ARGUMENT OF MLIHU ROOT. 2123 



He cites Mr. Wheaton as saying: 



" 'Text writers of authority, showing what is the approved usage 

 of nations, or the general opinion respecting their mutual conduct, 

 with the definitions and modifications introduced by general consent, 

 are placed as the second branch of international law.' 



" Lord Mansfield, deciding a case in which ambassadorial privileges 

 were concerned, said that he remembered a case before Lord Talbot, 

 in which he 



" ' Had declared a clear opinion that the law of nations was to be 

 collected from the practice of different nations and the authority of 

 writers. Accordingly he argued and determined from such instances 

 and the authority of Grotius, Barbeyrac, Bynkershoek, Wiquefort, 

 &c., there being no English writer of eminence upon the subject.' " 



This deliverance of Lord Mansfield was some years before the 

 making of our treaty, and I believe there was no English writer of 

 eminence on the subject of international law for quite a number of 

 years after the year 1818, although continental treatises upon inter- 

 national law had been translated into English and were available for 

 the use and guidance of England. 



THE PRESIDENT: Rutherforth was perhaps prior. I think Ruther- 

 forth was in the eighteenth century. 



SENATOR ROOT : I do not remember his date. 



THE PRESIDENT: I am not quite sure, but I think he would have 

 been prior; but he was, perhaps, the only one. 



SENATOR ROOT : That might have been ; yes. 



Sir Robert Phillimore cites Chancellor Kent as saying: 



" In cases where the principal jurists agree the presumption will 



be very greatly in favour of the solidity of their maxims, and no 



civilized nation that does not arrogantly set all ordinary law and 



justice at defiance will venture to disregard the uniform sense of the 



established writers of international law." 



1284 He cites von Holtzendorf as saying 



" that the usage and practice of international law is in great 

 measure founded upon the tardy recognition of principles which have 

 been long before taught and recommended by the voice of the wise 

 and discerning men, and that thus the fabric of international juris- 

 prudence has been built up." 



He says himself (Sir Robert Phillimore) that: 



" Of course the value of these responsa prudentum is affected by 

 various circumstances ; for instance, the period at which the particular 

 work was written, the general reputation of the writer, the reception 

 which his work has met with from the authorities of civilized states, 

 are circumstances, which, though in no case rendering his opinion 

 a substitute of reason, may enhance or derogate from the considera- 

 tion due to it." 



We have produced here a very great array of evidence as to the 

 existence of an accepted custom among the nations of the earth to 



