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laws of the country," but this was qualified by the further declaration that the provisions of the laws of nations "shall not be invoked when they are opposed to the constitution and the laws of the republic." (Art. 125.)

Interpreted in one sense, this qualification might be regarded as a denial of the obligatory force of international law, and as having been intended to assert the position that a country can fix the measure of its international obligations, not only by its constitution, but also by the laws which its legislature may from time to time prescribe. I am not, however, inclined to give to the qualification this sweeping interpretation which, if admitted, would destroy the foundations of international law. I am, on the contrary, disposed to interpret it in the following senses:

1. Although it may not be so in all countries, yet it is no doubt the case in many countries, including the United States, that an act of the supreme legislative power violative of the law of nations will be enforced by the public authorities, judicial and administrative, the foreign government being left to assert its rights through the diplomatic channel. In this respect the clause of the Venezuelan constitution is not exceptional.

2. Apart from what is set forth in the preceding paragraph, it is probable that the clause in question was intended to give a special sanction, among other things, to article 124, which declared that no contract of public interest entered into by the Federal Government or by any public authority should be assignable to any foreign government, and that in all contracts there should be included, and if omitted, should be considered as included, the following clause: "The doubts and controversies of any nature that may arise in regard to this contract, and which can not be amicably settled by the contracting parties, shall be decided by the competent tribunals of Venezuela, according to the Venezuelan laws, and shall not in any case be made a subject of international claims."

Provisions similar to those just quoted are included in the Venezuelan constitution of April 19, 1914, except article 125, supra.'

Clauses such as this, when actually embodied in contracts, have on several occasions been discussed by international commissions, with results not entirely harmonious. In some cases they have been regarded merely as devices to curtail or exclude the right of diplomatic intervention, and as such have been pronounced invalid. In other cases they have been treated as effective, to the extent of making the attempt to obtain redress by local remedies absolutely prerequisite to the resort to international action. Only in one or two doubtful instances does the view seem to have been entertained that they should be permitted to exclude diplomatic interposition altogether.'

On the whole, the principle has been well maintained that the limits of diplomatic action are to be finally determined, not by local regulations, but by the generally accepted rules of international law.

The CHAIRMAN. I have now great pleasure in introducing to you Mr. George G. Wilson, professor of international law in Harvard University, who will address us upon the same subject.

1 Art. 95, pars. 3 and 7, of the constitution of 1904, become art. 98, pars. 3 and 7, of the constitution of 1914; art. 124 of the constitution of 1904 is art. 121 of the constitution of 1914. For art. 120 of the constitution of 1904, supra, there is substituted, with the same number, in the constitution of 1914, the following: "In international treaties there shall be inserted the clause that All differences between the contracting parties, relative to the interpretation or execution of this treaty, shall be decided by arbitration.'" * Moore, Digest of International Law, VI, 301-308.

THE RELATION OF INTERNATIONAL LAW TO NATIONAL LAW IN AMERICAN STATES.

By GEORGE GRAFTON WILSON,

Professor of International Law in Harvard University.

International law presupposes the existence of States. In the early days the idea of a State was somewhat vague and often varied. The modern idea of a State as a sovereign political unity carries with it certain presumptions which were not admitted in Europe till after the peace of Westphalia in 1648.

It was but natural that the proximity and consequent intercourse of States upon the European Continent should make necessary a system of reasonable action in their mutual relations. In its beginnings international law looked to this system of conduct for its principles. The States following this common system gradually formed a circle or family of nations assuming that others, if admitted to the family, should accept the system adopted by the family. The standards adopted by the family of nations, though not clearly established at the beginning, gradually became well defined. The standards were naturally European because determined by European conditions and thought. The family was for a time spoken of as the family of Christian nations, but this test was set aside and the political basis became the ground of admittance to the international circle.

When the plan of the family of nations was developing, one of the prime objects was the maintenance of the balance of power in Europe. The Treaty of Utrecht in 1713 is a little broader in extending its aims to the establishment of peace and tranquility in Christendom through a just equilibrium of powers. European congresses were frequently held for this purpose. The disturbance of the status quo came in Europe to be regarded as a violation of international law. The status quo had been established after many and long struggles. The status quo seemed to have historically justifiable foundations, such as the grant of privileges by kings or emperors, the union of crowns by marriage or inheritance or by acts of those who had the right to rule. Revolution would therefore be regarded as one of the most doubtful foundations upon which a claim to membership in the family of nations could be based.

The recognition of the United States as equal, by France in the treaty of 1778 was therefore a recognition of a political unity based upon revolution as well as the recognition of a State outside of the geographical area of Europe. This precedent, set by France and soon followed by other European States, gave to the right of revolution a sanction which later some of these States would gladly have recalled, as Metternich thought when he described political revolution as something which should be suppressed by common measures and should “be treated as hostile to all lawful constitutions and governments." Revolution, however, became the source of the right to existence among American States. forming a marked contrast to the accepted doctrines of the European family of nations. Thus the basis of national law was for America in the recognition of the right of revolution, for revolution is at the beginning of nearly all the American States.

In America, not merely was the basis of the right of the State to be recog nized by international law different from the generally accepted European doctrines, but the residence of political power was different. The concept of the "paramount authority of the public will" had already been set forth in doctrinaire treatises, but its practical embodiment in a political unity was not thought reasonable. Metternich characterized "the idea of emancipation of the

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peoples as absurd in itself," his doctrine being accepted by the rulers, to the effect that good government could come only from those who were by birth divinely appointed to rule. He did not regard masses as dangerous, but considered the middle class desiring political privileges as seized with a sort of "moral gangrene." Voltaire's idea was altogether different, and had influence certainly in France when he described society as like a keg of beer" froth at the top, dregs at the bottom, and wholesome in the middle." Metternich, dominating European international opinions so generally in the early half of the nineteenth century, could not even conceive of a lawful state organized by men who had as "their war cry, 'constitution'"; and he says, "We are not alone in questioning if society can exist with liberty of the press, a scourge unknown to the world before the latter half of the seventeenth century and restrained until the eighteenth." Such an attitude is in strong contrast to the constitutional provisions which were being inserted in the fundamenal laws of American States in the years of Metternich's power in Europe. In the American constitutions freedom of speech and freedom of the press were inserted as basic principles.

The accepted and long-recognized European claim of the right of intervention ere was denied by the American States. Meantime some of the rulers of Europe, denying the "paramount authority of the public will" and upholding "benevoblent despotism,” maintained that, entrusted by divine power and "placed beyond the passions which agitate society," they should "not abandon the people whom they ought to govern to the sport of factions, to error and its consequences, which must involve the loss of society." The American position, clearly bel and at times forcibly expressed, has been in general that there is in international law no right of intervention, but that there is the obligation of nonintervention—a position widely separating for a time the European and American theories.

The American Continent, with its vast resources and area open to occupation and cultivation, afforded a tempting field for emigration. This movement of such population to the American Continent was favored while the area was European colonial territory. After the colonies broke off from the mother countries the stream continued. The vigorous young life of the old countries was departing. This was welcomed in the new world across the sea. Doctrines of naturalization were developed and a theory of expatriation, entirely contrary to that of at many European States, received support in America. The common European indoctrine that allegiance was indelible and that the children followed the naretlonality of the parents, the jus sanguinis, was denied in some American States, leading to long conflicts, which in the latter part of the nineteenth century were solved by a general recognition in international relations of the right of expatriation.

Not merely in these broader aspects of international law has the New World reacted upon the old, but in many more special lines the national attitude toward law and justice has found response in approval by international conventions, congresses, practice, and law. Some examples of this may serve to illustrate many. Thus in the broader aspects of international law, particularly relating to the acquisition and exercise of territorial jurisdiction, American States, because of their development to some extent in an area not previously politically organized, made clear the law in regard to national title by occupation. Of this, Chief Justice Marshall speaks for the American Continent when he says in Johnson v. McIntosh in 1828:

The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.

But as they were nearly all in pursuit of the same object, it was necessary in order to avoid conflicting settlements and consequent war with each other to establish a principle which all should acknowledge as the law by which the rights of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European Governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it.

This same principle was recognized in regard to islands off Peru and islands off Venezuela when these were beyond the three-mile limit. Other and numerous controversies in regard to boundaries have arisen among the American States. Doctrines of prescription, of occupation, of accretion and other principles relating to territorial rights have been given general recognition.

As to the coast waters, there has been a tendency to accept the three-mile limit and to recognize the freedom of the seas and the right of innocent navigation. The Argentine Republic and Chile in 1881, by the treaty of July 23, agreed that Magellan's Straits are neutralized forever and free navigation is guaranteed to the flags of all nations. To insure this liberty and neutrality no fortifications or military defences shall be created that could interfere with this object."

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Free navigation of rivers in American States has likewise been generally granted. Occasionally this has been limited to States having territory on a river. The treaty between the Argentine Republic and the United States of America in 1853 granted reciprocal freedom of river navigation. The South American States negotiated many of these treaties among themselves. In these new lands another question, early requiring consideration and remaining to the present time, is that of boundary lines. The uncertainty as to limits of territory was but natural. Surveys, if made at all, were usually hasty and inaccurate or indefinite. Friction among these young and growing States on account of growth was inevitable. Here ancient grants and modern claims often clashed, but these boundary disputes have usually been settled by application of equitable principles rather than by resort to war. The principle of uti possidetis was frequently recognized, but whatever the principle of decision, the resort to arbitration became common and this form of settlement of disputes among American States grew in strength and favor. When the long and heated controversy over the Brazilian-Argentine boundary | line was, by the arbitral award of President Cleveland of the United States, settled in 1895 in a manner favorable to the contention of Brazil, the attitude of the Argentine Republic became not that of a defeated suitor, but that of a friend of its late opponent, rejoicing in the settlement of the difference and the removal of a cause of friction. Scarcely could the American ideal be more strikingly expressed than in the reply of the Argentine minister to the Brazilian secretary of state for foreign affairs, when in behalf of the Argentine Republic, even when Argentine's claim had not been maintained, he said: "I regard the question under arbitration which has just been decided as a triumph of both our nations, which equally strong, patriotic, and virile. have sought on the ground of right and justice a noble solution of contro versies which can never be definitely settled by the transitory and ephemeral right of force."

Not merely were territorial rights developed and an accepted international practice in regard to title to land recognized, but the rights of nationals in American States were guarded. The bills of rights in many American constitutions contained declarations similar to the following:

Con

The rights of man are the basis of and object of social institutions. sequently this State declares that all the laws and all the authorities of this country must respect and maintain the guaranties which the present constitution establishes.

The constitutional and legal guaranties of nationals were necessarily maintained in international relations and in the treaties, particularly between American States. These treaties often secured the rights of the nationals of one State when within the jurisdiction of another. The rights of man as such assumed a much more important place than formerly in international agreements. One of the earliest of these treaties, negotiated between the United States of America and the Republic of Colombia in 1824, provides for the freedom of citizens of each within the territory of the other, not only in navigation and commerce but also in matters of the exercise of judicial rights, and further in Article XI:

It is likewise agreed that the most perfect and entire security of conscience shall be enjoyed by the citizens of both the contracting parties in the countries subject to the jurisdiction of the one and the other, without their being liable to be disturbed or molested on account of their religious belief, so long as they respect the laws and established usage of the country. This was repeated in other treaties of this period, emphasizing one of the principles for which American civilization has often stood. Other rights of man as such were protected in international agreements as in domestic law. The bill of rights often embodied in the constitution gave to the national security and freedom within his own State, and this became general for the American States through most favored nation clauses and reciprocal agreements. This right of man to protection and freedom was recognized in America as inherent in man himself, and not, as in many European States, derived by a grant from some authority above.

As political freedom was one of the corner stones of the idea of American State policy, this principle was protected in national laws and received conventional sanction in international agreements. Naturally this protection for political freedom was guaranteed in extradition treaties by limitation upon the list of extraditable crimes in such manner as to exclude extradition of political offenders as criminals. This was often but a carrying of the national laws or national constitution into international agreements, as in the case of the Mexican treaties of extradition-treaties which conform to the article of the Mexican constitution which provides: "Treaties shall never be made for the extradition of political offenders." (Art. 15.)

Not merely have the American States stood for the right of man to political freedom but for his right to freedom of conscience and expression, even in speech and press, in order that the spirit of man may not be repressed or compelled to conform itself to standards externally imposed. What this contribution to the development of the human race may mean, when embodied in world practice, it is difficult to foretell.

It is true that the national law of American States embodied many principles that were regarded as visionary and idealistic, as was shown in the opinions of Metternich and others of his period, yet these States have had the courage and wisdom to maintain these principles, till now they meet with growing recognition in the world. The American States have not been afraid to test the principles of arbitration and judicial methods of settling disputes among themselves. Two American republics were the first parties to appear before the Hague tribunal to test the merits of the newly established international court of arbitration and to demonstrate its right to claim a place as one of the greatest institutions for the furthering of international justice.

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