statute specifically governs the case. Thus in the case of the Belgenland, the Supreme Court sustained the jurisdiction upon the libel of a Belgian steamer for running into and sinking a Norwegian barque in mid ocean.101

"Although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations, special grounds should appear to induce the courts to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be, whether it is expedient to exercise it."

Although federal courts, under the general grant of admiralty jurisdiction, may take cognizance of all cases against vessels alleged to have violated international law, and decree confiscation, restoration, salvage, or damages, this does not extend to criminal jurisdiction against persons.102 As with offenses committed on land, so offenses at sea are only cognizable when specifically defined by statute. The court has held, however, that the phrase "piracy as defined by the law of nations," is sufficiently explicit to give jurisdiction over this offense.1 103

133. Civil Jurisdiction of Federal Courts in Cases Affecting Aliens.

Due diligence in the enforcement of international law requires that justice be assured to aliens in their claims against private individuals arising within the jurisdiction whether resting on contract or tort. This does not mean that aliens are exempt from the law of the land with reference to such claims. It does mean, however, that (1) the law shall not be unreasonably discriminatory against them, (2) that courts exist and proceed in a manner to give them reasonable assurance of an impartial application of the law, and (3) that they are accorded opportunity to invoke the aid of the courts in settlement of their controversies.104 The constitutional guarantees

101 The Belgenland, 114 U. S. 355. 102 The Estrella, 4 Wheat. 298, 311.

103 U. S. v. Smith, 5 Wheat. 153 (1820).

104 Borchard, op. cit., pp. 330, 335; Moore, Digest, 6: 267, 280.

of due process of law to all "persons" within the jurisdiction, aliens as well as citizens, as judicially interpreted and enforced against both state legislatures and Congress, seem to insure against unreasonably discriminatory laws. 105 These guarantees as well as the constitutional provisions designed to assure the independence of the courts, such as those giving security of tenure and compensation, together with the respectable traditions of common law judicial procedure, tend also to give confidence in a fair procedure.106

By permitting aliens to bring their suits against individuals before such courts, the United States will generally be exerting due diligence and no international claim can be made, whatever the decision of the court, unless the subject matter is controlled by international law. The state courts usually have common law jurisdiction and are open to both aliens and foreign states in all cases not made exclusive in federal courts,107 but under constitutional and statutory provisions, the federal courts are also available in most cases.

"The judicial power (of the United States) shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases of ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;-to controversies . . . between a state or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."108

Except for the original jurisdiction of the Supreme Court the federal courts may only exercise this judicial power as expressly given by act of Congress.109 Under present statutes ambassadors, public ministers and consuls may bring any suit originally in the Supreme Court though they may also sue in the state courts.110 Foreign states and

105 U. S. Const. Am. V, XIV.

106 Ibid., Art. III, sec. 1.

107 Mexico v. Arrangoiz, 11 How. Prac. 1 (N. Y., 1855); Scott, Cases on Int. Law, p. 170.

108 U. S. Const., Art. III, sec. 2.

109 Ex parte McCardle, 7 Wall. 506; Willoughby, op. cit., p. 976.

110 Judicial Code of 1911, sec. 233, 36 Stat. 1156.

112

aliens may bring suits against a citizen in the federal district court if over $3,000 is in controversy or if "for a tort only, in violation of the law of nations or of a treaty of the United States." They may also bring suits against citizens under many special types of law, whatever the matter in controversy, such as suits within the admiralty and maritime jurisdiction, suits under the copyright, patent, trademark, commercial, bankruptcy, immigration laws, etc.112 Also all suits in which a deprivation of constitutional right is claimed.113 Even if they begin action in a state court, appeal lies from the highest state court to the Supreme Court of the United States if a right under the Constitution, an act of Congress, a treaty or any authority under the United States is claimed.114 The courts are not ordinarily open to civil suits by one alien against another,1 though in admiralty actions in rem arising under the general maritime law on the high seas, where the two aliens are of different nationality, such cases will usually be heard.118 Cases against aliens may in many cases be removed to federal courts by the defendant if they are not brought there originally.117

134. Conclusion.

115

The enforcing of international law and treaty in the territory of the United States requires executive and judicial action. The President must utilize the military and administrative forces to preserve order and prevent violations of international law and treaty. The criminal courts must punish offenders against international law and treaty, and the civil courts must be prepared to afford relief to aliens with just claims against individuals. Under the American constitutional system the President has power to direct existing military and civil administrations, to enforce the laws and treaties and pre

111 Ibid., sec. 24, pars. I, 17.

112 Ibid, sec. 24, pars. 3, 7, 8, 19, 22.

118 Ibid., sec. 24, pars. 12-14.

114 Ibid., sec. 237, as amended Dec. 23, 1914, 38 Stat. 790, and Sept. 6, 1916, 39 Stat. 726.

115 Montalet v. Murray, 4 Cranch 46. 116 The Belgenland, 114 U. S. 355. 117 Ibid., secs. 28, 31; supra, sec. 105.

vent obstructions of national services. However, the tendency has been to confine this action to circumstances in which it is authorized by specific legislation.

The state courts are bound to apply treaties and are open to civil suits by aliens but federal courts are dependent on statute for jurisdiction. The broad grants of jurisdiction in admiralty matters, suits involving treaties, and the civil rights of aliens, give the federal courts an opportunity to afford relief in civil matters, but for enforcing criminal penalties for violations of international law or treaty, they must be endowed with specific power. Congress must legislate or the United States may find itself without the means necessary for exercising due diligence in enforcing international law and treaties within its territory.

CHAPTER XIII.

THE POWER TO MEET INTERNATIONAL RESPONSIBILITIES THROUGH

PERFORMANCE OF NATIONAL OBLIGATIONS.

135. Nature of this Responsibility.

The responsibility of the nation for the non-fulfillment of its obligations requires, not only that each organ of the government employ its powers to the fullest extent to perform all acts, which are specifically required by treaty, agreement, contract, or the operation of international law, but also that organs exist with powers sufficient to assure a full performance. For acts of government organs, the responsibility of the nation is met if all organs confine their exercises of power within the limits of international law and treaty. For acts or omissions of individuals, the responsibility of the nation is met if all organs employ "due diligence" to enforce order and the observance of international law and treaty by persons within their jurisdiction. The present responsibility can be met only if organs exist competent and willing to execute specific obligations.

136. Performance of Obligations by the States.

The states cannot perform national obligations. They cannot themselves contract treaty or political obligations with foreign nations. They may enter into contract with foreign individuals, or nations, as by sale of bonds or other securities,' but a failure to pay these would not involve a national responsibility so long as the foreign bondholder has as favorable an opportunity to collect as the domestic.2 Some of the states have established courts of claims in which they may be sued, though the general principle of the non-suability of sovereigns applies to them. While under the XIth amendment states cannot be sued by foreign individuals in the fed

1 Infra, sec. 157.

2 Supra, sec. 89, pars. 2, 3.

3

• Willoughby, op. cit., p. 1105; Wright, Enforcement of Int. Law, p. 103.