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Holland calls attention to the fact that in England an "express recognition of international law in an act of parliament is extremely rare,''3 and he notes only five cases in which the term is used expressly. In the United States statutes, the use of the term appears to have been more frequent. “The law of nations,” which is generally used in preference to the more recent term “international law,” is of frequent occurrence.3
The most important statutes bearing on our subject ST. E. Holland, Studies in International Law, Oxford, 1898, p. 193.
*The term "law of nations" is used in the act relating to the privileges of ambassadors, 1709, (7 Anne c. 12), the prize jurisdiction of the court of admiralty, 1815 (55 Geo. III. c. 160, sec. 58), The Naval Prize Act, 1864 (27-28 Vict. c. 25), and "International Law” in the Territorial Waters Jurisdiction Act, 1878, (41-42 Vict. c. 73, sec. 7) and the Sea Fisheries act, 1883, (46-47 Vict. c. 22, sec. 7). Holland also notes the use of certain terms peculiar to international law as “neutral ship,” “proclamation of neutrality,” "belligerent” in a few statutes. Holland, op. cit., p. 194.
5 The term “law of nations” has been used in the following cases, possibly others: A Resolution of Congress, May 22, 1779, states that the United States will cause the "law of nations to be most strictly observed," (Journ. Cong. 5;161, Ford, ed. 14;635); Aug. 2, 1779, the United States will pay expenses for all prosecutions in states for such “transactions as may be against the law of nations”, (Journ. Cong. 5;232, Ford, ed., 14;914); Nov. 23, 1781, recommends that state legislatures provide for the punishment of offenses relating to violation of safe conducts, breaches of neutrality, assaults upon public ministers, infractions of treaties, and “the preceding being only those offenses against the law of nations which are most obvious, and public faith and safety requiring that punishment should be coextensive with all crimes, Resolved, that it be further recommended to the several states to erect tribunals in each state, or to vest ones already existing with power to decide on offenses against the law of nations not contained in the foregoing enumeration," (Journ. Cong. 7;181, Ford, ed., 21;1137); Dec. 4, 1781, Courts to determine prize cases by "the law of nations, according to the general usages of Europe,” (Journ. Cong. 7;189, Ford, ed., 21;1158); Constitution, 1789, Congress given power "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations,” (Art. 1, sec. 8, cl. 10); Act, Sept. 24, 1789, District courts given jurisdiction of suits brought by aliens for torts in violation of “the law of nations or of treaty," and the supreme court given exclusive jurisdiction of suits against public ministers "as a court of law can have consistently with the law of nations,” (1 stat. 76, sec. 9,13; rev. stat. sec. 563, cl. 16, 687; Judicial code of 1911, act March 3, 1911, 36 stat. 1087, sec. 24, cl. 17, 233) ; Act, Apr. 30, 1790, prescribes criminal penmay be roughly divided into (1) those defining the jurisdiction of courts, (2) those creating and defining the functions of public officers, (3) those designed to prevent infractions of duty by public officers, and (4) those of like effect in reference to private persons.
(1) The jurisdiction of courts in relation to ambassadors, consuls, and aliens; over offenses against foreign states; and over prizes of war have been prescribed both by the constitution and statutes, often in terms making specific reference to international law.
(2) Statutes prescribing the functions of such officers as ambassadors, ministers and consuls, are of distinct importance in the observance of international law, as also are those giving executive, naval and military officers authority to perform duties required by international law, such as expelling foreign vessels of war which have violated neutral rights, and extraditing criminals when required by treaty.
In these two cases, statutes frequently contain rules of international law itself. When a statute requires a court to refuse jurisdiction of suits against foreign ministers, the rule is one both of municipal and international law.
(3) Statutes frequently provide for enforcing the duties of officers. Naval and military officers and enlisted men are made subject to military law and to civil liability for damages in certain cases. Requirements of bond and amenability to criminal penalties for specified breaches of duty are specified in the case of diplomatic officers and consuls.
alties for assaulting or serving out process against public ministers, in "violation of the law of nations," (i stat. 117, sec. 25, 28; rev. stat. sec. 4062, 4064); Act, June 5, 1794, authorizes the president to expel foreign vessels in cases in which "by the law of nations” they ought not to remain, (i stat. 384, sec. 8, Act, Apr. 20, 1818, 3 stat. 447, sec. 9; rev. stat. sec. 5288; Penal Code of 1910, Act, March 4, 1909, 35 stat. 1088, sec. 15); Act March 3, 1819, prescribes punishment for committing piracy “as defined by the law of nations,” (3 stat. 513, sec. 5; rev. stat., sec. 5368; Penal Code of 1910, sec. 290); Act, Aug. 29, 1842, permits federal courts to release on habeas corpus, from state courts, persons claiming any right "the validity and effect of which depends upon the law of nations,” (5 stat. 539; rev. stat. 703); Joint Resolution, March 4, 1915, authorizes the president to prevent the territory of the United States being used as a base of military operations “contrary to the obligations imposed by the law of nations,” (38 stat. 1226).
(4) In the same manner private persons are made subject to criminal prosecution for violating neutrality, for assaulting foreign ministers, for committing offenses against foreign states such as counterfeiting foreign securities, or for committing piracy.
Rules in these two classes are not, for the most part, rules of international law, but rules supplementary to international law. International law does not prescribe the means to be employed by the state in compelling persons under its jurisdiction to observe the rules it lays down, but if they are not properly observed it holds the state responsible. The enactment and enforcement of such rules are therefore of great importance in giving legal sanction to international law. Especially are such statutes necessary in the United States in view of the fact that federal courts have no criminal jurisdiction except in so far as has been conferred by statute.
Statutes defining boundaries, recognizing states, declaring war, making appropriations to pay indemnities, etc., although of great international importance are to be regarded as determinations by congress of political questions. They do not furnish permanent rules for the enforcement of international obli. gations, although they may recognize specific international duties.
(3) Executive Orders.
Executive orders have been, for the most part, similar in character to statutes of the third class. They are supplementary to statutes, generally giving administrative rules in greater detail for the guidance of public officers. Instructions and regulations for diplomatic, consular, naval and army officers are illustrations of rules of this character.
(4) Judicial Decisions.
In practice the courts of the United States have given most marked recognition and sanction to the rules of international law. American courts from the earliest time have given voice to the doctrine that international law is law in the United States and must be applied by the courts in appropriate cases. The philosophy basing law on natural rights, so prominent among the founders of the Republic, found expression throughout its constitutional system. There was, it is true, confusion of thought as to the sources of natural law. The voice of the people, as expressed in written constitutions limiting the powers of government, was considered the final criterion by many. The
courts, however, have tended to recognize natural rights, based on precepts of morality or reason, to have legal force, even when not so expressed. Thus while enforcing the authority of constitutions as against legislatures by declaring statutes contrary to them void, they have sometimes expressed the opinion that certain fields of legislation are barred by a higher law, not expressly stated in the constitution.
The theory by which international law is applied by the courts bears a very close relation to this philosophy. In the eighteenth and early nineteenth centuries, international law was often considered a branch of natural law.? If natural law was a
Goshen vs. Stonington, 4 Conn. Rep. 209, 225; Wilkinson vs. Leland, 2 Pet. 627; Terrett vs. Taylor, 9 Cranch 43; Ham vs. McClaws, 1 Bay 08 (S. Car. 1789) Bowman vs. Middleton, 1 Bay 254 (S. Car. 1792); Regents of University vs. Williams, 9 Gill. and J. 365; Mayor of Baltimore vs. State, 15 Md. 376; Benson vs. Mayor of New York, 10 Barb. 244; Robin vs. Hardaway, Jeff. Rep. 109, 113, (Va.); Page vs. Pendleton, Wythe, Rep., 211, (Va. 1793) ; Quincy, Rep. 200, 474, App. 520, (Mass. 1761-1772) ; Scott vs. Sanford, 19 How. 393, 556; Downes vs. Bidwell, 182 U. S. 244, 282. The superior authority of natural law was denied in Calder vs. Bull, 3 Dall. 386. English authority for a similar doctrine see, Day vs. Savadge, Hobart, 85, 87; Calvin's Case, 7 Rep. 1; City of London vs. Wood, 12 Mod. 669, 687; Bonham's Case, 8 Rep. 114 a, 4 Rep. 234; Rawles vs. Mason, Rich. Brownlow, Rep. 187, 652. See Doctor and Student, written about 1540, London, 1746, p. 14; Blackstone upholds the superior authority of natural law, (Commentaries, 1;41) but admits later that such laws can not render an act of parliament void so far as municipal law is concerned. (Ibid. 1;91). James Wilson, Works, J. D. Andrews, ed., 2 vols., Chicago, 1896, p. 415; T. M. Cooley, a Treatise on Constitutional Limitations, 7th ed., Boston, 1903, p. 164; J. B. Thayer, Cases on Constitutional Law, 2 vol., Cambridge, 1895, 1;1; A. L. Lowell, Essays on Government, Boston, 1889, p. 169; A. C. McLaughlin, The Courts, the Constitution, and Parties, Chicago, 1912, pp. 63-99; Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation, Philadelphia, 1893, pp. 172, 189, 227, 234. C. G. Haines, The Conflict over Judicial Power in the United States to 1870, Columbia University Studies in History, Economics and Public Law, (1909), 35;16-36; C. G. Haines, The American Doctrine of Judicial Supremacy, New York, 1914, pp. 18-24, C. H. McIllwain, The High Court of Parliament, N. Y., 1910, pp. 97-108.
7 Pufendorf, (1632-1694), Burlamaqui, (1694-1748), and the modern writer Lorimer derived international law exclusively rom natural law. Blackstone takes a similar view, Commentaries, 1;43, 4:36. For other writers in the "natural law school” of international law see Bonfils, op. cit., p. 64; A. S. Hershey, History of International law since the Peace of Westphalia, Am. Jour. Int. Law, 6;30, (1912). For American writers
higher law to which courts must give effect, so was international law, although, in the United States, judicial opinion seems never to have gone the length of holding that it must be applied even when in derogation of express statute.8
Chief Justice Marshall always maintained that the courts apply national law alone, but by the regard which he showed for international comity,' and by the stand he took that international law is incorporated into the law of the United States and must be applied unless expressly changed by legislation, he showed the influence of the theory of a higher law.10 asserting this view, see James Wilson, Works, 1;28,34; W. J. Duane, The Law of Nations investigated in a popular manner addressed to the farmers of the United States,” Philadelphia, 1809, p. 7-8. Discussion of “The Influence of the law of nature upon international law in the United States," Jesse Reeves, Am. Jour. Int. Law, 3;547, (1909).
8The obligation of courts to apply international law was derived from the theory of natural law in a number of cases of the latter eighteenth century. See Rutgers vs. Waddington, Mayor's court of N. Y., 1784, Thayers, cases, 1;63; Res Publica vs. DeLongchamps, i Dall. 111, (Pa. 1784); In re Henfield, Fed. Cas. 6360; Ware vs. Hylton, 3 Dall. 199. British Prize courts sometimes asserted that they must apply international law even when conflicting with executive orders. The Recovery, 6 Rob. 348; The Maria, i Rob. 350; Le Louis, 2 Dods. 239; The Annapolis, 30 L. J. Pr. M. and Ad. 201; Phillimore, International Law, 3; sec. 436. "In the Minerva (circa 1807) Sir J. Mackintosh, then Recorder of Bombay, and acting under a Commission of Prize, spoke of its being the duty of the judge to disregard the instructions, supposing them illegal, and to consult only that universal law to which all civilized Princes and States acknowledge themselves to be subject.” Holland, Studies, p. 197, citing Life of Sir. J. Mackintosh, 1;317. See also supra p. 147.
'Schooner Exchange vs. McFaddon, 7 Cranch 116.
10 Talbot vs. Seaman, 1 Cranch 1, 37; Murray vs. The Charming Betsey, 2 Cranch 64, 118; The Nereide, 9 Cranch 388, 423; The Antelope, 10 Wheat. 66, 120. The reception of international law into the law of the United States has been based on three theories, or four if we include the one just mentioned which really asserts the authority of a “higher law" superior to international law. These are: (1) International law was part of the common law and was accepted with it. “The first craft that carried an English settler to the new world was freighted with the common law, of which the law of nation was and is a part.” J. B. Scott, Am. Jour. Int. Law, 1,857, (1907); “It is indubitable that the customary law of European nations is a part of the common law, and by adoption, that of the United States," A. Hamilton, Letters of Camillus, No. 20, Works, Lodge, ed., 9 vols., N. Y. 5;89. (2) International law was impliedly received by the terms of the constitution. "The Federal constitution provides that congress shall have power to define and punish offenses against