Justice Wilson in Henfield's Case (1793), Wharton, State Trials, 49. In the exercise of its constitutional power to punish offenses against the law of nations Congress passed an act punishing piracy as defined by the law of nations, and it was held in United States v. Smith (1820), 5 Wheaton, 153, that this was a sufficient description of the offense. In The Nereide (1815), 9 Cranch, 388, 423, Chief Justice Marshall said that in the absence of any act of Congress to the contrary, "the court is bound by the law of nations, which is a part of the law of the land." The same principle was set forth in The Paquete Habana v. United States (1899), 175 U. S. 677, 694. See also Maisonnaire v. Keating (1815), 2 Gallison, 325, 334, and The Amy Warwick (1863), 2 Black. 635. In Riddell v. Fuhrman (1919), 233 Mass. 69, the Supreme Judicial Court of Massachusetts said, "International law is part of the law of the United States, and must be administered whenever involved in causes presented for determina tion though in a State court."

In Great Britain a legislative act is presumed not to contravene international law, The Annapolis (1861), 30 L. J. P. & M. 201, while in the United States, it was said by Chief Justice Marshall that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," Murray v. The Charming Betsy (1804), 2 Cranch, 64, 118.

The relative authority of municipal and international law is of particular importance in controversies before prize courts and is discussed in The Maria (1799), 1 C. Robinson, 340; The Walsingham Packet (1799), 2 Ib. 77; The Recovery (1807), 6 Ib. 341; The Fox (1811), Edwards, 312; Le Louis (1817), 2 Dodson, 239; The Neptune (1834), 3 Hagg, 129; Cope v. Doherty (1858), 4 K. & J. 367; and The Zamora (1916), L. R. [1916] 2 A. C. 77.

CHAPTER II.

PERSONS IN INTERNATIONAL LAW.

SECTION 1. STATES.

THE HELENA.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1801.
4 C. Robinson, 3.

This was a case of a British ship, which had been taken, on a voyage from Saffee to Lisbon, by an Algerine corsair, and sold by the Dey of Algiers to a merchant of Minorca, and by him sold, on the surrender of the island of Minorca to the British arms, to the present holder, a merchant of London. On coming into the port of London, a warrant had been applied for to arrest this ship on the part of the former British proprietor; but the Court refused a warrant, and directed a monition to issue, calling on the possessor to show cause, why she should not be restored to the former British owner.

Sir W. SCOTT [LORD STOWELL].-This is a question arising on a ship, which has been purchased by a British merchant of a Spaniard: A claim is now given on the part of the original British proprietor, on a suggestion that the vessel, while sailing as his property, was captured and carried into the Barbary States, and there sold to the Spanish merchant, from whom the present holder purchased. It is certainly true, as it has been argued on the part of the present possessor, that the Court is disposed to pay particular respect to derivative titles, when fairly possessed; and it does this on the plain and general ground, that there must be a sequel of transactions, continued in a course of time, which shall be held conclusive, to cure antecedent defects, and to give security to the title of a bonâ fide purchaser. On this foundation all property rests; with respect to movables, the period is very short for that effect. It is true, that ships pass by formal instruments and written documents, and therefore do

not come entirely under the rules that apply to the transfer of movable property; but still they are entitled to the equity of similar considerations to a certain degree, particularly where positive regulations have not intervened to exclude them. This ship appears to have been taken by the Algerines, and it is argued, that the Algerines are to be considered in this act as pirates, and that no legal conversion of property can be derived from their piratical seizure. Certain it is, that the African States were so considered many years ago, but they have long acquired the character of established governments, with whom we have regular treaties, acknowledging and confirming to them the relations of legal states. So long ago as the time of Charles 2d, Molloy speaks of them in language which, though sufficiently quaint, expresses the true character in which they were considered in his time.

"Pirates that have reduced themselves into a government or state, as those of Algier, Sally, Tripoli, Tunis, and the like, some do conceive ought not to obtain the rights or solemnities of war, as other towns or places: for though they acknowledge the supremacy of the Port, yet all the power of it cannot impose on them more than their own wills voluntarily consent to. The famous Carthage having yielded to the victorious Scipio, did in some respect continue, and began to raise up her drooping towers, till the knowing Cato gave council for the total extirpation; out of the ruins of which arose Tunis, the revenging ghost of that famous city, who now what open hostility denied, by thieving and piracy continue; as stinking elders spring from those places where noble oaks have been felled; and in their art are become such masters, and to that degree, as to disturb the mightiest nations on the western empire; and though the same is small in bigness, yet is is great in mischief: the consideration of which put fire into the breast of the aged Lewis IX. to burn up this nest of wasps, who having equipt out a fleet in his way for Palestine, resolved to besiege it: whereupon a council of war being called, the question was, whether the same should be summoned, and carried, it should not; for it was not fit the solemn ceremonies of war should be lavished away on a company of thieves and pirates. Notwithstanding this, Tunis and Tripoli and their Sister Algier do at this day (though nests of pirates) cbtain the right of legation. So that now (though indeed pirates) yet having acquired the reputation of a government, they

cannot properly be esteemed pirates, but enemies." Molloy, p. 33, sect. iv.

Although their notions of justice, to be observed between nations, differ from those which we entertain, we do not, on that account, venture to call in question their public acts. As to the mode of confiscation, which may have taken place on this vessel, whether by formal sentence or not, we must presume it was done regularly in their way, and according to the established custom of that part of the world. That the act of capture and condemnation was not a mere private act of depredation, is evident from this circumstance, that the Dey himself appears to have been the owner of the capturing vessel; at least he intervenes to guarantee the transfer of the ship in question to the Spanish purchaser. There might perhaps be cause of confiscation, according to their notions, for some infringment of the regulations of treaty; as it is by the law of treaty only that these nations hold themselves bound, conceiving (as some other people have foolishly imagined) that there is no other law of nations, but that which is derived from positive compact and convention. Had there been any demand for justice in that country on the part of the owners, and the Dey had refused to hear their complaints, there might perhaps have been something more like a reasonable ground to induce this Court to look into the transaction, but no such application appears to have been made. The Dey intervened in the transaction, as legalizing the act. The transfer appears, besides, to have been passed in a solemn manner before the public officer of the Spanish government, the Spanish consul; and in the subsequent instance, the property is again transferred to the present possessor, under the public sanction of the Judge of the Vice Admiralty Court of Minorca.

Under these circumstances, I think it is now much too late for this Court to interfere for the purpose of annulling these several acts of transfer, which appear to have been made, in both instances, with perfect good faith on the part of the several purchasers, and for an equivalent consideration. Without considering at all the question, what rule would have been applied to the case of a bona fide purchase from a piratical captor, I shall dismiss the party, and decree the ship to be delivered to the British purchaser.

Party dismissed.

CHEROKEE NATION v. STATE OF GEORGIA.

SUPREME COURT OF THE UNITED STATES. 1831.
5 Peters, 1.

Motion for injunction. This case came before the court on a motion on behalf of the Cherokee nation of Indians, for a subpoena, and for an injunction, to restrain the State of Georgia, the governor, attorney-general, judges, justices of the peace, sheriffs, deputy-sheriffs, constables and others the officers, agents and servants of that state, from executing and enforcing the laws of Georgia, or any of these laws or serving process, or doing anything toward the execution or enforcement of those laws, within the Cherokee territory, as designated by treaty between the United States and the Cherokee nation.

The bill set forth the complainants to be "the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of this Union, nor to any power, potentate or state, other than their own." "That from time immemorial, the Cherokee nation have composed a sovereign and independent state, and in this character have been repeatedly recognized, and still stand recognized, by the United States, in the various treaties subsisting between their nation and the United States." That the Cherokees were the occupants and owners of the territory in which they now reside, before the first approach of the white men of Europe to the western continent; "deriving their title from the Great Spirit, who is the common father of the human family, and to whom the whole earth belongs." Composing the Cherokee nation, they and their ancestors have been and are the sole and exclusive masters of this territory, governed by their own laws, usages and customs.

The bill proceeded to refer to the treaty concluded at Hopewell, on the 28th November, 1785, "between the commissioners of the United States and head-men and warriors of all the Cherokees," [and to various other treaties]. By those treaties, the bill asserted, the Cherokee nation of Indians were acknowledged and treated with as sovereign and independent states, within the boundary arranged by those treaties.

The bill averred, that this court had, by the constitution and laws of the United States, original jurisdiction of controversies between a state and a foreign state, without any restriction as