CHAPTER XII.

THE POWER TO MEET INTERNATIONAL RESPONSIBILITIES THROUGH

THE ENFORCEMENT OF INTERNATIONAL LAW.

109. "Due Diligence."

The responsibility of the nation for acts or omissions of individuals within its jurisdiction requires all organs of government to use "due diligence" to preserve order and to prevent violations of international law and treaty by persons within its jurisdiction. While the responsibility discussed in the preceding chapter relates only to the conduct of public officials and hence will be met if officials consistently observe the limitations prescribed for them by international law and treaties in exercising their powers, this responsibility relates primarily to the conduct of private individuals. The conduct of public officials is, however, indirectly involved, inasmuch as the nation will be responsible if they neglect proper measures to compel individuals within their jurisdiction to observe these limitations. The government is supposed to enforce law and maintain order with reasonable efficiency within its jurisdiction and is responsible for failure to do so. A lack of A lack of "due diligence" is the expression used to describe the degree of negligence which justifies a claim founded on failure to meet this responsibility.

While it is the judicial and executive organs of government which operate directly on individuals, often these organs must be authorized to act by legislation or treaty. Consequently any of the departments may be obliged to exercise their powers if this responsibility is to be met. The decision of the Geneva Arbitration Tribunal in the Alabama Claims case made this point clear. "The Government of Her Britannic Majesty," said the court, cannot justify itself for a failure in due diligence on pleas of insufficiency of the legal means of action which it possesses.'

66

1 Malloy, Treaties, p. 719.

Defining due diligence the Tribunal said:2

"The due diligence referred to in the first and third of the said rules (of Article V of the Treaty of Washington) ought to be exercised by a neutral government in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part."

The XIII Hague Convention of 1907 in Articles 8 and 25 practically repeated the first and third rules of the treaty of Washington but substituted the phrase "means at its disposal" for "due diligence." The drafting committee of the Hague Convention merely noted that "The expression due diligence, which has become celebrated by its obscurity, since its solemn interpretation, has been omitted." Apparently no essential difference in meaning was intended. "Means at its disposal" do not mean merely those provided by existing legislation but those which the legislature ought to provide. In spite of the committee's disparaging remark, the term diligence" has continued in usage.1

110. Enforcement by the States.

66

66

The states retain full power of criminal legislation except as expressly or impliedly limited by the federal Constitution. Before the Constitution the states' powers in this regard were almost exclusive and Congress urged them to provide for the punishment of offenses against the law of nations. In 1784 the court of oyer and terminer of Philadelphia found one DeLongchamps guilty of a crime against the whole world" for committing an assault upon the Secretary of the French legation. The court declared the person of a public minister and his "comites" or household "sacred and inviolable." "Whoever," said the court, "offers any violence to him not only affronts the sovereign he represents but also hurts. the common safety and well-being of nations." The court found difficulty in awarding sentence and finally concluded "the defendant cannot be imprisoned until his most Christian Majesty 2 Ibid., p. 718; Moore, Int. Arb., p 4082.

Scott, ed., Reports of Hague Conferences, p. 845.

Borchard, op. cit., p. 278.

Res Publica v. DeLongchamps, 1 Dall. III; Moore, Digest, 4: 622,

shall declare that the reparation is satisfactory." Apparently a de facto incarceration without formal sentence of imprisonment, which if given at all would have to be "certain and definite," seemed the only way of satisfying the dilemma arising from the court's theory that it was not only administering Pennsylvania law but also international law and that in this case the latter left determination of the sentence to the offended king of France. This theory, derived from the claim by France of a right herself to punish offenders against her diplomatic representatives abroad, and supported by a similar claim of the Czar in the case of his Ambassador in London in 1708, is now obsolete.

Since adoption of the Constitution, the enforcement of international law has been largely undertaken by the national government and, where undertaken, the jurisdiction of federal courts has been made exclusive. This does not mean, however, that states. are prohibited from making acts, violative of international law or treaty, offenses against their own sovereignty. The grant of powers of criminal legislation to the National government by the Constitution or even the exercise of such powers by Congress does not in itself divest the states of power to punish similar offenses. States may cooperate with the United States in enforcing international law and treaty within their own boundaries so far as such action does not interfere with national action. They cannot, however, perform acts for this purpose, which will be effective outside their borders. Thus state authorities cannot extradite persons to foreign governments on the basis of national treaties, unless expressly authorized thereto by the treaty."

8

A few offenses against international law and treaty are still untouched by national laws, and the states must be relied on. Thus Secretary Bayard, after noting that national law did not punish

treason and sedition against foreign sovereigns," said: 10

Judicial Code of 1911, sec. 256, pars. I-4, 8.

7 Fox v. Ohio, 5 How. 416 (1847).

8 Holmes v. Jennison, 14 Pet. 540, 579 (1840); U. S. v. Rauscher, 119 U. S. 407, 414; Moore, Digest, 4: 240 et seq.

See Mexican treaty, 1899, art. 19; Moore, Digest, 4: 244.

10 Moore, Digest, 2: 432.

"I may add, however, that if any persons in the State of Pennsylvania take measures to perpetrate a crime in a foreign land, such an attempt, coupled with preparations to effectuate it, though not cognizable in the federal courts, is cognizable in the courts of the state of Pennsylvania."

Other powers of enforcement, still exclusively in state hands, notably that of protecting resident aliens, will be considered later.11

111. Enforcement under the National Constitution.

The National Constitution confers certain independent powers upon the executive and judicial branches for the enforcement of international law and treaties, but these powers are insufficient. The Constitution has, however, given Congress authority to provide adequate means of enforcement, especially in the power "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations" and in the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof," thus including the treaty power.12

A. Enforcement by Legislative Action.

112. Congressional Resolutions before the Constitution.

Even before the adoption of the Constitution Congress realized the necessity for legislation to prevent violations of international law. It resolved on May 22, 1779, that the United States would cause the "law of nations to be most strictly observed," and on November 23, 1781, recommended that state legislatures provide for the punishment of offenses relating to violation of safe conducts, breaches of neutrality, assaults upon public ministers, infractions of treaties, and "the preceding being only those offenses against the law of nations which are most obvious, and public faith and safety requiring that punishment should be coextensive with all crimes, Resolved, that it be further recommended to the several states to

11 Supra, sec. 120.

12 U. S. Constitution, art. 1, sec. 8, cl. 10, 18.

erect tribunals in each state, or vest ones already existing with power to decide on offenses against the law of nations not contained in the foregoing enumeration." 13

113. Offenses against Persons Protected by International Law.

By an act of September 24, 1789, the first Congress under the Constitution gave district courts jurisdiction of suits brought by aliens for torts "in violation of the law of nations or of a treaty of the United States," and the Supreme Court was given exclusive jurisdiction of suits against public ministers "as a court of law can have consistently with the law of nations." These provisions remain unchanged in the present judicial code of 1911.14 An act of April 30, 1790, still in effect, prescribes criminal penalties for assaulting or serving out process against public ministers or their "domestics or domestic servants . . . in violation of the law of nations."

An act of August 29, 1842, passed after the McLeod case had shown the inability of the national government to release persons entitled to immunity under international law from state jurisdiction, gives federal courts jurisdiction to release on habeas corpus, persons claiming any right under treaty or a right "the validity and effect of which depends upon the law of nations." 16

114. Offenses Committed on the High Seas.

The crimes act of April 30, 1790, provided for the punishment of various crimes committed on the high seas but the courts interpreted this act in accord with international law, as confined to crimes committed by American citizens or in American vessels in all cases except piracy.17 The act was amended in 1819 so as to punish all persons guilty of "piracy as defined by the law of na

13 Journ. Cong., 5: 161, 232; 7: 181, Ford ed., 14: 635, 914; 21: 1137. 141 Stat. 76, secs. 9, 13; Rev. Stat., sec. 563, cls. 16, 687; Jud. Code of 1911, 36 Stat. 1087, sec. 24, cls. 17, 233.

15

I Stat. 117, secs. 25, 28; Rev. Stat., secs. 4062, 4064.

165 Stat. 539; Rev. Stat. 753.

17 U. S. v. Palmer, 3 Wheat, 610; U. S. v. Klintock, 5 Wheat. 144, 152; Moore, Digest, 2: 956.