ARGUMENT OF MR. ROOT 241 



and modifications intro^pced 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. Accord- 

 ingly he argued and determined from such instances and the authority of 

 Grotius, Barbeyrac, Bynkershoek, Wiquefort, etc., 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 

 Rutherforth 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 wOl be very 

 greatly in favor of the solidity of their maxims, and no civilized nation that 

 does not arrogantly set all ordinary law and justice at defiance wUl venture 

 to disregard the uniform sense of the estabUshed writers of international 



law." 



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 jurisprudence has been built up." 



He says himself (Sir Robert Phillimore) that: 



"Of course the value of these respousa 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 



