(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 obligations, 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 98 (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. McIlwain, The High Court of Parliament, N. Y., 1910, pp. 97-108.

"Pufendorf, (1632-1694), Burlamaqui, (1694-1748), and the modern. writer Lorimer derived international law exclusively from 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.R

9

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).

The 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, 1 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, 1 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

Throughout the history of the United States, the courts have in theory maintained this view, which was never more emphatically pronounced than in 1900 by the supreme court in the case of the Paquete Habana.11 And that the courts have in practice made serious efforts to discover the rule of international law applicable to the case in hand, is indicated by the character of the formal sources of law to which they have habitually turned in rendering opinions upon facts appearing to involve international law. Thus the works of publicists, of which those of Vattel, Bynkershoek, Grotius, Wheaton and Kent are probably the most frequent, have been freely cited.12 Treaties have been frequently adverted to, as well as statutes and court decisions of foreign countries, of which those of Great Britain are by far the most numerous.13 Historical accounts of international

the law of nations and to make rules concerning captures on land and water. Furthermore it is declared that treaties made under the authority of the United States shall be the supreme law of the land. The effect of these clauses which recognize the existence of a body of international laws and the grant to congress of the power to punish offenses against them, the courts have repeatedly held is to adopt these laws into our municipal law en bloc, except where congress or the treaty making power has expressly changed them." W. W. Willoughby, Am. Jour. Int. Law, 2;365. (3) International law itself and the privilege of membership in the family of nations, put the courts of the United States under an obligation to apply international law in appropriate cases. "The statesmen and jurists of the United States do not regard international law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, 'of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations. If they put it in another way it would probably be that the state which disclaims the authority of international law places herself outside the circle of civilized nations." Sir H. S. Maine, International Law, N. Y., 1887, p. 37. To similar effect, Phillimore, op. cit. 1;78; Secretary of State Jefferson to Genet, French Minister, 1793, Am. St. Pap. For. Rel. 1;150; Assist. Secretary of State Rives to Mr. McGarr, For. Rel. 1888, pt. 1, pp. 490, 492; Moore's Digest, 1;1-11; See also cases cited, supra p. 16, note 10 and statutes cited p. 221, note 5.

11The Paquete Habana, 175 U. S. 694, (1899).

12Other publicists frequently quoted have been Pufendorf, Rutherford, Wicquefort, Wolf, Halleck, Calvo, Perels, Hall.

18On the authority of British prize precedents in United States courts see Chief Justice Marshall in Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch 191, (1815). During the Civil war Lord Stowell's prize decisions were relied on almost entirely.

practice have also sometimes been cited as evidence of the rule of international law on the subject in question.1

The general principles which the courts of the United States have applied in cases involving international law may be summarized as follows: (1) international law should furnish the rule of decision in all appropriate cases where there is no constitutional provision, statute, or executive order, authorized by statute, in direct conflict; (2) treaties are an immediate source of law on a par with statutes, a later treaty overruling an earlier statute and vice versa; (3) statutes and executive orders when "appearing to conflict with international law should be interpreted, if possible, in harmony with the rule of international law.

It must always be borne in mind that these rules can only apply to that portion of customary and conventional international law which, by its nature, is applicable immediately to controversies between parties, subject to the jurisdiction of the court. It is therefore of the highest importance to consider what fields of international law the courts consider in this class. Clearly if the court conceived of the bulk of international law as rules prescribing conduct for the sovereign power alone, that is as "political questions", these liberal principles would be of little practical effect.

The view of the courts in this respect can only be inferred from their practice. We have, therefore, given much consideration in this thesis to the question, "From what fields of international law have the courts actually drawn rules for the decision of cases?"

These fields in which international law has been actually applied by the courts may be classified as (1) cases relating to jurisdiction, (2) cases relating to the rights of the inhabitants of newly acquired territory, and (3) prize and maritime cases. By defining the limits of national jurisdiction, according to international law, by refusing jurisdiction of extraterritorial offenses, and suits against foreign sovereigns; by refusing to give extraterritorial effect to laws and by assuming jurisdiction over prizes of war, courts have enforced duties of international law. The same is true where courts have supported vested rights and applied the existing law for the benefit of the inhabitants of acquired territory. In determining prize cases, the courts have in general made a faithful effort to apply international law as 14In the Paquete Habana, 175 U. S. 694, Justice Gray makes extensive citations from all of the kinds of sources mentioned.