492 INTERNATIONAL LAW 



never be construed to violate neutral rights, or to affect neutral 

 commerce, further than is warranted by the law of nations as under- 

 stood in this country." 



And in The Nereide (1815), 9 Cr. 388, 423, the same eminent 

 authority 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." 



And as Mr. Bishop has gravely and impressively expressed it: 

 " Doubtless if the legislature, by words admitting of no interpreta- 

 tion, 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 legis- 

 lative words, still a court will not take the jurisdiction should the 

 law of nations forbid." Again: " All statutes are to be construed 

 in connection with one another, with the common law, with the 

 Constitution, and with the law of nations." (Criminal Law;, 7th ed.. 

 60, 69. See also 8th ed., sec. 124.) 



If the matter rested here, the true construction of this funda- 

 mental passage might well be in doubt, but the courts have passed 

 upon it and its meaning in numerous cases. The binding effect of 

 international law has been held in a variety of cases from the institu- 

 tion of our federal courts to the present day, and there is not a well- 

 considered case to be found in the books that declares international 

 law to be other than municipal law of the United States. An early 

 and carefully considered case is United States v. Smith (1820), 5 

 Wheat. 153, in which the Supreme Court held, per Story, J., that an 

 Act of Congress of 1819, referring to the law of nations for the crime 

 of piracy, is a constitutional exercise of the power of Congress to 

 define and punish that crime; and that the crime of piracy is defined 

 by the law of nations with reasonable certainty. In the Act of 

 Congress referred to, the act of piracy as defined by the law of nations 

 was held sufficient without further definition because international 

 law is part of our municipal law. 



In the case of The Scotia (1871), 14 Wall. 170, Strong, J., held that 

 our courts take judicial notice of international law. "Foreign 

 municipal laws," he says, " must be proved as facts, but it is not 

 so with the law of nations." 



But a more recent and by much the most authoritative case on 

 the subject is the Paquete Habana v. United States (1899), 175 

 U. S. 677, in which the late Mr. Justice Gray of the Supreme Court 

 squarely held the doctrines advanced by Lords Talbot, Hardwicke. 

 Mansfield, and Sir William Blackstone, and incorporated in numerous 

 decisions of the august tribunal of which he was a member. The 

 case arose out of a capture in the recent Spanish-American war of 

 two Spanish boats, the Paquete Habana and the Lola. The question 

 before the courts was, Are fishing smacks in the absence of municipal 



