violated, all other nations have a right to protest against the breaking down of the law. Such a protest would not be an interference in the quarrels of others. It would be an assertion of the protesting nation's own right against the injury done to it by the destruction of the law upon which it relies for its peace and security. What would follow such a protest must in each case depend upon the protesting nation's own judgment as to policy, upon the feeling of its people, and the wisdom of its governing body. Whatever it does, if it does anything, will be done not as a stranger to a dispute or as an intermediary in the affairs of others, but in its own right for the protection of its own interest. Upon no other theory than this can the decisions of any court for the application of the law of nations be respected, or any league or concert or agreement among nations for the enforcement of peace by arms or otherwise be established, or any general opinion of mankind for the maintenance of law be effective.

Can any of these things be done? Can the law be strengthened and made effective? Imperfect and conflicting as is the information upon which conjecture must be based, I think there is ground for hope that from the horrors of violated law a stronger law may come. It was during the appalling crimes of the Thirty Years' War that Grotius wrote his De Jure Belli ac Pacis and the science of international law first took form and authority. The moral standards of the Thirty Years' War have returned again to Europe with the same dreadful and intolerable consequences. We may hope that there will be again a great new departure to escape destruction by subjecting the nations to the rule of law. The development and extension of international law has been obstructed by a multitude of jealousies and supposed interests of nations each refusing to consent to any rule unless it be made most favorable to itself in all possible future contingencies. The desire to have a law has not been strong enough to overcome the determination of each nation to have the law suited to its own special circumstances; but when this war is over the desire to have some law in order to prevent so far as possible a recurrence of the same dreadful experience may sweep away all these reluctances and schemes for advantage and lead to agreement where agreement has never yet been possible. It often happens that small differences and petty controversies are swept away by a great disaster, deep feeling, and a sense of common danger. If this be so, we can have an adequate law and a real court which will apply its principles to serious as well as petty controversies, and a real public opinion of the world responding to the duty of preserving the law inviolate. If there be such an opinion it will be enforced. I shall not now inquire into the specific means of enforcement, but the means can be found. It is only when opinion is uncertain and divided or when it is sluggish and indifferent and acts too late that it fails of effect. During all the desperate struggles and emergencies of the great war the conflicting nations from the beginning have been competing for the favorable judgment of the rest of the world with a solicitude which shows what a mighty power even now that opinion is.

Nor can we doubt that this will be a different world when peace comes. Universal mourning for the untimely dead, suffering, and sacrifice, the triumph of patriotism over selfishness, the long dominance of deep and serious feeling, the purifying influences of self-devotion, will surely have changed the hearts of the nations, and much that is wise and noble and for the good of humanity may be possible that never was possible before.

Some of us believe that the hope of the world's progress lies in the spread and perfection of democratic self-government. It may be that out of the rack and welter of the great conflict may arise a general consciousness that it is the people who are to be considered, their rights and liberties to govern and be

governed for themselves rather than rulers' ambitions and policies of aggrandizement. If that be so, our hopes will be realized, for autocracy can protect itself by arbitrary power, but the people can protect themselves only by the rule of law.

The CHAIRMAN. Next upon our program is an address by Hon. John Bassett Moore, formerly counsellor for the Department of State, on "The relation of international law to national law in American countries," and I take great pleasure in presenting him.

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

By JOHN BASSETT MOORE,

Professor of International Law of Columbia University.

The present address is not concerned with the question whether the law of nations or international law is to be placed in the same legal category as national or municipal law-a question I discussed elsewhere a year ago.1 It relates simply to the attitude of the authorities, legislative, administrative and judicial, of the American countries toward international law and its enforcement. It may be superfluous to say that international law, in the sense in which the term is commonly understood, had its origin among the so-called Christian States of Europe. In consequence, all European States and all States inheriting European civilization are assumed to be bound by it. By Article VII, however, of the Treaty of Paris of March 30, 1856, Turkey was expressly admitted "to participate in the advantages of the public law and system of concert of Europe." With this act the classification of States that were subject and those that were not subject to international law as Christian and non-Christian ceased to be applicable, and its inapplicability became only the more pronounced with the acceptance of the system by Japan and other non-Christian countries.

In regard to the countries of America there never was any question as to their position or their obligation, since all of them, as they now exist, were of European origin, having been at one time or another the colonies of European powers. The first of them to become independent--the United States of America-acted from the outset upon the principle that it was subject to what was then generally known as the law of nations, but is now commonly called international law. Long prior to the formation of the Constitution of the United States, while the loose national association formed by the Articles of Confederation was still in existence, the so-called Federal Court of Appeals declared that "the municipal laws of a country can not change the law of nations so as to bind the subjects of another nation." (Case of the Resolution, 2 Dallas, 1, 4.) In 1796, seven years after the establishment of the Government under the Constitution, Mr. Justice Wilson, sitting in the Supreme Court, declared that "when the United States declared their independence they were bound to receive the law of nations in its modern state of purity and refinement." (Ware v. Hylton, 3 Dallas, 199, 281.) By the Constitution itself inter

1 Law and Organization: Presidential address at the Eleventh Annual Meeting of the American Political Science Association, Chicago, December, 1914. The American Political Science Review, February, 1915.

national law was indeed expressly recognized. Such recognition is seen in the provision that Congress shall have power to define and punish piracies and felonies committed on the high sea, "and offenses against the law of nations." (Art. I, sec. 8, clause 10.) Moreover, in order that the law of nations might be duly observed, it was provided that the judicial power of the United States should extend to all cases arising under treaties made under the authority of the United States, to all cases affecting ambassadors, other public ministers, and consuls, to controversies to which the United States should be a party and to controversies between a State or the citizens thereof and foreign States, citizens, or subjects, and that in all cases affecting ambassadors, other public ministers and consuls, and those in which a State should be a party, the Supreme Court should have original jurisdiction. (Art. III, sec. 2, clauses 1 and 2) Finally, it was declared that all treaties which had been or which should be made "under the authority of the United States," should be "the supreme law of the land,” binding upon the judges in every State, in spite of any clause to the contrary in its Constitution or laws. (Art. VI, sec 2.)

The fact having thus been avowed that the new nation called the United States of America was subject to the law of nations, it was only natural and logical that the courts should proceed upon the principle that international law was a part of the law of the land, and as such to be interpreted and applied in the causes coming before them. This was a principle of the English common law. In 1764 one of the most celebrated of English judges, Lord Mansfield, quoted the opinion of a great predecessor, Lord Talbot, to the effect "that the law of nations, in its full extent, was part of the law of England," and that it was to be "collected from the practice of different nations, and the authority of writers." The writers consulted, there being then no English writer of eminence on the subject, were Grotius, Barbeyrac, Bynkershoek, Wicquefort, and other continental publicists. Lord Mansfield also recalled Lord Hardwicke both as declaring an opinion to the same effect and as "denying that Lord Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England." (Triquet v. Bath, 3 Burrows, 1478.) Upon the strength of these authorities, an eminent judge at Philadelphia, prior to the formation of the Constitution of the United States, sustained an indictment founded on the common law for an offense against the law of nations (Respublica v. DeLongchamps, 1 Dallas, III). In 1793 Thomas Jefferson, the first Secretary of State of the United States, declared that "the law of nations makes an integral part * of the laws of the land." (Wait's American State Papers, 1, 30.) In 1815 Chief Justice Marshall, in deciding a case before the Supreme Court, declined to accept the contention that the judicial tribunals should, on the ground of retaliation, apply to Spain a rule respecting captures different from that prescribed by the law of nations. Till Congress should pass a retaliatory act, he declared that the court was "bound by the law of nations, which is a part of the law of the land." (The Nereide, 9 Cranch, 388, 423.) In consonance with this doctrine, the law of nations does not have to be proved to the court as a fact. (The Scotia, 14 Wallace, 170.)

On the authority of these official utterances, Sir Henry Maine was justified in declaring that the statesmen and jurists of the United States did not regard international law as having become binding on their country through any legislative act; that they looked upon it as an integral part of the conditions on which a State is originally received into the family of civilized nations; and that their view, being essentially the same as that entertained by the founders of the system, might be summed up by saying that the State which disclaimed

the authority of international law places itself outside the circle of civilized nations. (Maine, International Law, 37-38.)

Apart from certain special and exceptional clauses, which, as found in a few of the national constitutions, have given rise to international controversy, and the terms and effect of which will be discussed farther on, it may be unhesitatingly affirmed that the principles above set forth prevail throughout the American Republics. In the spirit of those principles, the constitution of Argentina, following substantially the terms of that of the United States, declares that "treaties with foreign powers are the supreme law of the Nation, binding upon the provincial authorities, notwithstanding any contrary provision in the provincial constitutions or laws" (Part First, Sole Chapter, Art. 31); that the Supreme Court of the Nation shall have jurisdiction of all cases involving foreign treaties or concerning ambassadors, public ministers, and consuls, and of all cases between a Province or its citizens and a foreign citizen or State; and that, in cases concerning foreign ambassadors, ministers, or consuls, or to which a Province shall be a party, the jurisdiction of the National Supreme Court shall be original and exclusive. (Part Second, Title First, Section Third, Chap. II, Arts. 100 and 101.)

The constitution of Brazil contains a significant clause, investing Congress with exclusive power to authorize the Government to declare war, "when arbitration has failed or can not take place." (Art. 34, clause 11.) This recognition of the obligatory force of international law is altogether remarkable and commendable. By the same constitution, the Federal Supreme Court has original and exclusive jurisdiction of "disputes and claims between foreign nations and the union, or between foreign nations and the States" (Art. 59). The jurisdiction of the federal judges and courts also embraces suits between foreign States and Brazilian citizens; actions instituted by foreigners, founded on contracts with the Federal Government or on conventions or treaties between the Union and other nations; questions relating to maritime law and the navigation of the ocean; and questions of international criminal or civil law.

The constitution of Colombia of 1863 expressly declared, "The law of nations forms part of the national legislation"; and although a similar clause is not found in the constitution of 1886, or in the amendments subsequently adopted, the authorities of the country are understood, in their treatment of neutrality and other questions, to have acknowledged the continuing force of the principle. The constitution of the Dominican Republic of 1896, while investing the supreme court with jurisdiction of all civil and criminal cases against diplomatic functionaries "when permitted by the law of nations" (art. 69), explicitly provided that "the law of nations is made a part of the law of the Republic." (Art. 106.) Although this last clause is not found in the Dominican constitution of 1908, there are other provisions in which the underlying principle is clearly recognized. Thus, in language similar to that employed by the Constitution of the United States, the Congress is empowered to grant letters of marque and reprisal, to regulate matters of prize, to define acts of piracy and offenses against the law of nations, and to affix the penalties. (Dominican constitution, 1908, art. 29.) Furthermore, the government is forbidden to declare war without having previously proposed arbitration; and in order that the application of this pinciple may be assured it is provided that there shall be introduced in all international treaties made by the Republic the clause: "All differences which may arise between the contracting parties must be submitted to arbitration before an appeal is made to war." (Ibid., art. 102.)

The constitution of Honduras confers upon the supreme court jurisdiction of prize cases and cases of extradition, as well as of all other cases that are to be settled according to international law. (Art. 107, par. 5.)

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By the constitution of Uruguay the high court of justice has "original jurisdiction" of "crimes or offenses against the law of nations," of "questions growing out of treaties or negotiations with foreign powers," and of “cases in which ambassadors, ministers, and other foreign diplomatic agents are concerned." (Art. 96.)

These constitutional provisions merely acknowledge, either expressly or by implication, the obligatory force of international law in matters to which it is properly applicable. The same principle has often been consecrated in judicial and administrative decisions in the American countries. It is further exemplified in the proclamations, decrees, and circulars which they have been accustomed to issue in the enforcement of their neutrality, as may be seen in the collection of neutrality proclamations and decrees printed by the United States in 1898 and in the volume lately published by the eminent and learned Chilean authority, Dr. Alejandro Alvarez, on the neutrality of his country in the present European war.1

1

In this relation I may mention a case, somewhat exceptional in its circumstances, of which erroneous versions have sometimes been given. I refer to the case of José Dolores Gamez in Nicaragua. Señor Gamez, a political refugee from that country, took passage early in 1885 on the Pacific mail steamer Honduras at San José, Guatemala, for Punta Arenas, in Costa Rica. When the steamer, in the regular course of her voyage between those ports, arrived at San Juan del Sur, in Nicaragua, the comandante of the port requested her commander, Capt. McCrae, to deliver Gamez up, and on his refusal to do so declined to give him a clearance. Capt. McCrae then sailed away without proper papers, and for this act was charged, before the criminal court of first instance at Rivas, under article 177 of the Nicaraguan Penal Code, with the offense of "want of respect for the authorities," in having openly resisted or disobeyed them. Sentence was rendered on February 9, 1885. The court held (1) that the "open resistance or disobedience" to authority, which was essential to the crime in question, was not "clearly shown," because, while it was true that Capt. McCrae did not comply with the command of the comandante, it was also true that the obligation to do so "did not exist," or at least was “doubtful," and still more so in the form in which the demand was made, since, although the ship was a merchant vessel and therefore, "according to the general principles of international law," subject to the local jurisdiction, this subjection, "according to those same principles," was not absolute; (2) that the fact that Señor Gamez took passage on the steamer "from one of the ports of the other Republics of Central America" rendered the obligation to deliver him up "still more doubtful," because, said the court, "when certain cases have arisen analogous to the one under consideration among nations more civilized than our own it has been alleged, as a reason to justify the delivery, that both the embarking of the passenger, as well as his delivery, must be made in national waters"; (3) that Señor Gamez, as appeared by the papers, was accused, not of common crimes, but of political offenses under a decree of September 9, 1884, and that it was a doctrine universally accepted in the works of writers on international law" that, although merchant vessels were subject to the local jurisdiction as regarded persons accused of common crimes, they were "exempt from the jurisdiction" as regards persons accused of political offenses, all of which relieved the captain from the obligation of making the delivery demanded of him. In support of these views the court cited Bello, Principios de Derecho Internacional (Paris, 1882, Cap. IV, No. 8, pp. 72-73), and Calvo, Derecho Internacional (Paris, 1868, pt. 1, Cap. V, sec. 200, pp. 316-317). It was La Grande Guerre Europeenne et la Neutralité du Chile, Paris, A. Pedone, 1915.