subject of prize; but till they appear courts of admiralty have a law and usage on which they proceed, from habit and ancient practice, as regularly as they afterwards conform to the express regulations of their prize acts." 1 C. Rob. 50. And referring to the right of capture Sir William Scott in the celebrated case of The Maria says: "The right is equally clear in

In the opinion rendered in the case of West Rand Central Gold Mining Company v. Rex, June 1, 1905, the English court held in regard to international law that: "It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our national tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognized, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations.'

20

(2) Treaties and other interstate agreements, such as conventions, protocols, etc., may show upon any subject the attitude of the states parties to the agreements. Where a considerable number of states are parties to an agreement, as to the Convention for the Pacific Settlement of International Disputes, signed at The Hague, October 18, 1907, such a convention becomes in effect international law for the signatory states. In a less general way the reappearance of the same clause in a large number of treaties between two or a few states may indicate the existing law for all, and does indicate the existing law for the states parties to the treaties. When the

practice, for practice is uniform and universal upon the subject. The many European treaties which refer to this right refer to it as pre-existing and merely regulate the exercise of it." 1 C. Rob. 340. 20 (1905) King's Bench Division, 39.

same clauses appear in treaties made between several different states at considerable intervals of time, it is usual to draw the same conclusions in regard to their general application.

(3) In recent years the practice of reference of questions liable to cause disagreement among states to international tribunals has become common. The Hague Convention of 1907 states: "Art. 41. With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Contracting Powers undertake to organize a permanent Court of Arbitration as established by the First Peace Conference, accessible at all times, and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure inserted in the present Convention." Many temporary and special courts have been instituted.21 These tribunals usually decide the questions before them on broad grounds, and their decisions become precedents for subsequent tribunals. The decisions of the later tribunals more and more refer back to those of earlier years, and a considerable body of rules, practically a part of international law, has thus developed.22

(4) "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." 23

Sir William Scott in 1799 said of the British prize court: "This court is properly and directly a court of the law of na

21 "The summer of 1903 saw collected at Caracas ten full commissions appointed to adjudicate claims of as many nations against Venzuela, and also the commissioners of an eleventh (French) commission. Before these various bodies were presented for consideration many most interesting questions of international law, touching perhaps all of the problems likely to prove sources of difficulty between European and North American nations on the one hand and the South American Republics on the other." Preface, Venezuelan Arbitrations, 1903, Ralston's Report.

22 Moore, International Arbitration, 6 vols., 1898.

23 Opinion of Marshall, Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 3 L. Ed. 701.

tions only, and not intended to carry into effect the municipal law of this or any other country." " 24 The decision of a national prize court, if legally rendered, is held generally binding. "International law in its widest and most comprehensive 'sense," as was said by the United States Supreme Court in 1894, "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.

"The most certain guide, no doubt, for the decision of such questions, is a treaty or a statute of this country. But where, as the case is here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must. obtain such aid as they can from judicial decisions, from the work of jurists and commentators, and from the acts and usages of civilized nations." 25

(5) Text-writers upon international law usually consider interstate relations from broad points of view. They pay attention to historical development and consider ethical as well as jural bearings of such relations. They frequently attempt to set forth the underlying principles which may appear in customs, treaties, court decisions, and diplomatic negotiations. Wheaton says: "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 increases every time that their authority is invoked by statesmen, and every year that passes without rules laid down in their works being impugned by the avowal of contrary principles." 20

In the case of The Paquete Habana the United States Supreme Court affirms that: "Where there is no treaty, and

24 The Walshingham Packet, 2 C. Rob. 77.

25 Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. 26 International Law, D, § 15, p. 23.

no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." 27

(6) Diplomatic papers do not usually express anything beyond the attitude of a given state upon the matter under consideration. A general agreement among states, as shown in diplomatic correspondence, may be a presumptive evidence of the direction in which international law may be expected to move. A position vigorously maintained in diplomatic correspondence, and generally conceded, will tend to become a precedent, and to have great weight. The correspondence of various states with Russia in regard to the list of contraband in the Russo-Japanese war of 1904-05, and the protests against the decisions of the Vladivostok prize courts, did much to make clear the law in regard to contraband.28

One of the most consistent of diplomatic positions is that of the United States in regard to the exemption of private property at sea from capture; but even a long-continued and consistent diplomatic policy is not sufficient to determine the law. In the case of The Pedro the Supreme Court of the United States said: "Nor are we justified in expanding executive action by construction because of the diplomatic attitude of this government in respect of the exemption of all property, not contraband, of citizens and subjects of nations. at war with each other-an exemption which has not as yet been adopted into the law of nations." 29

27 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320.

28 British Parliamentary Papers, Russia, 1905; Foreign Relations. U. S. 1904, 1905.

29 175 U. S. 354, 20 Sup. Ct. 138, 44 L. Ed. 195.