The basis for the authority of international law is the same as the basis for early laws of every character, namely, the general consent of those to be bound thereby, strengthened by custom and continued acquiescence. There is no common superior among nations to promulgate principles of international law, and on the other hand, no single nation can introduce a new principle into this system.

9 Wilson & Tucker on International Law, page 11.

The Supreme Court of the United States said on this point in the case of The Antelope:10

"As no nation can prescribe a rule for others, none can make a law of nations."

Again, in a later case,11 the same court said:

"Undoubtedly, no single nation can change the law of the sea. The law is of universal obligation, and no statute of one or two nations; it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law is supposed to have been the first system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan Table of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never call be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, expressed or understood, of maritime nations?

10 10 Wheaton, 122.

11 The Scotia, 14 Wall. 187.

"When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9th, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libelants complain took place.

"This is not giving to the statute of any nation extra-territorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must, indeed, be proved as facts, but it is not so with the law of nations."

The general basis of international law was also stated by the Supreme Court in the case of Ware vs. Hylton,12 as follows:

"The law of nations may be considered of three kinds, to wit, general, conventional, or customary. The first is universal or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal and only binds those nations that have assented to it. The third is founded on tacit consent, and is obligatory on those nations who have adopted it."

12 3 Dallas, 227.