An interesting case with reference to the municipal force of international usages is The Paquete Habana.7

This case involved the question whether, in the absence of a municipal law so providing, the principle that fishing smacks belonging to an enemy are not subject to seizure in time of war, had become so well recognized in international law as to warrant the court in declaring illegal a capture made by the United States naval forces. In its opinion the court say: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."

After an exhaustive examination of precedents, and of views of commentators, the court say: "This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter." 8

7 175 U. S. 677: 20 Sup. Ct. Rep. 290; 44 L. ed. 320.

8 In a dissenting opinion by the Chief Justice. Justices Harlan and Mc-Kenna concurring, the argument is not so much a denial that the exemption of is, they may, if not already known to the court, be ascertained by the court by its own study of the proper sources of information.9

In this case we undoubtedly have the acceptance as law, by our courts, of an international usage, and that, too, one in whose favor neither universal and long-continued acceptance by nations nor unanimous advocacy by scientific commentators could be successfully urged. But this was by no means a repudiation of the principle declared by the Supreme Court in The Lottawanna case. The federal Constitution provides that Congress shall have the power to define and punish offenses against the law of nations, and to make rules concerning captures on land and water. Furthermore, it is declared that treaties made under the authority of the United States shall be the supreme law of the land. The effect of these clauses which recognize the existence of a body of international laws and the granting to Congress of the power to punish offenses against them, the courts have repeatedly held is to adopt these laws into our municipal law en bloc except where Congress or the treaty-making power has expressly changed them. Where, then, Congress has not acted, the courts properly hold that it is its intention that the generally recognized principles of international conduct shall be applied, in exactly the same way in which it has been held that with reference to the regulation of interstate commerce the silence of Congress is deemed equivalent to an expression of its will that that commerce shall be free from control.

There was, therefore, in this Paquete Habana case that acceptance by the State which the courts have consistently declared is required for the transmutation of an international rule into a municipal command.

Where principles of international law are applicable they do not need to be proved as in the case of foreign municipal laws, but may be taken judicial cognizance of by the courts. That fishing smacks from capture in time of war is a practice generally sanctioned by modern practice and by the opinions of international law writers, as that it lies within the discretion of the executive power to determine the rigors of war, and that in the proclamation and directions which, in the exercise of that discretion, had been issued, no such exemption had been expressly or impliedly authorized.