clearly recognize the fact that a system of law exists, which ought to regulate and control the international relations of every state." (Polson, Law of Nations, sec. 3; Phillimore, On Int Law, vol. 1, § 57; Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 12; The Santa Cruz, 1 Rob. Rep. p. 61.) § 25. The same remarks are applicable to the decisions of local courts. The adjudication of questions arising from international relations by such tribunals, are not obligatory upon other states, except so far as they conform to general principles and established usages; but as many questions can be decided only in this way, we may derive from this source many rules relative to the positive or practical law of nations. Such decisions, however, from their very nature, are of very limited authority, as expositions of the rules of international law; but the reasons given by the judges, and the precedents referred to in their opinions, furnish a vast fund of information on the particular points discussed. And where such opinions result from a liberal and enlarged inquiry, the decisions are well calculated to strengthen and embellish the conclusions of reason. (Duer, On Insurance, vol. 1, p. 479; Wheaton, Elm. Int. Law, pt. 1, ch. 1, § 12; Kent, Com. on Am. Law, vol. 1, pp. 68-71; Griswold v. Waddington, 15 Johns. Rep., p. 57; 16 Johns. Rep., p. 438.) § 26. Another source, and perhaps the most fruitful of all, is formed of the works of text-writers of approved authority, showing the usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent. As a general rule, authors of text-books and treatises on international law, have risen above the local interests and prejudices which too often influence the writings of diplomatists, and even the decisions of courts, and have treated the subject in a philosophical spirit worthy of all commendation, and which causes their opinions to be referred to as authority on all disputed questions. Of course we cannot expect to find a complete uniformity of opinions in these writers, but there is a very general concurrence of views on all the great and leading principles which they have discussed. "In case where the prin cipal jurists agree," says Kent, "the presumption will be very great in favor of the validity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers of international law." Sir James Mackintosh, in his speech on the annexation of Genoa to the kingdom of Sardinia, says: "It is not my disposition to overrate the authority of this class of writers, or to consider authority in any case as a substitute for reason. But these eminent writers were, at least, necessarily impartial. Their weight, as bearing testimony to general sentiment and civilized usage, receives a new accession from every statesman who appeals to their writings, and from every year in which no contrary practice is established, or hostile principles avowed. I have never heard their principles questioned, but by those whose flagitious policy they had by anticipation condemned." (Phillimore, On Int. Law, vol. 1, §60; Kent. Com. on Am. Law, vol. 1, p. 19; Mackintosh, Miscel. Works, p. 704; Suarez, De Legibus, lib. 6; The Maria, 1 Rob. Rep., p. 360; Wheaton, Elm. Int. Law, pt. 1, ch. 1, § 12; Polson, Law of Nations, § 3; Wildman, Int. Law, vol. 1, pp. 34, 35; Manning, Law of Nations, p. 56; Bello, Derecho Internacional, No. Prel., 87.) * * * § 27. But it is not entirely upon their unanimity of opinion on great principles that the authority of text-writers has so great weight in the settlement of controversies between states. As a general rule, reference is made to those who wrote before the cause of the controversy arose, and who are therefore impartial. Moreover, it may be that the text writers belonging to the very country which is urging a demand, have, in advance, pronounced against it. "If the authority of Zouch," says Phillimore, "of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England; if Valin, Domat, Pothier, and Vattel be opposed to the pretensions of France; if Grotius and Bynkershoek confute the claim of Holland; Puffendorf that of Sweden; if Heineccius, Leibnitz, and Wolff array themselves against Germany; if Story, Wheaton, and Kent condemn the act of America, it cannot be supposed (except, indeed, in the particular epoch of a revolution, when all regard to law is trampled under foot,) that the argumentum ad patriam would not prevail; at all events, it cannot be doubted that it ought to prevail, and should the country relying upon such authority be compelled to resort to arms, that the guilt of the war would rest upon the antagonist refusing to be bound by it." (Phillimore, on Int. Law, vol. 1, § 60; Kent, Com. on Am. Law, vol. 1, p. 19; The Maria, 3 Rob. Rep., p. 369; Triquet et al. v. Bath, 3 Burrows Rep., pp. 14-80; Polson, Law of Nations, § 3; Wildman, Int. Law, vol. 1, pp. 34, 35.) § 28. Express compacts between states, and treaties of peace, alliance and commerce, declaring, modifying, or defining the rules which regulate their mutual intercourse, furnish another fruitful source of international law. Such treaties and conventions are of binding force only upon the contracting parties, and they cannot modify the original and pre-existing law of nations to the disadvantage of those states which are not direct parties to these compacts; but where they relax the rigor of the primitive law in favor of others, or furnish a more definitive rule of practice in matters which have given rise to conflicting pretensions, the conventional laws thus introduced are not only obligatory upon the contracting parties, but constitute a rule to be observed by them toward the rest of the world. And although one or two treaties, varying from the general usage and custom of nations, cannot alter the pre-existing international law, yet an almost perpetual succession of treaties, establishing a perpetual rule, will go very far toward proving what that law is upon a disputed point. (Wheaton, Elem. Int. Law, part. 1, ch. 1, § 12; Phillimore, On Int. Law, vol. 1, § 52; Polson, Law of Nations, sec. 3; Wildman, Int. Law, vol. 1, ch. 1; Manning, Law of Nations, p. 74, et seq.; Bello, Derecho Internacional, No. Prel., §7; Heffter, Droit International, § 8; Massé, Droit Commercial, liv. 1, tit. 2, ch. 2; Ortolan, Diplomatie de la Mer, liv. 1, ch. 5.) § 29. Thus the consent of several nations, evidenced by treaties, to adopt a particular interpretation of a particular term, is, in the absence of other testimony, strong evidence that such is the true international meaning belonging to it. It is true that no treaty between two or more states can affect the general principles of international law, or directly prejudice the interests of others, though it may do so indirectly by positively declaring the interpretation to be given to a doubtful term, and thus laying down a principle binding, on them at least, in their intercourse with the rest of the world. This doctrine is laid down with great precision by Lord Grenville in his speech in the house of peers, on the convention with Russia in 1801. We adopt Mr. Phillimore's synopsis of the part relating to contraband of war. "He argued that, by the language of that convention, a new sense, and one hitherto repudiated by Great Britain, with respect to contraband of war, would be introduced, so far at least as Great Britain was concerned, into general international law; inasmuch as some provisions of the treaty, with respect to what should be considered contraband of war, were merely prospective, and confined to the contracting parties, England and Russia, while other provisions of the same treaty were so couched in the preamble, the body, and certain sections which contained them, as to set forth, not the concession of a special privilege to be enjoyed by the contracting parties only, but a recognition of one universal pre-existing right, they must be taken as laying down a general rule for all future discussion with any power whatever, and as establishing a principle of law which was to decide universally on the just interpretation of the technical term contraband of war." (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 29; Phillimore, On Int. Law, vol. 1, § 42; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 10; Hansard, Parliamentary Debates, -1801; Wheaton, Hist. Law of Nations, pp. 390-420; Manning, Law of Nations, p. 14.) § 30. State papers, and diplomatic correspondence between statesmen distinguished for their character and learning, frequently contain much valuable information respecting the particular points and questions of international law which are discussed by them. And perhaps these discussions exhibit the views and opinions of particular states more correctly than the compacts or treaties which may result from them, as such conventions are always more or less the result of compromise or temporary necessity. Moreover, these documents sometimes contain important admissions of what is, or ought to be, the law on points not immediately involved in the conflicting pretentions which have given rise to such discussions. The diplomatic correspondence growing out of particular negociations may, therefore, very often be referred to with profit, |