in 1758 his "Law of Nations," which he based upon the work of Wolff. This work of Vattel was clear and logical and gained an immediate and wide influence, far surpassing that of his

master.

MOSER (1701-1786), brings into the science the positive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles underlying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers.

G. F. DE MARTENS (1756-1801), combines in a measure the method of Vattel with the positive method of Moser in his "Précis du Droit des Gens Moderne de l'Europe," 1789. This treatise has been a recognized authority.

Many special and general works appeared in the later years of the eighteenth century and early years of the nineteenth.

WHEATON (1785-1848), the foremost American writer on international law, published in 1836 his "Elements of International Law," which in many editions has long been recognized as a standard throughout the world.

Many other works of highest merit appeared during the latter half of the nineteenth and early twentieth century, such as those of Bluntschli, Travers Twiss, Calvo, Wharton, Phillimore, Pradier-Fodéré, F. de Martens, Bonfils, W. E. Hall, Westlake, and Oppenheim. There are also many living writers whose contributions are of greatest worth. Mention of the leading authors and their works is made in the "Bibliography."

OUTLINE OF CHAPTER IV

SOURCES OF INTERNATIONAL LAW

15. PRACTICE AND USAGE.

16. DECISIONS AND PRECEDENTS.

(a) Prize and admiralty courts decisions.

(b) Decisions of domestic courts.

(c) Decisions of courts of arbitration.

17. TREATIES AND STATE PAPERS.

(a) Laying down new rules or outlining operation of old rules.

(b) Enunciation of established rules.

(c) Agreement as to rules to be held mutually binding.

(d) Interstate compacts.

18. TEXT WRITERS.

19. DIPLOMATIC PAPERS.

CHAPTER IV

SOURCES OF INTERNATIONAL LAW

15. 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. That collection of customs known as "The Law Merchant" is an example of a source of this class. Of this it has been said: "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the Parloir aux Bourgeois at Paris." 1

Sir W. Scott, in the case of the Santa Cruz, 1798, said Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice."

" 2

16. Decisions and Precedents

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) The decisions of prize and admiralty courts form in them

1 Jenks, "Law and Politics in the Middle Ages," p. 30.

2 The Santa Cruz, 1 C. Rob., 49, 61.

Prize and admiralty courts decisions.

selves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District Courts, with right of appeal in prize cases to the Supreme Court.1 The District Courts have original jurisdiction in civil causes of admiralty. The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions. Whatever the method

of the prize court, its decision, if legally rendered, stands as valid in all states.3

Proposals were made at the Second Hague Conference in 1907 for the establishment of an international prize court.

Decisions of

(b) The decisions of domestic courts upon such matters as extradition, diplomatic privileges, piracy, domestic courts. etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." 5

Decisions of

tration.

(c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established prececourts of arbi- dents, yet the tendency to render an award, which by a compromise may be measurably acceptable to both parties, may lessen the value of the decision as a precedent. As arbitration has hitherto been voluntary, there has generally been a consensus upon points which might become recognized precedents, even though the decision ren

1 Act of Congress, March 3, 1911. 2 U. S. Comp. Sts. § 1215.

2 Lawrence, § 53.

3 Bolton v. Gladstone, 5 East, 155, 160.

United States v. Rauscher, 1886, 119 U. S. 407. United States Constitution, Art. III, § 2. For English view, see Walker, p. 46, who quotes 3 Burr, 1804.