New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-08-21
ma tional law at first came not as pressing anu d"
aid. but perplexng embarrassment
THE ENGLISH AND AMERICAN SCHOOL

different from that OF writers on the continent Oh
Europe The essential difference consists in this:
" hereas in the latter what shall call the ethical
and metaphysical treatment Is followed, In the former
While not ignoring the important part which ethics
play in the consideration of what international law
ought TO be lis writer's for the most part careiuly
distinguished between what *. in fact International
law from their views Of what the law ought 10 be-
Their treatment is mainly historical.
BY most Continental writers and 10y none more than
Hautefeuie. what what he thinks ought TO
be law. theory and fact. law and so-caled rues OF
nature and OF right. are mixed up IN "a way at once
one distinguished English writer indeed. the late
Sir Henry Maine. thought that ne had dlscoVerei d
fundamental adherence between English ana amer
Jur!sis the view taken OF the obligation oil
Ills opinion was based the judgments OF the
English Judges IN the celebrated ,Franconia case.
In which II was held that the trgish courts hdu no
jurisdiction 10 try foreigner for crime committed
on the high seas although within marine ieasv a.,
from the Br,isn coast The case was declued IT,
1876 and reported in the second volume OF the Law
Reports Exchequer Division, page g. Tne facts were
these. The defendant was captain he!l p',
subject. i'm charge captain of the German steam
ship Francona. When OF Dover the frdnconia, at a
point within two and halt miles OF me ne't' ia,'
into and sank British steamer the Srdthciyue,
thereby causing loss Of life. The facts were such a.
to constitute. according 10 English law the crime VI
granddaughter. OF which the defendant was louna
guilty by the jury. but the learned Judge VINO urea
the case at The central criminal tourt @ "a 80 e
further consideration by the Court for crown Stse9
Reserved the question whether ne oSnIrdi t Tn@
Court had jurisdiction over the deIendant IoIsis
or. IN respect of an offence comnl'ed ny MN . on
shore All the members OF the coult W.T., u oi' ~,
that the chief criminal courts-that IS TO say, tnc
Courts O Asslzc ana the Central trninal our IT,
were clothed with jurisdiction to administer justice
in the bodies of counties or, in other words IN r'ns
sn territory ana tn@[ IRON me and later the
Central Criminal Court Gn which the delehuant ma
preyogsy Exercised by the Lord High
Admiral on the high seas. But the majority held
territory OF England and. therefore, not within the
bodies Of counties. and also that the Admiral had
The minority. on the other hand, held tnat me
marine belt WAS part of inc terrlt1ry OF o rnsa anu
While do not say that should have arrived at the
conclusions OF historical fact of the majority am ny
no means clear that the judges OF the United states
accepting the same data as ala inc maJQrly OF t,e
xaT Rnt however this may be, the views OF the
majority do not seem to ne TO warrat ,s
affects the view taken OF the authority OF internal
tonal law. ,,.. 800, T.. q constitutional
difference between the United states and Great
Britain 10 the methods ny Which te i Ia
courts acuure--at least in certain cases 1uilsuc-
ton to try and to punish offences against lhterh"-
tonal law. ,,.. T.. ..,,,. - han,
Inroxe1 and stricter views of neutral duties con-
stIte one OF the great developments of hs century,
These views were (for reasons 10 Whch nave
already advertcd) adopted earlier ana more lulN III
the United States than in England What was there
Washington as President. and Jefferson as secre.
tary Of State. promulgated the ru,es o. by
caused Gideon Henfeld an American citizen 10 ne
tried for taking service on boaru
Of tbeHa rules Political feeling procured an acqut-
taI 'i in soto ~ the judges direction:
otor no Joubt Congress passed the Act Of 1874.
making such conduct criminal. not las l gathG, r
because ii was admitted to be necessary bnt SIM
NV 70 strengthen the hands of the Executive.
I can hardly doubt how the same case wo ,hd
have been dealt with in England. Assuming the
doing Of the acts forbidden by proclamation Of neu-
frality although infractions OF internatlonal law,
10 have been made offerces by municipal statute.
the judges cannot doubt would nave not saG or snf
and that municipal law not having declared s, II "a
crime they oTd not 5G IT. by the Exccu
tive in however solemn form. has no leslsa.uNIe
force unless act Of Parliament has so ordcr
Parliament has. In fact; so enacted as 10 r Ut"oss
of tho Queen in Council in many cases I'ut ny
Stunning The law TO- be as 10 n recorEize the f OBJ
legation Of international law as between states
Tor Is rns Of eScitement it viii not to-
dav be doubted that ii Is the duty OF states 10 give
,nunicjnal legislation where that Is necessary and
to use reasonable efforts to secure the ooserSdhce
OF tina. law.
DIFFERENCES or CONSTITUTIONS.
In England we have old Constitution under
which we are accustomed to fixed modes Of legis-
latlon and when at last accept a new develop
nent of International law. we look to those meth
DDS to give effect TO it. Indeed, that habit OF
looking TO legislation to meet new needs and de-
velopments even In internal concerns-a habit con-
has done much to restrain the judges from that
bold expansion Of principle to meet ne" ca3'si
n,
On the other hand with you, things are ma
teriallv different Your Constitution Is sun so lod-
ern That equally fixed habits of looking to lesis-
lation have not had time to grow up. MeanW snn
assaied by still more modern necessltles, ana INC
methods for its amendment are iiou h"div nss6cd
Hence has arisen what may can a menlpii ny p oa
United States for which know no parallel In Eng,
fish iudicature and which seems to me to exceed
the latitude Of Interpretation observed by your
in rel
AS Examples to the emancipation Of the slaves by
vas i,stifed as an act covered by the necessities
Of the ca and within the war power conferred
the Judicial declaration. by the Supreme Court
of the validity Of the act or CONGRESS nla r,i
express powers to currency being vested IN
Congress by the Constitution. the power OF giving
forced circulation to paper lowed from 'hSn u" Il
desirable If not a necessary implication, with us
no such difficulties arise Our constitution Is win
you the Constitution Is written, and TIE judiclai
acts OF Congress null and void as unconS,ltutOnai
With us there can. I'm the strict sense OF the W9In
be such thing as an unconstitutional act OF far-
turn now to the consideration of what char
acterzes the later tendencies of international law
when Mcnelk. Emperor Of Abyssinia. was re-
feat ~ epT prsonS o the Civilized world felt thrill
Of horror Yet the time was when 10 trett prisoh-
again bearing arms were regarded common in
cidents of helllgcrent capture Such acts would
the inhumanifies Of the African slave trade be-
fore the DAYS Of ClarksOn and WHEREFORE.
Let US hope that 1t Is no longer possible 70 do
as Louis XIV did in his devastation of the Pala-
innate or 10 do as he threatened to DO break
down the dykes and overwhelm with disaster the
Low countries. Let MS hope. too, that no modern
Napoleon would dare TO decree as the first Ma
poleon did in his famous or Infamous seront
hr0lGes edct Of 1910. The force Of public opinion
Is too strong and II has reached a higher moral
plane.
bare recital Of some Of the important respects
in which the evils OF war have been mitigatcd by
hf filSf
Among them are. l. The greater immunity from
lttack Of the persons and property of enemy-sub-
ccts I'm a hostile country. . The restrictions i'm
posed on the active operations Of a helligerent
when occupying enemy's country. 3. The rccoS-
nized distinction between subjects OF the enemy.
and non cOmbatant !. The Difference
accorded TO cartels safe-conducts and flag Of
irucc 3 The protection secured for ambulances
and hospitals and for all engaged in tending tho
sick and Wounded-of which the Geneva Red Cross
II 1854 ahle illusirn Tor The