On August 4, 1793, Hamilton issued instructions to customs officials for the enforcement of neutrality and in the World War instructions for the supervision and censorship of radio stations, the detention of vessels suspected of carrying arms to belligerent warships and of submarines intended for sale to belligerents were based on independent executive authority.84 Subsequent statutes have authorized most of these instructions.85 In the case of Ex parte Toscanos the Federal District Court held that insurgent Mexican troops entering the territory and interned according to provisions of the Vth Hague Convention, under executive authority, were entitled to no relief under constitutional guarantees. "Due process of law" had been given them through executive compliance with the treaty, which was itself "supreme law of the land." It appears that the President has considerable independent power to authorize military and administrative action when necessary to enforce treaties or statutes, but in view of the wide powers expressly conferred upon him by acts of Congress it is now seldom necessary for him to go outside of such express delegations.

D. Enforcement by the Courts.

128. Early Assumptions of Common Law Criminal Jurisdiction by Federal Courts.

In his first neutrality proclamation of April 22, 1793, President Washington stated that he had:87

"given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall within the cognizance of the courts of the United States violate the law of nations with respect to the powers at war or any of them."

On the basis of this proclamation prosecution was brought against Gideon Henfield for aiding in fitting out and serving on a vessel

84 Am. State Pap., For. Rel. 1: 140; Moore, Digest, 7: 891; Richardson, Messages, 10: 86; Naval War College, International Law Topics, 1916, pp. 110, 115; Am. Jl. Int. Law, 9: 177; Wright, The Enforcement of International Law, p. 122.

85 Supra, sec. 115.

86 Ex parte Toscano, 208 Fed. 938 (1913).

87 11 Stat. 753; Richardson, Messages, 1: 157.

for the use of France then at war with Great Britain. The United States circuit court of Pennsylvania, composed of Justices Wilson, Iredell and Peters, asked the Grand Jury to return an indictment against him for an offense against the law of nations. Although the Grand Jury refused to indict, the opinion of the court was clear that federal courts had jurisdiction to punish such offenses even though no express statute defined the offense or conferred the jurisdiction. Justice Jay expressed a similar opinion in another charge to the Grand Jury and Attorney General Randolph asserted it in an official opinion.88

Jurisdiction of crimes defined only by international law was also asserted in the case of United States v. Ravara (1793) in which the Genoese consul was indicted for sending threatening letters to the British minister.89 This act was considered in violation of the diplomatic protection guaranteed to foreign ministers and hence a breach of the law of nations. Although the accused was found guilty, he was ultimately released on giving up his exequatur. In this case, however, international law was appealed to merely for a definition of the crime, since the circuit court had been given jurisdiction of cases against Consuls by act of Congress.00

129. Federal Courts Have No Common Law Jurisdiction.

Soon after, however, in United States v. Worrall (1798), the criminal jurisdiction of the federal courts was said to rest on statute alone and this opinion was repeated in the Supreme Court in Ex parte Bollman (1807) and United States v. Hudson (1812).91 Four years later the question was raised in a slightly different form in United States v. Coolidge (1816). In the circuit court Justice Story had sustained an indictment for the forcible rescue by two

88 In re Henfield, Fed. Cas. No. 6360, and ibid., p. 1116; Am. State Pap., For. Rel., 1: 151.

89 U. S. v. Ravara, 2 Dall. 297; Fed. Cas. No. 6122; Moore, Digest, 5: 65. 90 Infra, note 93.

91 U. S. v. Worrall, 2 Dall. 384; Ex parte Bollman, 4 Cranch 75; U. S. v. Hudson, 7 Cranch 32; Willoughby, op. cit., p. 1031; J. B. Moore, Four Phases of American Diplomacy, 1912, p. 64; Wharton, Criminal Law, I, sec. 254.

American privateers of a prize on its way to Salem under a prize master, although no such crime was specifically defined by statute. Reasoning from the 11th section of the judiciary act which gave federal circuit courts "exclusive cognizance of crimes cognizable under authority of the United States," he said:

"The jurisdiction is not as has sometimes been supposed in argument over all crimes and offenses especially created and defined by statute. It is of all crimes and offenses 'cognizable under the authority of the United States,' that is, of all crimes and offenses to which, by the Constitution of the United States, the judicial power extends. The jurisdiction could not, therefore, have been given in more broad and comprehensive terms.” Story's opinion, however, was not supported by his brother justice on circuit and on certification to the supreme court he was overruled.92 However, though federal courts cannot assume jurisdiction either under common law or under such broad grants as that here in question or it may be added under treaty, they may exercise criminal jurisdiction over offenses not specified by statute where jurisdiction has been expressly given them by act of Congress. Thus they may have jurisdiction because of the nature of the parties, in which case federal courts apply the criminal law of the state in which they sit.93

130. Federal Courts Have No Criminal Jurisdiction from Treaties Alone.

The federal courts have refused to exercise jurisdiction over crimes defined by treaty until Congress has acted. They have followed the same opinion with reference to extradition. In the case of the British Prisoners, although asserting that where extradi

94

92 U. S. v. Coolidge, Fed. Cas. 14857, and ibid., 1 Wheat. 415 (1816). Rawle supports Story's opinion with elaborate argument in A View of the Constitution, 1825, pp. 250-265.

93 U. S. v. Ravara, 2 Dall. 297, Fed. Cas. No. 6122; Moore, 5: 65; Tenn. v. Davis, 100 U. S. 257; Duponceau, op. cit., p. 34; Willoughby, op. cit., p. 1020. In the case of an indictment against the Russian consul Kosloff in 1815 the Pennsylvania court refused jurisdiction (Comm. v. Kosloff, 5 Serg. and Rawle 545), and no action was begun in the federal courts, although by statute they then had exclusive jurisdiction in cases against consuls. Duponceau, op. cit., p. 36; Moore, Digest 5: 66.

94 The British Prisoners, I Wood, and M. 66.

tion is required by "the supreme law of a treaty, the executive need not wait . . . for acts of Congress to direct such duties to be done and how," Justice Woodbury said for the circuit court:

"If a treaty stipulated for some act to be done, entirely judicial . . . it could hardly be done without the aid or preliminary direction of some act of Congress prescribing the court to do it and the form."

At present the law is clear. The jurisdiction of federal courts, with exception of the original jurisdiction of the Supreme Court defined by the Constitution itself, is confined to that which Congress has expressly conferred and the only offenses cognizable are those defined by acts of Congress, or, in case jurisdiction exists because of the nature of the parties, those defined by the law of the state in which the court is sitting. It may be noted that extraterritorial courts, authorized by treaty and established by act of Congress, have been given jurisdiction over offenses committed by American citizens within the country wherein the court exercises authority, if the offense is one defined by act of Congress or by common law as supplemented by regulations issued by the American minister in that country.95

131. Statutory Criminal Jurisdiction of Federal Courts.

However, as has been noted, a considerable number of offenses against international law have been defined by Congress and the federal courts have been given cognizance of them. The statutes relating to the protection of diplomatic officers, to piracies and offenses on the high seas, to offenses against foreign governments or territory and to most offenses against treaties are always operative. Those punishing offenses against neutrality, however, are operative only during the existence of foreign hostilities, the recognition of which belongs to the President. The President has usually issued a formal neutrality proclamation calling attention to the neutrality laws, but the courts have held that the neutrality laws may

95 Rev. Stat., sec. 4086; Moore, Digest, 2: 631.

96 Printed in Richardson, Messages, see index, "Neutrality," and Wright, Enforcement of Int. Law, p. 115. For those of World War see Naval War College, Int. Law Doc., 1916, p. 82,

be applied against insurgents who have in fact been recognized as such by the political departments of the government even if no such formal proclamation has issued: "7

97

"The distinction," said the Supreme Court, "between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred."

132. Admiralty Jurisdiction of Federal Courts.

Although criminal jurisdiction must be given very specifically, by act of Congress, this is not true of admiralty jurisdiction. In order to enforce neutrality the courts have assumed jurisdiction to restore prizes in cases not covered by statute, and even before passage of the first neutrality act,98 under the general grant of admiralty jurisdiction.

"In the absence of every act of Congress in relation to this matter, the court would feel no difficulty in pronouncing the conduct here complained of an abuse of the neutrality of the United States, and although in such cases the offender could not be punished, the former owner would, nevertheless, be entitled to restitution."

So said the Supreme Court in 1819.99 Almost one hundred years later the same view was expressed by the Supreme Court in the case of the Appam: 100

"The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people."

The federal courts also assume jurisdiction to enforce the general maritime law through admiralty actions in rem, even when no

97 The Three Friends, 166 U. S. (1897).

98 Glass v. The Betsey, 3 Dall. 6; Talbot v. Jensen, 3 Dall. 133.

99 The Estrella, 4 Wheat. 298, 311.

100 The Appam, 243 U. S. 124, 156 (1916).