any point covered by their stipulations. For example, many naturalization treaties stipulate for a period of residence, usually five years in length, as a condition preliminary to naturalization. This warrants the inference that a period of residence is a necessary preliminary to a change of national allegiance. Other treaties provide that consuls may, under certain circumstances, perform judicial acts in foreign ports. This warrants the inference that no such exercise of consular jurisdiction is lawful unless authorized by treaty stipulations.'

The Municipal Law of States. Much information may be derived from this source upon questions having at once a municipal and an international phase. Such is the case with the subjects of citizenship and naturalization, of neutrality, extradition, and piracy. The army and navy regulations of different states, and the rules adopted by them for the guidance of their diplomatic and consular representatives, throw light upon many questions of international usage.'

The Judgments of International Courts, or Boards of Arbitration. These tribunals are created for the express purpose of adjusting international disputes and differences. Their judgments, therefore, should constitute precedents as binding upon sovereign states as are the decisions of municipal courts upon individuals who carry their difficulties to them for adjustment. The most conspicuous example of a resort to the principle of arbitration, as a means of adjusting an international difference, will be found in the operations of the Geneva Tribunal, a court created by treaty between Great Britain.

1 Manning, pp. 55-61; I Lorimer, pp. 37-51; I Halleck, chap. ii. § 28; Pomeroy, §§ 35-39; Hosack, pp. 131-162; Creasy, § 90; I Ortolan, pp. 79-103; Holtzendorff, §§ 26-28; I Phillimore, pp. 44-54; Wheaton, § 15, par. 2: Ward's Inquiry, pp. 231-358; I De Martens, Précis, $$ 13. 14: Woolsey, § 30; Glenn, § 5; Hall, int. chap. pp. 7-11; Lawrence, International Law, § 63; I Pradier - Fodéré, § 27; Walker,

and the United States, to which was referred the adjustment of the important controversy known as the "Alabama Claims."

1

The Decisions of Municipal Courts upon Questions of International Law. Although the courts of a state have chiefly to do with the decision of questions arising under its own municipal law, they are sometimes called upon to recognize and apply the rules of international law in the decision of particular cases. This is found to be necessary when the national character of an individual is drawn in question, or his capacity to perform certain acts-as to make contracts or to hold or transfer property. In the decision of what are called prize cases, which is usually an incident of the jurisdiction of admiralty courts, the law administered is almost exclusively international. The decisions upon questions of international law which have been rendered by Marshall and Story in the United States, and by Lord Stowell, Sir Robert Phillimore, and Dr. Lushington in England, are of the highest authority, and have been cited repeatedly as precedents in negotiation.'

The Diplomatic Correspondence of States; State Papers; Foreign Relations, etc. These are valuable sources of information upon all questions connected with the law and usages of nations. The opinions of law officers and attorneysgeneral to their respective governments, the correspondence of a state with foreign powers, and the reports of commissions created for the purpose of obtaining and digesting information upon special subjects, are examples of this class. Unfortunately much correspondence between governments is still regarded as confidential, and so is not easily accessible. England and the United States, however, publish at intervals the

For a full discussion of the creation and operations of this tribunal, see the chapter entitled "Neutrality."

Pomeroy, Int. Law, § 45; I Pradier - Fodéré, §§ 30-32; Holtzendorff, §§ 29-31; Walker, Science of

Int. Law, pp. 46-56; I Halleck, chap. ii. §§ 22-25; Wheaton, § 15, par. 1; Wildman, pp. 36. 37; Glenn, 85; Woolsey, § 30; Risley, pp. 3235; I Phillimore, § 57; Lawrence, Int. Law, § 64.

greater part of their correspondence with foreign powers. The practice of other states in this respect is less uniform.'

General Histories; The Histories of Important Epochs; Biographies of Eminent Statesmen. From these sources much information may be obtained as to the history of the wars, negotiations, and treaties which have exercised a great, and sometimes decisive, influence upon the mutual relations of states and upon the development of the science of international law."

The Works of Text Writers. The writings of those who have made the history and development of international usages a subject of special study will always constitute our chief source of knowledge upon the subject. The earlier writers were roughly grouped into two schools. One, made up chiefly of Continental authors, who were familiar with the Roman law, and by whom great authority was attached to the views of text writers. The other, composed of English and American writers, whose works, strongly influenced by the common law of England, attach the greatest weight to the decisions of competent courts and to the precedents established by the usages of nations and recognized by them as binding in their intercourse with each other. The present tendency is to obliterate this distinction. The history of both the Roman and common law has been exhaustively studied, and is now generally known, and the historical method of treatment is found to be as successful in its application to international as to municipal law.'

A decided unanimity of opinion among authors as to the reason or justice of a particular usage is strong evidence of its

1 Manning, pp. 55-64; I Lorimer, Institutes, bk. i. ch.v.; I Halleck, ch. ii. § 30; Wheaton, § 15, par. 5; Pomeroy, § 41; Woolsey, $ 30; Creasy, §§ 80-91; Lawrence, Int. Law. § 65.

Wheaton, § 15, par. 6; Pomeroy, § 39; Creasy, pp. 88, 89; Glenn, $5, par. e; Woolsey, § 34; I PradierFodéré, § 26; Holtzendorff, § 39.

general acceptance as a rule of international law. "Writers on international law, however, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it."'

International Public Opinion. This is one of the most potent, if not the most powerful, of the agencies now acting upon the development of international law. In proportion as civilization and enlightenment increase will the influence of public opinion increase as a factor in shaping the policy and practice of states and in formulating the rules of international law. Its effects can be seen in the abolition of obnoxious practices, of which the slave-trade is an example, in the restriction upon the traffic in coolies, in the prevention of aggressive wars, and in the advancement of arbitration as an agency for the solution of international differences."

7

DIVISIONS OF INTERNATIONAL LAW

Basis of Classification. The rules of international law are susceptible of reference to one or both of two ultimate

sources:

(a.) Those deduced from relations based upon ethical or

Justice Cockburn, in R. vs. Keyn; Stephens, "History of the Criminal Law," vol. ii. p. 41. "In the actual erection of the complete structure of international law, there have been two celebrated schools which, severally, have affected to extract from different, or even from opposite sources, the rules of which the body of law is composed. The one school has rested the authority for an European law of nations upon the actual usage, and the assent implied in the fact of that usage of the states of Europe. The other school has not felt itself bound by the limitations implied in actual usage or assent, but has conceived itself entitled to make the European law of nations re

pose on the authority of an antecedent law of nature. This law of nature is here intended to imply a body of prescriptions of universal and necessary validity, the exact terms of them being discoverable on the application of certain wide and general maxims of justice, truth, mercy and humanity, to the particular circumstances of the case for which the rule is demanded." Amos, Science of Law, p. 337; see also note 3, p. 26.

2 For an extended discussion of this subject, see Amos, Political and Legal Remedies for War; Lorimer, Institutes, pp. 87-90; and Mackintosh, Collected Works, p. 430; Creasy, First Platform, pp. 362, 363; I Lorimer, pp. 87-90.

moral principles. To this class belong good faith, humanity, and comity, the faithful observance of treaties and agreements. (b.) Those deduced from usage, agreement or precedent, and so based upon the consent of nations; hence international law may be divided into :

(1.) The Natural Law of Nations. As men living together in communities are guided in their actions and relations by well-known moral laws, so nations, which are but societies, or aggregates, of men, and the individuals who control and represent them, are guided in their actions by the same moral rules. From this body of ethical principles, governing alike individuals and nations, is deduced the natural law of nations.'

The code of Christian ethics contained in the New Testament serves at once as a rule of conduct in international relations, and as a standard by which that conduct can be judged, and its inherent rightfulness or wrongfulness determined.'

(2.) The Positive Law of Nations. It has been seen that the rules which regulate sovereign states in their intercourse with each other, not being imposed by a common superior, are not laws in the sense in which that term is used in municipal jurisprudence. It has also been seen that some of the rules of international law are deduced from customs which are themselves derived from usages and precedents that have been sanctioned by long continued observance; others are based upon formal agreements, or contracts, called treaties, or conventions, to which, in some cases, most states of the civilized world have been parties. This body of rules is sometimes. called the Positive Law of Nations,' and has been classified, having regard to its sources, into:

1 Wheaton, Int. Law, § 9; Vattel, prelim. chap. §7; I Halleck, chap. ii. § 3; Woolsey, §§ 10-13, 26, 27; Creasy, §§ 20-48; I Phillimore, pp. 27-39.

2

3

I Stephens, History of the Criminal Law of England, pp. 33. 34: I Halleck, chap. ii. §§ 5, 6;_Woolsey, §§ 26, 27; I Pradier- Fodéré, $$ 13-20; Vattel, prelim. chap. § 27; Creasy, §§ 65-79; Holtzendorff, $$ 6,7; I Ferguson, § 19; I Twiss, 82-85.

Creasy, $$ 14a, 15; Woolsey, §§ 10-16; I Halleck, chap. ii. §§ 2-6; I Phillimore, §§ 29-33: I Twiss, §§§§ 82-87.