is the real or main sanction of the Law of Nations; for the attempt to characterize war as a guarantee of law or a means of justice in ordinary cases must be considered harmful as well as vain. Not that war is to be condemmed in all cases, but it is a final appeal only to be justified as a last resort after every other mode of obtaining justice or redress has failed.

10. International Law as a Part of Municipal or State Law. - That International Law is a part of the law of the land is no longer a matter of serious doubt, at least in England and the United States. That the Law of Nations, in its full extent, is a part of the law of England was the view of Blackstone (Commentaries, 1765, Bk. IV, ch. 5, p. 67) and of Lords Talbot and Mansfield in the eighteenth century (Triquet v. Bath, 1764, 3 Burr. 1478, and Scott, 6; and Heathfield v. Chilton, 1767, 4 Burr. 2015, and Scott, 189), as also of Lords Ellenborough and Stowell (Wolf v. Oxholm, 1817, K. B., M. and S. 92, and Scott, 496; The Maria, 1799, 1 Rob. 350, and Scott, 858; and the Recovery, 1807, 6 Rob. 348) in the early part of the nineteenth century.

This view appears to have prevailed in England 27 until apparently reversed by a bare majority of the Court of Crown Cases Reserved in the famous case of Queen v. Keyn (L. R., 2 Exchq. Div. 63, and Scott, 154) in 1876. This Court declined, in the absence of an Act of Parliament, to assert British criminal jurisdiction over the captain of the German steamer Franconia who had been convicted of manslaughter in the Central Criminal Court for having killed a passenger on board the British steamer Strathclyde (as the result of a collision due to negligence) within two and a half miles from the English coast, i. e. within the limits of the marine league. In spite of the fact that this decision was promptly nullified by Act of Parliament, and although there was a strong minority opinion supported by six of the thirteen judges, the authority of the older view was considerably shaken.28 But all reasonable doubt in England as to the legal nature of Inter

27

"See, e.g. the leading case of the Emperor of Austria v. Day and Kossuth (1861), 2 Gifford, 623, 678.

28

42 Vict., c. 73. For discussions of the case of Queen v. Keyn, see 1 Cobbett, Cases, 132 ff.; Holland. Studies, 185; Maine, Int. Law, 38-45; 2 Stephens, Criminal Law, 29-42; Triepel, Völkerrecht und Landesrecht, 151 ff.; Walker, Science, 173 ff.; Westlake, in 22 Law Quarterly, 15-16; Willoughby, "The Legal Nature of Int. Law," in 2 A. J., 360 ff.

national Law has now apparently been finally removed by the opinion of Lord Chief Justice Alverstone (formerly Sir Richard Webster) in the case of West Rand Central Gold Mining Co. v. The King (L. R. 1905, 2 K. B. 391). Although the petitioners (British mine owners in the Transvaal who sought to recover gold which had been seized by officials acting for the Transvaal Government) were refused redress on the ground that annexation was an act of State which could not be inquired into by the Court, Lord Alverstone assented to the proposition laid down by Lord Robert Cecil that "International Law is a part of the law of England." He said:

"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 municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of International Law may be relevant." 29

This doctrine laid down by Lord Alverstone has in its favor a long, unbroken series of decisions in the United States. As early as 1804 Chief Justice Marshall declared, in the case of The Charming Betsey (2 Cranch, 64, 118): "An act of Congress should never be construed to violate the Law of Nations if any other possible construction remains." 30 In the case of the Nereide

29 Lord Alverstone, however, added the following warning: "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 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 a part of International Law by their frequent practical recognition in dealings between various nations." On the importance of this case, see Scott, "The Legal Nature of Int. Law," in 1 A. J. 855 ff.; Westlake, in 22 Law Quarterly Review, 14-26; and 6 Columbia Law Review, 49–50.

30 But this must not be interpreted to mean that the courts would give effect to a custom of International Law in the face of a statute clearly commanding a violation of its principles. In such a case the State would be responsible to the Community of Nations. It should be added that the jurisdiction of the courts does not extend to questions of a purely political nature.

(1815, 9 Cranch, 383, 423) he declared International Law to be "a part of the law of the land." In the Scotia (1871, 14 Wall. 170, 187-188, and Scott, 17) Justice Strong said: "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 world. Like all the Laws of Nations, it rests upon the common consent of civilized countries. It is of force, not because it is prescribed by any superior power, but because it has been generally accepted as a rule of conduct." The most recent and authoritative case in the United States is that of the Paquete Habana v. U.S. (1899, 175 U.S. Rep. 677, and Scott, 19) in which our Supreme Court held (p. 686) that even in the absence of treaty, express proclamation, or municipal law, "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.

"International Law is a part of our law, and must be ascertained and admitted by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the custom 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." 31

BIBLIOGRAPHY

Relation between International Law and Municipal or State Law. 2 Butler, Treaty-making Power, §§ 398-399 and notes; Heffter (Geffcken), 2, note on page 3; *Holland, Studies, ch. 10, pp. 176-200; Holtzendorff, in 1 Handbuch, 49-53, 117-120; Kaufman, Rechtskraft des int. Rechts

"Justice Gray, in the Paquete Habana, op. cit., p. 700, or Scott, 19. Cf. Ibid., in Hilton v. Guyot (1894), 159 U. S. Rep. 113, 163.

(1889); Maine, Int. Law, 36 ff.; *1 Moore, Digest, §§ 1-2; 1 Nys, Droit int., 185-189; *1 Oppenheim, §§ 20-25; *Scott, Cases, 6-10, 13-22; * Ibid., in 1 A. J., 852 ff.; 2 Stephens, Crim. Law, 29 ff.; Triepel, Völkerrecht und Landesrecht (1899), 134-155; Walker, Science, 44 ff.; * Westlake, in 22 Law Quarterly, 14-26; Wheaton (Atlays), note, §§ 15 a, p. 29; *Willoughby, in 2 A. J., 357-365; Woolsey, § 29.

For cases bearing on this subject, the student is particularly referred to Scott's Cases on Int. Law, § 1, Introduction. See especially Triquet v. Bath, K. B., 3 Burr. 1478 (1764); U. S. v. Smith (1820), 5 Wheat. 153; The Scotia (1871), 14 Wall. 170; The Paquete Habana (1899), 175 U. S. 677; and the West Rand Central Gold Mining Co. v. The King, L. R. (1905), 2 K. B. 391.

Relation between International Morality and International Law. Amos, Jurisprudence, 393 ff., 504; Ibid., Remedies for War, 91-106, 114116; Atkinson, Int. Morality (1851); * Austin (Campbell's ed.). §§ 136, 148, 177, 199, etc.; *Bernard, Lectures on Diplomacy, 166–171; Bonfils (Fauchille), No. 39; * Creasy, 11-48; Despagnet (4th ed.), No. 50, pp. 61–62; Ferguson, The International Conference at the Hague (1899), passim; Hibben, in Int. J. of Ethics, 156-160; Hobhouse, Democracy and Reaction, ch. 8; * Holtzendorff, in 1 Handbuch, § 17; Lawrence, Principles (3d ed.), §§ 13-14; Lecky, Map of Life, 491 ff.; Maine, Int. Law, 33-34; 1 Nys, Le droit int., 204-205; Pollock, Essays on Jurisprudence, 35; 1 Rivier, 24; Senior, in Edinburgh Review (1843), 163 ff.; Sidgwick, Elements of Politics, ch. 17; I Twiss, § 105; Ullmann (2d ed.), 36-37; Westlake, Chapters, 15-16; Woolsey, §§ 3, 15-16, 20 b, 21, 23.

*

Relation between Law and Morality. Ames, Law and Morals, in 22 Harvard Law Rev., 97-113; 1 Austin (Campbell's ed.), §§ 6-8, 135, 144, 148, 167, 172, 177, etc.; 1 Ahrens, Philosophie des Rechts, § 37, pp. 308-312; 1 Bentham, Works (Bowring's ed.), Principles of Morals and Legislation, especially chs. 1, 2, and 17 on " Utility"; French, in 2 Philos. Rev., 35-53; * Garner on "Political Science and Ethics," in 17 Int. J. of Ethics, 194-204; Heron, Jurisprudence, chs. 2, 3, and pp. 51-54; *1 Hobhouse, Morals in Evolution, chs. 2, 3, and 6; Holland, Jurisprudence (10th ed.), ch. 3; *Jellinek, Die social-ethische Bedeutung von Recht, Unrecht und Strafe (1878); 1 Lioy, Philosophy of Right (Hastie's trans.), Prolegomena, 131, and Pt. I, ch. 6; Mezes, Ethics, Pt. II, ch. 13, 302-324; 1 Oppenheim, §§ 3-9; * Palmer, The Field of Ethics, Lect. II; Paulsen, A System of Ethics, Book III, ch. 9; *Pollock, First Book, etc., ch. 2; *Pulszky, Theory of Law and Civil Society, 389 ff.; Rattigan, Jurisprudence (1892, 2d ed.), 4-8; Sidgwick, The Methods of Ethics, Bk. III, chs. 5 and 6; Ibid., The Elements of Politics, ch. 13; Taylor (T. W.), in 5 Philos. Rev., 36-50; 1 Westlake, Chapters, 2-3; 1 Westermarck, The Origin and Development of Moral Ideas, chs. 5 and 7; Whewell, Elements of Morality and Polity (1845); Willoughby, The Nature of the State, note on pp. 113-114; Wilson, The State, §§ 14511456; 1 Wundt, Ethics, Pt. III, ch. 4, 160-187.

*

International Comity. Bonfils (Fauchille), No. 38; *Creasy, 35-37;

Despagnet (4th ed.), 62-63; Dicey, Conflict of Laws (2d ed.), 10-15; Fiore, Nos. 198-199; Heffter (Geffcken), §§ 3, 193-196; Gareis, §9; * Holland (roth ed.), Jurisprudence, 406-409; *1 Holtzendorff, Handbuch, § 19; 3 Lawrence, Commentaire, 54 ff.; Leseur, § 30; Lorimer, Institutes of the Law of Nations, 358; 1 Mérignhac, Traité, 279 ff.; 1 Nys, Le droit int., 201-204; 1 Oppenheim, § 19; Rivier, 25; Story, Conflict of Laws, §§ 28, 33-38; Ullmann (2d ed.), 38-39; Westlake, Private Int. Law, 144; 1 Wharton, Conflict of Laws, §§ 12 and 1 a; Wheaton, § 79; Woolsey, §§ 24, 81. See especially an essay entitled "Völkerrecht und Völkercourtesie," by F. Stoerk, in Staatsrechtliche Abhandlungen für Laband (1908), 129–170.

I

The Nature of Diplomacy or International Policy. Acton's (Lord) Introduction to Burd's Il Principe; *Benoist, Le Machiavélisme, I (1907); Bernard, Lectures on Diplomacy, Lect. III; Bonfils (Fauchille), No. 66; Bluntschli, Politik, I, 1-32; Bulmerincq, in Marquardsen's Handbuch, I, § 3, and in 9 R. D. I., 361 ff.; 3 Calvo, § 1310; Despagnet (4th ed.), No. 50, pp. 63-65; Dyer, Machiavelli and the Modern State (1904); Flassan, Histoire de la diplomatie française," Discours preliminaire"; Foster, Practice of Diplomacy, ch. 1; Frederick the Great, Anti-Machiavel (French text, ed. 1834); * Freemantle, on views of Comte, in 3 Contemp. Rev., 477 ff.; *Funck-Brentano et Sorel, 74 80; Halleck (Baker's 3d ed.), 373; Harrison (Frederic), on "The Modern Machiavelli," in 42 Nineteenth Century (1897), 463–471; Hay (John), in Addresses, No. 10, on "American Diplomacy"; Heffter, $84, 198, 227-234; 1 Hill, History of Eu opean Diplomacy, Preface; Holtzendorff, in 1 Handbuch, § 18; Ibid., Politik, Bk. II, chs. 4-7; *1 Janet, Histoire de la science politique (3d ed.), "Introduction sur rapports de la morale et de la politique," and liv. III, chs. 1 and 2, on Machiavelli, Leseur, Introduction, 831; Morley, Romanes Lecture on Machiavelli, in Miscellanies, Essay I; von Mohl, Encyklopädie, §§ 86-89, 105-107; Nippold, Die Fortbildung des Verfahrens, 30 ff.; 1 Nys, Le droit int., 205; Nys, Origines, 295 ff.; I Pradier-Fodéré, Cours de droit diplomatique, ch. 1; Ibid., Traité, I, No. 37, pp. 100-101; 1 Rivier, 432; Rümelin, Politics and Morals (1901); Stratford de Redcliffe (Lord), on "International Relations," in 2 Nineteenth Century (1877), 471 ff.; 1 Treitschke, Politik, § 3, and II, §§ 27-28; 1 Twiss, $97; Ullmann (2d ed.), 37-38; Whewell, Elements of Morality and Polity. Much of the literature on this subject (the theory and practice of diplomacy) centers around the name of Machiavelli. For bibliographies on Machiavelli, see Burd, in 1 Cambridge Modern History, 719–726; the Bibliographical Note in the "Introduction" to Burd's Il Principe (1891); 1 Janet, 596– 601; and the Catalogue of the British Museum.

I

International Private Law or the Conflict of Laws. *Amos, Jurisprudence, ch. 15; Bonfils (Fauchille), No. 4; * 3 Calvo, liv. VII, 1-23; Despagnet, No. 49; Funck-Brentano et Sorel, ch. 2; Hall (6th ed.), 51-52; 1 Halleck (Baker's ed.), 53; *Holland (10th ed.), Jurisprudence, 404 n., 407-409, 412; Holtzendorff, in 1 Handbuch, § 16; Lawrence, Principles (3d ed.), § 7; Lorimer, Institutes of the Law of Nations, Bk. II, ch. 9; 2 F. de Martens, 391-505; 1 Mérignhac, 5-9; 4 Phillimore; 1 Piédelièvre, 15-17; 1 Nys,

*