INTERNATIONAL LAW AND CONSTITUTIONS Conflicts between customary international law and constitutional provisions can only arise for judicial settlement in the United States, where the Constitution is law, applicable in courts. There can be little question but that in such a case the Constitution, as the supreme law of the land, binds the court. It has, however, been generally interpreted in harmony with international law. Thus the constitutional guarantee that a person accused of crime shall have compulsory process for obtaining witnesses,' would probably be interpreted as meaning that the accused shall have the same rights of compelling testimony as the prosecution, and consequently would not apply to diplomatic officers exempt from such process by international law.8 It should also be suggested that reserved States' rights, sometimes implied from the Constitution, probably offer no obstacle to the application of international law by courts. So far as any constitutional rights of the States are concerned, Federal courts might exercise the police power within the States and apply international law to protect rights of aliens guaranteed by that law. In United States v. Arjona,9 a statute providing criminal punishment for counterfeiting the securities of foreign states was upheld as within the competence of Congress under its authority "to define and punish offenses against the law of nations." Under the same constitutional provision Congress passed an Act in 1842 10 giving Federal courts jurisdiction to release from State * Constitution, Amendment VI. This was the view of the court in Dillon's Case, Fed. Cas. 3914 (1854) in which a treaty immunity of a consul was in conflict with the constitutional guarantee; and this immunity of diplomatic officers from giving testimony, but in both cases for the prosecution, was recognized in the case of Dubois, the Dutch Minister (Sen. Ex. Doc. No. 21, 34th Cong., 3rd Sess. 1856, Moore, Dig. Int. Law, 4: 662, Oppenheim, op. cit., 1; 466) and in the case of Camacho, the Venezuelan Minister, (Guiteau's trial (1881), Wharton, 1: 669, Scott, 196). In the latter case the minister, under instructions from his government, voluntarily appeared as a witness. An Act of April 30, 1790, Rev. Stat. sec. 4063, specifically forbids the issue of process against a public minister. 120 U. S. 479. 10 Act of Aug. 29, 1842, Rev. Stat. sec. 753. courts on habeas corpus aliens in custody for acts done under an alleged right of international law. The Act resulted from the inability of the National Government to liberate one Alexander McLeod from the custody of a New York court, where he was held on a charge of murder, perpetrated as a British soldier during the Caroline disturbance. As is well known, Great Britain had protested against McLeod's detention on the ground that as a military person acting under authority he was exempt from American jurisdiction." These Acts, as well as numerous others 12 passed by Congress under the constitutional provision mentioned and uniformly sustained by the courts, indicate that the division of powers between the State and National Governments provided for in the Constitution furnish no obstacle to the passage by Congress of any measure in pursuance of obligations of international law, no matter how much it might appear to invade the so-called States' rights. Hence a conflict between international law and the Constitution in that respect would not be possible. Difficulties have arisen, as in the McLeod case, and the various Italian and Chinese lynchings, from the failure of Congress to act, not from an inherent conflict between the Constitution and the ability of the National Government to fulfill its obligations under international law.13 11 Moore, Dig., 2: 24-30. 12 The most important Acts of this character are the Neutrality Acts, and various Acts for the protection of resident diplomatic officers. 13 W. W. Willoughby, The American Constitutional System, New York, 1904, p. 108; J. N. Pomeroy, An Introduction to the Constitutional Law of the United States, 9th ed., New York, 1886, p. 571; E. S. Corwin, National Supremacy, New York, 1913, pp. 288-289; Nelson Gammons, "The Responsibility of the Federal Government for Violations of the Rights of Aliens," this JOURNAL, 8: 73. Messages President Harrison, 1891, and President McKinley, 1899, 1900, Moore, 6: 839, 847, 848. Some doubt has been thrown upon this doctrine by the case of Keller and Ullman v. U. S., 213, U. S. 138 (1909), in which an Act of Congress (Feb. 20, 1907, 34 Stat. 898, sec. 3) rendering persons criminally liable for harboring immigrant women as prostitutes within a period of three years of landing, was held unconstitutional. The Government, however, did not attempt to support this legislation under the power of Congress to punish offenses against the law of nations, but under the implied power to regulate immigration. The court indicated that if the law had been in pursuance of a treaty it would have been valid, and a similar provision is now included in the Mann White Slave Act (June 25, 1910, 36 Stat. 825, sec. 6) in pursuance of the International White Slave Convention of 1904, There is, however, an important constitutional difference between the power of courts to apply customary international law and to apply treaty provisions. Courts can fulfill the latter obligation under their general jurisdiction of cases involving treaties.14 Whereas they can ordinarily enforce obligations of customary international law only when supplemented by Congressional legislation. This results from the strictly statutory character of the jurisdiction of Federal courts, 15 and renders it important that Congress specifically confer a jurisdiction upon them sufficient for the fulfillment of international obligations. INTERNATIONAL LAW AND STATUTES Where the conflict is between a statute and customary international law, the statute prevails. In Mortenson v. Peters,16 a Scotch court condemned a Danish subject for acts committed beyond the three-mile limit in accord with a statutory regulation of fisheries, thus extending its jurisdiction beyond that permitted by international law. Lord Dunedin said during the course of his opinion: Malloy, Treaties, Conventions, etc., p. 2131. It is submitted that if the protection of aliens in certain matters could be shown to be required by customary international law, an Act of Congress offering such protection by the criminal punishment of offenders would be constitutional. 14 Constitution, Art. III, sec. 2; Act, Aug. 13, 1888, 25 Stat. 433; Federal Judicial Code, 1911, 36 Stat. 1087, sec. 24, cl. 1, 17, secs. 28, 237. For the fulfillment of some treaty obligations, especially those requiring the exercise of a criminal jurisdiction, supplementary legislation is necessary. 15 U. S. v. Hudson, 7 Cranch 32; Ex parte McCardle, 7 Wall. 506. A common law jurisdiction over crimes against international law was supported in Federal courts in the early cases of In re Henfield, Fed. Cas. 6360, and U. S. v. Ravara, 2 Dall. 297, but the later decisions have not supported this view. 16 Mortensen v. Peters, 14 Scot. L. T. R. 227 (1906); 8 Fraser 93; Bentwich, Cases, 12. In Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877), A. C. 394, the Privy Council held that an Act of Parliament made it conclusive that Conception Bay, Newfoundland, was British territorial water, although the headlands were thirty miles apart. It should be noted, however, that the court also put forward prescription as a justification of this extension of jurisdiction under international law. See also dicta by Lord Cockburn in Regina v. Keyn (1876), 2 Ex. D. 63; Stephen, History of the Criminal Law, 2: 36; Picciotto, op. cit., p. 48 et seq. In this court we have nothing to do with the question of whether the legislature has or has not done what foreign Powers may consider an usurpation in a question with them. Neither are we a tribunal sitting to decide whether an act of the legislature is ultra vires as in contravention of generally acknowledged principles of international law. For, as an Act of Parliament, duly passed by Lords and Commons and assented to by the King, it is supreme, and we are bound to give effect to its terms. The same rule applies in prize courts. Thus, in the case of the Zamora,17 the Judicial Committee of the Privy Council, while holding that an Order in Council contrary to international law was not binding, said, It could not of course be disputed that a prize court, like any other court, was bound by the legislative enactments of its own sovereign state. A British prize court would certainly be bound by Acts of the Imperial Legislature. In this case no such conflict existed, but, on the contrary, the Prize Act of 1864 especially reserved to the prize court its right to apply international law exclusively. In American law, also, it is clear that a statute will always be applied even though it conflict with international law. An Act of Congress of March 3, 1863,18 permitting the requisition of neutral vessels before condemnation, was protested by Great Britain as in violation of international law. Attorney General Bates rendered an official opinion 19 on the question, and while conceding the British contention that the Act if rigorously applied might lead to violations of international law, stated that American officials would nevertheless be bound by it. Of course such a conflict may lead to diplomatic reclamations, and possibly to war. But that cannot make the Act of Congress cease to be the law of the land, binding upon the people and their judges. Under Acts prohibiting the killing of fur seals "within the limits of Alaskan territory or in the waters thereof," later extended "to 17 The Zamora, L. R. 1916, 2 A. C. 77, this JOURNAL, 10: 427. 19 Bates, Att. Gen., 10 Op. 519. all the dominions of the United States in Behring Sea" American courts did not hesitate to assume jurisdiction of foreign vessels seized in time of peace sixty miles from the coast in Behring Sea.20 This decision was reached by following the interpretation of these statutes offered by the political department of the Government, which held Behring Sea virtually a mare clausum. This interpretation of the statutes was protested by Great Britain as in violation of international law, and her protests being sustained in the arbitration of the question in 1892, the "dominions of the United States in Behring Sea" were held in subsequent cases to extend only to the three-mile limit.21 On the other hand, no instance is known where in case of the conflict of a statute with international law the latter has been selected. There have been dicta in both British and American courts to the effect that statutes in conflict with natural law are void,22 and British prize courts have sometimes gone pretty far in asserting their independence of statutes, 23 but no case is known where statutes have been declared void as in conflict with international law. 20 Act of June 27, 1868, Rev. Stat. 1856; Act of March 2, 1889, 25 Stat. 1009. U. S. v. La Ninfa, 49 Fed. Rep. 575; U. S. v. The James G. Swan, 20 Fed. Rep. 108; U. S. v. The Alexander, 60 Fed. Rep. 914. 21 The Alexander, 75 Fed. Rep. 519; La Ninfa, 75 Fed. Rep. 513; Moore, 1: 913-922. In his dissent in the case of U. S. v. Rodgers, 150 U. S. 249, Justice Brown thought the court was interpreting a statute (Rev. Stat. sec. 5346) in a manner contrary to international law in assuming jurisdiction over an offense committed on board an American vessel on the Canadian side of the Detroit River. The Cutting Case (Moore, 2: 243) illustrates the application by a Mexican court of a statute giving jurisdiction over extraterritorial crime, considered by the United States to be in contravention of international law. 22 English Cases: Day v. Savadge, Hobart, 85, 87; Bonham's Case, 8 Rep. 118a; United States Cases; Goshen v. Stonington, 4 Conn. Rep. 209, 225; Bowman v. Middleton, 1 Bay. 254 (S. Car. 1792); Downes v. Bidwell, 182 U. S. 244, 282. 23 In the Flad Oyen, 1 Rob. 135 (1799), and the Maria, 1 Rob. 340 (1799), Lord Stowell strongly asserted that prize courts were "courts of the law of nations" and bound "to administer with indifference that justice which the law of nations holds out without distinction to independent states, some happening to be neutral and some to be belligerent." In the case of the Walsingham Packet, 2 Rob. 77 (1799), the original British and Portuguese owners of the vessel, recaptured from the enemy, sought restoration, which was resisted by the captors under a navigation act (1314 Car. II, c. 11, s. 22), which declared that the carrying of merchandise by a packet was illegal. There was thus a conflict between a statute and the rule of inter |