understanding of the general subject of international

law.

Wolfe (1679-1754) published in 1749 his "Jus Gentium." This bases international law on a sort of state universal, civitas maxima, made up of the states of the world in their capacity as voluntarily recognizing a natural law.

Vattel (1714-1767), an ardent admirer of Wolf, published in 1758 his "Law of Nations," which he based upon the work of Wolf. This work of Vattel was clear and logical and gained an immediate and wide influence, far surpassing that of his master.

Moser (1701-1786) brings into the science the posi tive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles underlying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers.

G. F. de Martens (1756-1801) combines in a measure the method of Vattel with the positive method of Moser in his "Précis du Droit des Gens Moderne de l'Europe," 1789. This treatise has been a recognized standard.

Many special and general works appeared in the latter years of the eighteenth and early years of the nineteenth century.

Wheaton (1785-1848), the foremost American writer on international law, published in 1836 his "Elements of International Law," which has long been recognized as a standard throughout the world.

Beside the great work of Wheaton justly stands Phillimore's "Commentaries upon International Law."

Many other works of highest merit have appeared during the latter half of the nineteenth century, such as those of Bluntschli, Travers Twiss, Calvo, Wharton, Pradier-Fodéré, and of the eminent authority, the late William Edward Hall. There are also many living writers whose contributions are of greatest worth.1

1 See p. xix for list of authors and works.

CHAPTER IV

SOURCES

14. PRACTICE AND USAGE.

15. PRECEDENT AND DECISIONS.
(a) Prize and Admiralty courts.
(b) Domestic courts.

(c) Courts of arbitration.

16. TREATIES AND STATE PAPERS.

17. TEXT WRITERS.

18. DIPLOMATIC PAPERS.

§ 14. Practice and Usage

If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right. That collection of customs known as "The Law Merchant" is an example of a source of this class. Of this it has been said, "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the Parloir aux Bourgeois at Paris."1

1 Jenks, "Law and Politics in the Middle Ages," p. 30.

Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice.

§ 15. Precedent and Decisions

The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice.

The District Court also Appeals from prize courts Supreme Court for final

(a) Prize and Admiralty courts decisions form in themselves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District Courts, the Circuit Courts, and the Supreme Court. The District Courts have original jurisdiction in civil causes of admiralty and concurrent jurisdiction with the Circuit and State Courts in suit of an alien, because of violation of international law or treaty of United States. has full prize court powers. decisions go directly to the judgment; appeals from admiralty decisions go to the Circuit Court for final judgment.2 The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions. Whatever the method of the prize

1 The Santa Cruz, 1 C. Rob., 49, 61.

2 Act of Congress, March 3, 1891. 26 U. S. Sts. at Large, 826. 8 Lawrence, § 64.

court, its decision, if legally rendered, stands as valid in all states.1

(b) The decisions of domestic courts upon such matters as extradition,2 diplomatic privileges, piracy, etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." 3

(c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the value of the decision as a precedent. As arbitration is of necessity voluntary, there is generally a consensus upon certain points, even though the decision rendered may not become a precedent. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. The principles upon which the court of arbitration bases its decision, rather than the decision itself, furnish material valuable for international law.

§ 16. Treaties and State Papers

Treaties and state papers of whatever form indicate the state of opinion, at a given time, in regard to the

1 Bolton v. Gladstone, 5 East, 155, 160.

2 United States v. Rauscher, 1886, 119 U. S., 407.

8 United States Constitution, Art. III., § 2. For English view, see Walker, p. 46, who quotes 3 Burr, 1480.

4 Declarations, protocols, conventions, proclamations, notes, etc.