such acts the Supreme Court in 1832 interpreted "according to the law of nations" as according to "the usage of civilized nations." "

In 1815 Chief Justice Marshall stated the position of international law in an opinion which has been often cited:

"The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. 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." "

In 1894 Justice Gray said in the case of Hilton v. Guyot: "International law in its widest and most comprehensive sense-including not only questions of right between nations, governed by what has been appropriately called the law of nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation-is a 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." "

In the case of The Paquete Habana, decided in 1900, the

United States v. De la Maza Arredondo et al., 6 Pet. 691, 712, 8 L. Ed. 547.

6 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 198, 3 L. Ed. 701.

7159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95.

United States Supreme Court based its decision exempting coast fishing vessels from capture in time of war on "an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law." 8

PLACE OF "INTERNATIONAL PRIVATE LAW."

2. "Private international law” or “international private law" is the term sometimes applied to the body of rules which regulate private rights involving the conflicting jurisdiction of different states. The proper title for the branch of law is “Conflict of Laws." This body of rules is properly a part of municipal law.9

In the case of Hilton v. Guyot, in 1894, Justice Gray said: "In case of conflict of laws, comity must determine the effect which will be given to the expression of the will of a foreign state. 'Comity,' in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will on the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." 10

8 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. Private international law is not, however, a part of international law proper. The latter, as has been seen, is concerned with the relations of states; in so far as individuals are affected, they are affected only as members of their states. Private international law, on the other hand, is merely a subdivision of national law. It derives its force from the sovereignty of the states administering it; it affects only the relations of individuals as such; and it consists in the rules by which courts determine within what national jurisdiction a case equitably falls, or by what national law it is just that it shall be decided. Hall, Int. Law (5th Ed.) 52.

10 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95.

DEVELOPMENT OF INTERNATIONAL LAW.

3. The body of rules now known as international law has been of slow growth, and has particularly developed since the early days of the sixteenth century.

Some of the practices which became customary, and subsequently were recognized as rules of international law, appeared very early. The ancient records of the East show certain usually observed rules of intercourse between states. degree of uniformity of diplomatic procedure was developed in Greece. The spread of commerce in the Mediterranean Sea made necessary commercial comity. This gradually hardened into law. There appear remains of the early maritime law of Rhodes in Justinian's Digest.11

Rome at first contributed rather to the body of international private law than to the field of public international law. Rome, however, in the jus feciale prescribed certain rules for the declaration of war and the negotiating of treaties. The conception of jus gentium varied with the development of European civilization and was differently interpreted by different writers. According to Justinian, "that law which natural reason has established among all men, that which is especially regarded by all, is called 'jus gentium.'" 12 The early idea at Rome seemed to be that jus gentium was the body of law in accord with the general reason of mankind. As the modern conception of state did not exist, it is evident that the idea of jus gentium was not used in the sense of the modern term, "international law," but rather in the sense of a body of law common to all mankind, because necessary for ordinary intercourse of man with man as regards selling, letting, hiring, partnerships, etc.

The term "jus naturale" was a philosophical concept, held by the Greek philosophers, which was popularized at Rome and came to be regarded as the foundation of all true law. Jus naturale was the law in harmony with the inherent forces

11 Digest of Justinian, 14, 2.

12 Institutes of Justinian, I, 2, 1.

of the universe. 18 Jus naturale was frequently identified with jus gentium.

The idea of a law of nature strongly influenced early writers in the field of what was later called "international law," and the titles of early treatises often contain the term "jus naturale," or "jus gentium," or even both.14

Such writers as Victoria (1480-1546), Brun (1491-1563), Belli (1502-1575), Vasquez (1509-1566), Ayala (1548-1584), Saurez (1548-1617), Gentilis (1552-1608), usually look to some such broad philosophical basis as a support for their arguments.15

Grotius (1583-1645), whose great contribution to international law, "De Jure Belli ac Pacis," in 1625, marks a new epoch in the development of the science, recognizes the weight of jus naturale. He defines it as "the dictate of right reason, indicating that any act, from its agreement or disagreement with rational nature, has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by God, the author of nature." 16

The emphasis upon the idea of natural law led to the development of a school of "Naturalists." These were opposed by the "Positivists," basing their ideas of international law on customs and treaties. Between the extremes were those who recognized the value of both theory and precedent, who regarded themselves as exponents of the doctrines of Grotius.

Not merely the thought and philosophy of the period before the middle of the sixteenth century, but the course of events also, had taught men some lessons. "The world empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated; the world religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions im

13 Id. I, 2, 2.

14 Pufendorf, De Jure Naturæ et Gentium, 1672.

15 Brun, De Legationibus, 1548; Belli, De re Militari, 1563; Vasquez, Illustrium Controversarium, 1564; Ayala, De Jure et Officiis Bellicis et Disciplina Militari, 1582; Suarez, Tractatus de Legibus ac Deo Legislatore, 1612; Gentilis, De Legationibus, 1585, De Jure Belli, 1588.

16 De Jure Belli ac Pacis, bk. I, c. 1, § 10.

bued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not the unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of one another which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of classes, feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius." 17

From the Peace of Westphalia, 1648, the modern idea of the state and of international law became more and more developed. Zouch (1590-1660), Professor of Roman Law at Oxford, distinguished between "jus gentium" and "jus inter gentes," the Law of Nations. Bentham (1748-1832) proposed the term "International Law," which is now generally accepted.

SOURCES OF INTERNATIONAL LAW.

4. (a) In the narrow sense the chief sources of international law are:

(1) Custom.

(2) Treaties and other interstate agreements.

(3) The decisions of international tribunals.

(b) In a broader sense there are also included in the sources of international law:

(4) Decisions of national tribunals, such as prize courts. (5) Opinions of text-writers.

(6) Diplomatic papers.

(1) States in their relations to one another often follow customs which have never been formally enacted into law. These customs are tacitly accepted as binding upon states with

17 Wilson & Tucker, Int. Law (5th Ed.) 18.

For the general development of international law as illustrated by the early writers, see Les Fondateurs du Droit International, Paris, 1904.