necessary, in default of any express provision of municipal law, to consider whether there was any rule of international law to the effect that fishing-boats were exempt from capture; and, incidentally, to determine under what conditions and on what evidence or authority such a rule would be regarded as part of the law of nations, and, in that character, as a part of the law of the United States. In the Court below both vessels were condemned; but on appeal to the Supreme Court it was held that both captures were unlawful, and a decree of restitution was made. Judgment.] In the Supreme Court the judgment of the majority of the Court was delivered by Mr. Justice Gray (a). It was laid down that international law formed a part of the law of the United States; and must be ascertained and administered by courts of justice of appropriate jurisdiction, as often as any question of right depending on it duly presented itself for determination. For this purpose, where there was no treaty and no controlling executive act or judicial decision, resort must be had to the customs and usages of civilised nations (b).

With respect to the existence of a custom of exemption in the case of fishing-boats, it was stated that by an ancient usage among civilised nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fish, had been recognised as exempt from capture as prize of war. But as this doctrine had been contested at the bar, the judgment proceeded to trace the history of this exemption. In doing this, reference was made to certain early treaties entered into between different European States; to various edicts and ordinances issued by European Governments; to a compilation on the "usage and customs of the sea"; and also to certain later treaties entered into by the United States, and the practice followed by the United States in previous wars; all of which went to show the existence of such a usage. There had, indeed, been an interruption of such usage as between Great Britain and France during the wars of the French Revolution; but that this interruption had been only temporary appeared from the fact that the exemption of fishing-boats had

(a) A dissenting judgment on behalf of himself and two other members of the Court was delivered by Fuller, C.J.

(b) At p. 700; this statement being a quotation from the judgment in Hilton v. Guyot (159 U. S. 113).

been renewed by Orders in Council of 1806 and 1810. Since then no instance was found in which the exemption from capture of private coast fishing vessels honestly pursuing their peaceful calling had been denied by Great Britain or by any other nation; whilst the Empire of Japan, the last State admitted into the ranks of civilised nations, had, at the beginning of the war with China in 1894, by ordinance exempted "all boats engaged in coast fisheries" (c).

Proceeding, next, to consider the question in the light of the authority of jurists and commentators, it was pointed out that such works were resorted to by judicial tribunals, not for the speculations of those authors concerning what the law ought to be, but for trustworthy evidence of what the law really was (d). Having regard to this class of evidence, it was held that an examination of the text-writers clearly showed that there had been and still was a custom of exempting fishing-boats. It seemed, indeed, that English text-writers did not fully admit that this exemption had become a settled rule of international law; nevertheless both Hall and Lawrence stated that there was no difference between the practice of Great Britain in this respect and that of other countries, and that Great Britain had always been willing to spare fishing-boats so long as they were harmless. Looking, then, at the matter both in the light of precedent and authority, it appeared to the majority of the Court abundantly clear that, at the present day, according to the general consent of the civilised nations of the world, and independently of any express treaty or other public Act, it was an established rule of international law, founded on considerations both of humanity to a poor and industrious class of men, and of the natural convenience of belligerent States, that coast fishing vessels, with their implements, supplies, cargoes, and crews, unarmed and honestly pursuing their peaceful calling, should be exempt from capture as prize of war. But this would not extend to a case in which such vessels were in addition employed for any warlike purpose; or to the case of vessels fishing on the high seas, taking fish, such as whales or cod, which were not brought fresh to market; or to a case where seizure was required by military necessity.

(c) Pp. 686-700.

(d) P. 700; this also being a quota

tion from the judgment in Hilton v. Guyot (supra).

Finally, it was held that this rule, being a rule of international law, was one which Prize Courts administering the law of nations were bound to take judicial notice of and to give effect to, in the absence of any treaty or public Act of their own Government in relation to the matter (e).

Although the question of the exemption of fishing-boats in time of war is in itself not very important, yet this case is noteworthy as containing an authoritative statement on the subject of the nature and sources of international law. It embodies, in fact, a judicial recognition, on the part of one of the most august tribunals, of certain fundamental facts and principles in relation to the nature and sources of international law. These are: (1) that international law is a body of living rules, resting on the general assent of civilised nations; (2) that such assent finds its expression for the most part in usage, which when sufficiently general gives rise to rules of custom; and (3) that for proof of such usage regard must be had to the records of the actual practice of States, as well as to the works of accredited writers on international law in so far as these purport to show the approved usage of nations. Incidentally the decision also possesses a value as emphasising the principle that in so far as mitigations of the practice of war have received the sanction of time, they may be said to become a part of the law of nations, and not to depend merely on comity or voluntary observance.

GENERAL NOTES.-The Nature and Sources of International Law.— International law may be described as "the sum of the rules accepted by civilised States as determining their conduct towards each other, and towards each other's subjects” (f). This body of rules, which rests on the common assent of civilised communities (g), has its origin in the common needs of international life and intercourse. States, like individuals, cannot live side by side with each other without evolving rules of conduct by which, in their common interest, friction and conflict may be avoided. Such rules are at once essential to the intercourse of States and the tranquillity of the world. But whilst international law, as a body of rules, may be said to have its origin in the common needs and mutual convenience of the civilised part of mankind, its immediate sources, in the sense of the modes or agencies by which its rules are formulated (h) or brought into being, may be said to be (1) Usage, which when sufficiently general gives rise to

(e) Cf. also Reg. v. Keyn (L. R. 2 Ex. D. 63); The West Rand Central G. M. Co. v. Rex [1905] (2 K. B. 391); Hilton v. Guyot (159 U. S. 113); The Scotia (14 Wall. 170); and Scott, pp. 1-22.

(f) This definition, save for its concluding words, is virtually that put forward by Lord Russell of

Killowen in 1896, which was judicially adopted in the West Rand Central Gold Mining Co. v. Rex (L. R. [1905] 2 K. B. 407); cf. also Reg. v. Keyn (L. R. 2 Ex. D. at 154).

(g) The West Rand Central G. M. Co. v. Rex (supra); The Scotia (14 Wall. 170).

(h) Cf. Holland, Jurisprudence, p. 56.

So, in

custom; and (2) Positive agreement; each being a manifestation of that general assent which must necessarily constitute the basis of any law applicable between States that have no common superior. the West Rand Central Gold Mining Co. v. Rex (L. R. [1905] 2 K. B., at p. 407), it was said that in order to prove an alleged rule of international law it must be shown either to have received the express sanction of international agreement," or "it must have grown to be a part of international law by the frequent practical recognition of States, in their dealings with each other" (i).

Usage and Custom.-Usage means no more than habitual practice. The growth of usage and its development into custom may be likened to the formation of a path across a common. At first each wayfarer pursues his own course; gradually, by reason either of its directness or on some other ground of apparent utility, some particular route is followed by the majority; this route next assumes the character of a track, discernible but not as yet well defined, from which deviation, however, now becomes more rare; whilst in its final stage the route assumes the shape of a well-defined path, habitually followed by all who pass that way. And yet it would be difficult to point out at what precise moment this route acquired the character of an acknowledged path. The growth of usage and formation of custom, both as between a community of individuals and the community of nations, proceeds much on the same lines. As between nations some particular practice or course of conduct arises, attributable in the first instance to some particular emergency or prompted by a common belief in its convenience or safety. But its observance is discretionary; and it exists. side by side with other competing practices. Next, as between competing usages the fittest, having regard to the needs of the time, generally tends to prevail. It gathers strength by observance. It comes to be recorded, and is appealed to in cases of dispute, although not infrequently violated. Finally, it comes to command a general assent; and at this stage it may be said to take on the character of a custom, which involves not merely a habit of action, but a rule of conduct resting on general approval. The process by which usage thus crystallises into custom is well illustrated by the growth of the law affecting belligerent and neutral States, which has been so admirably sketched by Hall (k). But the conditions of international life are constantly changing; and new conditions ever tend to generate new usages; some of which in their turn develop into customs, that modify or supersede those hitherto observed (1). Within each political

(i) See also Reg. v. Keyn (2 Ex. D. 63).

(k) Hall, part iv. ch. ii.

(1) As examples of customs now in course of formation, we may notice the custom of exempting private vessels in foreign harbours from local criminal jurisdiction except in cases affecting external order (Hall, 211); the custom of allowing enemy subjects to remain after the outbreak of war (Hall, 388); the custom by which a belligerent now

waives his right to seize enemy merchant vessels in his ports or on their way to his ports on the outbreak of war (Hall, 477); and the custom prohibiting the construction and outfit in neutral territory of vessels of war intended for either belligerent (Hall, 653 et seq.). The two latter have now been embodied in conventions adopted by The Hague Conference of 1907; see Convention No. VI. Art. 1, and Convention No. XIII. Art. 8.

society and as between the individual members of the community the difficulty of ascertaining custom is met by the gradual establishment of some form of political authority which, through its various organs, assumes at once to declare what customs are binding and also to enforce them on its individual members. Out of this grows the national law. But as between nations there is, of course, no such common authority; although it is not improbable that in course of time some substitute for this will be found in international conference and joint international action; whilst in the Permanent Court of International Justice, which has now been established as one of the results of the Covenant of the League of Nations, we have already the genesis of an international tribunal. Meanwhile the two great difficulties with respect to custom are (1) the difficulty of proof, and (2) the difficulty of determining at what stage custom can be said to become authoritative.

Evidence of Custom.-It is somewhat difficult to classify logically the different sources of evidence as regards custom. But in substance we may say that custom may be proved either (1) by reference to instruments and records tending to show what the practice of States on particular subjects has been; or (2) by reference to the writings of the publicists, as tending to show what is the general opinion with respect to international conduct; or (3) by reference to the decisions of international tribunals, such as Boards of Arbitration, Courts of Prize, or even the higher Courts of a State when purporting to adjudicate on matters coming before them according to the principles of international law. The subject of international tribunals, however, will be considered hereafter, and for the present it will suffice to glance briefly at the two other sources of custom referred to.

Records of State Action. It will be seen from the judgment in the case of the Paquete Habana that the Court, in endeavouring to ascertain whether there was a custom of exemption as regards fishing-boats, took into consideration both treaties made between different Statesedicts and ordinances issued by particular States-and also compilations of maritime usage. But in fact anything that tends to show the fact of usage, and that such usage is general, will be available as evidence. So in Reg. v. Keyn it was said: "Whether a particular usage has or has not been agreed to must be a matter of evidence. Treaties and acts of State are but evidence, and do not, in this country at least, per se, bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations" (m). The records of State practice usually referred to comprise (1) limited compacts or treaties between particular States; (2) decrees and ordinances issued by particular States; (3) instructions issued by States prescribing rules of conduct for their agents in matters of international concern; (4) written opinions of official jurists given, in relation to such matters, to their own Governments; (5) diplomatic correspondence between particular States; (6) the decisions of Prize Courts, and even of other municipal Courts in so far as they deal with matters of international concern; and (7) the history both of international transactions and of

(m) L. R. 2 Ex. D. 63, per Lord Coleridge, C.J., at p. 154; and West

Rand Central G. M. Co. v. Rex (L. R. [1905] 2 K. B., at p. 407).