its own territory, with a final resort to a supreme appellate tribunal, under the direct control of the executive government. The rule by which the prize courts thus constituted are bound to proceed in adjudicating such cases, is not the municipal law of their own country, but the general law of nations, and the particular treaties by which their own country is bound to other States. They may be left to gather the general law of nations from its ordinary sources in the authority of institutional writers; or they may be furnished with a positive rule by their own sovereign, in the form of ordinances, framed according to what their compilers understood to be the just principles of international law.10

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The theory of these ordinances is well explained by an eminent English civilian of our own times. When," says Sir William Grant, "Louis XIV. published his famous ordinance of 1681, nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law as then understood and received in France. I say as understood in France, for although the law of nations ought to be the same in every country, yet as the tribunals which administer the law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since attempted it was not, at the period now referred to, supposed that one State could make or alter the law of nations, but it was judged convenient

[10 In the United States, the prize jurisdiction is not given to commissions appointed by the executive government, but to the regular and standing courts of the republic, whose judges have a permanent and independent tenure, being appointed by the President, confirmed by the Senate, and holding for life, subject to be removed only upon conviction after impeachment. In matters of prize law, the rules laid down by their own government on the subject, whether as interpretations of the rules of war, or as deviations from them, are binding upon the courts., In the absence of such, they must presume their government intends to act in conformity with the practice of nations. A rule of war, adopted by the proper constitutional authority, must be accepted by the court as the actual rule for the nation in that war, adopted on its international responsibility. These are familiar principles; and except as they give it color, it cannot be said that the prize courts of the United States " are under the direct control of the executive government." All that can be said is, that, whatever under our Constitution, in its division of functions between legislative, judicial, and executive departments, is a competent legislative or executive function in respect to the acts or rules of war, is binding on the prize courts.] - D.

to establish certain principles of decision, partly for the purpose of giving a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was. The French courts have well and properly understood the effect of the ordinances of Louis XIV. They have not taken them as positive rules binding upon neutrals; but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation." (c)

4. The adjudications of international tribunals, such as boards of arbitration and courts of prize.

As between these two sources of international law, greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide, than to those of admiralty courts established by and dependent on the instructions of one nation only.

5. Another depository of international law is to be found in the written opinions of official jurists, given confidentially to their own governments. Only a small portion of the controversies which arise between States become public. Before one State requires redress from another, for injuries sustained by itself, or its subjects, it generally acts as an individual would do in a similar situation. It consults its legal advisers, and is guided by their opinion as to the law of the case. Where that opinion has been adverse to the sovereign client, and has been acted on, and the State which submitted to be bound by it was more powerful than its opponent in the dispute, we may confidently assume that the law of nations, such as it was then supposed to be, has been correctly laid down. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law. (d)

(c) Marshall on Insurance, i. 425. The commentary of Valin upon the marine ordinance of Louis XIV., published in 1760, contains a most valuable body of maritime law, from which the English writers and judges, especially Lord Mansfield, have borrowed very freely, and which is often cited by Sir W. Scott (Lord Stowell) in his judgments in the High Court of Admiralty. Valin also published, in 1763, a separate Traité des Prises, which contains a complete collection of the French prize ordinances down to that period.

(d) Senior, Edinburgh Review, No. 156, art. 1, p. 211.

The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court of Admiralty in the reign of Charles II., in answer to questions submitted to him by

6. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations, may conclude this enumeration of the sources of international law.11

the King or by the Privy Council, relating to prize causes, were published as an Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.) They form a rich collection of precedents in the maritime law of nations, the value of which is enhanced by the circumstance that the greater part of these opinions were given when England was neutral, and was consequently interested in maintaining the right of neutral commerce and navigation. The decisions they contain are dictated by a spirit of impartiality and equity, which does the more honor to their author as they were addressed to a monarch who gave but little encouragement to those virtues, and as Jenkins himself was too much of a courtier to practise them, except in his judicial capacity. Madison, Examination of the British Doctrine, &c., 113. Lond. edit. 1806.

[11 Sources of International Law. — Commentators seem agreed as to what are the sources of international law. They differ as to the relative importance and authority of these sources. Hautefeuille, especially, gives little weight to the decisions of prize courts, and places far before them the speculations of writers. It is noticeable that continental writers incline the same way, although they may not go as far; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i.e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are, at the same time, the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions; and even those portions of the opinions of the court itself, not necessary to the decision of the cause before it, are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The continental writers, on the other hand, — living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law, are led by their education to look to but one authoritative source of law, the decrees of legislators; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision. With the English and American lawyer or scholar, it is the habit of life to consider a decision by a judicial tribunal, on an actual case, as ordinarily the best attainable evidence of what the law applicable to that case is. The fact that parties have been engaged in actual conflict, in which property, character, or life, have been staked upon the law of that case, and learned counsel employed, creates a probability that the law has been thoroughly examined, and shown in the various lights in which open contestation tends to place it. It is thought, too, that the law evoked by actual cases, after they have arisen and been presented, with all their consequences, is more likely to be practical, than the mere abstract speculations of the wisest. The court, too, in ascertaining the law and applying it, beside having the aids referred to, is acting under the sanctions of public official duty on a matter known to involve interests, which the law it shall declare will settle finally; and with the

further caution of knowing that the principle or rule it adopts is to become a general precedent for the law of other cases, and to be subjected afterwards to the test of time, not only by critical examinations of text-writers, but in respect of its applicability to the actual transactions of life, brought before the same or other courts, under other circumstances and in other times.

This discussion does not require an award of general superiority between the publicist and the judge. In the United States, Story and Kent were distinguished alike in each capacity; and, while they saw the value of their own connected systematic treatises, and might attribute their personal fame chiefly to them, yet, on a simple and direct question of a particular point of law, either of them would have preferred, cæteris paribus, to stand by a decision he had made on an actual case argued and tried before him, than on what he might have said in a treatise upon a point which had not been the subject of his judicial decision.

But, on the subject of judicial decisions on international questions, there is another view even higher than this. So far as international law rests on the practice of nations, judicial decisions in prize causes are parts of the law itself. The condemnation or release of a prize, the granting or withholding of the claim of a neutral, is a sovereign act, on sovereign responsibility. The State to which the individual belongs whose claim is rejected by the belligerent State, is not bound by the decision, but may hold the belligerent State responsible. The custom of nations requires the belligerent sovereign to submit the question to his own court, before he shall reject the claim of the neutral; but he may allow the claim, without submitting it to a prize court, or even after the prize court shall have decided against it. If the decision is thus adverse, and the sovereign determines to adopt it, it becomes an act of the nation, upon national responsibility. The decision, therefore, of a prize court, adopted and carried out by the sovereign, has double authority. It is all that a solemn judicial decision by a magistrate can be, upon an actual case, investigated and argued by deeply interested parties, and known by the judge to involve vast consequences not only to the parties, but possibly of peace or war for nations. It is also a national act, on national responsibilities. If a prize court decides against its own sovereign, and his immediate interests, and he restores or makes indemnity, this is surely better proof of what is the law on that point, than the opinion of a writer treating of abstract questions. But it is also an inherent part of international law itself; for it is one of those national acts that constitute that law. The same is true in kind, though not so striking in degree, of a decision made in favor of the sovereign, which he carries out with the acquiescence of the neutral sovereign whose subject is the loser. And even where the belligerent carries out the decision against the remonstrance of the neutral sovereign, and at the peril of war, or actually goes to war to maintain it, it is a national act, the highest possible declaration by that nation of what, at the time, it intends to consider as the law of nations, then and afterwards.

Every decision of a prize tribunal is, or results in, a national act. The sovereign must either carry it out, or set it aside. The latter he will not be permitted to do, unless it be in his own favor. As a judicial decision, it is the most solemn and responsible opinion a learned doctor of the law can give; and, as a national act, it is done on the most solemn responsibility that can rest on a sovereign.

The consideration most favorable to the text-writer is his probable impartiality. Not that, personally, he is more impartial than the magistrate, or has less of nationality, but that he is engaged on a scientific treatise, where his reputation must rest on the consistency and reasonableness of the whole, tested by time, and where he takes up subjects in the abstract, either past transactions, whose passions and interests

are passed or changed, or as speculations for the future, around which interests and passions are not formed. As an offset to this, it is to be remembered, that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.

Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage; and that each State is, in like manner, independent, and has made like concessions for a like purpose of international advantages, such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption that men and communities are by nature what they have always been found to be; that the rights and duties of each man are by Divine ordination, originally and necessarily, those at once of an individual and a member of society; and that the rights and duties of a State are, in like manner, those at once of an individual State and one among a number of States; and that neither class of these rights or duties is artificial, voluntary, or secondary.

In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized States; but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning.] — D.

CHAPTER II.

NATIONS AND SOVEREIGN STATES.

internation

§ 16. THE peculiar subjects of international law are Subjects of Nations, and those political societies of men called allaw States.

§ 17. Cicero, and, after him, the modern public jurists, Definition define a State to be a body political, or society of men,

of a State.