Page 34 - Law of Peace, Volume ,

Pam 27-161-1

Upon careful consideration, however, I am led to conclude that a mis- unlading the liquor at a point within this 12-mile zone, it may be that we
conception exists here as to the status, in a federal forum, of so-called would have had no dficulty in sustaining the libels.
international law when that law encounters a municipal enactment. **I*
I
If we assume for the present that the national legislation has, by its My conclusion, then, is that as no statute embracing the subject-mat.
terms, made the acts complained of a crime against the United States ter of sections 447,448,450, 453, 585, 586, 593, and 594 of the Tariff
even when committed on the high seas by foreign nationals upon a ship Act of 1922 has extended our territorial jurisdiction to a point on the
of foreign registry, then there is no discretion vested in the federal high seas distant 19 miles from our coast, conduct which would have
court,.once it obtains jurisdiction, to decline enforcement. International been in violation of these sections if performed lthin our territory can-
.practici.is law only in so far as we adopt it, and lie all common or not constitute an offense against the United States when performed at
statute law it bends to the will of the Congress. It is not the function of such a distance by foreign nationals on ships of foreign registry. If, for
courts to annul legislation; it is their duty to interpret and by their the purpose of our treasury, we can extend our sea jurisdiction to a point
judicial decrees to enforce it--and even when an act of Congress is four leagues from the coast, I see no reason why we cannot extend it
declared invalid, it is only because the basic law is being enforced in that four leagues more. I merely observe that we have not done so yet.
declaration. There is one ground only upon which a federal court may 1 now come to the provisions of the American-British Treaty, which
refuse to enforce an act of Congress and that is when the act is held to be was obviously contracted for the purpose of preventing hovering ships
unconstitutional. The act may contravene recognized principles of inter- from supplying intoxicating liquor to carriers running between the ships
national comity, but that affords no more basis for judicial disregard of it and the shore. * * '*
than it does for executive disregard of it. These libels, therefore, cannot ****
be attacked upon the ground that the territorial jurisdiction of the Whether therefore the Senate and the Executive may constitutionally
United States cannot be extended beyond the three-mile sea zone under enact criminal legislation by the device of a mere treaty is a question
international law. which fortunately we need not discuss. It is suficient to conclude that
If, however, the court has no option to refuse the enforcement of leg- the American-British Treaty did not in fact enact new criminal legis-
islation in contravention of principles of international law, it does not lation.
follow that in construing the terms and provisions of a statute it may not ****
assume that such principles were on the national conscience and that the The considerations as above expressed therefore impel the conclusion
congressional act did not deliberately intend to infringe them. In other that there is no legal basis for these libels, and it follows that they must
words, unless it unmistakably appears that a congressional act was in- be and the same are dismissed. * * '
tended to be in disregard of a principle of international comity, the
presumption is that it was intended to be in conformity with it. It is with In Tag v. Rogers 7, the appellant argued that international
such a principle in mind that we now proceed to an examination of the practice, formalized in a rule of law, forbids the seizure or
legislation upon which the government relies. confiscation of the property of enemy nationals during
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful time of war, at least where that property had been ac-
for the vessel to make entry of or to unlade any part of its cargo quired by enemy nationals before the war and in reliance
elsewhere than at a port of entry. Part of the cargo of Over the Top was
unloaded on the high seas, and the government contends that the upon international agreements. In rejecting this argument
statute was thereby violated. To me it seems that the statute was in- the court said in part:
tended to prevent entry or unlading at a port or place in the country Once a policy has been declared in a treaty or statute, it is the duty of
other than a port of entry. It had no reference to unlading on the seas the federal courts to accept as law the latest expression of policy made by
even when done within the three-mile zone. But waiving that question, the constitutionally authorized policy-making authority. If Congress
it is to be noted that the act is phrased in general language and that it adopts a policy that conflicts with the Constitution of the United States,
bespeaks no suggestion of territorial limitation. The proposition has not Congress is then acting beyond its authority and the courts must declare
heretofore been advanced that for that reason the act has attempted to the resulting statute to be null and void. When, however, a constitu-
extend the territorial jurisdiction of the United States over the whole tional agency adopts a policy contrary to a trend in international law or to
earth. Almost all criminal statutes, or statutes prohibiting defmed con- a treaty or prior statute, the courts must accept the latest act of that
duct, are phrased in general language without mention of territorial agency. 8
limitation. But they are all to be read in the light of the principle that ju-
risdiction is not extraterritorial and that the municipal legislation is not e. The preceding cases clearly demonstrate the fact that
attempting to regulate or to punish conduct performed outside of the treaties are indeed an integral part of U.S. law. Just as
national domain. For exainple, the statutes of Connecticut do not forbid clearly evidenced, however, is the fact that Congress may
larceny in Connecticut-they forbid larceny. The statutes of the United denounce previous treaties if it see fit to do so and pass
States do not forbid counterfeiting in the United States-they forbid
superseding and contravening legislation to this effect. 9
counterfeiting. That the Congress may, in disregard of the law of na-
tions, prohibit acts by foreign nationals not committed within our do- Though a Congressional decision to contravene prior
main, has already been conceded; but unless such intent clearly appears treaty commitments does have the effect of law within the
from the language of the statute such intent is not to be presumed.
****
7. Tag v. Rogers, 267 F.2d 664, cert. denied, 362 U.S. 904 (1959).
The same considerations apply with equal force to the provisions of 8. Id. at 668.
sections 448, 450, 453, 585, 593, and 594 of the Tariff Act of 1922. 9. In a 1972 case, Diggs v. Schultz, 470 F.2d 461, cert. denied, 411
These enactments of the Congress are implicit with the proviso that the U.S. 931, 93 S. Ct. 1897, a group of black Congressmen attempted, inter
acts therein denounced be accomplished within the territory of the alia, to challenge the validity of a 1971 law sponsored by Senator Byrd of
United States. No attempt is there discernible to extend the legislative Virginia which had set the stage for importing chrome from Rhodesia in
jurisdiction of the United States beyond its boundaries. derogation of the United Nations embargo previously adopted with the
**** affiative vote of the United States. See Executive Order Nos. 11322,
Here we have a distinct extension of our sea jurisdiction to a point 12 11419, 22 USCA 5 287c. See also Strategic and Critical Materials Stock
miles from the &--an assertion of authority which may perhaps clash Piling Act, 55 1-10, 50 U.S.C.A. 55 98-98h-1. The D.C.Court of Ap-
with international practice, but which, whether challenged or not, is un- peals held that ". . . under our constitutional scheme, Congress can de-
mistakable, and which, therefore, it is the business of ow courts to en- nounce treaties if it sees fit to do so, and there is nothing the other
force. Had the master and super cargo of Over the Top been guilty of branches can do about it." 470 F.2d at 466.