n admiralty and constant
study of civil and foreign law, our editor adheres to his strong Saxon
preference for actual judicial decisions as the best evidence of all
law. The opinion of Continental writers is seen in its strongest light
in a recent French author, who has pushed the doctrine as far as any one
else, if not farther. After quoting several definitions of international
law, Mr. Dana says:--

"Hautefeuille divides international law into two parts, which he calls
_primitif_ and _secondaire_,--the first containing, as he says, the
principles, the absolute basis, of the law; and the second, the measures
or provisions for calling up these principles and securing their
execution. In the application of this theory, it will be found that the
distinguished writer usually treats the primitive law, or the well or
fountain of first principles, as of actual authority, where no express
agreement departs from it; and so much of the practice of nations as
consists in judicial decisions adopted, enforced, and acquiesced in, he
considers as of less authority than the primitive law as it lies in the
breast of the text-writers....

"Commentators seem agreed as to what are the sources of international
law. They differ as to the relative importance and authority of these
sources. Hautefeuille especially gives little weight to the decisions of
prize courts, and places far before them the speculations of writers. It
is noticeable that Continental writers incline the same way, although
they may not go as 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