TJte Place of International Law in American Jurisprudence. in his History of the Criminal Law of Eng land, vol. II., p. 38, "all rest at last neither upon common usage, nor upon any positive institution, but upon some theory as to jus tice or general convenience, which is copied by one writer from another with such varia-. tions or adaptations as happen to strike his fancy. Moreover, the history of these theo ries show how uncertain and variable they are." Text-books are, however, evidence. Lord Coleridge, C. J., admirably and trenchantly said: "But there is no common law-giver to sovereign States and no tribunal has the power :o bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized States have agreed to observe in their deal ings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly does a consensus of jur ists: but ir is evidence of the agreement of nations on imei national points; and on such points, when they arise, the English courts give effect, as part of English law, to such agreements". (The Queen v. Keyn, 1876, L. R. 2 Ex. Div. 63.) The first source enumerated by Mr. Jus tice Gray is here put last not from any doubt that primacy or priority does not belong to it, but because a treaty with a foreign na tion is by express constitutional provision law. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made,
under their authority." (Art. III., Sec. 2.) This clause has been construed by the Supreme Court to mean, that a treaty is nothing more nor less than a law of the land, equal but not superior in effect to an act of Congress; that as law it repeals a treaty or a previous act of Congress inconsistent with its terms, and that it is itself repealed in whole or in part by a subsequent treaty or act of Congress inconsistent with the stipula tions of the treaty-law. (Foster and Elam v. Xeilson, 1829. 2 Pet. 253, 314; Whitney v. Robertson, 1887, 124 U. S. 190; Geofroy v. Riggs. 1889, 133 U. S. 258, 266, and cases there cited.) It would seem, therefore, to be reasonably clear from the foregoing authorities—to quote what the writer of this article has else where said—"that international law is part of the English common law; that as such it passed v.'ith the English colonists to Ameri ca; that when, in consequence of a success ful rebellion, they were admitted to the fam ily of nations, the new republic recognized international law as completely as interna tional law recognized the new republic. Mu nicipal law it was in England, municipal law it remained and is in the United States. No opinion is expressed on the vexed question whether it is law in the abstract; our courts, State and Federal, take judicial cognizance of its existence, and in appropriate cases en force it, so that for the American student or practitioner it is domestic or municipal law."1 1 For international law as interpreted in law courts see the admirable and singularly felicitions address of Hon. Simeon E. Baldwin before the International Law Association (Rouen, 1900,) on "The Part taken by Courts of Justice in the Development of International Law.
