The Place of International Law in American Jurisprudence. ft n ganized society which have not fully ac quired the character of law, but are on the way to become law." The German expres sion "werdendes Recht" says it all in two words. It is not the purpose of this article to ana lyze the conception of law and supplant Aus tin and his followers by a definition equally faulty, nor is it intended to refute Austin, for that has been done so frequently that the novelty of the thing has been worn off. It is simply an attempt to show that interna tional law, whether law in the abstract and narrow technical sense of the term, is en forced by nations and in the nation's tribu nals as law, and that English and American courts have repeatedly enforced and do now apply the principles of the law of nations in the adjudication of a case properly involving a question of international law. Perhaps an anecdote may be permitted for the sake of clearness. A wag represented Adam and Eve as busied with naming the various crea tures of the world, and it seems that Adam, after watching for some time, the antics of a toad, naively remarked to the Mother of Mankind: "It hops like a toad; it looks like a toad; let's call it a toad!" to which Eve evidently assented. But before proceeding to an examination of the subject from the standpoint of law, it might be well to cite a few sentences from a celebrated utterance of Lord Salisbury, who in an address in the House of Lords (1887) used the following language: "I think, my Lords, wo are misled in this matter by the facility with which we use the phrase 'inter national law.' International law has not any existence in the sense in which the term is usually understood. It depends generally upon the prejudices of writers of text-books. It can be enforced by no tribunal, and there fore, to apply to it the phrase 'law,' is to some extent misleading." This lemark is clever and cynical rather than solid and profound, for it happens that
the tribunals of Lord Salisbury's county have enforced international law for the last two centuries. The occasion for his remark was a resolution for establishing a court of Inter national Arbitration which presumably has no sheriff. As, however, nations agree by treaty to submit a matter in dispute to the court and bind themselves to abide by the judgment of the court, the judgment is merged in the treaty and becomes as bind ing as the treaty of which it forms a part. A treaty is admitted to be binding and en forceable even although the sanction is war. The Behring Sea award (1893) and its effect upon the laws of the United States are ad mirably illustrated in the case of La Ninfa, 1896, (75 Fed. 513). Passing now to international law as ad ministered by the courts. It appears that Peter the Great's Ambassador got into trouble in London and that to appease his "Czarish Majesty" an act of Parliament was passed in 1708. "Whereas, several turbulent and disorder ly persons having in a most outrageous man ner insulted the person of his excellency An drew Artemonowitz Mattneof, ambassador extraordinary of his czarish majesty, emper or of Great Russia, her majesty's good friend and ally, by arresting him, and taking him, by violence, out of his coach in the pub lic street, and detaining him in custody for several hours, in contempt to the protection granted by her majesty, contrary to the law of nations and in prejudice of the rights and privileges which ambassadors and other pub lic ministers, authorized and received as such, have at all times been thereby pos sessed of, and ought to be kept sacred and inviolable; Be it therefore declared, that all actions and suits, writs and processes, com menced, sued, or prosecuted, against-the said ambassador by any person or persons what soever, and all bail bonds given by the said ambassador, or any other person or persons on his behalf, and all recognizances of bail
