that they should declare the causes which impel them." Before the Revolution, the American Colonies, though they regarded themselves as free states or commonwealths, were willing to have the disputes between themselves and with the mother country settled by the King in Council, though that was a tribunal of the mother country and was open to the objection that it was a judge in its own case. Because that tribunal was composed of men trained in political, social, and economic judgment and was headed by the King, who was by his office bound to be impartial, they accepted and executed its adjudications.

Burke, in his Speech on Conciliation, said:

We are, indeed, in all disputes with the Colonies, by the necessity of things, the judge. But I confess that the character of judge in my own cause is a thing that frightens me. Instead of filling me with pride, I am exceedingly humbled by it. I cannot proceed with a stern, assured, judicial confidence, until I find myself in something more like a judicial character. I must have these hesitations as long as I am compelled to recollect that, in my little reading upon such contests as these, the sense of mankind has at least as often decided against the superior as the subordinate power.

The humility which Burke regarded as necessary in one who is called upon to be a judge in his own cause would seem to be as likely to create a bias in him favorable to his adversary as pride would create in favor of himself. The only reasonable means by which bias can be avoided by individuals, peoples or states, whether the judgment be required to be given in one's own cause or in the cause of others, would seem to be training and education in judgment, and an appreciation of the truth which Burke stated, that every judg

ment will ultimately be reviewed by "the sense of mankind," which will "as often decide against the superior as the subordinate power."

Upon the promulgation of the Declaration of Independence the Congress regarded itself as the successor of the King in Council. Until the Articles of Confederation were adopted, it exercised the powers which had been exercised by the King in Council over the Colonies previous to the Declaration. By the Articles of Confederation, these powers were reduced to writing and given the sanction of a mutual agreement of the States. As the King in Council had been recognized as "the last resort, on appeal," in disputes between the Colonies, the Articles of Confederation made the Congress a tribunal of the same kind, for the same purpose, and authorized it to act, as the King in Council had done, by means of a tribunal instituted in each case under its auspices.

In the Constitution, the people of the United States and the States of the Union divided between the Congress, the President, and the Supreme Court the powers granted by the Articles of Confederation to the Congress of the Confederation, and, in addition, granted to the Congress the power to legislate in execution of the powers granted to it. They also granted to Congress the power to regulate by legislation the interstate and foreign commerce of the United States. To the Supreme Court naturally fell the function of determining disputes between the States of the Union, and the remarkable provision was added that foreign States might avail themselves of the jurisdiction of the Supreme Court if they had disputes with States of the Union. This provision was perhaps suggested by the fact that the American Colonies, though holding themselves to be free states in some respects foreign to Great

Britain, had appeared before the King in Council as plaintiffs and defendants and had found it an impartial tribunal, though it was a national tribunal of Great Britain. The Constitution preserved the dignity of the United States and of the States by recognizing their rights to act as judges in their own causes, if they saw proper, as respects claims of individuals against them. Inasmuch as the Supreme Court was granted only the "judicial power" of the United States, its jurisdiction was, it would seem, limited to the decision of cases which are of such a nature as to be capable of judicial settlement. Opportunity was provided for settling disputes between States by conference or arbitration by the provision of the Constitution which recognized the right of the States to enter into treaties or contracts with each other by consent of the Congress; and if there be disputes between States of the Union which are not capable of judicial settlement, the States involved may, it would seem, establish in each case of dispute, by consent of Congress, a political tribunal for the settlement of the dispute.

It will have been noticed, in the course of this investigation of the process of the development of the American doctrine of jurisdiction of courts over States that the fundamental political belief of the people of the American colonies and of the United States has always been that there exists a supreme universal law governing the actions of States, which secures to each individual his right of self-protection and self-preservation, and that the actions of states, nations, and empires, are void so far as they are inconsistent with the "securing" of these "unalienable rights." It may well be questioned whether it is not through this conception of a universal supreme law that there exists among the American people the conception of a constitutional law

which is supreme over States, and which is formed by agreement of the people and States concerned to live in indissoluble union. If this constitutional law has its sole basis in agreement, there may be a question as to its supremacy and as to the indissolubility of the Union. An agreement which is supreme over those who agree to it, and which is indissoluble, is a self-contradiction. Indissolubility of an agreement, and its supremacy over those who agree to it, must depend upon some other fact than the agreement of the parties.

The theory that the supremacy of the Constitution of the United States arises from the agreement of the people and States of the United States was invoked in the Civil War as a reason for dividing the Union into two unions when the people of the two sections differed in their opinions concerning the nature of the Constitution which they desired. The Union was upheld by those who believed in the existence of this supreme universal law referred to in the Declaration of Independence which secures "the unalienable rights" of all men to "life, liberty, and the pursuit of happiness." After the war, the Union was by the fourteenth amendment again expressly committed to the maintenance of this law; which thus became the real bond of union between the people and States of the Union. By that amendment and the fifth amendment, the Supreme Court, in all cases brought before it, whether by or against States or persons, was authorized to hold invalid any act of any legislative body, of any executive or administrative official, or of any court,—whether of a State or of the United States,-which deprives any person of his life, liberty, or property without due process of law. Under this authority the Supreme Court exercises a jurisdiction over States and over the United States similar to that which the ordinary courts

of justice exercise over private individuals. It is a logical and reasonable ground for maintaining and preserving the Union that the Union is the ultimate protector and preserver of this law, and that in order to perform this function it must have a supremacy over the actions of constituent States to the extent necessary to enable it to perform the function.

The question therefore arises, whether a true international court can ever exist until the nations of the world recognize this supreme universal law. Until such recognition is made, the powers of any body of men called an international court can, it would seem, never rise higher than a mere interpretation of treaties; for conventions are but joint treaties and supremacy of treaties or conventions over national law by agreement can of necessity exist only so long as the agreement exists, unless the agreement is itself the recognition of a supreme universal law. A court to interpret treaties would be useful, but it would be an instrumentality and adjunct of the states creating it, and would be bound by their agreements, even though such agreements might palpably deprive individuals of life, liberty, or property without due process of law.

If it be the fact, as American beliefs and experience would seem to indicate, that the test of the international character of a court is not whether it is established by the nations, but whether it administers a law which is supreme over the nations, there is, it would seem, no objection to national courts having jurisdiction to settle disputes in which foreign states or semi-foreign states (now called colonies or dependencies) are involved with citizens or states of the nation. Once it is recognized that a national court may administer a law which is supreme over states, there is no reason why, if the court is learned and impartial, it should not be resorted