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ruled.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 extradition 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,

92 U. S. v. Coolidge, Fed. Cas. 14857, and ibid., 1 Wheat. 415 (1816). 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, 1 Wood, and M. 66.

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 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: 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 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.

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

restore prizes in cases not covered by statute, and even before passage of the first neutrality act,98 under the general grant of ad

"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 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, restoramiralty jurisdiction.

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).

101 The Belgenland, 114 U. S. 355.

tion, 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.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 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 ex102 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.

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

106 Ibid., Art. III, sec. I.

PROC. AMER. PHIL. SOC., VOL. LX., T, MARCH II, 1922.

clusive 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 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,115 107 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.

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

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

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

112

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.

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