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under this provision does so at his own risk.54 On account of these interpretations the statutory provisions seem insufficient to carry out the country's duties of vindication. However, as duties specified in treaties and conventions can probably be exercised by the president in the absence of express statutory authority,65 the omission is not serious.
VIOLATIONS OF LAND TERRITORY.
The principal duty of vindication required under this head is the internment of belligerent troops entering neutral territory. Although not acted upon by New York in the case of People vs. McLeod, 56 the general principle that military forces are exempt from territorial jurisdiction is recognized in the United States. The doctrine was stated in reference to troops passing through territory under a license, in dicta by Chief Justice Marshall in The Exchange vs. McFaddon, 57 and in reference to the rights of troops engaged in hostilities in several cases arising out of the civil war.58 This does not, however, prevent executive officers performing duties imposed upon the country by treaty. In the case of Ex Parte Toscano, 59 which came before a United States circuit court in 1913, the facts were as follows: During the civil war in Mexico a band of federalist troops defeated at Novco crossed the frontiers of the United States and voluntarily surrendered to armed forces of the United States. Under order of the president they were disarmed, kept for a time at El Paso and then sent to Ft. Rosecrans, California. Toscano, one of the interned soldiers, sought release on habeas corpus, on the ground that he was unconstitutionally deprived of liberty without “due process of law”. This the court denied, holding that the exercise of the authority by the president was fully justified by the Hague convention of 1907,60 which had been ratified by both the United States and Mexico. “The treaty," it said, “is full and complete and no legislation is necessary to its enforcement." If congress has not provided special officers for carrying it out
54 Hendricks vs. Gonzalez, 67 Fed. Rep. 351. 55 Ex Parte Toscano, 208 Fed. Rep. 938, (1913). 56 People vs. McLeod, (N. Y.) 25 Wend. 483; 1 Hill 375, (1841). 57 The Schooner Exchange vs. McFaddon, 7 Cranch 116, (1812).
58 Neal Dow vs. Johnson, 100 U. S. 158, 170, (1879); Coleman vs. Tennessee, 97 U. S. 509, (1878).
69Ex Parte Toscano, 208 Fed. Rep. 938, (1913).
the duty devolves upon the president as chief executive. The Hague treaty itself and the execution of its terms were held to be sufficient to give the applicant his “due process of law”, and the writ was denied. From this case it seems that United States law adequately provides for performing this duty of vindication.
The United States has provided for carrying out its duties of vindication (1) by conferring jurisdiction on the federal courts of illegal prizes, with power to restore and liberate such prizes according to international law, and (2) by conferring authority on executive officers to expel, detain and intern war vessels and their officers and crews and to intern belligerent troops crossing the frontier. The degree to which the international duties of vindication are performed depends upon the rules of law acted upon by courts and executive officers in exercising their jurisdiction in these matters. The rules followed by courts are found in court decisions, and are based on the principle that courts of the United States apply international law as part of the law of the United States, while executive officers are bound by the principle that treaties are the law of the land and so perform the duties of vindication as therein specified. With these principles it seems that adequate provision is made in the law of the United States for carrying out the duties of vindication imposed by international law.
PART III. OBLIGATIONS AS A BELLIGERENT
CHAPTER X. INTRODUCTORY.
The obligations of neutral to belligerent states have been classified under the five heads, duties of (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5) reparation. In order to show the relation of belligerent duties to neutral duties we will consider belligerent duties under the same classification.
It must, however, be constantly borne in mind that the position of a belligerent is very different from that of a neutral. A belligerent is always active, while a neutral is passive. Consequently, while it is neutral duties that are prominent, it is belligerent rights which are most noticed. Neutral duties are restrictions upon the ordinary rights of an independent state, while belligerent duties are simply limits set to extraordinary rights.
(1) The belligerent's duties of abstention are largely equivalent in substance to a neutral state's duties of prevention. What the neutral is bound to prevent, the belligerent, in most cases, though not always, is bound to abstain from. Thus a belligerent state is bound to abstain from violations of neutral territory and injury to neutral individuals. These duties so far as encumbent upon the state as such are beyond the province of municipal law to control and so beyond the scope of our subject. When a belligerent neglects its duties of abstention, as Germany did in the violation of Belgian neutrality, it is an act of sovereignty for which the state is internationally responsible but which can not be controlled by municipal law. Some duties of this character have been given recognition in treaties and international agreements, but such stipulations are for the most part directed to the political organs of government and constitute political questions which can not be enforced as municipal law. An exception, however, may be made in one case. The duty to abstain from interference with neutral commerce, except as permitted by international law, is enforced by municipal law through the adjudication of all neutral seizures in prize courts. This method of enforcing duties of abstention will therefore be considered.
(2) The belligerent's duties of acquiescence relate largely to the neutral's duties of vindication. In performing these duties the neutral state subjects belligerent troops, public vessels and prizes to its jurisdiction in a manner which would be considered as an indignity under ordinary circumstances. These conditions the belligerent must acquiesce in. It must not complain when a neutral interns its troops or ships of war and assumes prize jurisdiction over its captures, provided such acts are required by international law. Acquiescence in such actions or its reverse, however, are acts of sovereignty and beyond the control of municipal law.
(3) The belligerent's duties of prevention bear a relation to the neutral's duties of vindication. Acts which the neutral is obliged to vindicate if committed, the belligerent is obliged to prevent. As the belligerent in exercising rights peculiar to that status comes in contact with neutrals through its army and navy, its duties of prevention require it to exercise control over those agencies of government. It is through this control that municipal law can be most effective in enforcing international obligations of belligerent to neutral states. The municipal means for preventing infractions of international law by such agencies of government will therefore concern us.
(4) A belligerent state has no duty of vindication. It is itself the aggressive party in its relations with neutrals and consequently no occasion is apt to arise for vindicating its sovereign rights as against neutrals. Resembling the neutral's duty of vindication is the belligerent's right of self-help, by which it is permitted to requisition the property of neutrals under certain circumstances, to draft resident aliens into its armies and subject them to numerous inconveniences and losses in case of military necessity, to visit and search neutral merchant vessels, and confiscate them in well defined cases. These acts resemble duties of vindication in that they are acts involving foreign individuals and are specifically defined by international law, but they are in no sense duties. No one but the belligerent is benefited by their performance and there will be no violation of international law if they are not performed. It is a belligerent right which is here in question and the accompanying duty is that which is owed to the neutral state to abstain from exceeding these privileges and to prevent an illegal exercise of them by its land and naval forces. These subjects are considered under obligations of abstention and prevention.
(5) Reparation is a belligerent duty, but, as noted in the case of a neutral, it is not a duty peculiar to the status of belligerency. It is a duty universally required in cases of breaches of international law. Because of the probability of illegal acts in the heat of war, the question of reparation is particularly prominent in relation to belligerent communities. As examples of reparation by the United States as a belligerent may be mentioned the case of the Florida, in which the United States made public apology for a capture in the territorial waters of Brazil,1 and the Trent affair, in which the United States restored two confederate officers taken from a British vessel during the civil war. As the principles of municipal law relating to the enforcement of this duty are applicable to reparation in all cases, further discussion has been given under that head, in the general division of the law of peace.
The obligations of belligerents to neutrals which may be enforced by municipal law will therefore be considered under the two heads, (1) obligations of abstention, and (2) obligations of prevention. In the first case, international law itself defines the obligations which are binding upon the government. Courts in giving effect to such obligations therefore apply international law. In the second case, international law defines the conduct which land and naval forces must pursue in dealing with neutrals, but it does not prescribe the measures which the government must take for enforcing this conduct. The means which may be taken for preventing infractions of international law by agencies of government, are left to the discretion of the belligerent state. They are therefore rules supplementary to international law.
1 Case of the Florida; See Moore's Digest, 2;367: 7;1090.