LEGAL NATURE OF INTERNATIONAL LAW 487 



the highest authorities known to the law to be a part of the muni- 

 cipal or common law of the realm. In the case of Triquet v. Bath 

 (1764), 3 Burr. 1478, Lord Mansfield, in commenting upon the 

 case of Buvot v. Barbut (1736), Talbot's Cases, 281, tried before 

 Lord Talbot, said: "Lord Talbot declared a clear opinion: 'That 

 the law of nations, in its full extent, was part of the law of Eng- 

 land. . . . That the law of nations was to be collected from the 

 practice of different nations, and the authority of writers.' Accord- 

 ingly, he argued and determined from such instances, and the 

 authority of Grotius, Barbeyrac, Brinkershoek, Wiquefort, etc., 

 there being no English writer of eminence upon the subject. I was 

 counsel in the case, and have a full note of it." His Lordship 

 also remarked: " I remember, too, Lord Hardwicke's declaring his 

 opinion to the same effect; and denying that Lord Chief Justice 

 Holt ever had any doubt as to the law of nations being part of the 

 law of England, upon the occasion of the arrest of the Russian 

 ambassador." When it is noted that Messrs. Blackstone, Thurlow, 

 and Dunning appeared for the plaintiff, it is at once evident that 

 the case was carefully argued, thus giving additional weight to the 

 measured judgment of the court. Three years later, in Heath- 

 field v. Chilton (1767), 4 Burr. 2015, the same learned judge said: 

 " The privileges of public ministers and their retinue depend upon 

 the law of nations, which is part of the common law of England. 

 And the Act of Parliament of 7 Anne, chap. 12 [concerning the im- 

 munities of diplomatic agents], did not intend to alter, nor can alter, 

 the law of nations." 1 



And in Blackstone's Commentaries, published in the four years 

 from 1765 to 1769, the learned commentator, who had been of 

 counsel in Triquet v. Bath, and, therefore, spoke with peculiar 

 knowledge and authority, said : " The law of nations (wherever 

 any question arises which is properly the object of its jurisdiction) 

 is here adopted to its full extent by the common law, and is held 

 to be a part of the law of the land. And those Acts of Parliament 

 which have from time to time been made to enforce this universal 

 law, or to facilitate the execution of its decisions, are not to be con- 

 sidered as introductive of any new rule, but merely as declaratory 

 of the old fundamental constitution of the kingdom, without which 

 it must cease to be a part of the civilized world." 2 (Commentaries, 

 bk. iv, chap. 5, p. 67.) 



1 The language of our own Supreme Court is in point: " Sections 4062, 4063, 

 4064, and 4065 were originally sections 25, 26, 27, and 28 of the Crimes Act of 

 April 30, 1570, chap. 9, I Stat. 118; and these were drawn from the statute of 

 Anne, chap. 12, which was declaratory of the law of nations, which Lord Mans- 

 field observed in Heathfield v. Chilton, 4 Burrow, 2015, 2016, did not intend to 

 alter, and could not alter." Per Fuller, C. J., in Re Baiz (1S89), 135 U. 8. 403, 420. 



2 It may not be without interest to note that Sir Robert Phillimore, likewise 

 commentator and judge of wide experience, says briefly in confirmation of 



