building. He who has no faith in the possibility of accomplishing it is not wanted among us. We require men possessed of that idealism which sits down to historical research because it sees the present and the future in the past, and the past in the present and the future, although it does not confound them; which criticises the existing law for the purpose, not of pulling it to pieces, but of preparing its improvement and its codification; which believes in the good instincts of the masses and therefore helps to popularize international law in the hope of thereby improving international relations and working for the cause of peace. The science of international law has a great future to look forward to. Hundreds of hands are wanted to enable a future generation to start codification. And when this task is once achieved, hundreds of hands will again be wanted for the working up of the material supplied by codification.

No one of the present generation of international jurists will live when the codification of international law will be taken in hand. And when codification becomes an actuality, all our present books will lose their value and will go mouldy on the shelves of the libraries through not being read. But our work is nevertheless done for the future, for it must needs help to educate that future generation whose happy lot it will be to take codification in hand. Upon us and our work it depends whether, when the time for codification is ripe, there will be a generation of international jurists which is fit for the great work and which can achieve it for the benefit of mankind. The jingoes and the chauvinists of all nations may laugh at our work, and those narrow-minded people who can not see beyond their limited horizon may belittle our efforts. Ours is the faith that removes mountains, for our cause is that of humanity. The allpowerful force of the good which pushes mankind forward through the depths of history will in time unite all nations under the firm roof of a universally recognized and precisely codified law. And the words of the old prophets may after all in the end become true: They shall beat their swords into plowshares, and their spears into pruning-hooks; nation shall not lift up sword against nation, neither shall they learn war any more" (Isaiah, ii:4).

L. OPPENHEIM.

THE LEGAL NATURE OF INTERNATIONAL LAW

The recent article by Dr. Scott under this title in the October, 1907, issue of this JOURNAL is a most able presentation of the view that the rules which govern the relations of states to one another are as properly to be termed laws as are the legislative declarations of national law-making bodies. By quotations from the reported opinions of the highest courts of the United States and of Great Britain he shows that these tribunals have again and again declared that, when necessary for the adjudication of causes brought before them, they will take judicial cognizance of and apply the generally received principles of international law. This being so, Dr. Scott asserts it to have been judicially established that international law is law in the same sense that national law is, and that it constitutes an integral part of the municipal law of Great Britain and of the United States.

It is not the intention of the present writer again to attempt to defend that definition of the term "law" which limits its application to the commands of a political superior to a political inferior, of a sovereign to a subject. The effort will be made, however, to show that the English and American courts have not committed themselves to the doctrine which Dr. Scott ascribes to them. It is true that these courts adopt and apply established principles of international law, but in so applying and enforcing them they consider them as having been first impliedly adopted by the English or American State, as the case may be, as a portion of its municipal law. Thus, in fact, these principles are recognized and enforced, not as international law, but as municipal laws. In other words, while the principles which international laws embody are the product of international usage and agreement, their legal force as rules controlling the administration of justice between litigants is derived from the sanction of the state whose justice the courts administer, and by whose laws the courts themselves are created.

The adoption and modes of ascertainment of international laws

by the courts are thus exactly analogous to the manner in which the judicial tribunals of the States of our Union determine and enforce nonstatutory common-law principles. Just as the private common law may be modified by statute (though this must always be expressly and not by implication), so Congress or Parliament has the full power to bind the courts by statutes which modify the generally accepted principles of international conduct. In the very early case of The Charming Betsy (2 Cr. 64), decided in 1804, it seems to have been accepted as a principle not needing argument that the court would be bound by an act of Congress providing a rule different from that laid down by international law, the only observation made being that" an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." In The Nereide (9 Cr. 388) Marshall again declares: "Till an act [of Congress] be passed the court is bound by the law of nations, which is a part of the law of the land." In Hilton v. Guyot (159 U. S. 113) the court say:

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 dominion of another nation - is 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. The most certain guide, no doubt, for the decisions of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Fremont v. United States, 58 U. S. 17 How. 542, 557; Sears v. The Scotia, 81 U. S. 14 Wall. 170, 188; Respublica v. De Longchamps, 1 U. S. 1 Dall. 111, 116; Moultrie v. Hunt, 23 N. Y. 394, 396.

In the case of The Lottawanna, sub nomine Rodd v. Heartt (21 Wall. 558), is set out in the clearest possible manner the extent to

which, and the manner in which, any body of law not originally municipal may, by adoption, become such. That case had reference to the adoption by the United States of the general principles of maritime law, but, as is pointed out in the argument, the principle is the same with reference to international law. Justice Bradley, speaking for the court, said:

The ground on which we are asked to overrule the judgment in the case of The General Smith is that by the general maritime law those who furnish necessary materials, repairs, and supplies to a vessel have a lien on such a vessel therefor, as well when furnished in her home port as when furnished in a foreign port, and that the courts of admiralty are bound to give effect to that lien.

The proposition affirms that the general maritime law governs this case, and is binding on the courts of the United States.

But it is hardly necessary to argue that the general maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country further than they are accepted and received as such; or, like the case of the civil law, which forms the basis of most European laws, but which has the force of law in each state only so far as it is adopted therein, and with such modifications as are deemed expedient. The adoption of the common law by the several States of this Union also presents an analogous case. It is the basis of all the State laws, but is modified as each sees fit. Perhaps the maritime law is more uniformly followed by commercial nations than the civil and common law by those who use them. But, like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope. Whilst it is true that the great mass of maritime law is the same in all commercial countries, yet in each country peculiarities exist either as to some of the rules or in the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with or shades off into the local or municipal law of the particular country and affects only its own merchants or people in their relations to each other; whereas, in matters affecting the stranger or foreigner, the commonly received law of the whole commercial world is more assiduously observed as, in justice, it should be. No one doubts that every nation may adopt its own maritime code. France may adopt one; England another; the United States a third; still, the convenience of the commercial world. bound together, as it is, by mutual relations of trade and intercourse, demands that in all essential things wherein those relations bring them in

contact, there should be a uniform law founded on natural reason and justice. Hence, the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. But no nation regards itself as precluded from making occasional modifications suited to its locality and the genius of its own people and institutions, especially in matters that are of merely local and municipal consequence, and do not affect other nations. It will be found, therefore, that the maritime codes of France, England, Sweden, and other countries are not one and the same in every particular; but that, while there is a general correspondence between them, arising from the fact that each adopts the general principles and the great mass of the general maritime law as the basis of its system, there are varying shades of difference corresponding to the respective territories, climate, and genius of the people of each country respectively. Each state adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation which adopts it. And without such voluntary adoption it would not be law. And thus it happens that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common comes to be the common maritime law of the world.

The same principle which guides our courts in the adoption and enforcement of principles of international law is accepted by the courts of Great Britain, namely, the presumption that the state whose laws they apply has by the fact of its existence as a member of the family of nations accepted for its guidance in international matters the generally recognized rules of international law of procedure. When, however, as we have seen, the state has by treaty or statute, or otherwise, shown that it does not accept a given international-law principle, such principle does not receive judicial recognition.

A leading and often-cited English case upon this point is The Queen v. Keyn,1 decided in 1876. The essential question involved in this case was whether by the operation of the general principle of international law which treats the marginal waters of a country as territorial the municipal court might, in the absence of any express

1 Law Reports, 2 Exchequer Division, 63.