common law of England; it therefore be came part of the municipal or domestic law of the United States, and was expressly recognized as such by the provisions quoted from the Constitution. (See the interesting case of United States v. Smith, 1820, 5 Wheat. 153, in which by Act of Congress of 1819 "the crime of piracy as defined by the law of nations" was made punishable by death.) But the reasoning, however correct theo retically, may be said not to accord with the practice of the United States. In the case of The Scotia, 1871, (14 Wall. 170) the Supreme Court had occasion to ex amine a question of maritime law, and Mr. Justice Swayne thus expressed himself in de livering the opinion of the august body of which he was a member: "Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally ac cepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of mari time states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world." "This is not giving to the statutes of a nation extraterritorial effect. It is not treating them as general maritime laws, but is recognition of the historical fact that, by common consent of mankind, these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations." The Paquette Habana decided in 1899 is, perhaps, the most recent, as it it certainly is
the most explicit acknowledgment of the binding effect of international law. The case arose out of a capture in the recent Spanish-American war .of two Spanish boats, the "Paquette Habana" and the "Lola." The question before the courts was, are fishing smacks in the absence of munici pal law or treaty, protected from capture by the law of nations, and is such a law of na tions part of the municipal law of the United States? In the elaborate and singularly careful opinion of the Jate Mr. Justice Gray, who delivered the judgment of the court, the question is settled as clearly and authorita tively as a tribunal of justice can settle any thing. "International law is part of our law. and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions .of right depending upon it are duly presented for their deter mination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experi ence, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judi cial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."1 It is to be noted that the learned justice not only declared international law to be part of our law, but also enumerated within the compass of a single paragraph the sources of international law as far as the American student or practitioner is concerned. Ques tions of polity cannot well get before our 1 See a careful article by Mr. Everett P. Wheeler in i Columbia Law Review, 141, on Law of Prize, as affect ed by decision upon captures made during the late war between Spain and the United States.
