used, but the validity of such legislation, except as applied to the militia, has been questioned. 30

104. Observance of International Law by Military and Civil Services.

Usually, however, the President is obliged to act through services which are subject to control by acts of Congress and judicial processes. Congress has provided for the organization of the diplomatic, consular, naval, military and administrative services but has not generally attempted to regulate their conduct in detail. A few statutory regulations are designed to assure observance of international law by public officers of which may be mentioned that forbidding ministers to give information relating to the affairs of the foreign state to which they are accredited except to the Department of State, that forbidding administrative officers from serving process on resident diplomatic officers and others entitled to immunity under international law,32 that forbidding the injury or destruction of prizes or maltreatment of those on board by naval forces, and that requiring the restoration of recaptured prizes originally the property of neutral individuals on the principle of reciprocity.34

33

31

These services are regulated in detail by executive regulations and instructions, which, though issued by and subject to alteration by the President, in fact furnish a fairly permanent law for their guidance. These regulations have usually enjoined a strict observance of international law and treaty. The "Diplomatic Instructions," "Consular Regulations," "Rules of Naval Warfare” and "Rules of Land Warfare," each a volume officially issued from time to time, are largely codifications of international law and treaty provisions.35 The permanent army regulations forbid armed forces

12.

30 Infra, sec. 125.

31 Act Aug. 18, 1850, Rev. Stat., sec. 1751.

32 Rev. Stat., sec. 4063, Comp. Stat., sec. 7611.

33 Articles for Government of the Navy, Rev. Stat., sec. 1624, Arts. 6, II, See also Rev. Stat., sec. 4617, Comp. Stat., sec. 8397, and Wright, Enforcement of International Law through Municipal Law, pp. 183 et seq. 34 Rev. Stat., sec. 4652, Comp. Stat., sec. 8426.

35 See Wright, op. cit., p. 68.

passing into foreign territory without license, and army officers. are required to observe proper formalities in dealing with the representatives of foreign governments.36 The permanent navy regulations require naval commanders "scrupulously to respect the territorial authority of foreign civilized nations in amity with the United States," to observe local regulations on entering foreign jurisdiction, to exchange the proper salutes when meeting foreign public vessels, to refuse asylum to criminals, slaves and political refugees while in foreign ports, to observe strict neutrality in wars to which the United States is not a party, and "when the United States is at war, the Commander-in-Chief shall require all under his command to observe the rules of humane warfare and the principles of international law." 37 Treasury regulations have required customs officials to respect the immunities of diplomatic officers.38

The diplomatic and consular regulations are enforced by the President's disciplinary control and power of removal and by statutory provisions for bonding and criminal liability enforced by the courts.39 Military and naval regulations and instructions are enforced by courts martial whose jurisdiction, however, is largely confined to the statutory articles of war, and by military commissions.40. The federal courts, in exercising prize jurisdiction, exercise a considerable control over the navy in time of war. They not only return captured vessels and cargoes not liable to condemnation under international law," but decree damages against naval officers for illegal captures.42 They exercise a similar jurisdiction over captured vessels in time of peace, and may thus prevent illegal 36 Army Regulations, 1913, secs. 398, 407, 889, ch. 3; Digest of Opinions of Judge Ad. Gen., 1912, Howland ed., pp. 90, 106.

Naval com

See note at

37 Navy Regulations, 1913, secs. 1502, 1633-35, 1645-47. manders are allowed some discretion under these regulations. head of Chap. 15, Navy Reg., 1913, p. 159, r. For case in which Navy regulations were enforced against a commander see Moore, Digest, 1: 240241. See Wright, op. cit., 68, 126, 177, 213.

38 Moore, Digest, 4: 676.

30 Wright, op. cit., p. 69.

40 Navy, see Rev. Stat., sec. 1624, Arts. 22, 24, 26, 38, and Wright, op. cit.

41 The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677.

42 Little v. Barreme, 2 Cranch 170.

PROC. AMER. PHIL. SOC., VOL. LX., R, MARCH 9, 1922.

seizures upon the high seas or in foreign territorial waters by vessels of the navy or revenue cutter service." In such cases, however,

the courts sometimes refuse relief on the ground that the question is political." Although the courts exercise less control of the army than of the navy in time of war, yet they may give relief in case military action violates property rights protected by international law. Thus in Mitchell v. Harmony15 the court applied international law to determine the right of military officers to confiscate enemy property in the occupied territory of Mexico and in Brown v. the United States the court refused to confiscate enemy property in American territory holding that international law regarded such confiscation with disfavor and the court could not permit it unless authorized by an express act of Congress. In other cases the courts have held that the President's power in conducting war is limited by international law and any action he may authorize contrary to that law is void. Congress alone can authorize military methods conflicting with international law and as we have seen the courts will not presume such a conflict.47

43 La Jeune Eugenie, 2 Mason 409, 1822; Rose v. Himeley, 4 Cranch 241; Hudson v. Guestier, 6 Cranch 281, 1810; The Marianna Flora, 11 Wheat. I, 1826; The Antelope, 10 Wheat. 66, 122, 1825; La Ninfa, 75 Fed. 513, 1896. 44 Ship Richmond v. U. S., 9 Cranch 102, 104, 1815; Davisson v. Sealskins, 2 Paine 324; Moore, Digest, 2: 364-365, and supra, sec. 107.

45 Mitchell v. Harmony, 13 How. 115.

46 Brown v. U. S., 8 Cranch 110. See also McVeigh v. U. S., 11 Wall. 259, 1870, in which the court relaxed the rule which permits an alien enemy no status in court and permitted him to defend, and Wright, Am. Jl. Int. Law, II: 19.

47 Mitchell v. Harmony, 13 How. 115; Miller v. U. S., 11 Wall. 268; Fleming v. Page, 9 How. 603; Willoughby, op. cit., p. 1196, says: "With respect to the persons and property of the enemy, however, he (the military commander) is subject only to the limitations which the laws of war, as determined by international usage, supply, and for violations of these he is responsible only to the military tribunals." But on page 1212 he says: "Indeed, the President, in the exercise simply of his authority as commanderin-chief of the army and navy, may, unless prohibited by congressional statute, commit or authorize acts not warranted by commonly received principles of international law." Sutherland, however (op. cit., p. 77), says: “The usages and laws of war alone, and not the Constitution of the United States, fix the limits" of the President's authority in conducting military operations. See also British case of the Zamora, L. R. 1916, 2 A. C. 77, holding an order in council contrary to international law void; Wright, Am. Jl. Int. Law, 11: 2, and supra, sec. 47.

105. Observance of International Law by the Courts.

48

Judicial action may give grounds for international complaint in case justice is denied to aliens by the courts in civil or criminal trials and in case international law or treaty are not applied in cases affecting aliens or foreign governments." The guarantees of "due process of law" to all persons in the United States by the Vth and XIVth amendments are applicable respectively against the national and state governments, and in both federal and state courts. Together with other more specific constitutional guarantees relating especially to criminal trials, they seem to assure aliens a procedure and an absence of unreasonable discrimination in the law applied, sufficient to prevent a "denial of justice" as understood in international law.

However, the alien may feel greater confidence in federal than in state courts because of the decreased chance of local prejudice. Under present statutes he is entitled to bring action against citizens in civil cases in the federal district court if over $3,000 is in controversy or if "for tort, only in violation of the laws of nations or of a treaty of the United States." 49 Ambassadors and consuls of foreign governments are entitled to bring suits originally in the Supreme Court, though they may also sue in the state courts. They may be sued, however, only in the federal courts, and diplomatic officers only in the Supreme Court and then only so far as the law of nations permits.50

Any alien not resident in the state may have an action brought against him in a state court, removed to a federal district court if it is of a type which might have originated in that court. If "from prejudice or local influence he will not be able to obtain justice" in the state court, he may have any suit removed.51 Any alien may also have the case removed:

"In any civil suit or criminal prosecution commenced in any State court for any cause whatsoever," if he "is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit

48 Borchard, op. cit., p. 335.

49 Judicial code of 1911, sec. 24, pars. I, 17, 36 Stat. 1091, 1093.

50 Ibid., sec. 24, par. 18, sec. 233; sec. 256, par. E.

51 Ibid., sec. 28.

or prosecution is pending, any right secured to him by any law providing for the equal civil rights. . . of all persons within the jurisdiction of the United States." 52

Finally, any person who can show a federal court under habeas corpus that he is entitled to immunity under international law or treaty may be released from the state court."

53

106. Courts Apply International Law and Treaties as Part of the Law of the Land.

The courts regard international law as part of the law of the land and apply it in suitable cases.

"International law," said Justice Gray, "is a part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such words are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." 54

57

This principle has been applied in admiralty and prize cases; 55 in cases involving the immunities of sovereigns, diplomatic officers, public vessels, military persons, consuls, etc.; 56 in cases involving the limits of jurisdiction, especially in boundary rivers, bays, etc.; in cases involving the status of aliens and especially alien enemies; 58 in cases involving the rights of persons in newly acquired territory; 59 and in cases involving the privileges and responsibilities of 52 Ibid., sec. 31.

53 Supra, note I.

54 The Paquette Habana, 175 U. S. 677. See also Willoughby, op cit., 1014-1018.

55 Ibid., and also The Nereide, 9 Cranch 388.

56 The Exchange v. McFaddon, 7 Cranch 116; Underhill v. Hernandez, 168 U. S. 250.

57 The Appollon, 9 Wheat. 362.

58 McVeigh v. U. S., 11 Wall. 259, 1870; Watts v. Unione Austriaca de Navigazione, 248 U. S. (1918).

59 U. S. v. Percheman, 7 Pet. 51, 51; Villas v. City of Manila, 220 U. S. 345, 1911.