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tions." 18 1910.19

These laws are embodied in the present criminal code of

In the Scotia and other cases the court has recognized the international navigation regulations as obligatory.20

“Undoubtedly," said Justice Strong, "no single nation can change the law of the Sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by a superior power, but because it has been generally accepted as a rule of conduct."

These rules were adopted by Congress in an act of 1864. With modifications agreed upon in a conference of 1889, Congress again adopted them by an act of August 19, 1890, subject to the action of other powers. After protracted negotiations the rules were finally put into operation July 1, 1897. The act of Congress has provided penalties against masters, pilots, and vessels in case of violation.21

115. Offenses against Neutrality.

The first neutrality act was passed June 5, 1794, after it had been discovered that the President and courts lacked power effectively to enforce neutrality with their independent powers. The act as amended in 1797 and 1818 is still in effect, and is included in the criminal code of 1910.22 Further amendments were made in 1915 and 1917.23

These laws provide for punishment of American citizens accepting commissions while the United States is neutral, and for punish

18 U. S. v. Smith, 5 Wheat. 153.

19 Criminal Code of 1910, sec. 290 et seq.

20 The Scotia, 14 Wall. 170, 1871. But see The Lottawanna, 21 Wall. 558, Willoughby, op. cit., pp. 1015–1017.

21 Act Sept. 4, 1890, secs. 1, 2, 26 Stat 423; Comp. Stat., secs. 7979, 7980; June 7, 1897, secs. 3, 4, 30 Stat. 103; Comp. Stat. 7907, 7908; Moore, Digest, 2: 474.

22 Criminal Code of 1910, secs. 9-18. See also Fenwick, The Neutrality Laws of the United States, Washington, 1913, and Wright, The Enforcement of International Law Through Municipal Law in the United States, 1915, pp. 114 et seq.

23 Act March 4, 1915, 38 Stat. 1226; May 7, 1917, June 15, 1917, secs. I-10, 40 Stat. 221-223; Comp. Stat., secs. 10, 182.

ment of any one recruiting for foreign belligerents in American territory. Persons with unneutral intent fitting out and arming or augmenting the forces of vessels, or setting on foot military or naval expeditions or enterprises in American territory are also liable, as are persons taking out of the United States a vessel built or converted as a war vessel with knowledge that it is likely to reach the hands of a belligerent or aiding interned belligerent persons to escape.

The acts give the President power to expel vessels from waters in which "by the law of nations" they ought not to remain, and to detain or prevent the departure of vessels "which by the law of nations or the treaties of the United States" are not entitled to depart. The President is authorized to use the land and naval forces "as he may deem necessary to carry out the purposes" of the neutrality laws. The acts provide for withholding the clearance from vessels suspected of using the territory "in violation of the laws, treaties or obligations of the United States under the law of nations," for bonding armed merchant vessels using American ports and for detention by customs officials of suspected vessels not bonded. They give district courts jurisdiction to restore prizes illegally taken in American waters, to decide proceedings for the forfeiture of vessels violating neutrality and for enforcing the criminal provisions of the act. It has been held that the law applies not only to acts in behalf of belligerents but also to acts. in behalf of insurgents, though not to acts in behalf of recognized governments operating against insurgents.24

116. Offenses against Foreign Governments.

An act of May 16, 1884, provided punishment for forging or counterfeiting foreign securities and the act was held to be within the power of Congress to punish offenses against the law of nations, though it contained no specific statement that the offense was of that character.25 The counterfeiting of foreign coins has been made punishable by various acts since 1877.26

24 The Three Friends, 166 U. S. 1 (1897); U. S. v. Trumbull, 48 Fed. 99 (1891); Ex parte Toscano, 208 Fed. 938 (1913).

25 Criminal Code of 1910, secs. 156-162; U. S. v. Arjona, 120 U. S. 479. 26 Ibid., secs. 162–173.

By the act of August 11, 1848, superseded by the act of June 22, 1860, the American Minister, in countries permitting extraterritorial jurisdiction by treaty, is authorized to try resident American citizens for felonies or insurrection against the government of such states.27 An act of April 22, 1898, amended on March 14, 1912, provided for the embargo of arms and munitions to American countries proclaimed by the President to be in a "condition of domestic violence" and for criminal punishment of persons violating such embargo.28 As has been noticed the neutrality laws have been utilized to prevent the giving of aid to insurgents against friendly governments.2

29

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By the espionage act of June 15, 1917, conspiracy to destroy specific property in foreign territory is made punishable, as is having in possession property for use in aid of foreign governments as a means of violating any of the . . . obligations of the United States under any treaty or the law of nations." 80

117. Offenses Relating to International Boundaries.

There appears to be a special responsibility to prevent acts near a frontier likely to injure the adjacent state, such as interference with running water, bounding or flowing into it, or the toleration of marauders, conspirators, or insurgents with designs on adjacent territory. By an act of 1902 Congress recommended an international commission to consider the use of Canadian boundary waters and by act of 1906, provided that such waters should only be diverted on permits issued by the Secretary of War and that persons violating this provision should be subject to criminal punishment.32 By a treaty with Great Britain of 1909 (Art. VII), similar requirements are made and their supervision put in charge of an international joint commission. A convention of 1889 with Mexico sev

27 Rev. Stat., secs. 4090, 4102; Comp. Stat. 7040, 7647; Moore, Digest, 1: 613-616.

28 30 Stat. 739; 37 Stat. 630; Comp. Stat. 7677-7678.

29 Supra, note 24.

30 40 Stat. 226, sec. 5; 230, sec. 22.

81 Moore, Digest, 2: 481.

32 32 Stat. 373; 34 Stat. 627; Comp. Stat., secs. 9984, 9989, a-c.

eral times renewed, provided a commission for adjusting Rio Grande boundary difficulties and a convention of 1906 provided for the distribution of Rio Grande water for irrigation purposes.33

34

Several protocols have been made for the suppression of marauders on the Mexican border and legislation providing for the embargo of arms to American countries in a condition of domestic violence was passed with particular reference to Mexico. Doubtless under treaties and general laws, as well as the special acts referred to, the President has adequate power to meet responsibilities connected with international boundaries.

118. Offenses against Treaties.

A number of acts have been passed for preventing the violation of treaties by private individuals. An act of 1847 provided for the punishment of aliens committing piracy as defined by treaty.35 Various acts passed since 1808 for the punishment of slave traders seem to give adequate authority to prevent violation of the international Slave Trade Convention. Acts passed in 1828, 1842 and 1862 and on other occasions were designed to enforce particular conventions for suppressing the slave trade and trade in liquor and arms with natives.30

37

An act of August 12, 1848, amended on June 22, 1860, and June 6, 1900, provides for the extradition of persons as required by treaties. An act of March 2, 1829, amended in 1855, provided for the return of deserting seamen as required by treaty on application of foreign consuls.38 This act, however, terminated upon denunciation of the treaties as required by the La Follette Seaman's Act of March 4, 1915.39 An act of April 14, 1792, superseded by acts of August 8, 1846, and June 11, 1864, gives United States district Courts and United States commissioners power to enforce the awards,

33 Moore, Digest, 2: 434-445.

84 Supra, note 28, and Malloy, Treaties, etc., p. 1144 et seq.

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Stat. 175; Rev. Stat. 5374; Criminal Code of 1910, sec. 305.

4

Stat. 276; 5 Stat. 623; Crandall, op. cit., p. 239.

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Stat. 302; 12 Stat. 83; Rev. Stat., secs. 5270-5279; 31 Stat. 656.

38 4 Stat. 359; 10 Stat. 614; Rev. Stat., sec. 280; Crandall, op. cit., p. 233. 39 38 Stat. 1184, sec. 17; Comp. Stat., sec. 8382b; 10129.

arbitrations or decrees of foreign consuls exercising jurisdiction in the United States as authorized by treaties.40

Among other acts of Congress imposing criminal penalties for infraction of treaties by individuals may be mentioned an act of February 22, 1888, for enforcing the International Cable Convention of 1885; an act of January 5, 1905, amended in 1910 in pursuance of the Red Cross Conventions of 1864 (Arts. 27-28) and 1906, and the X Hague Convention of 1907 (Art. 29) applying them to naval warfare, providing punishment for use of the Red Cross symbol in advertising or in other unauthorized manner; an act of August 1, 1912, providing punishment for masters of vessels failing to give reasonable assistance in case of maritime accident as required by the general convention on salvage of 1910; an act of August 24, 1912, providing punishment for persons taking seal in the North Pacific in violation of the Behring Sea sealing convention of 1911; an act of August 13, 1912, for enforcing the international radio convention of that year by providing punishment for persons using radio without license and for operators wilfully interfering with radio communication or otherwise violating the convention, and an act of July 3, 1918, providing for enforcement of the migratory bird treaty with Great Britain of that year."1

In view of the abundance of congressional legislation giving effect to treaties and the apparently plain terms of the "necessary and proper" clause of the Constitution there would seem no room for questioning the power of Congress to pass such legislation. The power has, however, been questioned when treaties have called for legislation on subjects not otherwise within congressional power. The Supreme Court has answered with no uncertain voice. Said Justice Harlan in 1900:42

"The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in Section 8 of Article

40 13 Stat. 12; Rev. Stat., sec. 728; Jud. Code of 1911, 36 Stat. 1163, sec. 27; Comp. Stat., sec. 1248; Crandall, op. cit., p. 234.

41 40 Stat., c. 128; Comp. Stat., sec. 8837 a-c. Congress has not sufficiently legislated for the enforcement of all existing treaties, for example see infra, note 67.

42 Neeley v. Henkel, 180 U. S. 109.

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