International Law on the whole having precedence of Constitutional Law.

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Posted by ' on October 01, 1998 at 10:00:35:

In Reply to: Trespass protection is forfeited during commission of fraud or crime. posted by , on September 30, 1998 at 10:14:24:

International law by Henry

But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled, 'A Digest of the International Law of the United States,' and it consists of documents relating to that subject issued by Presidents and Secretaries of State, of the decisions of Federal Courts, and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following, all of them accepted by the American Federal Government.

'The law of the United States ought not, if it be avoidable, so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations, unless the contrary be expressly prescribed.

An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains, nor should it 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.' Again: 'The Law of Nations is part of the Municipal Law of separate states.

The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody.

The Law of Nations, unlike foreign Municipal Law, does not have to be proved as a fact.

The Law of Nations makes en integral part of the laws of the land. Every nation, on being received at her own request into the circle of civilised government, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency amongst civilised states, and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilised nations.'

Here you see that according to American doctrine International Law has precedence both of Federal and of Municipal Law, unless in the exceptional case where Federal Law has deliberately departed from it.

It is regarded by the American lawyers as having very much the same relation to Federal and State Law as the Federal Constitution has, and this no doubt is the reason why in so many famous American law books Constitutional Law and International Law are the first subjects discussed, International Law on the whole having precedence of Constitutional Law.

The principle on which these American doctrines of International Law repose is, I think, tolerably plain.

The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature.

They do not believe it to be of the nature of immemorial usage, 'of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations.

This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of International Law, and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by Governments and lawyers of the civilised sovereign communities of our day.

If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations.

There are, however, at the same time some real defects in International Law which are traceable to the difference between that law and positive law, and the absence of mechanism by which positive law is developed. International Law was not declared by a Legislature, and it still suffers from want of a regular Legislature to improve and to develop it.


2. International law is generally divided into two branches;

1. The natural law of nations, consisting of the rules of justice applicable to the conduct of states.

2. The positive law of nations, which consist of,

1. The voluntary law of nations, derived from the presumed consent of nations, arising out of their general usage.

2. The conventional law of nations, derived from the express consent of nations, as evidenced in treaties and other international compacts.

3. The customary law of nations, derived from the express consent of nations, as evidenced in treaties and other international compacts between themselves. Vattel, Law of Nat. Prel. 1. The rules of conduct, deducible by reason from the nature of society existing among independent states, which ought to be observed among nations.

2. The adjudication of international tribunals, such as prize courts and boards of arbitration.

3. Text writers of authority.

4. Ordinances or laws of particular states, prescribing rules for the conduct of their commissioned cruisers and prize tribunal's.

5. The history of the wars, negotiations, treaties of peace, and other matters relating to the public intercourse of nations.

6. Treaties of peace, alliance and commerce, declaring, modifying, or defining the pre-existing international law. Wheat. Intern. Law, pt. 1, c. 1, 14.

4.The law of nations has been divided by writers into necessary and voluntary; or into absolute and arbitrary; by others into primary and secondary, which latter has been divided into customary and conventional. Another division, which is the one more usually employed, is that of the natural and positive law of nation's.

The natural law of nations consists of those rules, which, being universal, apply to all men and to all nations, and which may be deduced by the assistance of revelation or reason, as being of utility to nations, and inseparable from their existence.

The positive law of nations consists of rules and obligations, which owe their origin, not to the divine or natural law, but to human compacts or agreements, either express or unplied; that is, they are dependent on custom or convention.

5.Among the Romans, there were two sorts of laws of nations, namely, the primitive, called primarium, and the other known by the name of secundarium.

The primarium, that is to say, primitive or more ancient, is properly the only law of nations which human reason suggests to men; as the worship of God, the respect and submission which children have for their parents, the attachment which citizens have for their country, the good faith which ought to be the soul of every agreement, and the like.

The law of nations called secundarium, are certain usages which have been established among men, from time to time, as they have been felt to be necessary. Ayl. Pand. B. 1, t. 2, p. 6.

As to the law of, nations generally, see Vattel's Law of Nations; Wheat. on Intern


'Positive law' consists of voluntary law derived from presumed consent, human compacts or agreements, either express or unplied; that is, they are dependent on custom or convention.

So you see; Title 26 has not much to do with any constitution.

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