Under the Constitution of the United States, this non-observance or the repudiation by legislative act of the securities of the law of nations is precluded whether embodied in the express stipulations of treaties, or whether "unwritten," but conceded by the society of nations to constitute both its law and the law of nature. Earliest judicial opinion in the independent American States confirms this opinion: "The Municipal Laws of a country cannot change the law of nations, so as to bind the subjects of another nation." Miller et al. v. The Ship "Resolution" It is reflected in numerous decisions in terms familiar to the student of the law of nations: "International law, in its widest and most comprehensive sense-including not only questions of right between nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concerning rights of persons within the property and dominion of one nation by reason of acts, private or public, done within the dominions of another nationis part of our law," Hilton v. Guyot. As said very recently by the Supreme Court of the United States, "the question of the construction of treaties is judicial in its nature, and courts when called upon to act should be careful to see that international agreements are faithfully kept and observed," Sullivan v. Kidd," decided January 3rd, 1921. "What are the advantages of treaties if they are to be observed no longer than is convenient?" queries Washington.

12

10

What it is intended to point out is that the discretion of Congress to repeal or modify treaties, operative of themselves, is restrained by the law of nations under the Constitution; that the exercise of the treaty power is likewise obliged to conform to those principles admittedly binding upon the society of nations, very especially such as have been crystallized in treaties, which in such respect are of paramount obligation

Federal Court of Appeal, Philadelphia, 1781.

10 159 U. S. 112, 163.

"165 Oct. Term Sup. Ct. of the U. S.

12 Message to the Senate, Nov. 19th, 1794, "Sparkes' Writings of George Washington," Vol. 12, p. 491.

upon the Government of the United States. The violation by a foreign government, though war ensue, cannot work impairment to such treaty-sanctions, which constitute, under the Constitution, "the supreme law of the land." In this sense "treaties are abrogated in the circumstances of war only so far and to the extent that their execution is incompatible with war," Techt v. Hughes.13 The power of Congress is inadequate, or indeed of the courts, to modify the force of a treaty, wherein as part of the municipal law of the United States, it signalizes the express obligations of the law of nations. It must, to that degree, control the restoration of lawful relations of peace with the offending state.

Jay declares, Charge to Grand Jury in Henfield's Case", "treaties when once fairly made, cannot be altered or annulled by one of the parties. Wide is the difference between treaties and statutes. We may negotiate and make contracts with other nations, but we can neither legislate for them, nor they for us. We may repeal or alter our statutes, but no nation can have authority to vacate or modify treaties at discretion ... Whenever doubts and questions arise relative to the validity, operation and construction of treaties, or of any article in them, those doubts and questions must be settled according to the maxims and principles of the laws of nations applicable to the case;" an opinion' not inconsistent with modern doctrines so far as treaties are a part of the law of nations, nor with the rule that the construction placed upon a treaty by the Department of Government charged with the supervision of American Foreign Relations and strengthened by the practice of the governments, parties to the treaty, will be given much weight by the courts in a treaty case properly before them. Sullivan v. Kidd, Charlton v. Kelly, Castro v. DeUsiarte."

16

13 229 N. Y. 222; Kent. "Commentaries." 12 ed., p. 176; Bluntschli, Le Droit International Codifié, 5th ed.. par. 538.

1411 Fed. Cas. No. 6360.

15 Supra.

1220 U. S. 447, 468.

17 16 Fed. 93, 98.

(Opinion of Mr. Justice Addison Brown). Marshall indicates the limitation upon the power of Congress, when he says: "An Act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains, and consequently, can never 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: "The Charming Betsy." "18

Duponceau observes of the competency of the Federal Courts arising from the law of nations as a source of jurisdiction under the Constitution: "The law of nations, being the common law of the civilized world, may be said to be a part of the law of every civilized nation; but it stands on other and higher grounds than mere customs, statutes, edicts and ordinances .... every branch of the national administration each within its distinct and its particular jurisdiction is bound to administer it. It defines offences and affixes punishment, and acts everywhere proprio vigore whenever it is not altered or modified by particular national statutes or usages, not inconsistent with its great and fundamental principles. Whether there is or not a national common law in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings. That a very considerable part of the jurisdiction of the Federal Courts rests upon the law of nations under the Constitution and treaties of the United States made under its authority is patent. In the "Appam" Case jurisdiction was founded upon a violation of the neutrality of the United States; not upon any rule of prize law constituting part of the municipal law, but upon an invasion of the rights and duties of this government under the law of nations.20

19

The jurisdiction flowing to the Federal Courts by virtue of the law of nations is thus peculiarly safeguarded under the constitution from legislative altera

18 2 Cr. 64, 118.

19 See Story Commentaries, Vol. 1, p. 116, footnote.

20 243 U. S. 124.

tion or modification by treaty. "Whatever may be the national effect of a treaty which conflicts with the provisions of the Constitution it is generally agreed that it will be disregarded by the courts;'" the same must be held of a treaty in derogation of the law of nations. Of the harmful working of that law, Story significantly comments: "If these doctrines form a part of the law of nations, however mischievous they may be in operation, the United States must submit to them until they are relaxed by particular convention.22 (Justifications under the law of nations of the British Navigation Laws). These considerations which are susceptible of much greater development, emphasize a restraint upon the legislative and executive branches of the Government as well as upon the treaty-making power which peculiarly touches the judicial authority and its vested indefeasible jurisdiction. It implies a control, in American foreign relations, in the exercise of the diplomatic agencies of this government and the treatypower, referable directly to principles acknowledged and adopted by the Constitution upon its inception. As said by Coke: "Interroga justinam generationem" (for out of the old fields must come the new corn)."

21 Harvard Law Review, Vol. 29, 219; "The Albergen," 223 Fed. 443: The Neck," 138 Fed. 144; Doe v. Braden, 16 Howard, U. S.

635, 657.

22 Story, Miscellaneous Writings, p. 483, in re.

237 Coke Calvins Case, p. 5.

All rights reserved saving publication by THE CANADIAN LAW TIMES, or courtesy of CANADIAN LAW TIMES to permit its republication among the author's works. Aug. 23rd, 1921.

AN UNSOLICITED REPORT ON LEGAL
EDUCATION IN CANADA.

BY PROFESSOR J. T. HEBERT.

There are in Canada two methods of preparing for a career in the profession of the law: the simplest and most primitive is that of serving an apprenticeship in a lawyer's office, the modern, and more thorough, is by means of a course of study in a school of law. Although these two methods may be, and often are combined, they are nevertheless elemental, and in this Report they will be examined and discussed separately.

I. APPRENTICESHIP.

The theory behind admission to the provincial bars is, in all cases, that of apprenticeship, and even those candidates who have taken a law school course, and whose actual service in offices is in consequence completely, or in large measure remitted, must become in name articled clerks, being thereunto enabled by the legal fiction of going through the forms of apprenticeship. Nevertheless, the bars are still recruited in large part from the orthodox articled clerks who have been admitted as students-at-law, have served in a Barrister's office for a term varying from three to five years, depending on the province and on the previous education of the student, and finally have passed the bar examinations of the province. It is with these that the present section of this Report will deal.

Professor Lee has said that apprenticeship by training a man in the practice of the law produces a skilful lawyer,' and there can be no doubt that the student acquires in an office a great deal of indispensible knowledge. Practice and procedure, together with the hundred and one matters of detail which, as a lawyer, he will need as part of his equipment, are to be acquired best, perhaps only, in a practitioner's office.

1R. W. Lee: "Legal Education Old and New," 36 C. L. T. 110.