International Law

The statement that international law is not law is sometimes made on the ground that international law is not laid down by a sovereign state. It is nevertheless recognized as law by the highest courts of sovereign states. Such recognition is found not merely in recent but in early decisions. Lord Mansfield of 'Eng land, in 1761, quotes Lord Talbot who says, "That the law of nations, in its full extent, was a part of the law of England.* °That the law of nations was to be collected from the practise of different nations, and the authority of writers.' (Triquet v. Bath, Burrage, reports, 1478). Lord Russell of Killowen, the Lord Chief Justice of England, in 1896 defined international law as "The sum of the rules ac cepted by civilized states as determining their conduct toward each other, and toward each other's subjects' Later in 1905 Lord Alver stone, the Lord Chief Justice, in the case of the West Rand Central Gold Mining Company said, "It is quite true that whatever has received the common assent 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 be called international law, and as such will be acknowledged and ap plied by our national tribunals when legitimate occasion arises for these tribunals to decide questions to which doctrines of international law may be relevant.' What is true of other states is true of the United States. In 1796 Mr. Justice Wilson of the Supreme Court said, in the case of Ware against Hylton, "When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.*

In 1900, in the case of the Paquete Habana, fol lowing in this respect the case of Hilton v. Guyot of 1894, the Supreme Court of the United States said, "International law is a part of our law, and must be ascertained and ad ministered by the courts of justice of appro priate jurisdiction, as often as questions of right depending upon it are duly presented for determination' It must be granted, therefore, that for the courts there exists international law and that this has been recognized for many years and is still recognized.

Naturally international law did not develop till the political entities called states had be come fairly well established, as states are neces sary parties to international relations. Evi dences of some practices which have later re ceived the sanction of international law are found in very early records of the countries of the East. As relations of states became closer, through the spread of commerce and the inter course developed by the Mediterranean civili zation, laws upon matters of common interest were accepted as necessary for the continuance of relations which were regarded as advanta geous. In these early lawn there was little of what might be called regard for theoretical rights of states. These laws usually grew, out of the recognition of practical advantages in a certain line of conduct toward other states. As Rome became dominant there appeared in the law about the Mediterranean a unity due to the concentration of power at a single seat of government. This certainly furnished an ex ample of the possibility of a degree of unity of law for different peoples. This law particularly reached to the relations of individuals in selling, buying, travel, etc. Under Roman jurists theoretical concepts gained influence. !us gentium and jus maturate were expounded. The latter as embodying the law in harmony with the fundamental principles of existence had large influence upon the development of the theory of international law in later days and many books combined in their titles the law of nature with the law of nations.