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our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place.
This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must, indeed, be proved as facts, but it is not so with the law of nations.” 1
1 In the case of the Charming Betsy, 2 Cranch, 64, 118, MARSHALL, C. J., said: “ It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and, consequently, can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this country.”
In the case of the Nereid, 9 Cranch, 388, 423, the same judge said: “Till such an act [of Congress] be passed, the court is bound by the law of nations, which is a part of the law of the land." See also Talbot v. Seeman, 1 Cranch, 1, 43, and 14 Wallace 170, 188.
In the case of Bentzon v. Boyle, 9 Cranch, 191, 198, MARSHALL, C. J., said: “The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great princi: ples of reason and justice ; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon the law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this."
Bishop says (Criminal Law, 7th Ed., I. 60): “Doubtless if the legislature, by words admitting of no interpretation, commands a court to violate the law of nations, the judges have no alternative but to obey. Yet no statutes have ever been framed in form thus conclusive; and if a case is prima facie within the legislative words, still a court will not take the jurisdiction should the law of nations forbid." Again (p. 69): “ All statutes are to be construed in connection with one another, with the common law, with the constitution, and with the law of nations."
INTERNATIONAL RELATIONS IN TIME OF PEACE.
SECTION 2.—DEFINITION AND CHARACTER OF SOVEREIGN STATES.
HALLECK'S INTERNATIONAL LAW, I. 58.
“A STATE is a body politic, or society of men united together for inutual advantage and safety. Such a society has affairs and interests peculiar to itself, and is capable of deliberation and resolution; it is therefore regarded as a kind of moral person, possessing a will and an understanding, and susceptible of rights and obligations. From the nature and design of such a society, it is necessary that there should be established in it a public authority, to order and direct what is to be done by each individual in relation to the end and object of the association. This political authority, whether vested in a single individual or in a number of individuals, is properly the sovereignty of the State.
“This term, however, in international law, is usually employed to express the external rather than the internal character of a nation, with respect to its ability or capacity to govern itself, independently of foreign powers. A sovereign State may, therefore, be defined to be any nation or people organized into a body politic and exercising the rights of self-government.”
SECTION 3.-ACQUISITION OF TERRITORY.
JOHNSON v. MCINTOSH.
(8 Wheaton, 533.)
Discovery gives a valid title to territory occupied by uncivilized peoples.
The right of the North American Indians to the lands which they possessed was that of occupancy merely.
JUDGMENT—MARSHALL, C. J.-(Only so much of the decision is given as applies to discovery :)
“ The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Praukeshaw nations; and the ques. tion is, whether this title cản be recognized in the courts of the United States.
“The facts, as stated in the case argued, show the authority of the chiefs who executed this conveyance so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country.
“ As the rights of society, to prescribe those rules by which prop. erty may be acquired and preserved is not, and cannot be, drawn into question; as the title to lands, especially, is and must be admitted to depend entirely upon the law of the nation in which they lie, it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of His creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.
“On the discovery of this immense continent the nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the rights of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title miglit be consummated by possession.
“ The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere.
“ It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
“ Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
“On the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded, but were necessarily, to a considerable extent, in paired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.
“While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
“ The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.
“ Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.
“France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. * * *
“ The States of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. * * *
“ No one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.
“In this first effort made by the English government to acquire territory on the continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries “then unknown to all Christian people;' and of these countries Cabot was empowered to take possession in the name of the king of England, thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathen, and, at the same time, admitting any prior title of any Christian people who may have made a previous discovery. * * *
“ Thus, all nations of Europe, who have acquired territory on this continent, have asserted in themselves and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. * * *
“ The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees.
“The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative