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 author concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113. 163, 164, 214, 215. 66 6 Wheaton places among the principal sources of international law, "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.' As to these he forcibly observes: 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 witness 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 the rules laid down in their works being impugned by the avowal of contrary principles.' Wheaton's International Law (8th ed.), $15. "Chancellor Kent says: In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree the presumption will be very great in favor of the solidity of their maxims, and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.' 1 Kent Com., 18." Gray, J., delivering the opinion of the court, The Paquete Habana (1900), 175 U. S. 700. The municipal laws of a country can not change Nature and force of the law of nations so as to bind the subjects of another obligation. nation." Case of the Resolution, Federal court of appeals (1781), 2 Dallas, 1, 4. See also Le Louis, 2 Dodson's Adm. 239. Nations may, by their municipal law, facilitate or improve the execution of the law of nations by any means they shall think best, "provided the great universal law remains unaltered." McKean, C. J., in Ross v. Rittenhouse, supreme court of Pa. (1792), 2 Dallas, "When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." Wilson, J., in Ware v. Hylton (1796), 3 Dallas, 199, 281. gen "The law of nations may be considered of three kinds, to wit, eral, conventional, or customary. The first is universal, or established by the general 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 only obligatory on those nations who have adopted it." Chase, J., in Ware v. Hylton (1796), 3 Dallas, 199, 227. "An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Marshall, C. J., Murray v. Schooner Charming Betsey (1804), 2 Cranch, 64, 118. See also Talbot v. Seeman, 1 Cranch, 1; Little v. Barreme (1804), 2 Cranch, 170. "Undoubtedly no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the whole world. Like all the laws of nations it rests upon the 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." 66 The Scotia (1871), 14 Wall. 170, 187. 'Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency among civilized states, and which have for their object the mitigation of the miseries of war. "No community can be allowed to enjoy the benefit of national character in modern times without submitting to all the duties which that character imposes. A Christian people who exercise sovereign power, who make treaties, maintain diplomatic relations with other states, and who should yet refuse to conduct their military operations according to the usages universally observed by such states, would present a character singularly inconsistent and anomalous." Mr. Webster, Sec. of State, to Mr. Thompson, minister to Mexico, April 15, 1842, Webster's Works, VI. 437. If a government "confesses itself unable or unwilling to conform to those international obligations which must exist between established governments of friendly states, it would thereby confess that it is not entitled to be regarded or recognized as a sovereign and independent power." Mr. Evarts, Sec. of State, to Mr. Foster, August 2, 1877, MS. Instr., Mexico, A municipal decree, whether executive, legislative, or judicial, contravening the law of nations has no extraterritorial force. Mr. Fish, Sec. of State, to Mr. Wing, April 19, 1871, MS. Inst. Ecuador, I. 270; In 1888 the Congress of Ecuador passed a law declaring, among other things, that the nation was not responsible for losses and damages caused by the enemy, either in a civil or an international war, or by mobs, riots, or mutinies; nor for losses and damages caused by the Government in its military operations, or in the measures which it might adopt for the restoration of public order; nor for losses or damages consequent upon measures adopted by the Government toward natives or foreigners, involving their arrest, banishment, imprisonment, detention, or extradition, whenever the exigencies of public order or a compliance with treaties with neighboring nations should require such action; and that no person, whether native or foreign, should have any right of indemnity in such cases. The diplomatic corps at Quito protested against the act as "contrary to the law of nations." The Government of the United States, when advised of the provisions of the statute, pronounced them "generally and substantially subversive of the principles of international law by which, and not by domestic legislation, the ultimate liability of governments to one another must be determined;" and declared that "by such a declaration of rules for the guidance of her conduct in international relations Ecuador places herself outside of the pale of international intercourse." Mr. Rives, Assist. Sec. of State, to Mr. McGarr, Oct. 24, 1888, For. Rel. 1888, Part 1, p. 490; Mr. Rives, Acting Sec. of State, to Mr. Walker, Oct. 23, 1888, For. Rel. 1888, Part 1, p. 492. "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 herself outside the circle of civilized nations." Maine, International Law, 37-38. This interpretation by Sir Henry Maine of the position of the United States is strikingly sagacious, since it expresses that position in terms substantially the same as those employed by the Department of State in the case of Ecuador (supra), almost at the moment when his work was issuing from the press and naturally without knowledge of its contents. Sir Henry Maine discusses, at pp. 38-45, Queen . Keyn, often called the case of the Franconia, L. R. 2 Exch. Div. 63, a case which, though often referred to as denying the authority of international law, was decided "upon grounds of municipal and not of international law." (Hall, Int. Law, 4th ed. 213, note.) See also, as to the origin and obligation of international law, Phillimore, Int. Law, 1st ed., preface, and 2d ed., I. 75–77; Black, At.-Gen. (1859), 9 Op. 358. The law of nations is "to be tried by the test of usage. That which has received the assent of all must be the law of all." Effect of usage. Marshall, C. J., The Antelope (1825), 10 Wheat. 66, 120–121. Referring to the statement of Lord Stowell, in The Young Jacob and Johanna, 1 C. Rob. 20, that a certain custom which had been observed in former wars "was a rule of comity only, and not of legal decision," the court said: "Assuming the phrase 'legal decision' to have been there used in the sense in which courts are accustomed to use it, as equivalent to 'judicial decision,' it is true that, so far as appears, there had been no such decision on the point in England. The word 'comity' was apparently used by Lord Stowell as synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As was well said by Sir James Mackintosh, In the present century a slow and silent but very substantial mitigation has taken place in the practice of war, and in proportion as that mitigated practice has received the sanction of time it is raised from the rank of mere usage, and becomes a part of the law of nations.' Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360." Gray, J., delivering the opinion of the court, The Paqueta Habana (1900), 175 U. S. 694, holding that coast-fishing vessels, engaged in catching and bringing in fresh fish, are exempt from capture as prize of war. The italics in the above passage are the editor's. assent. "As international law is a product of the special civilization of modern Europe, and forms a highly artificial system of Presumption as to which the principles can not be supposed to be understood or recognized by countries differently civilized, such states only can be presumed to be subject to it as are inheritors of that civilization. They have lived, and are living, under law, and a positive act of withdrawal would be required to free them from its restraints. But states outside European civilization must formally enter into the circle of law-governed countries. They must do something with the acquiescence of the latter, or of some of them, which amounts to an acceptance of the law in its entirety beyond all possibility of misconstruction. It is not enough consequently that they shall enter into arrangements by treaty identical with arrangements made by law-governed powers, nor that they shall do acts, like sending and receiving permanent embassies, which are compatible with ignorance or rejection of law. * * * "When a new state comes into existence its position is regulated by like considerations. If by its origin it inherits European civilization the presumption is so high that it intends to conform to law that the first act purporting to be a state act which is done by it, unaccompanied by warning of intention not to conform, must be taken as indicating an intention to conform, and brings it consequently within the sphere of law. If, on the other hand, it falls by its origin into the class of states outside European civilization, it can, of course, only leave them by a formal act of the kind already mentioned. "A tendency has shown itself of late to conduct relations with states which are outside the sphere of international law to a certain extent in accordance with its rules; and a tendency has also shown itself on the part of such states to expect that European countries. shall behave in conformity with the standard which they have themselves set up. Thus China, after France had blockaded Formosa in 1884, communicated her expectation that England would prevent French ships from coaling in British ports. Tacitly, and by inference from a series of acts, states in the position of China may in the long run be brought within the realm of law; but it would be unfair and |