We have seen that in private law the Canonists and Romanists made open war on custom, and took sides against it on behalf of the written law — the formal, written word, emanating direct from the will of the supreme authority. Custom has contributed a large number of rules to the law of nations. To the examples already given we may add the formalities of treaties and the necessity of ratification; rules which appear in the thirteenth and fourteenth centuries of our era, and in accordance with which the signature of the plenipotentiaries does not make conventions binding in the absence of their confirmation by the supreme authority. Hand in hand with laws, edicts and decrees, which together form the “consular laws,” custom is still to be found in so far as regards the laws in force in the European and American States, over the territory of different important political communities, such as the Ottoman Empire, various Asiatic Powers, and certain African governmental communities. Is it necessary to recall that almost all of the laws of war are the result of customs recognized during hundreds of years, and upon which intellectual and moral progress has not ceased to exert a beneficent influence?

In his instructions to the American delegation to the Second Hague Conference, Secretary of State Root pointed out as the weakness of the present system of arbitration the prevalence of diplomatic ideals instead of purely judicial ideals in practice and procedure, and stated it as his opinion that the creation of a truly permanent international court composed of professional judges, who should act under a sense of judicial as distinguished from diplomatic responsibility, would increase the confidence of nations in arbitration and render the recourse to this method of settling international disputes much more frequent. Secretary Root’s statement is so important in itself, the reasoning is so clear and unanswerable, the proposal to establish a permanent international court of justice so cleancut and precise, and the details which he specifies so simple and apparently self-evident, that I shall quote and comment briefly upon this passage in the instructions. “There can be no doubt,” he says, “that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them, under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process.”

From time to time the cases known by the generic name of French Spoliation Claims come up for discussion in Congress and in the press and are often debated without any very definite conception of their origin or basis. It may seem strange that claims against the government whose inception is connected with the very beginning of our national existence should still be the subject of consideration as present demands against the government, both before the courts and in the legislative forum.

But dilatoriness in dealing with matters of private right between the citizen and the government seems to have become traditional. Not until 1885 was there any tribunal before which these claims could be prosecuted. Even under the Act of 1885, as will be seen hereafter, a decision of the court has not the legal effect of a final judgment. Hence, it is that the liability of the government for the payment of these claims settled by unanimous judicial decision a quarter of a century ago is often reopened in Congress and the press and the subject threshed out anew, often in apparent ignorance of the laborious investigation long since made by the Court of Claims into the history and basis of these claims, and the result of that investigation as announced in a number of thorough and well-reasoned opinions.

The invention of wireless telegraphy and recent improvements in the aeroplane and dirigible balloons have greatly extended the possibilities of international aerial communication and navigation, and have thus rendered necessary a discussion of the law of the so-called aerial domain in works on international law.

During its session at Ghent in 1906, the Institute of International Law adopted the following principles: “The air is free. In time of peace and in time of war, states have over it only the rights necessary for their self-preservation.” These principles, which were based upon the views of Fauchille and accepted by a vote of 14 against 9, have been justly criticized. They are not in agreement with recent articles and monographs on this subject, and do not answer the practical necessities either of aerial navigation or wireless telegraphy, especially in time of war.

On August 18/31, 19.07, the Governments of Great Britain and Russia entered into the following agreement:

Many of the foremost jurisconsults of the world, representing many nations, have in the eighteenth and nineteenth centuries stated that Hudson Bay, a great North American sea, is a part of the open sea, and consequently free to the vessels of all nations for the purposes of navigation and fishing. This seems to have been a generally accepted doctrine until the close of the nineteenth century. Within recent years, however, the Dominion of Canada has set up the claim that all American vessels that enter Hudson Bay to catch fish or hunt whales must pay a license. The maintenance of such a policy would be tantamount to making of Hudson Bay a closed sea (mare clausum).