growth of International Law is the so-called Comity (Comitas Gentium, Convenance et Courtoisie Internationale, Staatengunst). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are not rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly in contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a present rule of International Comity will in future become one of International Law.1 Not to be confounded with the rules of comity are the rules of morality, which ought to apply to the intercourse of States as much as to the intercourse of individuals. Holtzendorff in Holtzendorff, i. pp. 49-53, 117-120-Heilborn, Grundbegriffe des Völkerrechts (1912), § 17-Nys, i. pp. 194-199-Taylor, § 103Hershey, No. 10-Holland, Studies, pp. 176-200-Kaufmann, Die Rechtskraft des internationalen Rechts (1899)-Triepel, Völkerrecht und Landesrecht (1899)—Anzilotti, Il Diritto internazionale nei Giudizi interni (1905)-Oppenheim, The Panama Canal Conflict (1913), pp. 38-44Picciotto, The Relation of International Law to the Law of England and the United States (1915)-Wright, The Enforcement of International 1 The matter is ably discussed in Stoerk, Völkerrecht und Völkercourtoisie (1908). See also Heilborn, Grundbegriffe des Völkerrechts (1912), pp. 107-110, and Praag, No. 24. Law through Municipal Law in the United States (1916), and in A.J., xi. (1917), pp. 1-21—Praag, Nos. 17-22 and 276-281-Kohler in Z.V., ii. (1908), pp. 209-230-Wilkinson in the Law Magazine and Review, xl. (1914-15), pp. 447-463. Difference national § 20. The Law of Nations and the Municipal Law Essential of the several States are essentially different from each between other. They differ, first, as regards their sources. InterSources of Municipal Law are custom grown up within and Munithe boundaries of the State concerned and statutes cipal Law. enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties concluded by the members of that family. The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. Municipal Law regulates relations between the individuals under the sway of a State and the relations between this State and those individuals. International Law, on the other hand, regulates relations between the member-States of the Family of Nations. The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their law: whereas Municipal Law is a law of a sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between sovereign States, and therefore a weaker law.1 Nations never per cipal Law. § 21. If the Law of Nations and Municipal Law Law of differ as demonstrated, the Law of Nations can neither as a body nor in parts be per se a part of Municipal se MuniLaw. Just as Municipal Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Municipal Law. If, according to the Municipal Law of an individual State, the Law of Nations as a body or in parts is considered to be the law of the land, this 1 See above, § 9. Law of can only be so either by municipal custom or by statute, and then the respective rules of the Law of Nations have by adoption become at the same time rules of Municipal Law. Wherever and whenever such total or partial adoption has not taken place, municipal courts cannot be considered to be bound by International Law, because it has, per se, no power over municipal courts.1 And if it happens that a rule of Municipal Law is in indubitable conflict with a rule of the Law of Nations, municipal courts must apply the former. If, again, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly having been adopted by Municipal Law, municipal courts cannot apply such rule of the Law of Nations. § 21a. It is frequently maintained that the Law of Nations to its whole extent is part of the law of England and of the United States of America; but this assertion is quite untenable if the facts are carefully taken into cipal Law, consideration. and British and American Muni (1) As regards England, there is no doubt that all such rules of customary International Law as are either universally recognised or have at any rate received the assent of this country, and further all law-making international conventions ratified by this country, are binding upon English courts, unless they be in conflict with English statutory law. For English 1 This ought to be generally recognised; but, in fact, is not. There are a number of writers (see, for instance, Pillet in R. G., v. (1898), p. 87, note 1, and Kohler in Z. V., ii. (1908), pp. 209 ff.) who consider International Law to be more a super-state than an inter-state law, and who, therefore, consider International Law to be superior to Municipal Law. According to their opinion, municipal courts are bound by rules of International Law even in cases of conflict between International and Municipal Law. 'See Blackstone, Commentaries on the Laws of England, iv. ch. 5; Westlake, Papers, pp. 498-518; but chiefly Picciotto, op. cit., and Pyke in the Law Quarterly Review, xxxii. (1916), pp. 144-167. See also the case of The West Rand Central Gold Mining Co. Ltd. v. Rex, [1905] 2 K.B. 391. For the numerous other cases see Picciotto, op. cit. statutory law is under all circumstances and conditions binding upon English courts, even if in conflict with International Law, although in doubtful cases there is a presumption that no overruling of International Law is intended by an Act of Parliament. In particular, the rules of International Prize Law-whether conventional or customary rules-are binding upon English prize courts, unless they be in conflict with an Act of Parliament. Orders in Council which are not in conformity with International Prize Law are not binding upon English prize courts unless they amount to a mitigation of the Crown rights in favour of the enemy or a neutral, or they order such reprisals as are justified by the circumstances of the case and do not entail upon neutrals a degree of unreasonable inconvenience.1 However, the jurisdiction of an English prize court does not embrace the whole region covered by International Law, but is confined to taking cognisance of, and adjudicating upon, certain matters (including capture at sea) which in former times were enumerated in the Royal Commission under which the court was constituted, and are now defined both by statute and by the Royal Commission issued at the beginning of a war.2 (2) As regards the United States of America, there is no doubt that all such customary International Law 1 The Zamora, [1916] P. 27, and [1916] 2 A.C. 77, 1 B. and C.P.C. 309, and 2 B. and C.P.C. 1; The Alwina, 34 Times L.R. 199, 3 B. and C.P.C. 54; The Stigstad, [1916] P. 123, and [1919] A.C. 279; The Leonora, [1918] P. 182, and [1919] A.C. 974. The Sudmark (No. 2), (1917) 33 Times L. R. 575, 2 B. and C.P.C. 473. 'See Taylor, § 103; Scott in A.J., i. (1907), pp. 852-866; Oppenheim, The Panama Canal Conflict (1913), pp. 40-42; but principally Picciotto, op. cit., pp. 109-124, and Wright, op. cit., and in A.J., xi. (1917), pp. 1-21. The principal cases are The Nereide, (1815) 9 Cranch 388; United States v. Smith, (1820) 5 Wheaton 153; The Scotia, (1871) 14 Wallace 170; The Paquette Habana, (1899) 175 United States 677. For other cases see Picciotto, op. cit., pp. 111-120. As regards the rela tion between International Law and the Municipal Law of all the American Republics, see Moore and Wilson in the Proceedings of the American Society of International Law, ix. (1916), pp. 11-30. Certain Law ne cessitated or inter dicted. as is universally recognised, or has at any rate received 22. If municipal courts cannot apply unadopted rules of the Laws of Nations, and must apply even such rules of Municipal Law as conflict with the Law of Nations, it is evident that the several States, in order to fulfil their international obligations, are compelled to possess certain rules, and are prevented from having certain other rules, as part of their Municipal Law. It is not necessary to enumerate all the rules of Municipal Law which a State must possess, and all those rules it is prevented from having. It suffices to give some illustrative examples.. Thus, for instance, on the one hand, the Municipal Law of every State is compelled to possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Municipal Law of every State is prevented by the Law of Nations from having rules, for 1 In re Dillon; see Wharton, i. p. 667, and Moore, v. p. 78. |