Laws and Howland's Digest of Opinions of the Judge Advocates General, all exhaustively annotated, have also been of assistance. The standard treatises on international law, of which those by Professors G. G. Wilson and Amos S. Hershey are particularly rich in references illustrative of American practice, have, of course, been examined. The work has been carried through under the guidance of Professors J. W. Garner and Walter Fairleigh Dodd, to both of whom the author wishes to make grateful acknowledgement for many suggestions and much helpful criticism. Champaign, Illinois, January, 1916. Division of Power Between State and National Governments.. Importance of Municipal Enforcement of International Law.... ΙΟ INTRODUCTION POSSIBILITY OF ENFORCING INTERNATIONAL BY MUNICIPAL LAW It is the purpose of this thesis to discover how and to what extent international law is enforced by municipal law in the United States. For an adequate treatment of the subject a more or less definite meaning must be attached to the terms municipal law and international law. This is all the more necessary because, with a common view of these two branches of jurisprudence, our inquiry would be not only fruitless but impossible. Thus there is a common opinion which limits the connotation of international law to relationships between states regarded as independent political communities, exclusively. With this view the state is regarded as a unit, an organism whose control is concentrated in a single will designated by the term sovereignty. It is with sovereigns alone that international law has to do. Municipal law on the other hand is held to be law within the state. The sovereign enforces it but can not be bound by it. As well say that a dynamo can drive the engine which moves it, as to say the sovereign power can be controlled by the municipal law 1See Bentham, "With regard to the political equality of the persons whose conduct is the object of the law. They may, on any given occasion, be considered either as members of the same state, or members of different states. In the first case the law may be referred to the head of internai; in the second case to that of international jurisprudence. Now as to any transactions which may take place between individuals who are subjects of different states: those are regulated by the internal laws and decided upon by the internal tribunals of the one or the other of these states, the case is the same where the sovereign of the one has any immediate transaction with a private member of the other. * * There remains, then the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international law." Introduction to Principles of Morals and Legislation, Works, Bowring, Ed., 3;149. See also Travers Twiss, Law of Nations considered as Independent Political Communities, Oxford, 1884, p. 2; T. E. Holland, The Elements of Jurisprudence, 11th ed., N. Y., 1910, pp. 385389, 402. * it makes and enforces. How then can municipal law enforce international law? Clearly with this conception of international law it can not. Although this theory of international law is often enunciated, it is never adhered to in discussions of the subject with the meaning just outlined. All writers on international law discuss rights and duties of ambassadors and consuls, of armed forces, of aliens, of neutral vessels in time of naval war, etc. International law as well as municipal law contains rules relating to the conduct of persons. Were such rules omitted from the subject, international law would be reduced to a few precepts telling when a state may make war, how far it may exercise jurisdiction, and how and when it may acquire territory, some of which on investigation would be found to be rules of policy rather than of law. International law is not to be distinguished from municipal law by the assertion that the former relates to the conduct of states, the latter to the conduct of individuals within the state. Not state conduct, but state responsibility is the criterion of international law. International law prescribes rules of conduct which the individual must observe, but if he fails to observe them it pays no attention to the individual but declares that the state of which he is a member is responsible and liable. All rules, for the breach of which states will be held liable, are rules of international law. Thus international law and municipal law are not mutually exclusive. The same rules may be prescribed by both. Both international law and the municipal law of the United States say 2Cf. Justice Holmes, a "A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends," Kawananako vs. Polyblank, 205 U. S. 349, 353, (1907), citing Hobbes, Leviathan, ch.226, 2; Bodin, Republique, 1, ch.8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestrate, c3; Baldwin, De Leg. et Const., Digna Vox, 2nd ed., 1496, fol, 51 b, ed. 1539, fol. 61. See also American Banana Co. vs. United Fruit Co., 213 U. S. 347; John Austin, Lectures on Jurisprudence, 5th ed., London, 1911, 2 vols., 1;263, 278; J. C. Gray, The Nature and Sources of the Law, N. Y., 1909, pp. 77-81; T. E. Holland, The Elements of Jurisprudence, 11th ed., N. Y., 1910, pp. 53, 365; J. W. Salmond, Jurisprudence, 2nd Ed., London, 1907, p. 110, 475-481; J. C. Calhoun, Disquisition on government, Works, vol. 6, Columbus, 1851, 1;146; J. W. Burgess, Political Science and Comparative Constitutional Law, Boston, 1902, 2 vol., 1;53. |