neutrality, war and insurgency.60 Under the terms of Article VI of the Constitution treaties are the supreme law of the land and after proclamation are applicable by all courts, state and federal. 107. This Principle not Applicable to Political Questions.

61

63

The principle, however, that courts apply international law and treaty in appropriate cases is subject to certain modifications. Thus if the controversy involves "a political question" the courts hold that they must follow the decision of the political organs, irrespective of international law and treaty. But no definite line has ever been drawn between principles of international law and treaty provisions which are of a political character and those which are of a legal character. In such matters as the annexation or cession of territory,2 the recognition of insurgency, belligerency, new governments,65 new states, the termination of treaties,67 and of war, the courts ordinarily follow the decisions of the political organs. Sometimes, however, no definite decision has been given by those organs. In such cases, the courts, holding that they "have no more right to decline the jurisdiction which is given than to usurp that which is not given," " have investigated facts and 60 The Santissima Trinidad, 7 Wheat. 283; The Three Friends, 166 U. S. 1; The Appam, 37 Sup. Ct. 337.

64

68

66

61 Crandall, op. cit., 364–370; Willoughby, op. cit., 999-1011; Moore, Digest, I: 245, 744.

62 Jones v. U. S., 137 U. S. 202, 212-213, 1890; Williams v. Suffolk Insurance Co., 13 Pet. 415; Foster v. Neilson, 2 Pet. 253; In re Cooper, 138 U. S. 404; U. S. v. Reynes, 9 How. 127.

63 The Three Friends, 116 U. S. 1, 63, 1897; Kennett v. Chambers, 14 How. 38.

64 U. S. v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; The Santissima Trinidad, 7 Wheat. 283; The Prize Cases, 2 Black 735.

65 The Sapphire, 11 Wall. 164, 1870, Oetjen v. Central Leather Co., 246 U. S. 297, 1917, Ricaud v. American Metal Co., 246 U. S. 304, 1917. The recognition of a particular person as diplomatic representative of a foreign government is also a political question, Ex parte Baiz, 135 U. S. 403.

66 The Nereide, 9 Cranch 388, 1815; Cherokee Nation v. Georgia, 5 Pet. I; Neeley v. Henkel, 180 U. S. 109, 1901.

67 Doe v. Braden, 16 How. 635; Terlinden v. Ames, 184 U. S. 270; Willoughby, op. cit., 1007, infra, sec. 182.

68 The Protector, 12 Wall. 700, 1871.

69 In re Cooper, 143 U. S. 472, 502-505, 1892; Moore, Digest, 1: 744, infra,

sec. 247.

international law giving a decision thereon, always attempting, but sometimes without complete success, to avoid decision on questions of policy. Thus the Supreme Court decided upon the status of Pine Island near Cuba and upon the status of Cuban insurgents in 1896 on the basis of international law, generally known facts and various rather indefinite statements in executive proclamations and correspondence.70 Very often international law is utilized by the courts to buttress opinions founded primarily on decisions by the political organs of government. Thus the Supreme Court not only held that the United States had taken possession of the island of Navassa by executive proclamation under an act of Congress but that under international law it was entitled to do so on the principle of discovery and occupation." Where international questions, even if of political significance, are susceptible of exact determination by application of international law the courts do not hesitate to settle them. Prize cases are of this kind, so also are cases involving the immunities of sovereigns, diplomatic officers and public vessels.72

It seems that far from encroaching upon powers of the political departments of government the courts have if anything been overcautious. It would seem that a decision founded squarely upon international law might well have been given in the first Behring Sea cases, and had such been done the United States might have avoided the expense of a protracted litigation and arbitration where from the first there was no reasonable legal defense. An act of 186873 had forbidden the killing of "otter, mink, marten, or furseal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof." The Treasury Department in enforcing this provision acted upon a claim asserted by Russia in 1821 to 70 Pearcy v. Stranahan, 205 U. S. 257 (1907); The Three Friends, 116 U. S. 1.

71 Jones v. U. S., 137 U. S. 202, 212. The British court of Queens Bench (Mighell v. Sultan of Jhore, 1894, I Q. B. 149, 158), however, thought the opinion of the appropriate political department incapable of examination and questioned the course pursued by Sir Robert Phillimore in the Charkieh (L. R. 4 A. and E., 59, 1873), in examining the history of Egypt since A. D. 638 to determine its status. See A. D. McNair, Judicial Recognition of States and Governments, British Year Book of International Law, 2: 57, 66.

72 Supra, sec. 106.

73 Act June 17, 1868, Rev. Stat., sec. 1856.

75

a jurisdiction beyond the three-mile limit in Behring Sea," but when the question of definition came before Congress a bill definitely approving the extended jurisdiction was not passed, the act of 1889 merely asserting that the earlier statute should "include and apply to all the dominions of the United States in the waters of Behring Sea," thus leaving open the question of the extent of these waters. The district court in Alaska, however, affirmed by the Supreme Court, held that the political departments had decided for the wider jurisdiction and that Canadian vessels captured while seal fishing sixty miles from shore were liable. It would seem that under the circumstances, the courts might well have held the statutes to imply an invitation for judicial decision based on international law. After the arbitration of 1893 had declared unequivocally for the three-mile limit, the Circuit Court of Appeals held that the act of 1889 must be interpreted accordingly."

108. This Principle not Applicable to Cases Covered by Written Law.

Apart from political questions courts are bound by plain terms of the Constitution, by treaties, by acts of Congress, and by executive orders under authority thereof, in spite of principles of international law and earlier treaties. They, however, attempt to interpret such documents in accord with international law, frequently with success, and they refuse to apply state constitutions and statutes in conflict with treaty.79

78

In general the courts do apply international law and treaty, and because of the opportunity for a careful consideration of the sources and reason of that law which their deliberate methods afford, they assure the application of international law in cases not covered by 74 Moore, Int. Arb., p. 769.

p. 765.

75 Act March 2, 1889, 25 Stat. 1099; Moore, Int. Arb., 76 U. S. v. La Ninfa, 49 Fed. 575, 1891; In re Cooper, 143 U. S. 472, 502-505.

77 U. S. v. La Ninfa, 75 Fed. 513. As a result of the arbitration the United States paid Great Britain $473,151.26 as indemnity for the seizures. See Moore, Digest, 1: 890-929, and Int. Arb., pp. 765-960.

78 Murray v. The Charming Betsey, 2 Cranch 64, and see Wright, Conflicts of International Law with National Laws and Ordinances, Am. Jl. Int. Law, 11: 1 et seq. (Jan., 1917).

79 Ware v. Hylton, 3 Dall. 199, and supra, note 3.

written law. Through their powers of nullifying state laws in conflict with treaty and of interpreting acts of Congress and of the President, they minimize the probability of disregard by other organs of the government.

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, "can

not justify itself for a failure in due diligence on pleas of insufficiency of the legal means of action which it possesses." 1

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."

3

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 “due diligence" has continued in usage.*

110. Enforcement by the States.

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 1 Malloy, Treaties, p. 719.

2 Ibid., p. 718; Moore, Int. Arb., p 4082.

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

4 Borchard, op. cit., p. 278.

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