13

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. 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.

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

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 of fenses, 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

14 In the Paquete Habana, 175 U. S. 694, Justice Gray makes extensive citations from all of the kinds of sources mentioned.

their theory demanded, although exception should be made in some of the Civil war cases. So long as international law has to be applied by national tribunals it can not but be warped by its proximity to considerations of policy and the inevitable partisanship of officers, who owe a primary duty to one of the litigant states.

DIVISION OF POWER BETWEEN STATE AND NATIONAL GOVERNMENTS

The division of power between the state and national governments has at times resulted in an inability to perform obligations required by international law. The state governments, not having international relations, and not feeling the pressure of international public opinion, cannot be relied on to enforce duties of international law. It would seem, however, that under the constitution the national government may exercise all powers necessary to make treaties and obligations of international law effective. The difficulty lies in the failure of congress to act, rather than in a constitutional impossibility.

The United States has provided in its municipal law for the enforcement of numerous rules of international law. How completely the field is covered we will not venture to assert. To define exactly what obligations are actually imposed by international law at any particular time is almost impossible. The field of international law

law is constantly growing. Matters yesterday considered entirely internal today entail international responsibility and are regulated by international law. Judicial and administrative officers must therefore take continuous cognizance of the development of international law to insure that they apply it in appropriate cases, so far as compatible with their duties as national officers; and congress must be constantly on the lookout for new international duties which require supplementary legislation to be made effective. The failure to provide such necessary municipal measures does not relieve the state from international responsibility if a breach of international law should occur.

IMPORTANCE OF MUNICIPAL ENFORCEMENT OF INTERNATIONAL LAW

The municipal enforcement of international law is a matter of great importance from the standpoint both of international law and of national policy. There are no administrative or judicial authorities with coercive power except those of territorial states. The growth of international unions and administrative organs has been rapid in the last few years, but such bodies still rely on states for effectiveness. Power is essential to effective sanction15 and power is still controlled by states exclusively. Rules of international law can not, therefore, be effective unless enforced by state authorities as municipal law.16

National policy likewise dictates the provision of municipal measures for enforcing international obligations. Since the Alabama claims arbitration it has been clear that lack of such laws will not relieve the state from responsibility. Liability to indemnity, reprisal or war can only be avoided by a strict observance of international duty, and this observance can in many cases be assured only by adequate provisions of municipal law.

15 Robert Lansing, Notes on Sovereignty in a State, Am. Jour. Int. Law, 1;105-128, 297-320, emphasizes the importance of physical power in the sanction of law.

16 Though not incorporated into municipal law, rules of international law may be law in the sense of being rules of great authority generally observed. They would occupy the position which Maine assigns to the Brehon laws of ancient Ireland. “The Law of Distress was clearly enough conceived by the Brehon lawyers, but it depended for the practical obedience which it obtained on the aid of public opinion and of popular respect for a professional caste. Its object was to force disputants to submit to what was rather an arbitration than an action, before a Brehon selected by themselves, or at most before some recognized tribunal advised by a Brehon.” Sir H. S. Maine, Early History of Institutions, P. 286. See also ibid. pp. 52, 252.

AUTHORITIES

Acton's Reports, (British), 1809-1811, 2 vols. (cited Act).

Allen, G. W., A Naval History of the American Revolution, N. Y., 1913, 2 vol.

American Journal of International Law, N. Y., 1907-1915, (cited Am. Jour. Int. Law).

American Journal of International Law, Supplement, N. Y., 19071915, (cited Supp. Am. Jour. Int. Law).

American Law Register, Philadelphia, 1852-1915, (cited Am. Law Reg).

American State Papers, Documents Legislative and Executive, Folio, 38 vol., Washington, 1832-1861. Series devoted to Foreign Relations, cited Am. St. Pap., For. Rel. Series devoted to Naval Affairs, cited Am. St. Pap., Nav. Aff.

Anderson, C. P., The Final Outcome of the Fisheries Arbitration, Am. Jour. Int. Law, 7;1, (1913).

Annuaire de l'institut de droit international, Paris, 1887–

Army of the United States, Regulations for the, Washington, 1910, (cited Army Reg.).

Attorneys General of the United States, Official Opinions of, 1789Washington, 1852 (cited, op). Digest of official opinions of the Attorneys General of the United States, 1789-1881, A. J. Bentley, ed., Washington, 1885. Ibid., 1881-1906, J. A. Finch, ed., Washington, 1908.

Austin, John, Lectures on Jurisprudence, Robt. Campbell, ed., 5th ed., 2 vols., London, 1911.

Bentham, Jeremy, Works, Bowring, ed., II vols., Edinburg, 1838-1843.

Bentwich, Norman, International Law as applied by England in the War, Am. Jour. Int. Law, Jan., 1915.

Student's Leading Cases and Statutes on International Law, London, 1913, (cited Bentwich).

Bernard, Montague, Historical account of the Neutrality of Great Britain during the American Civil War, London, 1870.

Binney, C. C., The Latest Chapter of the American Law of Prize and Capture, Am. Law. Reg., 54;537, (1906).

Birkheimer, William E., Military Government and Martial Law, 2nd ed., London, 1904.

Black Book of the Admiralty, Sir Travers Twiss, ed., 4 vols., Rolls Series, No. 55, London, 1871-1876.

Black's Supreme Court Reports, 1861-1863, 2 vols. (cited Black).

Blackstone, Sir William, Commentaries on the Laws of England, 18th ed., 2 vols., N. Y., 1836.

Bonfils, Henry, Manuel de droit international public, 3rd ed., Paris, 1901.