1 Barbuit’s Case, 25 Eng. Rep. 777 (Ch.).

2 Respublica v. De Longchamps, 1 Dall. 111 (Pa. 1784); see also discussion of prize cases that arose during the period of the Continental Congress in Bourguinon, , Incorporation of the Law of Nations during the American Revolution—The Case of the San Antonio , 71 AJIL 270 (1977)CrossRefGoogle Scholar.

3 1 Op. Att’y Gen. 26, 27 (1792).

4 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 473 (1793); see also Justice Wilson in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796); discussion in Dumbauld, , Independence under International Law , 70 AJIL 425 (1976)CrossRefGoogle Scholar.

5 U.S. Const, art. I, cl. 8; art. II, cl. 2; art. VI.

6 For a case illustrating the development of practice into comity, then into international law, see The Paquete Habana, 175 U.S. 677 (1900), discussed in text at note 105. For situations where unilateral claims, long asserted, developed into international law, see text at notes 25-28 and 35–41.

7 23 U.S. (10 Wheat.) 66, 115, 120-21 (1825). Three years earlier Justice Story on Circuit had followed natural law concepts and stated that the slave trade was “repugnant to the general principles of justice and humanity”; and he had held that therefore an American officer could properly capture a French slave-trading vessel on the high seas and proceed against her in an American court. United States v. La Jeune Eugenie, 2 Mas. 409, 26 Fed. Cas. 832 (No. 15,551) (C.C.D. Mass. 1822).

8 General Act of July 2, 1890, for Suppression of the African Slave Trade, 27 Stat. 886, TS No. 383; Convention of Sept. 25, 1926, to Suppress the Slave Trade and Slavery, 46 Stat. 2183, TS No. 778, 60 LNTS 253. On natural law, see J. Brierly, The Law of Nations 16-25 (5th ed. 1954).

9 11 U.S. (7 Cranch) 116 (1812).

10 Id. at 136.

11 Mr. Justice White in his dissent in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 445- 46 (1964).

12 B. Ziegler, The International Law of John Marshall 64 (1939). See also Wilson v. Girard, 354 U.S. 524 (1957), discussed in note 14 infra.

13 11 U.S. (7 Cranch) at 136.

14 Id. at 139. This was erroneously thought by some to mean that whenever our forces were stationed in friendly foreign territory they were exempt from foreign jurisdiction of every kind, a misconception left uncorrected for almost 150 years. But in Wilson v. Girard, 354 U.S. 524, 529 (1957), the Supreme Court straightened this out. It first reverted to Marshall’s major premise and pointed out that “a sovereign nation has exclusive jurisdiction to punish offences against the laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.” It then proceeded to hold that while waiver might be implied from permitting a brief passage of foreign troops over a portion of a state’s territory, or a temporary visit of a foreign public ship, the granting of permission to station friendly foreign troops in a state’s territory for an indefinite period is different, and does not necessarily involve waiver of jurisdiction. The host state certainly can impose conditions on the entry of such troops, and may insist upon the exercise of its own territorial jurisdiction over the force. For an agreed waiver of jurisdiction by NATO countries, see note 32 infra, second paragraph.

15 11 U.S. (7 Cranch) at 144.

16 3 U.S. (3 Dall.) 199, 234-37 (1796). John Marshall and Patrick Henry were counsel for the losing side. The decision did not deal with the effect of a treaty on an inconsistent federal statute. It was in 1870 in The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870), that the rule was explicitly stated: “A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.”

17 27 U.S. (2 Pet.) 253, 314 (1829).

18 32 U.S. (7 Pet.) 51 (1833).

19 Robert R. Livingston was the first Secretary of Foreign Affairs under the Continental Congress, 1781-1783. Later he was Minister to France, 1801-1804. He was succeeded as Secretary of Foreign Affairs by John Jay, who held this post until after the adoption of the Constitution, when he was elevated to the position of Chief Justice of the United States, 1789-1795. Livingston and Jay had at one time practiced law together.

One of the first acts of Congress following the adoption of the Constitution was to establish the position of Secretary of State. Up to the middle of the 19th century, the following, all lawyers, held that position (other positions of influence held by them are also indicated):

1790–1794. Thomas Jefferson. Vice President, 1797-1801; President, 1801-1809

1794-1795. Edmund Randolph. Attorney General, 1789-1794

1795-1800. Timothy Pickering. Secretary of War, 1795

1800-1801. John Marshall. Chief Justice of the United States, 1801-1835

1801-1809. James Madison. President, 1809-1817*

1809-1811. Robert Smith. Secretary of the Navy, 1801-1805

1811-1817. James Monroe. President, 1817-1825*

1817-1825. John Quincy Adams. President, 1825-1829

1825-1829. Henry Clay. Speaker of the House, 1811-1814, 1815-1820; Senator, 1806–1807, 1810-1811, 1831-1842, 1849-1852

1829-1831. Martin Van Buren. Vice President, 1833-1837; President, 1837-1841

1831-1833. Edward Livingston. Senator, 1829-1831; Minister to France, 1833-1835

1833-1834. Louis McLane. Senator; Secretary of the Treasury, 1831-1833; Minister to England

1834-1841. John Forsyth. Senator

1841-1843. Daniel Webster. Senator, 1827-1841, 1845-1850

1843-1844. Abel P. Upshur. Secretary of the Navy, 1841-1843

1844-1845. John C. Calhoun. Secretary of War, 1817-1825; Vice-President, 1825-1832

1845-1849. James Buchanan. President, 1857-1861

* Studied law, but no evidence of admission to the bar or practice as a lawyer.

Note: In these footnotes and in the text, biographic material is from Scribner’s Dictionary of American Biography, unless otherwise noted.

20 1 Messages and Papers of the Presidents, 1789-1905, at 156-57 (J. Richardson ed. 1907); T. Brockway, Basic Documents in United States Foreign Policy 13 (rev. ed. 1968).

21 American State Papers, 1 Foreign Relations 150; W. Morey, Diplomatic Episodes 165 (1926).

22 1 Stat. 381. The Neutrality Act was particularly aimed at the French Minister to the United States, who had been trying to make the United States a base of operations against the British. T. Brockway, supra note 20, at 14.

23 American State Papers, supra note 21, at 147-48; W. Morey, supra note 21, at 166-67.

24 36 Stat. 2310 and 2415; see also W. Morey, supra note 21, at 168-75, 180-87.

25 Reprinted in H. Exec Doc. No. 324, 42d Cong., 2d Sess. 553-54 (1872), 1 J. Moore, Digest of International Law 699-703 (1906). Jefferson also wrote a similar note to the French Minister. American State Papers, supra note 21, at 183, 184.

26 T. Fulton, The Sovereignty of the Sea 21 (1911), quoted in 4 M. Whiteman, Digest of International Law 35 (1965).

27 1 J. Moore, supra note 25, at 706, 707-08. Both Seward and Dulles are quoted in 4 M. Whiteman, supra note 26, at 61-62.

28 United States v. California, 332 U.S. 19, 32-34 (1947); statement by Chairman of U.S. delegation to the Conference on the Law of the Sea at Geneva, March 11, 1958. See 4 M. Whiteman, supra note 26, at 35-37 and 91.

29 2 J. Moore, supra note 25, at 24-30, 409-14; W. Morey, supra note 21, ch. 11.

30 Letter, Fox to Webster, March 12, 1841, The Diplomatic and Official Papers of Daniel Webster while Secretary of State 120 (1845).

31 Letter, Webster to Crittenden, U.S. Attorney General, March 15, 1841, id. at 133.

32 “The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.” Chief Justice Fuller in Underhill v. Hernandez, 165 U.S. 250, 252 (1897). For an earlier state court decision to the same effect, see Hatch v. Baez, 7 Hun 596, 599 (1876).

Webster’s philosophy is also related to the modern practice which permits, by agreement, a friendly visiting force stationed abroad to try a member of that force for an act committed in line of duty, and subordinates the criminal jurisdiction of the host state over the offense. See NATO Status of Forces Agreement, 4 UST 1792, TIAS No. 2846, 199 UNTS 67, Art. VII, para. 3(a)(ii).

33 Letter, Webster to Ashburton, Aug. 6, 1842, Diplomatic and Official Papers, supra note 30, at 118, quoted in part in 2 J. Moore, supra note 25, at 412. Webster had previously used the quoted language in a letter to Minister Fox, April 24, 1841.

34 2 J. Moore, supra note 25, at 26; Diplomatic and Official Papers, supra note 30, at 133-36. Fortunately for Canadian-American relations, the court that tried the Canadian found him not guilty, and the British apologized for invading American territory. W. Morey, supra note 21, at 44.

35 2 Messages and Papers of the Presidents, supra note 20, at 207-20.

36 5 M. Whiteman, supra note 26, at 410.

37 U.S. Commitments to Foreign Powers: Hearings before the Senate Comm. on Foreign Relations on S. Res. 151, 90th Cong., 1st Sess. 49-71 (1967), reproduced in 6 ILM 1123, 1134-36; House Comm. on Foreign Affairs, Collective Defense Treaties 202 (Comm. Print 1967).

38 5 M. Whiteman, supra note 26, at 409.

39 62 Stat. 1681, TIAS No. 1838, 21 UNTS 77, Arts. 3 and 6.

40 2 UST 2394, TIAS No. 2361, 119 UNTS 3, Art. 15.

41 Res. XCIII, Tenth Inter-American Conference (Caracas, Venezuela, March 1-28, 1954), quoted in 5 M. Whiteman, supra note 26, at 425.

42 See W. Morey, supra note 21, ch. I.

43 T. Bailey, A Diplomatic History of the American People 77-80 (8th ed. 1969); J. Dickey, The United States and Canada 38-39 (1964).

44 8 Stat. 116, TS No. 105, Arts. V-VII; see also A. Nussbaum, A Concise History of the Law of Nations 129 (rev. ed. 1954).

43 A. NUSSBAUM, supra note 44, at 129.

45 8 Stat. 572, TS No. 119.

47 36 Stat. 2448, TS No. 548. A precedent for a boundary commission existed in the International Boundary Commission established by our Convention with Mexico of March 1, 1889, 26 Stat. 1512, TS No. 232. However, the type of problems that that commission was faced with was different. The bed of the Rio Grande (the boundary from El Paso to the Gulf of Mexico) changed from time to time, by erosion or by avulsion. The commission was to examine and decide all boundary questions that arose out of this situation, and questions concerning the construction of works affecting the boundary contrary to the treaty provisions. The decision was subject to veto by either Government within 1 month. As was the case with Canada, later treaties settled certain major boundary questions, notably the Treaty relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, and supplementary protocol, 59 Stat. 1219, TS No. 994; and the Convention for the Solution of the Problem of the Chamizal, 15 UST 21, TIAS No. 5515, 505 UNTS 185. For the history of the Chamizal dispute, see Jessup, , El Chamizal , 67 AJIL 423 (1973)CrossRefGoogle Scholar.

48 Who’s Who in America, 1926-27.

49 3 M. Whiteman, supra note 26, at 826-71.

50 54 Stat. 2426, EAS No. 187, 203 LNTS 267, in 1940, and 5 UST 1784, TIAS No. 3053, 234 UNTS 199, in 1952; 1 UST 694, TIAS No. 2130, 132 UNTS 223, in 1950; and 15 UST 1555, TIAS No. 5638, 542 UNTS 244, signed in 1961, entered into force 1964.

51 8 Stat. 231, TS No. 110½; 2 M. Miller, Treaties and other International Acts of the United States of America (1776-1818), at 645-54 (1931-38).

52 This Treaty concerned contemplated joint action of the United States and Britain in the construction of an inter-oceanic canal through Nicaragua or Panama. However, nothing was accomplished under it. In 1901 it was superseded by the Hay-Pauncefote Treaty. See text at note 109 infra.

53 21 Collier’s Encyclopedia 501-02 (1968 ed.); see note 63 infra.

54 1887 Foreign Relations of the United States [hereinafter cited as For. Rel. U.S.] 757 (1887); see also 2 J. Moore, supra note 25, at 228-42. In 1927 Moore, by then a judge of the Permanent Court of International Justice, had occasion to reiterate his position in his separate opinion in the S.S. Lotus, 1927 PCIJ, ser. A, No. 10.

55 1886 For. Rel. U.S. at viii.

56 The United States has never officially accepted the passive personality doctrine. See Restatement (Second) of the Foreign Relations Law of the United States §30(a)(5); letter, Counselor of Dep’t of State, Feb. 9, 1940, quoted in 6 M. Whiteman, supra note 26, at 104. However, it has come perilously close to following it, especially in the antitrust field, to the dismay of many friendly countries. See Raymond, , A New Look at the Jurisdiction in ALCOA , 61 AJIL 558 Google Scholar, especially 568 n.21 and 569 n.23 (1967); and Raymond, , The Exercise of Concurrent Jurisdiction: “Move with Circumspection Appropriate,” 8 B.C. Indus. & Com. L. Rev. 673, especially 685-89 (1967)Google Scholar.

57 17 Stat. 863, TS No. 133.

58 A. Nussbaum, supra note 44, at 217-18; 1 W. Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers (1776-1909), at 700-22 (1910); J. Scott, Casebook on International Law 713 (1902).

59 36 Stat. 2415, TS No. 545, Art. 8; see also C. Fenwick, International Law 745 (4th ed. 1965).

60 Letter, Blaine to Pauncefote, Jan. 22, 1890, 1890 For. Rel. U.S. 368. For the full story of this incident, see 1 J. Moore, History and Digest of the International Arbitrations to which the United States has been a Party 755 (1898); for a briefer account, see T. Bailey, supra note 43, at 446-48.

61 Although these regulations had only limited effect, they were the forerunner of what is now a multilateral agreement (the United States, the USSR, Canada, and Japan) to conserve the seal population of the North Pacific. 8 UST 2283, TIAS No. 3948, 314 UNTS 105; amended 15 UST 316, TIAS No. 5558, 494 UNTS 303; extended 20 UST 2992, TIAS No. 6774, 719 UNTS 313; extended TIAS No. 8368.

62 1 Bevans at v-vi. The Hague Conventions of 1899 did not enter into force for the United States until after 1899. Id. at 230, 247, 263, and 270.

63 See text at note 53 supra. The terms of office of the Secretaries of State mentioned were: Seward (1861-1869), Fish (1869-1877), Evarts (1877-1881), Blaine (1881, 1889-1892), Frelinghuysen (1881-1885), Foster(1892-1893),01ney (1895-1897), Day (1898), and Hay (1898-1905). 21 Collier’s, supra note 53, at 501-02.

64 In 1931 the title was once more changed to Legal Adviser of the Department of State. Woolsey, , The Legal Adviser of the Department of State , 26 AJIL 124 (1932)CrossRefGoogle Scholar; Bilder, , The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs , 56 AJIL 634-36 (1962)Google Scholar; J. Mathews, The Conduct of American Foreign Relations 46-47 (1922).

65 In 1877 John L. Cadwalader, Assistant Secretary of State, published a book entitled Digest of the Published Opinions of the Attorney General, and of the Leading Decisions of the Federal Courts, with Reference to International Law, Treaties, and Kindred Subjects; but it was arranged alphabetically like a dictionary and was limited to only two sources of material. 1 M. Whiteman, supra note 26, at iii. Wharton changed the scope and arrangement of the material, which made it a useful reference work.

66 Bilder, supra note 64, at 634.

67 Who Was Who in America, 1943-1950, at 380.

68 Who’s Who in America, 1960-1961, at 1183; 1959-1960 ICJ Y.B. 20; 1960-1961 id. at 1, 13.

69 Who’s Who of American Women, 1968-1969, at 1308-09.

70 Yale Law School Catalogue, 1969-1970. Law has been an undergraduate course from time to time in the political science department of various colleges and universities. This practice was in effect as early as 1762, when George Wythe taught law to Thomas Jefferson at the College of William and Mary. 13 Collier’s, supra note 53, at 526.

71 Harvard Law School Catalogue, 1969-1970.

72 Yale Law School Catalogue, 1969-1970.

73 A. Harno, Legal Education in the United States 51 (1953).

74 See, e.g., note 85 infra.

75 F. Hicks, Yale Law School, 1869-1894, at 7, 9 (1937); Who Was Who in America, 1897-1942, at 1381.

76 Harvard Law School Association, Centennial History of the Harvard Law School 20, 41, 75, 76 (1918).

77 Scribner’s, supra note 19; E. Brown, Legal Education at Michigan, 1859-1959, at 490-503 (1959).

78 F. Snow, Cases on International Law, preface (1893); W. Winthrop, Abridgment of Military Law, title page and preface (3d ed. rev. 1897).

79 14 Encyclopaedia Britannica 37 (1960); A. Rolin, Les Origines de l’Institut de Droit International, 1873-1923, at 9-10 (1923).

80 The Bicentennial History of Columbia University: A History Of the School of Law 169 (J. Goebel, Jr., 1955).

81 Who’s Who in America, 1926-1927.

82 Finch, G., The American Society of International Law, 1906-1956 , 50 AJIL 293, 295 (1956)CrossRefGoogle Scholar.

83 Gregory, ; The Study of International Law in Law Schools , 2 Am. L. Sch. Rev. 41, 45 (1907)Google Scholar.

84 In 1929 Moore also published a six-volume work on international adjudications.

85 Pomeroy’s book consisted of lectures he had given at the University of New York Law School and at Hastings College of the Law in San Francisco. J. Pomeroy, Lectures on International Law in Time Of Peace, dedicatory page (T. S. Woolsey ed. 1886). There is no evidence that the subject continued in the curriculum of either school.

86 F. Snow, supra note 78.

87 H. Halleck, International Law (1861). See bibliography in J. Scott, supra note 58, at lxv-lxvii; “standard modern authors” mentioned in F. Snow, supra note 78, at xiii; and 10 Scribner’s, supra note 19, pt. 2, at 40.

88 The text of General Orders No. 100 appears as Appendix 2 in G. Wilson & G. Tucker, International Law (9th ed. 1935), and in earlier editions, and in G. Wilson, Handbook of International Law, App. 2 (1910).

89 Davis, , Doctor Francis Lieber’s Instructions for the Government of Armies in the Field , 1 AJIL 13 (1907)CrossRefGoogle Scholar. For Halleck’s work on international law, see note 87 supra.

90 Baldy v. Hunter, 171 U.S. 388 (1897).

91 Sokoloff v. National City Bank, 239 N.Y. 158, 165 (1924).

92 See p. 802 supra.

93 67 U.S. (2 Black) 635, 666-67 (1862).

94 Id. at 667.

95 The Bermuda, 70 U.S. (3 Wall.) 514 (1865); The Peterhoff, 72 U.S. (5 Wall.) 28 (1866). A similar case, The Springbok, 72 U.S. (5 Wall.) 1 (1866), was modified as to the detention of the ship itself by a claims commission established under the Treaty of Washington. For that Treaty, see text at note 57 supra. For the commission’s decision, see 4 J. Moore, supra note 60, at 3928-35; for a summary of the entire case, see 7 J. Moore, supra note 25, §1261.

96 E.g., The Kim, The Alfred Nobel, The Bjornsterjne Bjornson, The Fridland, 1916 P. 38. And see T. Bailey, supra note 43, at 325.

97 120 U.S. 1 (1886).

98 21 Stat. 776, TS No. 29, Art. XI.

99 120 U.S. at 12 and 17.

100 15 UST 1606, TIAS No. 5639, 516 UNTS 205, Arts. 1 and 19.

101 The exact converse of Wildenhus’s Case was presented when an American murdered another American on a U.S. ship in Belgian waters. In the absence of any demand for trial by the Belgians, the accused was tried in the United States. United States v. Flores, 289 U.S. 137 (1933).

102 159 U.S. 113(1895).

103 Id. at 163-64.

104 Id. at 165 (quoting Chief Justice Taney, Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589 (1839)).

105 175 U.S. 677(1900).

106 The Young Jacob and Johanna, 165 Eng. Rep. 81.

107 175 U.S. at 694.

108 T. Bailey, supra note 43, at 483.

109 32 Stat. 1903, TS No. 401; T. Brockway, supra note 20, at 68; T. Bailey, supra note 43, ch. 33. See note 52 supra for the Clayton-Bulwer Treaty.

110 Isthmian Canal Convention, 1903, 33 Stat. 2234, TS No. 431.

111 TS No. 418, 6 Bevans 1113, Arts. 1 and III; see also TS No. 426, 6 Bevans 1120.

112 Taft, as Secretary of War, thought Panama had reserved “titular sovereignty” in the Canal Zone by the 1903 treaty. The Agreement with Cuba, drafted by Hay, said Cuba had “ultimate sovereignty” over Guantanamo. Article 3 of the Treaty of Peace with Japan (3 UST 3169, TIAS No. 2490) stated that “the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants” of Okinawa; and John Foster Dulles, the able lawyer and later Secretary of State who drafted the provisions of the Treaty dealing with Okinawa, thought Japan had “residual sovereignty.” See 1 M. Whiteman, supra note 26, at 267-68. In each case the United States had secured for itself the present right to exercise sovereign power.

113 T. Bailey, supra note 43, at 517-19, 512.

114 Finch, supra note 82, at 295.

115 Id. at 296; 1 ASIL Proc. 23-27 (1907); 25 id. at 242-43 (1931).

116 See text at note 48 supra.

117 1 ASIL Proc. at 28-33. The list of members of the Society in 1907 appears in id. at 11-12. There were 2 honorary members (from Europe), 17 life members, and 735 annual members.

118 Id. at 35-38; Finch, supra note 82, at 296-98.

119 Finch, supra note 82, at 299.

120 Id. at 300-02.

121 As late as 1946, Professor Josef Kunz said his “search through catalogues of a considerable portion of about 100 law schools, members of the Association of American Law Schools, reveals that international law is given at only sixteen schools.” Kunz, , A Plea for More Study of International Law in American Law Schools , 40 AJIL 624, 625 (1946)CrossRefGoogle Scholar. Sixteen is only six more than Professor Gregory had found almost 40 years earlier. See text at note 83.

122 For a fascinating account of this movement, including the 1899 and 1907 Hague Conferences, se’e B. Tuchman, The Proud Tower, ch. 5 (1966).

123 Letter, Department of State to author, May 18, 1970. The Arbitration Convention with Austria-Hungary, 36 Stat. 2156, TS No. 524 (1909), extended 38 Stat. 1783, TS No. 592 (1914), was not invoked in World War I, nor that with Italy, 35 Stat. 2091, TS No. 516 (1908), replaced 46 Stat. 2890, TS No. 831 (1928), in World War II. There was no such treaty with Germany or Japan. Arbitration treaties sponsored by President Taft in 1911 met the same fate as the Hay treaties. R. Bartlett, The Record of American Diplomacy 337-39 (1948); T. Bailey, supra note 43, at 540-41.

124 R. Bartlett, supra note 123, at 339-40; T. Bailey, supra note 43, at 545-46. The conciliation Treaty with Italy, 39 Stat. 1618, TS No. 615 (1914), modified 47 Stat. 2102, TS No. 848 (1931), was not invoked in World War II. There was no other such treaty that might have been invoked in either World War I or World War II.

125 2 W. Malloy, supra note 58, at 2369-70.

126 1 Bevans 577-741.

127 A. Nussbaum, supra note 44, at 221.

128 10 M. Wh1teman, supra note 26, at 283.

129 Finch, supra note 82, at 295; Gregory, supra note 83, at 45.

130 1 H. Grotius, De jure praedae, preface by George A. Finch, at ix (Carnegie trans. 1949, reprinted 1964).

131 1 Bevans 436, 359, 748, 883, 424, and 855, respectively.

132 Philip Marshall Brown said the sanctions of international law are the “compulsive force of reciprocal advantage and fear of retaliation.” P. Brown, International Realities 21 (1917).