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but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject.

In arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of it's jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of it's decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world. (Sir William Blackstone, Commentaries on the Laws of England, Book IV, 1769, ch. 5, pp. 66-67.)

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. These principles are believed to be correct, and they ought to be kept in view, in construing the act now under consideration. (Chief Justice Marshall, in The Charming Betsy, 2 Cranch, 64, 118, decided in 1804.)

Until such an act be passed, the court is bound by the law of nations, which is a part of the law of the land. (Chief Justice Marshall in The Nereide, 9 Cranch, 388, 423, decided in 1815.)

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 and commercial 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 principles 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 a 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.

Without taking a comparative view of the justice or fairness of the rules established in the British courts, and of those established in the courts of other nations, there are circumstances not to be excluded from consideration, which give to those rules a claim to our attention that we cannot entirely disregard. The United States having, at one time, formed a component part of the British empire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. (Chief Justice Marshall, in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 198, decided in 1815.)

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. (Mr. Justice Gray, in The Paquete Habana, 175 United States Reports, 677, 700, decided in 1900.)

CHAPTER XXI

JUDICIAL POWERS AND THEIR RELATION TO LAW AND EQUITY, TO ADMIRALTY,
MARITIME AND INTERNATIONAL LAW

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It will be observed that the judicial power under the Constitution does not extend to all cases; but to cases of law and equity. The question arises as to the meaning to be attached to law and equity in this connection, as they affect the nature and extent of the case, to which alone it is to extend. The importance of precision in this matter and the consequences that would flow from a misconception, have never been better stated by the great Chief Justice from the bench than they were by him upon the floor of the House of Representatives in his speech on the Robbins case, delivered in 1800. In the course of a debate, to which the extradition of Jonathan Robbins gave rise, Representative Marshall said:

A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the Judicial power extended to every question under the Constitution, it would involve almost every subject proper for Legislative discussion and decision; if, to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. . . . By extending the Judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.1

It is common knowledge that technical terms employed in the Constitution are to be taken in the sense in which they were understood in English jurisprudence; because the law of England, no less assuredly than the language of England, in which the laws were expressed, accompanied the colonist as a matter of course. We have good authority for the assertion that the law of England was a favorite study of his successors, and that they were familiar with its principles. In Edmund Burke's speech on con'Annals of Congress, Vol. 10, p. 606. Session of March 7, 1800.

ciliation with America, delivered in the House of Commons on March 22, 1775, that great statesman and friend of the colonies said:

In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England.1

Blackstone

It is therefore to be expected that, when terms of municipal law are and found in the Constitution, they are to be understood in the sense in which Vattel they were used in Blackstone's Commentaries; and, when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them.

On August 22, 1787, the question of an ex post facto law was before the Federal Convention, and there appearing to be some confusion as to its exact meaning, Mr. Madison reports in his notes that a week later "M". Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the terms 'ex post facto' related to criminal cases only." And in Blackstone's sense the phrase is to be construed, as appears from the leading case of Calder v. Bull, (3 Dallas, 386), decided in 1798.

2

Law the

Law of

Nations

We have it on equally good authority that the colonists were not only International interested in and familiar with municipal law, which they would prefer to Common call the common law of England, but that they regarded as indispensable, a knowledge of international law, which they would have called the law of nations, and which could with propriety be termed the common law of nations. In a letter dated Philadelphia, December 19, 1775, written to Charles W. F. Dumas, at The Hague, the venerable Dr. Franklin said:

I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising State make it necessary frequently to consult the Law of Nations.

The Works of Edmund Burke, Boston, 1839, Vol. II, p. 36.

Documentary History of the Constitution, Vol. III, p. 636. Session of August 29, 1787. The original edition of Vattel's "Law of Nations," in two quarto volumes, was printed at Neuchâtel in 1758, and part of the edition bears the imprint of Leyden and of London. An edition in three volumes, 12 mo. appeared in the same year. The title which Vattel gave to his work was Le droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. The edition for which Mr. Dumas was responsible appeared in Amsterdam in 1775, reproducing the original title with the addition of the following phrases: Nouvelle édition augmentée, revue et corrigée. Avec quelques remarques de l'éditeur.

Law and
Equity

Accordingly, that copy which I kept (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed) has been continually in the hands of the members of our Congress now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.1

As to the common law of nations, we thus have Dr. Franklin's authority for the statement that the members of the Continental Congress referred to and accepted Vattel's famous treatise, as the measure and standard of the duties of the colonies, soon to become free and independent States. We could, however, dispense with his authority, inasmuch as the common law of nations was then regarded as an intricate part of the common law of England, and adopted as a system by the adoption of the common law. For does not Blackstone inform us, in his Commentaries, that "the law of nations (whenever any question arises which is properly the object of its jurisdiction) is hereby adopted in its full extent by the common law, and is held to be a part of the law of the land." 3

Let us now consider the phrase "law and equity," and determine the sense in which those terms were understood by the framers of the Constitution, and therefore are to be understood in the Constitution itself.

In the first place, it will be well to cite an authority to the effect that terms of art are to be accepted in the sense in which they were used in that system of law in which the framers of the Constitution were educated, and from which they borrowed. Of the many cases which might be cited for this purpose, that of Robinson v. Campbell, (3 Wheaton, 212, 221-3), decided in 1818, will suffice. In speaking for a unanimous court, of which Messrs. Marshall and Story were members, Mr. Justice Todd said:

By the laws of the United States, the circuit courts have cognizance of all suits of a civil nature, at common law and in equity, in cases which fall within the limits prescribed by those laws. By the 34th section of the judiciary act of 1789, it is provided, that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision,

1 Francis Wharton, Diplomatic Correspondence of the American Revolution, 1889, Vol. ii, 64.

It is interesting to note that in the debates of the Federal Convention, Luther Martin, delegate from Maryland, invoked Vattel's authority "in order to prove that individuals in a State of nature are equally free & independent," and he vouched the same great authority "to prove that the case is the same with States till they surrender their sovereignty." (Madison's Notes. Documentary History, Vol. iii, p. 225. Session of June 27th.)

The question of distinction between suits of a civil nature and suits coming properly under the law of nations was raised in In Re Baiz (135 U. S., 403), decided in 1890. Although the petitioner claimed to be a public minister representing a foreign country, Mr. Chief Justice Fuller concluded that the District_Court had jurisdiction, and denied the writs. For opinions in analogous cases, see J. B. Scott, Judicial Settlement of Controversies Between States, Vol. i, p. 388, Note.

in trials at common law, in the courts of the United States, in cases where they apply. The act of May, 1792, confirms the modes of proceeding then used in suits at common law, in the courts of the United States, and declares, that the modes of proceeding in suits of equity, shall be "according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law," except so far as may have been provided for by the act to establish the judicial courts of the United States.

After a brief discussion of this question, the learned Justice continued and concluded:

The court, therefore, think, that to effectuate the purposes of the legislature, the remedies in the courts of the United States are to be, at common law or in equity, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles.

Accepting as we needs must, that by law, common law is meant, and by equity, the practice in chancery, we are obliged to probe beneath the surface, in order to ascertain the meaning to be assigned to these terms. In the first place, we must bear in mind that the United States, meaning thereby the more perfect union of the States, was a creation of the States meeting in conference at Philadelphia, and that the Union only possessed the powers expressly or impliedly granted by the delegates of the States and ratified by the State conventions. It was, therefore, a union without government and without law, except as government and law were provided by the Constitution and legislature in accordance with its terms. Each State had its government and had its law. The law of each State was common law and equity, although separate and distinct courts for the administration of the latter system did not exist in all the States.

Law

Civil Cases

In defining law in terms of common law, the law of crimes as well as Common the law in civil disputes might have been adopted. It was for some Limited to years supposed by such men as Chief Justice Jay and Chief Justice Ellsworth, that the common law adopted included the law of crimes. These views, however, are expressly repudiated by the Supreme Court in United States v. Hudson (7 Cranch 32, 33), decided in 1812, in which the court was called upon to determine "whether the circuit courts of the United States can exercise a common-law jurisdiction in criminal cases." In delivering the opinion of the court, Mr. Justice Johnson said that public opinion. had long since decided the question, although it was now presented to the court for the first time. "The course of reasoning which leads to this conclusion," he continued, "is simple, obvious, and admits of but little illustra

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