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Published online by Cambridge University Press: 04 May 2017
The traditional treatment of international law has almost if not wholly dissociated it from constitutional law. International law has been conceived as concerned only with the abstractions known as states—Platonic ideas, as it were, which could not be seen or felt but had their existence in a world apart, inhabited only by other abstractions such as sovereignty, independence and equality. The extent of a state's territory, the character of its people, or its form of government was no concern of international law.“ Relative magnitude creates no distinction of right, relative imbecility whether permanent or casual, gives no additional right to the more powerful neighbor,” said Lord Stowell. “ Russia and Geneva have equal rights,” repeated Chief Justice Marshall.
1 Le Louis, 2 Dods. 210, (1817).
2 The Antelope, 10 Wheat. 66, (1825).
3 Westlake, Chapters on the Principles of International Law, 1894, p. 78.
4 Pillet, “ Recherches sur les droits fondamentaux des états,” Revue Générate de droit international public, 1898, Tome 5, pp. 66-89.
5 Kaufmann, W. , Die Rechtskraft des IntemaMonalen Rechtes, Stuttgart, 1899.Google Scholar
6 Dickinson, Equality of States in International Law, Cambridge, 1920
7 The writer wishes to acknowledge his debt to Professor Dickinson's chapter on “ Internal Limitations upon the Equality of States” for much of the material in the following section. (op. cit., pp. 189-220.)
8 Editorial by Bryan, W.J. reprinted in Congressional Record, Jan. 22, 1920, p. 1960, commented on by Mathews, Conduct of American Foreign Relations, 1922, p. 35. In giving power to declare War to Congress rather than to the Executive, the Federal Convention of 1787 seems to have endorsed the sentiment expressed by Mason of Virginia:“ He was for clogging rather than facilitating war.” Farrand, Records of the Federal Convention, Vol. 2, p. 319.Google Scholar See also Berdahl, War Powers of the Executive in the United, States, University of Illinois Studies in the Social Sciences, 1920, Vol. 9, p. 79. It is interesting to notice that the constitutions of European countries framed since the world war place the power to declare war with the legislature. (McBain and Rogers, The New Constitutions of Europe, 1922, p. 150.) The initiation of this change in the German Constitution was cited by the German Government in October 1918 as a fact which should induce the United States to make peace with it. (See note of October 20, 1918, G. L. Dickinson, Documents and Statements rdating to Peace Proposals and War Aims, 1919, p. 245. See also E. D. Dickinson, Equality of States, p. 202 et seq.)
9 Gouverneur Morris of Pennsylvania, Farrand, op. cit., Vol. 2, p. 393. See also Wright, Control of American Foreign Relations, 1922, p. 246. Legislative participation in treaty making has increased throughout the world during the nineteenth and twentieth centuries (Wright, this Journal, Vol. 10, pp. 712-713; E. D. Dickinson, op. cil., p. 195; McBain and Rogers, op. cit., p. 150) and in 1921 Switzerland provided for a referendum on treaties concluded for over fifteen years (ibid., p. 152).
10 Berdahl, op. dt., pp. 79-93.
11 Wright, Control of American Foreign Relations, pp. 252-255.
12 Wright, Control of American Foreign Relations, pp. 6, 159-160, 225-226, 355-356. Congress, however, failed to pass the legislation necessary to give effect to the Mexican reciprocity convention of 1883. (Moore Digest, Vol. 5, p. 222).
13 Ibid., pp. 62-63, 227. The authority in these cases was found in Article 3 of the Cuban treaty of 1903 and Article 35 of the new Granadan treaty of 1846.
14 Machiavelli, Discourses (Detmold's Trans.), Vol. 1, p. 59, quoted in Dickinson, op. dt., p. 193.
15 President Wilson's war message, April 2, 1917, Congressional Record, Vol. 55, p. 104. See also McBain and Rogers, op. cit., pp. 136 el seq; Reinsch, Secret Diplomacy, 1922, p. 178.
16 The Paquete Habana, 175 U. S. 677; Constitution of the United States, Art. VI, sec. 2; Wright, Control of American Foreign Relations, pp. 170-172, Enforcement of International Law through Municipal Law in the United States, University of Illinois Studies in the Social Sciences, Vol. 5, pp. 223-228.
17 Chinese Exclusion Cases, 130 U. S. 58. See also Bates, Attorney General, 10 Op. 519; Wright, Control of American Foreign Relations, pp. 174, 260, 344; Conflict of International Law with National Laws and Ordinances, this Journal, Vol. 11, pp. 5, 8-9.
18 In re Cooper, 143 U. S. 472, 502-505. See also Wright, Control of American Foreign Relations, pp. 172-174.
19 Ware v. Hylton, 3 Dali. 199; Wright, op. cit., pp. 161-162.
20 Murray v. The Charming Betsey, 2 Cranch 64; Wright, this Journal, Vol. 11, p. 10.
21 Wright, Control of American Foreign Relations, p . 175; this Journal , Vol. 11, pp. 21,576. Professor E. M. Borchard has called the writer's attention to the possibility of Executive enforcement of international law even in cases where the courts have been compelled by statute to ignore it. Thus in Ex parte Larrucea, 249 Fed. Rep. 981 (1917), the Federal Court of the Southern District of California held that a Spanish subject resident in the United States who had declared his intention to become an American citizen was liable to draft under the Act of Congress of May 18,1917, though admitting that such conscription of aliens was contrary to international law, and Article 5 of the treaty with Spain of 1903. The court, however, suggested that the political department of the Government might give relief and in fact under his power as commander in chief the President excused the defendant and other resident aliens in similar situation from military service. An Act of August 31,1918, however, amended the act of 1917 so as to exempt resident aliens unless of cobelligerent nationality. Comp. Stat., Supp. of 1919, sec. 2044 b.
22 Triquet v. Bath, 3 Burr. 1478, (1764).
23 Regina v. Keyn, L. R. (1876), 2 Ex. D. 63; West Rand Central Gold Mining Co. v. Rex, L. R. (1905), 2 K. B. 391; Picciotto, The Relation of International Law to the Law of England and of the United States of America, 1915, p. 102.
24 French Conseil d'Etat, March 27, 1839; Cour de Cassation, June 24, 1839; Dalloz,“ Juris. Gen. Rept.,” Vol. 42, s. v. TraiU Int., Nos. 131, 154; German Reichsgericht, TJrtheil, Sept. 22,1885, Ent. Str., Vol. 12, p. 384; Swiss Constitution, May 29,1874, Art. 113; “ Bundesgesetze uber Organisation der Bundesrechtspflege," Art. 59; “ Bundesgericht,' Vrtheil, Jan.30,1892, Ent. Vol. 18, p. 203; Wright, The Legal Nature of Treaties, this J o u r n a l , Vol. 10,pp. 714r-715; Vol. 11, p. 10.
25 Constitution of the German Reich, August 11, 1919, Art. 4; Constitution of Austria, October 1, 1920, Art. 9; McBain and Rogers, op. cit., pp. 177, 257; Scott, Cases on International Law, 1922, p. 18.
26 Brazil, 1891, Art. 34, sec. 11, Art. 48, secs. 7, 8; Dominican Republic, 1908, Art. 102; Dickinson, op. cit., pp. 210-211.
27 Honduras, 1904, Art. 16; Nicaragua, 1911, Art. 16; Salvador, 1886, Art. 11; Dickinson op. cit., p. 211.
28 Ottoman Empire, 1909, Art. 1. See also Salvador, 1886, Art. 38; Venezuela, 1909, Art.11; Dickinson, op. cit., pp. 207-208.
29 Secretary of State Marcy, 1854, Moore, International Law Digest, Vol. 5, p . 167; Wright, The Constitutionality of Treaties, this Journal, Vol. 13, p . 248.
30 Secretary of State Fish, 1872, Moore, Digest, Vol. 5, p. 81; Wright, Control of American Foreign Relations, pp. 81-82.
31 Moore, Digest, Vol. 5, pp. 171-175; Wright, Control of American Foreign Rdations, pp.88-89.
32 United States Foreign Relations, 1909, pp. 303, 305, 318; 1910, p. viii; Wright, Control of American Foreign Relations, pp. 117-118.
33 Moore, Digest, Vol. 2, pp. 24r-30; Act of August 29, 1842, Rev. Stat., sec. 753; Wright, Control of American Foreign Relations, p. 161.
34 For statements of Presidents Harrison, McKinley, Roosevelt and Taft, see Baldwin v.Franks, 120 U. S. 678; Willoughby, American Constitutional System, p. 108; Moore, Digest, Vol. 6, p. 839 el seq.; Taft, The United States and Peace, p. 40 et seq.; Wright, Control of American Foreign Relations, p. 187.
35 Hershey, Essentials of International Public Law, 1912, p. 147.
36 Pillet, Revue Generate de droit international public, Tome 5, p. 86. See also Hyde,International Law, Vol. 1, p. 24, n. 1, and p. 86.
37 Hyde, op. cit., Vol. 1, pp. 66-74.
38 President Wilson's War message, April 2, 1917, Congressional Record, Vol. 55, p. 104.See also, E, B. Greene, American Interest in Popular Government Abroad, War Information Series, No. 8, Sept. 1917.
39 Hyde, op. cit., Vol. 1, pp. 179-185.
40 Goebel, , The Recognition Policy of the United States, Columbia University Studies in History, Economics and Public Law, 1915, pp. 41-43, 65-68.Google Scholar
41 See note of Secretary of State Colby, August 10,1920, Current History, Sept. 1920, Vol.12, p. 925-932.
42 “ International Law is at one and the same time both national and international: national in the sense that it is the law of the land and applicable as such to the decision of all questions involving its principles; international in the sense that it is the law of the society of nations, and applicable as such to all questions between and among the members of the society of nations involving its principles. (Barbutt's Case, Cases tempore Talbot, p. 281;Triguet v. Bath, 3 Burrow, 1478; Heathfidd, vs. Chilton, 4 Burrow, 2015; The Paquete Hahana, 175 U. S. 677, 700)” ; American Foreign Policy, Carnegie Endowment for International Peace, Division of Intercourse and Education, Publication No. 17, p. 112.
43 Mansfield, J., in Triquet v. Bath, 3 Burr. 1478, (1764).
44 Supra, n. 24.
45 United States Constitution, Art. VI, sec. 2; Ware v. Hylton, 3 Dali. 199, (1796).
46 Walker v. Baird, L. R. (1892), A. C. 491; The Parlement Beige, L. R. (1879), 4 P. D. 129;Westlake, Collected Papers, p . 518; Wright, this Journal, Vol. 10, p p . 720, 726, 729, 731.
47 The Chile, L. R. (1914), p. 212; Picciotto, op. cit., pp. 42, 68.
48 Supra, n. 25.
49 Maine, International Law, p. 37.
50 Oppenheim, International Law, Vol. 1, sec. 341; Hyde, International Law, Vol. 1, p. 16; Wright, Control of American Foreign Relations, pp. 15-20.
51 “ The recognizing powers must respectively be satisfied that the new state gives sufficient promise of stability in its government. No power would willingly try to weave ties with a rope of sand.” Westlake, International Law, Vol. 1, p. 50.
52 Hamilton, The Federalist, No. 22, Ford, ed., p. 141. See also Farrand, op. cit., Vol. 1, pp. 426, 513.
53 Moore, Digest, Vol. 6, pp. 837-841.
54 Acting Secretary of State Hill, 1900, Moore, Digest, Vol. 1, p. 138; Hyde, op. cit., Vol. 1,p. 67.
55 Secretary of State Webster, 1842, Moore, Digest, Vol. 2, p. 5; Borchard, Diplomatic Protection of Citizens Abroad, 1915, pp. 213, 335; Hyde, op. cit., Vol. 1, p. 388 et seq., p. 464 el seq.; Wright, Control of American Foreign Relations, pp. 14-15.
56 Lord Mansfield, in Lindo v. Rodney, 2 Doug. 613, 616, (1781); Lord Stowell in The Recovery, 6 C. Rob. 348, (1807); “ British Commission on the Silesian Loan Controversy,” 1753, Moore, Digest, Vol. 7, p. 603; Phillimore, International Law, Vol. 1, p. 55.
57 Secretary of State Bayard, 1887, Moore, Digest, Vol. 6, p. 667; Borchard, op. cit., pp. 197, 342; Wright, Control of American Foreign Relations, p. 18, n. 13.
58 See Conference on the Limitation of Armament, 67th Cong., 2nd Sess., Sen. Doc., No. 126, pp. 476, 514, 903; Hyde, this Journal, Vol. 16, p. 71. See also treaty between United States and China, 1903, Art. 15; Annex to treaty between United States and Siam, 1920 providing for withdrawal of American extraterritorial jurisdiction in Siam (Treaty Series No. 655) and President McKinley's message of December 5, 1899, on removal of extraterritorial jurisdiction in Japan. (Richardson, Messages, Vol. 10, p. 148).
59 Borchard, op. cit., p. 179; Hyde, op. cit., Vol. 1, p. 468; Root, Proceedings of American Society of International Law, 1910, pp. 20-21.
60 See note of acting Secretary of State Polk, December 13,1918, Investigation of Mexican Affairs, 66th Cong., 2nd Sess., Sen. Doc. 285, Vol. 2, p. 3163; note of Secretary of State Hughes, June 7,1921, Current History, Vol. 14, p. 711; Stuart, Latin America and the United States, 1922, pp. 121-124, 130; Woolsey, this J o u r n a l , Vol. 16, p. 67.
61 See note of Secretary of State Colby, August 10,1920, and of Secretary of State Hughes, March 25, 1921, Current History, Vol. 12, pp. 925-932, Vol. 14, pp. 189-190; Hyde, op. cit., Vol. 1, p. 73-74. The British Court of Appeals has held that the trade agreement of March 16, 1921 with Krassin and the recognition of the Soviet government as the de facto government of Russia in April 1921 amounted in law to recognition of that government by GreatBritain, retroactive to the date of the dispersal of the constitutional assembly of Russia by the Soviet government on December 13, 1917. (Luther v. Sagor, 37 Times L. R. 777,1921).)
62 Wright, , “ The Prohibition Amendment and International Law,” Minnesota Law Review, Vol. 7, p. 3.Google Scholar
63 Moore, , Digest, Vol. 4, pp. 643-645 Google Scholar; Wright, , Control of American Foreign Relations, p. 79; Minnesota Law Review, Vol. 7, p. 31.Google Scholar
64 Wright, , Minnesota Law Review, Vol. 7, pp. 28-36.Google Scholar
65 Pillet, Revue Generate de Droit International Public, Tome 5, p. 87.
