No. 2.

'HE writer has been asked to dis

THE

cuss "The Study of International Law in Law Schools."

There are certain considerations which have been persuasive with him upon that subject, and he ventures to submit them.

International law is a part of the common law of England from which we derive our law and equally of the common law of our own country.

The English Rule.

In 1764 Lord Mansfield, in deciding Triquet v. Bath (3 Burrows, 1478, Scott's Cases International Law, 6), so held after hearing argument from Mr. Blackstone, Mr. Thurlow, and Mr. Dunning. In giving judgment he said that he recalled a case before Lord Talbot in which "Lord Talbot declared a clear opinion 'that the law of nations in its full extent was part of the law of England,'" and he says,

"I was counsel in this case and have a full note of it."

Lord Mansfield observes further: "I remember, too, Lord Hardwicke declaring his opinion to the same effect, and denying that Lord Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England."

Blackstone, in his Commentaries (book IV, chap. IV, side p. 66), declares that it "is here adopted in its full extent by the common law, and is held to be a part of the law of the land." Sir Robert Philimore in his learned Commentaries on International Law, with the authority of a great judge as well as a great scholar, declares of international law: "In England it has always been considered as a part of the law of the land" (2d Ed., vol. 1, p. 76).

Judge Baldwin in his inaugural address at Rouen, as President of the In

ternational Law Association, asserted that "in England the position that the law of nations is a part of the municipal law was first, so far as is disclosed by the reports of decided cases, asserted from the bench by Lord Talbot in 1736." (Taylor's International Law, p. 137, note 33.)

In 1876 the Court of Crown Cases Reserved, under the lead of that brilliant, eccentric and combative personage, Lord Chief Justice Cockburn, by a closely divided court in the celebrated and much controverted case of The Queen v. Keyn (Law Reports, 2, Exchequer Division, 63, Scott's Cases, p. 154), refused to recognize international law as a part of the law of England, in the matter of dominion over the littoral sea.

The minority of the judges, under the able lead of Lord Chief Justice Coleridge, stoutly dissented, and a declaratory act of Parliament in 1878 passed in consequence asserted the "rightful jurisdiction of Her Majesty extends and always extended" to the point to which this minority had declared it to extend.

In 1903 this writer was referred to the rule of The Queen v. Keyn, supra, by the Board of Trade of England as still expressing the law of England, except as modified by statute.

In 1904 international law was classed as one of the three subdivisions of English law by the Royal Gresham Commission, headed by Earl Cowper, in its report prepared after hearing at length the greatest legal experts of England. See Report, p. xliii.

In 1895 the Court of King's Bench, in West Rand Cent. Gold Mining Co., Ltd., v. The King (Law R. K. B. Div. 1905, p. 391; see, also, Am. Journal of Intern. Law, p. 217), through the present Lord Chief Justice, Lord Alverstone, observed: "The second proposition urged by Lord Robert Cecil, that international law

forms part of the law of England, requires a word of explanation and comment. It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied, must, like anything else, be proved by satisfactory evidence, which must show, either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature and has been so widely and generally accepted that it can hardly be supposed that any civilized state would repudiate it."

The opinion adopts the definition of international law of the late Lord Chief Justice Russell of Killowen, which many of us heard from the lips of that eminent Irishman when he was the guest of the American Bar, in 1896, at Saratoga, in his great address on International Law and Arbitration.

"What, then, is international law? I know no better definition of it than that it is the sum of the rules or usages which civilized states have agreed shall be binding upon them in their dealings with one another."

In the Law Quarterly Review for January, 1906 (No. 85, p. 14), Dr. J. Westlake, K. C., Professor of International Law at Cambridge University, and sometime the president of the Institut de Droit International, printed an exhaustive article entitled "Is International Law a Part of the Law of England?" He concludes

"The

after a review of the authorities: English courts must enforce rights given by international law as well as those given by the law of the land in its narrower sense," with certain limitations stated, and further, "the international law meant is that which at the time exists between states, without prejudice to the right and duty of the courts to assist in developing its acknowledged principles in the same manner in which they assist in developing the principles of the common law."

In an admirable little work (London, 1906) on "The Aliens Act and the Right of Asylum," by Mr. N. W. Sibley and Mr. Alfred Elias (see p. 133), the above and much more is quoted and the proposition is deduced that the right of asylum "can fairly claim to be indubitably a part of international law as it now exists between states, and therefore, to be a right given by international law which must be enforced by English courts."*

The Rule in the United States. A somewhat less grudging assent to the recognition of international law as a part of our common law has been given by the authorities of our own country.

Dr. James B. Scott in opening, as chairman, the section on International Law, at the Congress of Arts and Sciences held in connection with the Universal Exposition at St. Louis, in 1904, said: "The first craft that carried an English settler to the New World was freighted with the common law, of which, as we have seen, the law of nations was and is an integral part." (Proceedings, vol. 7, p. 490.)

Our federal constitution, in 1789 (Article 1, sec. 8), declared that Congress

*The writer would refer also to "The Legal Nature of International Law," by Dr. J. B. Scott, Congress of Arts and Sciences (St. Louis) vol. 7, p. 485, also same in Columbia Law Review, June, 1904, and February, 1905.

should have power "to define and punish piracies and felonies committed on the high seas" and "offenses against the law of nations," thus at the beginning recognizing the existence of such law.

In 1820 the Supreme Court of the United States decided the case of U. S. v. Smith (5 Wheaton, 153, Scott's Cases, 13), dealing with an indictment for piracy, and in giving the opinion Mr. Justice Story says: "The common law, too, recognizes and punishes piracy as an offense not against its own municipal code, but as an offense against the law of nations (which is part of the common law)."

In 1895 the same court heard argument by very eminent counsel in Hilton v. Guyot (159 U. S. 113), involving the force and effect of certain judgments rendered in France.

Hon. Elihu Root and James C. Carter, Esq., were heard for the plaintiffs, and Wm. G. Choate, Esq., for the defend

ants.

Mr. Justice Gray delivered the opinion of the court with his customary exactness and learning. I quote his words on this subject: "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 nationis 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."

And in 1899, in the well-known prize case of the Pacquette Habana and the