19

duty and the public honor." 18 President Arthur vetoed the second Chinese exclusion bill for similar reasons.1 The President may also use his powers of persuasion upon Congress to cause the repeal of an act in disregard of international law or treaty as did President Wilson with success in the Panama Canal tolls controversy.20

The courts are bound by acts of Congress, but said Chief Justice Marshall," an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." 21 With this principle Marshall construed the broad jurisdiction over offenses at sea conferred by various acts of Congress as confined to American vessels or vessels within American jurisdiction as defined by international law.22 It seems that the court neglected an opportunity to apply this principle in the Behring Sea cases of 1887, a neglect which may have been partly responsible for the expensive and futile arbitration later entered into.23 In the case of American Banana Co. v. United Fruit Co., however, the supreme court applied the principle by interpreting the Sherman Anti-Trust Act, though general in terms, as applying only within the jurisdiction of the United States as defined by international law.24

102. Observance of International Law by the Treaty-Making Power.

The President and Senate ought not to make treaties in disregard of the rights of third state under international law or earlier treaties and have not often done so. Frequently treaties have expressly excepted the rights of third states under existing treaties or 18 Richardson, op. cit., 7: 519-520.

19 Message, April 4, 1882, ibid., 8: I12.

20 Supra, note 6.

21 Murray v. The Charming Betsey, 2 Cranch 64, 118, 1804.

22 U. S. v. Palmer, 3 Wheat. 610, 1818; U. S. v. Pirates, U. S. v. Klintock, U. S. v. Holmes, 5 Wheat. 144, 152, 184 200, 412, 1820.

23 Infra, sec. 107.

...

24" All legislation is prima facie territorial, words having universal scope, such as every contract in restraint of trade, . . . will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch." American Banana Co. v. United Fruit Co., 219 U. S. 347, 1909. See also Sandberg v. McDonald, 248 U. S. 185, Am. Jl. Int. Law, 13: 339.

general international law. Thus the Hague Conventions on war and neutrality by their own terms "do not apply except between contracting powers and then only if all the belligerents are parties to the Convention." 25 American arbitration treaties have usually excepted from the scope of obligatory arbitration cases "concerning the interests of third parties" and Article 25 of the Jay treaty with Great Britain of 1794 expressly provided that "nothing in this treaty contained shall . . . be construed or operate contrary to former and existing public treaties with other sovereigns or states." If there is a conflict, however, the later treaty is valid as municipal law until superseded by another treaty or an act of Congress.26

But, as in the case of acts of Congress, courts attempt to construe treaties in accord with the rights of third states. Thus they gave a very narrow construction to the special privileges in American ports given to French privateers and war vessels by the treaty of 1778, out of respect for the British right to demand from a neutral state impartiality in regulating the use of its ports.27 103. Observance of International Law by the President.

The President might recognize a state or government or an acquisition of territory in disregard of international law, or proclaim neutrality in desregard of a treaty of alliance or wrongfully intervene in a foreign state, and his act would be followed by the courts.28 There is no guarantee that the President will exercise his discretionary powers in accord with international law and treaty, except his own sense of international responsibility and a fear of a possible impeachment.20 Congress has passed laws defining and limiting the purposes for which the army, navy and militia may be 25 See also League of Nations Covenant, Art. 20.

26 Bolcher v. Darrell, Fed. Cas. 1607, 1795; The Phoebe Ann, 3 Dall. 319. See also Wright, Conflicts between International Law and Treaties, Am. Jl. Int. Law, 11: 566 et seq. (July, 1917).

27 The Phoebe Ann, supra. Wright, op. cit., pp. 574-5; Moore, Digest, 5: 591-598.

28 Infra, sec. 107.

29 Impeachment lies for moral and political offenses as well as crimes in the legal sense. Willoughby, op. cit., p. 1124. See also Corwin, John Marshall and the Constitution, p. 78.

used, but the validity of such legislation, except as applied to the militia, has been questioned.30

104. Observance of International Law by Military and Civil Services.

Usually, however, the President is obliged to act through services which are subject to control by acts of Congress and judicial processes. Congress has provided for the organization of the diplomatic, consular, naval, military and administrative services but has not generally attempted to regulate their conduct in detail. A few statutory regulations are designed to assure observance of international law by public officers of which may be mentioned that forbidding ministers to give information relating to the affairs of the foreign state to which they are accredited except to the Department of State, that forbidding administrative officers from serving process on resident diplomatic officers and others entitled to immunity under international law,32 that forbidding the injury or destruction of prizes or maltreatment of those on board by naval forces,33 and that requiring the restoration of recaptured prizes originally the property of neutral individuals on the principle of reciprocity.34

31

These services are regulated in detail by executive regulations and instructions, which, though issued by and subject to alteration by the President, in fact furnish a fairly permanent law for their guidance. These regulations have usually enjoined a strict observance of international law and treaty. The "Diplomatic Instructions," "Consular Regulations," "Rules of Naval Warfare" and "Rules of Land Warfare," each a volume officially issued from time to time, are largely codifications of international law and treaty provisions.35 The permanent army regulations forbid armed forces

12.

30 Infra, sec. 125.

31 Act Aug. 18, 1850, Rev. Stat., sec. 1751.

32 Rev. Stat., sec. 4063, Comp. Stat., sec. 7611,

33 Articles for Government of the Navy, Rev. Stat., sec. 1624, Arts. 6, 11, See also Rev. Stat., sec. 4617, Comp. Stat., sec. 8397, and Wright, Enforcement of International Law through Municipal Law, pp. 183 et seq. 34 Rev. Stat., sec. 4652, Comp. Stat., sec. 8426.

35 See Wright, op. cit., p. 68.

passing into foreign territory without license, and army officers are required to observe proper formalities in dealing with the representatives of foreign governments.36 The permanent navy regulations require naval commanders scrupulously to respect the territorial authority of foreign civilized nations in amity with the United States," to observe local regulations on entering foreign jurisdiction, to exchange the proper salutes when meeting foreign public vessels, to refuse asylum to criminals, slaves and political refugees while in foreign ports, to observe strict neutrality in wars to which the United States is not a party, and "when the United States is at war, the Commander-in-Chief shall require all under his command to observe the rules of humane warfare and the principles of international law." 37 Treasury regulations have required customs officials to respect the immunities of diplomatic officers, 38

The diplomatic and consular regulations are enforced by the President's disciplinary control and power of removal and by statutory provisions for bonding and criminal liability enforced by the courts.39 Military and naval regulations and instructions are enforced by courts martial whose jurisdiction, however, is largely confined to the statutory articles of war, and by military commissions." The federal courts, in exercising prize jurisdiction, exercise a considerable control over the navy in time of war. They not only return captured vessels and cargoes not liable to condemnation under international law," but decree damages against naval officers for illegal captures.42 They exercise a similar jurisdiction over captured vessels in time of peace, and may thus prevent illegal 36 Army Regulations, 1913, secs. 398, 407, 889, ch. 3; Digest of Opinions of Judge Ad. Gen., 1912, Howland ed., pp. 90, 106.

Naval com-
See note at

37 Navy Regulations, 1913, secs. 1502, 1633-35, 1645-47. manders are allowed some discretion under these regulations. head of Chap. 15, Navy Reg., 1913, p. 159, r. For case in which Navy regulations were enforced against a commander see Moore, Digest, 1: 240241. See Wright, op. cit., 68, 126, 177, 213.

38 Moore, Digest, 4: 676.

39 Wright, op. cit., p. 69.

40 Navy, see Rev. Stat., sec. 1624, Arts. 22, 24, 26, 38, and Wright, op. cit.

41 The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677.

42 Little v. Barreme, 2 Cranch 170.

PROC. AMER. PHIL. SOC., VOL. LX., R, MARCH 9, 1922.

44

seizures upon the high seas or in foreign territorial waters by vessels of the navy or revenue cutter service.13 In such cases, however, the courts sometimes refuse relief on the ground that the question is political. Although the courts exercise less control of the army than of the navy in time of war, yet they may give relief in case military action violates property rights protected by international law. Thus in Mitchell v. Harmony the court applied international law to determine the right of military officers to confiscate enemy property in the occupied territory of Mexico and in Brown v. the United States the court refused to confiscate enemy property in American territory holding that international law regarded such confiscation with disfavor and the court could not permit it unless authorized by an express act of Congress. In other cases the courts have held that the President's power in conducting war is limited by international law and any action he may authorize contrary to that law is void. Congress alone can authorize military methods conflicting with international law and as we have seen the courts will not presume such a conflict.47

43 La Jeune Eugenie, 2 Mason 409, 1822; Rose v. Himeley, 4 Cranch 241; Hudson v. Guestier, 6 Cranch 281, 1810; The Marianna Flora, 11 Wheat. I, 1826; The Antelope, 10 Wheat. 66, 122, 1825; La Ninfa, 75 Fed. 513, 1896. 44 Ship Richmond v. U. S., 9 Cranch 102, 104, 1815; Davisson v. Sealskins, 2 Paine 324; Moore, Digest, 2: 364-365, and supra, sec. 107.

45 Mitchell v. Harmony, 13 How. 115.

46 Brown v. U. S., 8 Cranch 110. See also McVeigh v. U. S., 11 Wall. 259, 1870, in which the court relaxed the rule which permits an alien enemy no status in court and permitted him to defend, and Wright, Am. Jl. Int. Law, II: 19.

47 Mitchell v. Harmony, 13 How. 115; Miller v. U. S., 11 Wall. 268; Fleming v. Page, 9 How. 603; Willoughby, op. cit., p. 1196, says: “With respect to the persons and property of the enemy, however, he (the military commander) is subject only to the limitations which the laws of war, as determined by international usage, supply, and for violations of these he is responsible only to the military tribunals." But on page 1212 he says: "Indeed, the President, in the exercise simply of his authority as commanderin-chief of the army and navy, may, unless prohibited by congressional statute, commit or authorize acts not warranted by commonly received principles of international law." Sutherland, however (op. cit., p. 77), says: "The usages and laws of war alone, and not the Constitution of the United States, fix the limits of the President's authority in conducting military operations. See also British case of the Zamora, L. R. 1916, 2 A. C. 77, holding an order in council contrary to international law void; Wright, Am. Jl. Int. Law, II: 2, and supra, sec. 47.