New-York tribune., 1922-11-19
Power Over Foreign Ships
Gcmuercc Regulation in the lish,
of International Law
To The Editor of The Tribure.

Marshall THE Brig wilson,, sthat fh,
power OF Congress to regulate com.
inesec eomprehends necessarily power
eves navigation and warrants every sct
Ct national sovereignty which any soy,
ereign nation may exercise over ves
sels, foreign or domestic, which enter
our ports. But there is portion oi
This power. so far as respects foreign
vessels, which it is uausual for any ma
tien to exercisc, and the exercise o;
which would be deemed an unfriendly
interference with the just rights oi
foreign powers.' He refuses to construc
a statute of Congress in manne,
which would destroy treaty rights OF
foreign nations or negative the "coini,
tas gentium."
In Gibbons VS.. Ogden he admits
that as between states of the United
States "the Constitution does not con.
fer the right Of intercourse.
That right derives it's source from,
these laws whose authority is ac-
knowledged by civilized man through
cut the world. The Constitu-
tion found all existing right and gave
Congress the power to regulate it,
With respect TO intercourse between
the United States and foreign nations
the situation is different. The regula-
ton Of such commerce must have re-
gard to the rights, subsisting, Of for
eign nations, consistently with the law
or modern usage of nations, and the
jurisdiction is communis juris. The
question will be whether the power Of
Congress to regulate commerce with
foreign nations is restrained by inter-
national law, and Marshall is author
ity for the we'll known principle, "An
set Of Congress ought never to be con.
strued TO violate the law Of nations
If any other construction remains"
This makes clear the exception in
"The Exchange" that foreign vessels
IN American territorial waters are
subject to the law Of the place unless
by treaty or otherwise the two coun-
tries have come to different under
standing or agreement" 'All excep-
tions," adds Marshall, must be traced
up to the consent of the nation itself.
:. This consent may be either
express or implied"
eve became responsible to other
nations upon the establishment of the
Federal government for the observ-
ance Of the law of nations" (Jay); and
Marshall, in "Percheman's Case" ad-
Indicates that rights consistent with
the modern usage Of nations will be
enforced by the Federal courts, wheth-
er stipulated for by treaty or not.
Both. in public and private interna-
tlonal law publicists from Grotius to
this day have been endeavoring to rec
oncile the divergent, conflicting mu-
nicipal codes Of nations to the su-
pcrior obligation OF the laws of ma
tions or modern usage thereof When
Sweden in the early part of the nine
teenth century seized American ship
ping (Stralsbund seizures) America
responded to the justification of Swe-
den that the seizures were good by
the law of the land:
Whatever the sovereign of
state may deem fit to do within his
own jurisdiction in relation to those
who are within his allegiance cannot
be found wrong by any other govern
ment, but there certainly cannot be
adduced from this principle right
to extend oppressive measures to the
citizens Gin transitu) Of other in
dependent states"
As declared by Mr.. Bayard (For.
Rel, 1887, 751, 1857: 'If a government
could set up its own municipal laws as
the final test Of its international
rights and obligations, then the rules
of international law would be but; the
shadow of name and would afford no
protection either to states or to indi-
viauals." When the Constitution was
framed there was applicable thereto
nations, and no amendment of the
Constitution may transcend or alter
the responsibilities Of the United
States under international law as a
member of the society OF nations.
JOSEPH WHITLA STINsON.
New York, Nov. Is, 1922