far; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i. e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are at the same time the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions; and even those portions of the opinions of the court itself not necessary to the decision of the cause before it are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The Continental writers, on the other hand,—living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law,—are led by their education to look to but one authoritative source of law,—the decrees of legislators; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision."
The editor then sums up the respective merits of these two methods of deducing the principles of international law at a length which prevents our quoting the whole for the benefit of our readers. In conclusion he says:—
"As an offset to this [the supposed impartiality of commentators], it is to be remembered that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.
"Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage,—and that each state is, in like manner, independent, and has made like concessions for a like purpose of international advantages,—such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption, that men and communities are by nature what they have always been found to be; that the rights and duties of each man are, by Divine ordination, originally and necessarily, those at once of an individual and a member of society; and that the rights and duties of a state are, in like manner, those at once of an individual state and one among a number of states; and that neither class of these rights or duties is artificial, voluntary, or secondary.
"In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized states, but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning."
M. Hautefeuille, particularly, finds little favor with Mr. Dana. Repeatedly rules laid down by him are dismissed with the bare remark, that "he is without support either by judicial decisions, treaties, the opinions of commentators of received authority, or diplomatic positions taken by nations"; or, as in another place, that the principle broached "is merely a suggestion of the learned commentator as a possible policy, and has no support either in the practice of nations or the works of publicists";—but the editor never condescends to meet the French writer upon his own field
