165. Sources of international law. A clear outline of the various sources from which international law has drawn its content follows:

Practice and Usage: If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right.

Precedent and Decisions: The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice.

(a) Prize and admiralty courts decisions form in themselves a large body of law.

(b) The decisions of domestic courts upon such matters as extradition, diplomatic privileges, piracy, etc., tend to become a source of international law.

(c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents.

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Treaties and State Papers: Treaties and state papers of whatever form indicate the state of opinion, at a given time, in regard to the matters of which they speak. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. . .

(a) Treaties and state papers may lay down new rules or outline the operation of old rules.

(b) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. .

(c) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper.

(d) Most treaties and state papers, however, deal with matters of interstate politics, and are not in any sense sources of international law.

Text Writers: During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of nations deduced the principles for such cases as might arise..

Diplomatic Papers: The diplomatic papers, as distinct from the state papers to which more than one state becomes a party, are simply papers issued by a state for the guidance of its own representatives in international intercourse. . . . These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of information upon the attitude of states towards questions still formally unsettled.

166. Legal bases of international law. The nature and sanction of international law are affected by the following legal influences:

(a) The Roman law was the most potent influence in determining the early development, particularly in respect to dominion and acquisition of territory. . . .

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(b) The canon law, as the law of the ecclesiastics who were supposed to recognize the broadest principles of human unity, gave an ethical element to early international law. . . . The canon law gave a quasireligious sanction to its observance, and in so far as international law embodied its principles, gave the same sanction to the observance of international equity.

(c) The common law, itself international as according to tradition, derived by Edward the Confessor from three systems, and subsequently modified by custom, furnished a practical element in determining the nature of international law.

(d) Equity promoted the development of the recognition of principles in international law.

(e) Admiralty law may be defined as in one sense the law of the sea. Anterior to and during the Middle Ages, the maritime relations of states gave rise to sea laws, many of which are to-day well-recognized principles of international law.

167. Influence of Roman law on international law. Morey points out several ways in which the ideas of Roman law have influenced the general principles of international law.

Not only has the Roman law been preserved in the municipal and ecclesiastical jurisprudence of modern Europe; it has also exercised a marked influence on the growth of that body of rules by which the states of Europe are bound together in one moral commonwealth. . . . A few examples only of this influence can be noticed here.

(1) The most fundamental point of contact between Roman and modern international law is to be found in the idea of natural law embodied in the jus gentium. The jus gentium was not, it is true, conceived by the Romans as applying to the relations between independent

It was, nevertheless, so interpreted by the early publicists of modern times; and the ambiguity thus attaching to the term, jus gentium, led, in fact, to the most important and beneficent results. It came to be regarded, not simply as a law common to all states, nor even as a natural law universally binding upon individuals, the earlier and later ideas of the Romans, but as a universal law morally binding upon all nations inter se. States were looked upon as moral persons subjects of the natural law, and as equal to each other in their moral rights and obligations.

(2) The contact between Roman and international jurisprudence may be seen more specifically in the law relating to national dominion. Mr. Maine has clearly shown how the application of the Roman law of ownership was favored by the association of political sovereignty with territory. The old medieval idea that a king was merely the chief of his tribe, or people, was gradually superseded by the idea that he was the owner of the soil occupied by his people. Hence it became possible to look upon the sovereigns of Europe as "a group of Roman proprietors." Their respective rights over their own lands, and their territorial relations to each other, could be justly determined upon principles derived from the Roman law of dominium, or ownership.

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(3) Furthermore, the law relating to treaties is, to a great extent, founded upon principles derived from the Roman law of contracts. As states are moral persons, the obligations which they establish by mutual agreement are binding in so far as a recession from the agreement would be injurious to either party. The Roman law of contract was largely derived from the jus gentium, and was liberally interpreted according to the principles of natural equity. It thus furnished a broad basis for the law relating to those obligations which grow out of national agreements.

IV. NATURE OF INTERNATIONAL LAW

168. Meaning of the term " international law." Holland discusses the nature of international law as follows:

It is plain that if Law be defined as we have defined it, a political arbiter by which it can be enforced is of its essence, and law without an arbiter is a contradiction in terms. Convenient therefore as is on many accounts the phrase "International Law," to express those rules of conduct in accordance with which, either in consequence of their express consent, or in pursuance of the usage of the civilized world, nations are expected to act, it is impossible to regard these rules as being in reality anything more than the moral code of nations. .

International Law differs from ordinary law in being unsupported by the authority of a State. It differs from ordinary morality in being a rule for States and not for individuals.

It is the vanishing point of Jurisprudence; since it lacks any arbiter of disputed questions, save public opinion, beyond and above the disputant parties themselves, and since, in proportion as it tends to become assimilated to true law by the aggregate of States into a larger society, it ceases to be itself, and is transmuted into the public law of a federal government.

169. The nature and origin of international law. Hall points out two leading views of the nature and origin of international law.

International law consists in certain rules of conduct which modern civilized states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforceable by appropriate means in case of infringement.

Two principal views may be held as to the nature and origin of these rules. They may be considered to be an imperfect attempt to give effect to an absolute right which is assumed to exist and to be capable of being discovered; or they may be looked upon simply as a reflection of the moral development and the external life of the particular nations which are governed by them.

170. Nature of international rights. Willoughby shows that, in the strict legal sense, "international rights" are impossible. 1

The term "law," when applied to the rules and principles that prevail between independent nations, is misleading because such rules depend for their entire validity upon the forbearance and consent of the parties to whom they apply, and are not and cannot be legally enforced by any common superior. In a command there is the necessary idea of superior and inferior, while in international relations the fundamental postulate is that of the theoretical equality of the parties, however much they may differ in actual strength. Finally, there exist no tribunals wherein these principles may be interpreted and applied to particular cases. The uniformity with which these principles are followed, and the practical necessity under which, at least, the smaller States are to obey them, does not alter the case. The sanction to most of these rules may be, as a matter of fact, very strong and effective, but it is not a legal sanction. Regulations which depend upon the consent of the parties to whom they apply, not only for 1 Copyright, 1896, by The Macmillan Company.

their interpretation and application, but for their enforcement, certainly partake insufficiently of those qualities which would cause them to be designated, in sensu strictiore, laws. International regulations thus resemble in this respect many of the agreements that are daily entered into between individuals, by which moral obligations are incurred, but for the enforcement of which, in case of violation, there are no legal means provided. . . .

In the absence, then, of a common superior, the only rational view in which States are to be regarded in their relations to each other is that of freedom from all possible legal control; and with their mutual interests subject only to such regulations as the considerations of justice and expediency shall dictate. International "rights," strictly speaking, do not exist.

171. International law not strictly law. Wilson, after quoting Bluntschli and Bulmerincq, distinguishes as follows the law of nations from law proper:

The province of International Law may be described as a province halfway between the province of morals and the province of positive law. . . . "The law of nations," says Bluntschli, "is that recognized universal Law of Nature which binds different states together in a humane jural society, and which also secures to the members of different states a common protection of law for their general human and international rights.". International Law, says Dr. Bulmerincq, "is the totality of legal rules and institutions which have developed themselves touching the relations of states to one another."

International Law is, therefore, not law at all in the strictest sense of the term. It is not, as a whole, the will of any state: there is no authority set above the nations whose command it is. In one aspect, the aspect of Bluntschli's definition, it is simply the body of rules, developed out of the common moral judgments of the race, which ought to govern nations in their dealings with each other. Looked at from another, from Dr. Bulmerincq's, point of view, it is nothing more than a generalized statement of the rules which nations have actually recognized in their treaties with one another, made from time to time, and which by reason of such precedents are coming more and more into matter-of-course acceptance.

172. Municipal law and international law. Municipal law and international law may be distinguished as follows: 1

Municipal law may therefore be defined as comprising those rules of human conduct which are established or sanctioned by a state, in virtue

1 By permission of Harper & Brothers.