The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

as a rule of conduct." The most recent and authoritative case in the United States is that of the Paquete Habana v. U. S. ( 1899, 175 U. S. 677, and Evans, Cases, 602 or Scott, 12) in which our Supreme Court held (p. 686) that even in the absence of treaty, express proclamation, or municipal law, "by an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of International Law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. . . .

"International Law is a part of our law, and must be ascertained and admitted by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the custom and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial 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."36


BIBLIOGRAPHY

Relation between International Law and Municipal or State Law. -- Baldwin, in 15 I. L. A., 35; 2 Butler, Treaty-making Power ( 1902), §§ 398-399 and notes; Devlin, Treaty Power ( 1908), § 434 and cases cited in notes; * Evans, Cases, 1-20; Fenwick, ch. 575; * Garner, Recent Developments in Int. Law ( 1925), 5-13; Heilborn, Grundbegriffe, in 1 Handbuch, § 17; * Holland, Studies, ch. 10, pp. 176- 200; Holtzendorff, in 1 Handbuch, 49-53, 117-20; 1 Hyde, § 5 and note on p. 13; Kaufman, Rechtskraft des int. Rechts ( 1899); Maine, Int. Law, 36 ff.; * 1 Moore, Digest, § 2; 1 Nys, 185-189; * 1 Oppenheim, §§ 20- 25; * Picciotto, The Relation of Int. Law to the Law of England and the U. S. ( 1915); * Scott, Cases, 1-16, and in 1 A. J.,831 ff.; 2 Stephens , Criminal Law ( 1883), 29 ff.; Triepel, Völkerrecht und Landesrecht ( 1899), 134-55, and in * Droit int. et droit interne ( 1920);

____________________
36
Justice Gray, in the Paguete Habana, op. cit., p. 700. Cf. Ibid., Hilton v. Guyot ( 1894), 159 U. S. 113, 163.

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