equally affect private rights and obligations; whilst in some systems of municipal law they will serve to confer rights or impose obligations which the Courts will enforce (u). So, a treaty may confer or limit the right of entry into the territory of a State; or it may affect the conditions under which goods from one State may be imported into another; or it may regulate the enjoyment of property by private persons, including copyright and patent right; or it may empower the surrender of persons charged with certain offences; or it may stipulate for the doing of acts which in some way restrict or invade ordinary rights. Hence in each system it is important to ascertain the relation in which treaties stand to the law of the land-whether, in fact, such treaties, if duly made, will of their own force operate as law, or whether, in so far as they affect private rights and obligations, they require some legislative or other sanction.

The Relation of International Law to English Law (x).—Notwithstanding some statements to that effect made by the text-writers, and some dicta to be found in the decisions, it can scarcely be said that the law of nations is " adopted in its full extent by the common law"; or that it is "deemed to be part of the law of the land" (y). The true relation may perhaps be expressed in the following propositions : (1) English law recognises the existence of international law as a body of rules capable of being ascertained, and when ascertained as binding on States either by immemorial usage or by virtue of agreement (z). (2) When once a rule of international law is shown to have received the assent of civilised States it will also be deemed to have received the assent of this country, and will in that character be applied by English Courts in cases coming before them to which such rule may be relevant (a). (3) But there are certain rights and obligations arising out of international relations, or purporting to rest on international law, which will not be deemed to be within the competence of municipal Courts (b). So in Cook v. Sprigg ([1899] A. C. 572) it was held that annexation was an "act of State," and that obligations arising under a treaty to that effect were not of a kind which a municipal Court could enforce (c). (4) Moreover, the Courts in interpreting and applying municipal law, whilst they will always seek to adopt such a construction as will not bring it into conflict with the law of nations, cannot of course give effect to its rules however clear, or to rights or obligation deducible therefrom, in a case where these rules derogate from or are inconsistent with the positive regulations of municipal

(u) See the Head Money Cases (112 U. S. 580).

(x) See an article on this subject by Westlake, L. Q. R. Jan. 1906, P. 14.

(y) See Blackstone, Com. 4th ed. iv. 67; and Triquet v. Bath (3 Burr. 1478).

(z) See Reg. v. Keyn (2 Ex. D. at 154); West Rand Central G. M. Co. v. Rex [1905] (2 K. B. at 407); and for instances of statutory recognition,

law (d). (5) With respect to treaties, in particular, the Crown or executive cannot claim, in virtue of any obligations arising out of a treaty not sanctioned by statute, to modify or interfere with rights arising under the ordinary law of the land (e). At the same time the inability of the Courts to give effect to international obligations as against subjects will not, of course, have the effect of freeing a State from its international responsibility for their non-fulfilment (f). (6) English law embraces a variety of statutes which have been passed from time to time for the purpose of enabling the Crown or executive to carry out more effectually its international obligations, and more especially to enter into and carry out particular treaty arrangements concluded with other States; and to this extent international law, and the obligations arising thereunder, will constitute a part of the law of the land, to which the Courts will in a proper case give full effect (g).

Treaties under the Law of the United States.--Although it has been laid down that international law forms part of the law of the United States (h), yet it is apprehended that, save in the matter of treaties, the relation of international law to municipal law is much the same as that which obtains under the English law. But on the subject of treaties, it is provided by the Constitution, Art. 6, that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Hence all treaties, if they are duly made and self-executing," together with rights and obligations arising thereunder, will, in so far as they properly fall within the cognisance of the judicial power, be recognised and enforced. So in Foster v. Neilson (2 Pet. 314) it was said: "A treaty is in its nature a contract between two nations. . It does not generally effect, of itself, the object to be accomplished . . . but is carried into execution by the sovereign power of the respective parties. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as an equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract when either party engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department, and the legislature must execute the contract before it can become a rule of the Court." At the same time treaties, even though they may remain in force internationally, will not be given effect to by the Courts if the rights or obligations arising thereunder are nullified by subsequent statutes (i).

(d) This is probably now unquestionable, in spite of some dicta to the contrary contained in the Prize Cases; see Holland, Studies in International Law, p. 196 et seq., and cases there cited.

(e) Walker v. Baird [1892] (A. C. at p. 497).

(f) Infra, pp. 26 n (i), 165, 213, 231. (g) See, by way of illustration, 7 Anne, c. 12 (supra); the Seal Fishery Act, 1893, enabling effect to be given

INTERNATIONAL COURTS OF ARBITRATION AND COMMISSIONS OF INQUIRY.

THE "PIOUS FUND" ARBITRATION, 1902.

[British and Foreign State Papers, vol. 95 (1901-2); and J. B. Moore, International Arbitrations, ii. 1349 et seq. (k); Scott's Hague Reports, p. 1.]

"

Case.] THE Pious Fund" was a fund originally established by donations made by private persons to the Jesuit Fathers in California, for the conversion of the heathen. After the expulsion of the Jesuits in 1768 this fund was administered by the Spanish Government; whilst after Mexico had achieved her independence its administration devolved on the Mexican Government. In 1842 President Santa Anna decreed the sale of the property of the fund and the payment of the proceeds into the Public Treasury, recognising, however, an obligation on the part of the State to pay interest, at the rate of 6 per cent., on the capital. Under this decree property of the value of some $2,000,000 was disposed of; although the remainder was restored. In 1848, by the Treaty of Guadalupe Hidalgo, the territory of Upper California was acquired by the United States, and thereafter the Mexican Government refused to pay any further interest. In 1868 a convention was entered into between Mexico and the United States for the settlement of all claims which had arisen since 1848 on the part of the citizens of either country against the Government of the other. These claims were to be referred to two commissioners, with power to appoint an umpire in any case in which there might be a difference of opinion. Amongst the matters brought before this commission was a claim by the Bishop of Monterey and the Archbishop of San Francisco against the Mexican Government for the payment over to them of such a proportion of the "Pious Fund " and interest as might be found to be equitably due to Upper California, having regard to the original scope of the endowment. This matter was ultimately referred to the British Minister at Washington, Sir Edward Thornton, as umpire. In the result the umpire found the total value of the fund to be $1,435,033, and

(k) See also an article by W. L. North American Review, clxxv. 834. Penfield (counsel for U.S.A.) in the

held that the most equitable adjustment would be to divide the whole of the interest into two equal parts, and to award one moiety thereof to the claimants as the share of the Church of Upper California. On this basis the umpire estimated the yearly interest on a moiety of the fund at $43,050.99, in addition to which he awarded to the claimants a capital sum of $904,070.79, as arrears of interest for the twenty-one years which had elapsed between the 2nd of February, 1848, and 2nd of February, 1869. The latter amount, representing the arrears of interest, appears to have been duly paid by the Mexican Government, the last instalment having been paid in 1890 (1). But no payment appears to have been made in respect of the annual interest which accrued due after 1869. From 1890 onwards a claim for payment, under this head of the award, was repeatedly made by the representatives of the Roman Catholic clergy of Upper California, and promoted by the Government of the United States. Ultimately, by a convention of the 2nd of May, 1902, it was agreed to refer the matter for decision to a Court of Arbitration, instituted under The Hague Convention of 1899, for the pacific settlement of international disputes. By the terms of the present convention each party was to nominate two arbitrators, not being citizens of the contracting States; and these, again, were to appoint an umpire. The United States appointed Sir Edward Fry, formerly a Lord Justice of Appeal of the English High Court, and Professor De Martens, a Russian jurist; whilst Mexico appointed M. Asser, a member of the Dutch Council of State, and Dr. Lohman, a member of the Dutch Chamber of Deputies; all of them members of the permanent Court of Arbitration established under The Hague Convention. The arbitrators thereupon appointed Dr. Matzen, President of the Danish Landsthing, as umpire.

The questions submitted for decision were:

(1) Whether the claim of the United States was within the governing principle of res judicata, by virtue of the arbitral sentence of the 11th of November, 1875, pronounced by Sir Edward Thornton as umpire; and (2) if not, whether such claim was just. The tribunal was empowered to render such judgment as might seem just and equitable; and if the decision were against

(1) This was so found by the Court of arbitration.

Mexico, then to decide in what currency any sum awarded should be paid.

The Mexican Government, whilst not denying the general applicability of the principle of res juricata, nevertheless disputed its applicability in the present case, both (1) on the ground that the arbitrator had exceeded his jurisdiction in making his award; and (2) on the ground, also, that the principle, even if it did apply, must be limited to the condemnatory or dispository portion of the award, and not extended to the law and facts on which it was based, which might have been-and in the present case were alleged to have been-wrongly found. It was also contended that by virtue of the treaty of 1848 and the convention of 1868 the two Governments had intended to settle and cancel all claims on the part of the citizens of either State against the Government of the other, and that the present claim, having arisen on the sequestration of the property prior to the treaty of 1848, must be deemed to have been included. therein. Finally, it was contended that the present claim was barred by limitation, inasmuch as the claimants had failed to present it before the Mexican Courts within the period allowed by the local law. In the proceedings before the Court, French was adopted as the official language, but the counsel and agents of the two Governments were permitted to address the tribunal in the language of their respective countries.

Judgment.] The judgment of the Court, which was delivered on the 14th of October, 1902, was to the following effect:

"Considering that all the parts of the judgment or the Decree concerning the points debated in the litigation enlighten and mutually supplement each other, and that they all serve to render precise the meaning and bearing of the dispositif (decisory part of the judgment), and to determine the points. upon which there is res judicata, and which thereafter cannot be put in question;

Considering that this rule applies not only to the judgments of Tribunals created by the State, but equally to arbitral sentences rendered within the limits of the jurisdiction fixed by the compromis' (m);

(m) The terms of the reference.