1 The Zamora, L. R. 1916, 2 A. C. 77; this Journal, 10; 427.

2 J. B. Scott and W. W. Willoughby, “The Legal Nature of Treaties,” this Journal, 1: 831, 2: 357;. John Westlake, “Is International Law a part of the Law of England,” Law Quar. Rev. 88: 14; C. M. Picciotto, The Relation of International Law to the Law of England and of the United States of America, N. Y., 1915; Quincy Wright, “The Enforcement of International Law through Municipal Law in the United States,” Univ. of 111. Studies in the Social Sciences, Vol. 5, No. 1, 1916, pp. 11, 219.

3 Triquet v. Bath, 3 Burr. 1478 (1764); the Maria, 1 Rob. 340 (1799); the Charming Betsey, 2 Cranch 64 (1804); the Paquete Habana, 175 U. S. 677 (1899); West Rand Central Gold Mining Co. v. Rex, L. R. 1905, 2 K B . 391, 407.

4 27-28 Vict. Ch. 25, sec. 55, par. 5.

5 J. C. Gray, Nature and Sources of the Law, N. Y. 1909, p. HO; J. P. Hall, “The Force of Precedents in International Law,” Int. Jour, of Ethics, 26: 149; W. Loewy, translation, The Civil Code of the German Empire, Boston, 1909, Introduction, pp. xlvii-liii.

6 John Westlake, Collected Papers, Cambridge, 1915, p. 291. This theory of the origin of jus gentium was maintained by Savigny, Austin and Maine, but later investigators, such as Muirhead, Sohm, and Willoughby, are inclined to doubt it, considering jus gentium a special branch of the Civil Law applied to aliens. This view, however, does not deny that a comparison and reconciliation of the diverse laws of aliens aided in the development of jus gentium.

7 Constitution, Amendment VI.

8 This was the view of the court in Dillon’s Case, Fed. Cas. 3914 (1854) in which a treaty immunity of a consul was in conflict with the constitutional guarantee; and this immunity of diplomatic officers from giving testimony, but in both cases for the prosecution, was recognized in the case of Dubois, the Dutch Minister (Sen. Ex. Doc. No. 21, 34th Cong., 3rd Sess. 1856, Moore, Dig. Int. Law, 4: 662, Oppenheim, op. cit., 1; 466) and in the case of Camacho, the Venezuelan Minister, (Guiteau’s trial (1881), Wharton, 1: 669, Scott, 196). In the latter case the minister, under instructions from his government, voluntarily appeared as a witness. An Act of April 30,1790, Rev. Stat. sec. 4063, specifically fprbids the issue of process against a public minister.

9 120 U. S. 479.

10 Act of Aug. 29, 1842, Rev. Stat. sec. 753.

11 Moore, Dig., 8: 24-30.

12 The most important Acts of this character are the Neutrality Acts, and various Acts for the protection of resident diplomatic officers.

13 W. W. Willoughby, The American Constitutional System, New York, 1904, p. 108; J. N. Pomeroy, An Introduction to the Constitutional Law of the United States, 9th ed., New York, 1886, p. 571; E. S. Corwin, National Supremacy, New York, 1913, pp. 288-289; Nelson Gammons, “The Responsibility of the Federal Government for Violations of the Rights of Aliens,” this Journal, 8: 73. Messages President Harrison, 1891, and President McKinley, 1899, 1900, Moore, 6: 839, 847, 848. Some doubt has been thrown upon this doctrine by the case of Keller and Ullman v. U. S., 213, U. S. 138 (1909), in which an Act of Congress (Feb. 20, 1907, 34 Stat. 898, sec. 3) rendering persons criminally liable for harboring immigrant women as prostitutes within a period of three years of landing, was held unconstitutional. The Government, however, did not attempt to support this legislation under the power of Congress to punish offenses against the law of nations, but under the implied power to regulate immigration. The court indicated that if the law had been in pursuance of a treaty it would have been valid, and a similar provision is now included in the Mann White Slave Act (June 25, 1910, 36 Stat. 825, sec. 6) in pursuance of the International White Slave Convention of 1904, Malloy, Treaties, Conventions, etc., p. 2131. It is submitted that if the protection of aliens in certain matters could be shown to be required by customary international law, an Act of Congress offering such protection by the criminal punishment of offenders would be constitutional.

14 Constitution, Art. Ill, sec. 2; Act, Aug. 13, 1888, 25 Stat. 433; Federal Judicial Code, 1911, 36 Stat. 1087, sec. 24, cl. 1, 17, sees. 28, 237. For the fulfillment of some treaty obligation^, especially those requiring the exercise of a criminal jurisdiction, supplementary legislation is necessary.

15 U. S. v. Hudson, 7 Cranch 32; Ex parte McCardle, 7 Wall. 506. A common law jurisdiction over crimes against international law was supported in Federal courts in the early cases of In re Henfield, Fed. Cas. 6360, and U. S. v. Ravara, 2 Dall. 297, but the later decisions have not supported this view.

16 Mortensen v. Peters, 14 Scot. L. T. R. 227 (1906); 8 Fraser 93; Bentwich, Cases, 12. In Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877), A. C. 394, the Privy Council held that an Act of Parliament made it conclusive that Conception Bay, Newfoundland, was British territorial water, although the headlands were thirty miles apart. It should be noted, however, that the court also put forward prescription as a justification of this extension of jurisdiction under international law. See also dicta by Lord Cpckburn in Regina v. Keyn (1876), 2 Ex. D. 63; Stephen, History of the Criminal Law, 8: 36; Picciotto, op. cit., p. 48 et seq.

17 The Zamora, L. R. 1916, 2 A. C. 77, this Journal, 10: 427.

18 Act of March 3, 1863, 12 Stat. 759. sec, 2.

19 Bates, Att. Gen., 10 Op. 519.

20 Act of June 27, 1868, Rev. Stat. 1856; Act of March 2, 1889, 25 Stat. 1009. U. S. v. La Ninfa, 49 Fed. Rep. 575; U. S. v. The James G. Swan, 20 Fed. Rep. 108; U. S. v. The Alexander, 60 Fed. Rep. 914.

21 The Alexander, 75 Fed. Rep. 519; La Ninfa, 75 Fed. Rep. 513; Moore, 1: 913-922. In his dissent in the case of U. S. v. Rodgers, 150 U. S. 249, Justice Brown thought the court was interpreting a statute (Rev. Stat. sec. 5346) in a manner contrary to international law in assuming jurisdiction over an offense committed on board an American vessel on the Canadian side of the Detroit River. The Cutting Case (Moore, 2: 243) illustrates the application by a Mexican court of a statute giving jurisdiction over extraterritorial crime, considered by the United States to be in contravention of international law.

22 English Cases: Day v. Savadge, Hobart, 85, 87; Bonham’s Case, 8 Rep. 118a; United States Cases; Goshen v. Stonington, 4 Conn. Rep. 209, 225; Bowman v. Middleton, 1 Bay. 254 (S. Car. 1792); Downes v. Bidwell, 182 U. S. 244, 282.

23 In the Flad Oyen, 1 Rob. 135 (1799), and the Maria, 1 Rob. 340 (1799), Lord Stowell strongly asserted that prize courts were “courts of the law of nations” and bound “to administer with indifference that justice which the law of nations holds out without distinction to independent states, some happening to be neutral and some to be belligerent.” In the case of the Walsingham Packet, 2 Rob. 77 (1799), the original British and Portuguese owners of the vessel, recaptured from the enemy, sought restoration, which was resisted by the captors under a navigation act (13-14 Car. II, c. 11, s. 22), which declared that the carrying of merchandise by a packet was illegal. There was thus a conflict between a statute and the rule of inter-national law requiring restoration of recaptured prizes. Lord Stowell, after remarking that “this court is properly and directly a court of the law of nations,” felt considerable difficulty in taking cognizance of a statute, but after an elaborate argument he did so, citing as a precedent the case of the Eliza (Lords, July 13, 1798), in which he said, “it was first decided that the Court of Admiralty was bound to take notice of an illegal practice, evidently appearing in the conduct of a British subject, though the illegality arose from a violation of a law merely municipal."

24 Murray v. The Charming Betsey, 2 Cranch 64. See also Rose v. Himely, 4 Cranch 241.

25 American Banana Co. v. United Fruit Co., 213 U. S. 347.

26 Leroux v. Brown, L. J. 22 C. P. 3. In his opinion in Mortensen v. Peters, 14 Scot. L. T, R. 227 (1906), Lord Kyllachy said, “A legislature may quite conceivably by oversight or even design exceed what an international tribunal (if such existed) might hold to be its international rights. Still there is always a presumption against its intending to do so. I think that is acknowledged. But then it is only a presumption, and as such it must always give way to the language used if it is clear, and also to all counter-presumptions which may legitimately be had in view.” In this case the statute was applied in derogation of international law, as being too clear to permit of any other interpretation.

27 The Recovery, 6 Rob. 341 (1807). In Cope v. Doherty, 4 K. and J. (1858), which raised an apparent conflict between the international rule of maritime collisions and the British Merchant Shipping Act of 1854, the court held that it could not interpret the Act as applying to foreigners, because to do so “would be to impute to the legislature of the country an attempt to legislate for foreigners by taking away those rights and privileges which they enjoy by the general law.” The Annapolis, 30 L. J., P. and M. 201 (1861), involved similar facts and the court, although admitting that if Parliament thought fit to legislate for foreign vessels on the high seas, “the court in its instance jurisdiction at least would be bound to obey,” yet said, “the presumption is strong against Parliament by legislation contravening international law. In cases admitting of possible doubt, the presumption would be that Parliament intended to legislate without violating any rule of international law, and the construction would be accordingly.” See also Le Louis, 2 Dods. 210; The Girolame, 3 Hagg. Adm. 169 (1834). For discussion of these cases see Picciotto, op. cit., p. 27, et seq.; T. E. Holland, Studies in International Law, Oxford, 1898, p. 195, et seq.

28 The Elsebe, 5 Rob. 173 (1804).

29 Act 6 Anne C. 37 (1708), granting the entire product of prizes to the captors as prize money.

30 In the Elsebe, 5 Rob. 173 (1804), Lord Stowell cited as precedents, the Freya (1800), the St. Johannes (1798), the Edwin (1801), all restored by order of the Crown. For United States cases see The Manila Prize Cases, 188 U. S. 254; Moore, 7: 545. In the Schooner Peggy, 1 Cranch 103, Lincoln, Att. Gen. 1 Op. I l l , restoration before adjudication was made on the basis of a treaty and was held to violate no vested right of the captors to prize money.

31 Fuzier-Hermann, Répertoire général alphabetique du droit français, 37 Vols., Paris, 1886-1906, tit. Agents Diplomatic, Art. 1067.

32 Case of Herran, Minister from Honduras, Trib. Seine, Jan. 21, 1875, Clunet, 1875, p. 90, who was held exempt from civil jurisdiction although he was of French nationality and no exemption was specified in the codes. See also Sirey, 1884, 2: 80.

33 The Fox, Edw. Adm. 312 (1811). Phillimore, Commentaries upon International Law, 3rd ed., London, 1879-1886, Vol. 3, sec. 436, says of this decision, “If he CLord Stowell] had not so considered them [considered the Orders in Council consistent with international law] and nevertheless had executed them, he would have incurred the same guilt and deserved the same reprehension, as the judge of a municipal court who executed by his sentence an edict of the legislature which plainly violated the law written by the creator upon the conscience of his creature."

34 Such retaliation is somewhat defended by J. P. Hall, The Force of Precedent in International Law, Int. Jour, of Ethics, 26: 149.

35 The Minerva (1806), Life of Sir J. Mackintosh, London, 1836, 1: 317; Holland, Studies, p. 197; Phillimore, op. cit., Vol. 3, sec. 436; Picciotto, op. cit., p. 32. It seems possible that this decision furnished the main foundation for Lord Stowell’s utterances in the Fox, five years later. There is a striking similarity in some of the passages. Sir J. Mackintosh admits that he had no “direct and positive authority” for his assertion.

36 Earl Grey to United States Ambassador Page, July 31, 1915, this Journal, Special Supp. 9: 164 (July, 1915). Phillimore, op. cit., Vol. 3, sec. 436, says, “It is clear that it has never been the doctrine of the British prize courts that because they sit under the authority of the Crown, the Crown has authority to prescribe to them rules which violate international law."

37 The Zamora, 31 Times L. R. 3, this Journal, 9: 1005.

38 The Fox, Edw. Adm. 312.

39 Order XXIX, March 23, 1915, Manual of Emergency Legislation, Supp. No. 3, p. 510; this Journal, Special Supp. 9: 123 (July, 1915).

40 The Zamora, L. R. 1916, A. C. 77; this Journal, 10: 430. In the earlier case of the Antares, 31 Times L. R. 290, similar facts were before the court, but under an earlier Order in Council (Order XXIX, Sept. 30, 1914, Manual of Emergency Legislation, 1914, p. 286). By this order, the judge on receiving a request from the Crown to release an unadjudicated prize for requisition, was to exercise discretion, releasing it only if probably confiscable. The court held the Order in Council to be conformable to international law, but in this case the cargo of copper, which had been declared absolute contraband while the vessel was en route, was possibly not confiscable and hence the request of the Crown was refused.

41 27-28 Vict. Ch. 25, sec. 55, par. 5. As evidence of the earlier practice, the court relied especially on the report of the Commissioners on the Silisian Loan Case, 1753. See Moore, Dig., 7: 603.

42 The Kim, the Alfred Nobel, the Bjornstjerne Bjornson, the Fridland, this Journal, 9: 979.

43 Man. Em. Leg., Supp. No. 1, p. 17; this Journal, Special Supp., 9: 14 (July, 1915.)

44 Maissonaire v. Keating, 2 Gall. 325.

45 Naval Instruction of Aug. 18, 1862 (Moore, 7: 700), provided for the seizure of vessels reasonably believed to be “engaged in carrying contraband of war for or to the insurgents, and to their ports directly or indirectly by transshipment or otherwise violating the blockade.” This application of the doctrine of continuous voyage to contraband and blockade was considered in violation of international law by many European publicists such as Twiss, Phillimore, Bluntschli, and Fiore (Moore, 7: 723-739), but was applied by United States prize courts. In the Stephen Hart, Blatch. 387, Scott, 852, affirmed in the Hart, 3 Wall. 559. The instructions are particularly referred to as authority for the decision. See also The Circassian, 2 Wall. 135; The Bermuda, 3 Wall. 514; The Springbok, 5 Wall. 1. In most of these cases it was not clear whether condemnation was for breach of blockade or carriage of contraband, but in the case of the Peterhoff, 5 Wall. 28, the distinction was recognized, and it was held that transshipments from neutral ports by land could not be regarded as violations of blockade, and hence such cargoes could only be condemned if contraband. It should be added that the American view of international law was sustained in the arbitral awards subsequently given in most of these cases. Moore, 7: 725; Moore, Int. Arb. 4: 3928-3935.

46 Law of May 3, 1884, Reichsgesetzblatt, 1884, p. 49. Translation in Huberich and King, The Prize Code of the German Empire in Force July 1, 1915, New York, 1915, p. xv.

47 Prize Code, Sept. 30, 1909, Reichsgesetzblatt, 1914, p. 275, translated in Huberich and King, op. cit. Under the Prussian ordinance of July 20, 1864 (Preuss. Gesetzblatt, 1864, p. 369; Huberich and King, op. cit., p. xii), prize courts were to apply the existing prize regulations, supplemented if necessary by the general principles of international law and subject to existing treaties. They were also empowered to apply special rules by way of retaliation. See comments on German prize practice in a review of Huberich and King’s translation, this Journal, 9: 1028.

48 The Elida, Oberprisengericht, Berlin, May 8, 1915, this Journal, 10: 916.

49 The famous oordonnance de la marine, issued by Louis XIV in 1681, forms the basis of French prize law. Comprehensive instructions applicable in prize courts were issued July 28, 1870 (Freeman Snow, Cases and Opinions on International Law, Boston, 1893, p. 577), and on December 12, 1912 (Naval War College, International Law Topics and Discussions, 13: 169).

50 One of the most remarkable of these decrees was that of Bayonne which ordered the seizure of American vessels entering French ports after the passage of the American Embargo Act in 1807, under the theory that such seizures were legal as assisting President Jefferson in enforcing the embargo. Am. St. Pap., For. Rel., 3: 291. For the various French and British retaliatory orders of the Napoleonic Wars, see ibid., 3: 262, 270, 286; British and For. St. Pap., 8: 401-513.

51 In the Berlin, L. R. (1914), P. 265; this Journal, 9: 544; after citing the American decision in the Paquete Habana, 175 U. S. 677, and some Japanese decisions and instructions the court said: “In this country I do not think any decided and reported case has treated the immunity of such vessels as a part or rule of the law of nations: vide the Young Jacob and Johanna, 1 Rob. 20, and the Liesbet von der Toll, 5 Rob. 283. But after the lapse of a century I am of opinion that it has become a sufficiently settled doctrine and practice of the law of nations.” The alteration of judicial precedents by international law is also illustrated in the Ringende Jacob, 1 Rob. 89 (1798), in which the court refused to follow the old rule forfeiting neutral vessels for carrying contraband, but applied the more humane rule of releasing the vessel, on the ground that international law had changed. See, also, Westlake, Collected Papers, p. 250.

52 Hague Conventions, 1907, XI, Art. 3.

53 Malloy, De Jure Maritimo et Navali, 7th ed. London, 1722, Bk. 5, chap. 9, sec. 9. Baldwin, “The Part Taken by Courts of Justice in the Development of International Law,” Am. Law Rev., 35: 228.

54 Sinclair v. Fraser, 20 How. St. Tr. 468, cited Baldwin, op. cit., Am. Law. Rev., 35: 228.

55 The Hoop, 1 Rob. 196 (1799); Scott, 521, 523.

56 McVeigh v. U. S. 11 Wall. 259 (1870).

57 Act of July 17, 1862, 12 Stat. 319.

58 In re Merten’s Patents, Porter v. Freudenberg, Krelinger v. Samuels, 112 L. T. 313, 321 (1915).

59 Hague Convention, 1907, IV, Art. 23 (h).

60 For cases making other exceptions to the disabilities of alien enemies, see L. Oppenheim, International Law, 2nd ed., New York, 1912, 2: 133.

61 The Möwe, L. J. (1915), p. 57, this Journal, 9: 547.

62 The newspapers reported that on Feb. 15, 1916, the Reichsgericht handed down a decision upon an action commenced by a French citizen serving at the front, and appearing through attorney. The decision of the court below, declaring the plaintiff’s patent right confiscated, was reversed.

63 Oppenheim, op. tit., 2: 133.