part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old, fundamental constitutions of the kingdom, without which it must cease to be a part of the civilized world. Thus in mercantile questions, such as bills of exchange and the like; in all marine cases, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law merchant which is a branch of the law of nations is regularly and constantly adhered to. So, too, in all disputes relating to prizes, shipwrecks, to hostages, and ransom bills, there is no rule of decision but this great universal law, collected from history and usage, and such writers of all nations as are generally approved and allowed of."

the sea.

"Undoubtedly no single nation can change the law of That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations it rests upon the common consent of civilized communities, and it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, expressed or understood, of maritime nations?" 2

66

Foreign municipal laws must, indeed, be proved as facts, but it is not so with the law of nations.” 3

"It has also been observed that an act of Congress ought never to be construed to violate the law of nations

1 Blackstone's Commentaries, Book IV, ch. iv.

2 The Scotia, 14 Wall. 170, 1871.

8 Ibid.

1

if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this country." "Till such an act of Congress be passed the court is bound by the law of nations which is a part of the law of the land." 3

"The law of nations is the great source from which we derive those rules, respecting belligerents and neutral rights, which are recognized by all civilized states throughout Europe and America. The law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." 3

"Doubtless if the legislature, by words admitting of no interpretation, commands a court to violate the law of nations, the judges have no alternative but to obey. Yet no statutes ever have been framed in form thus conclusive; and if a case is prima facie within the legislative words, still a court will not take the jurisdiction should the law of nations forbid. . . . All statutes are to be construed in connection with one another, with the common law, with the Constitution and with the law of nations.'

The Charming Betsy, 2 Cr. 64, 118, Marshall, C. J.

The Nereid, 9 Cr. 388, 423, Marshall, C. J. See also Talbot v. Seeman, 1 Cr. 1, 43; and The Scotia, 14 Wall. 170.

Bentzon v. Boyle, 9 Cr. 191, 198, Marshall, C. J.

Bishop, Criminal Law, 7th ed., I, 60, 69.

In the United States, the law of nations may be extended by treaty of the nation with other nations as it is now extended by comity, necessity, and the boni mores of nations to commerce and corporations. Then the law of nations as to these matters is a part of the law of the land not less subject to State interference than the rest of the law of nations. According to Blackstone, a nation cannot change the law of nations without ceasing to be a part of the civilized world. The States of the United States, however, have nothing to do with international law and relations though they be a part of the law of the land. The State has no power to retire the nation from the ranks of civilized nations. As only the nation can enforce the law of nations, it alone can change the fundamental law or determine it. This is the basis of reason of the well-established rule that as to commercial regulations there is one law for the whole nation.' The reason extends to all matters which are or may be subject to the law of nations or international regulation.

In this age nothing is excepted from the contact with other nations either through individual citizens or through the relations of government. Thus nothing is excepted from the rule of the national law. Upon recognition of a national common law depends our existence as a nation. And the recognition of the

2

Swift v. Tyson, 16 Pet. 1; U. S. v. Moore, 91 U. S. 270, 274. 2 A United States court is not required to take notice of State laws which it is not required to administer as law. But in a case in which the State courts are required to notice a private or local law, the United States courts must do the same. Hanley v. Donoghue, 116 U. S. 1; S. P. Beaty v. Knowles, 4 Pet. 152; Covington Co. v. Shepherd, 20 How. 227; Junction R. R. Co. v. Bk. of

common law of the United States will, by bringing out of conflict, in the performance of substantially the same work, our forty-nine jurisdictions, into coöperation and harmony in the work of securing that prompt and real justice which the framers placed first, after union, among the purposes of national existence.

$182. THE COMMON LAW BASIS OF THE CONSTITUTION. The question which remains is, How can the common law of the United States be recognized and adopted? The first fact evident, in this regard, is that no amendment to the Constitution of the United States would be either helpful or necessary. The Constitution rests now upon the common law. When Marshall said, "It is a constitution we are construing," he meant that not every item of power could be specified, and he referred to the common law as the standard by which implication should be guided. Nor would a grant of power "to recognize the common law" have any basis in reason. The broadest expression would be controlled by that implication which the common law of the United States now furnishes. Nor would the broadest expression include the Law of Nations. The right of the United States to consider the Law of Nations rests by implication of the common. law upon the very fact of nationality. Nor would the common law by virtue of being expressed in the

Ashland, 12 Wall. 226. The courts of a State are bound to take judicial notice of the law of the United States (Laidley v. Cummings, 83 Ky. 606) and of its treaties (U. S. v. Rauscher, 119 U. S. 407). The courts of one State may (Paine v. Schenectady, 11 R. I. 411. 5 Cent. Law Journal. 517; Trebilcox v. McAlpine, 46 Hun. 469; see St. L. etc. R. R. Co. v. Weaver, 35 Kans. 412) but are not bound (Hanley v. Donoghue, 116 U. S 1: Eastman v. Crosby, 90 Mass. 256. on individual liability of a stockholder in a foreign corporation) to take notice of the law of any other State.

Constitution as a part of the national law control the Law of Nations, for one of the implications of the common law of the United States makes the Law of Nations a part of the common law of the United States. Therefore the common law of the United States is of such nature that the power to enact it cannot be expressly conferred. It is itself the basis of all implication. From it was implied the commencement of national existence from the right of a people to set up one government in the place of another which had been abandoned. From it were implied the powers of the Constitutional Convention. From it was implied the power to adopt the Constitution and the power of the people to bind themselves thereby and to exclude at the same time all other allegiance. From it was implied the power of the nation to perform all those functions necessary to the preservation of national existence, those functions the denial of which expressly would be a mockery and the express grant of which would have no other effect than, perhaps, to cast suspicion upon the power to make such expression. The existence of the common law of the United States must be implied, and that which must be implied cannot be expressed. The common law of the United States and the right to recognize it could not be more plainly expressed than it is in the fact of national existence and the assertion thereof.

A very conclusive illustration of this is found in the fact that if the Congress of the United States should pass a law and the legislatures of all the States should vote each by a unanimous vote to repeal that law, the repeal would be the most absurd contradiction. The Congress of the United States represents the same