difficulty in awarding sentence and finally concluded "the defendant cannot be imprisoned until his most Christian Majesty 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."

A few offenses against international law and treaty are still untouched by national laws, and the states must be relied on.

6 Judicial Code of 1911, sec. 256, pars. 1-4, 8.

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

Thus

8 Holmes v. Jennison, 14 Pet. 540, 579 (1840); U. S. v. Rauscher, 119

U. S. 407, 414; Moore, Digest, 4: 240 et seq.

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

Secretary Bayard, after noting that national law did not punish treason and sedition against foreign sovereigns," said: 10

66

"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 III. 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 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. 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." 15

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.1 The act was amended in 1819 so as to punish all persons guilty of "piracy as defined by the law of na13 Journ. Cong., 5: 161, 232; 7: 181, Ford ed., 14: 635, 914; 21: 1137. 14 I 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.

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 punishment of any one recruiting for foreign belligerents in American 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. I, 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. 1-10, 40 Stat. 221-223; Comp. Stat., secs. 10, 182.

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

By the act of August 11, 1848, superseded by the act of June 22, 1860, the American Minister, in countries permitting extraterritorial

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.