34 The above doctrine was most fully affirmed by the same court in Oates v. National Bank 32 in 1879, and in Railroad Co. v. National Bank 33 in 1880. In Burgess v. Seligman 3+ the doctrine was discussed, discriminated, and approved, and the court, per Mr. Justice Bradley, after showing how far it would go in the display of comity to the State court, declares, in language peculiarly appropriate as to the proposed International Prize Court: "As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication." In Baltimore and Ohio Railroad Co. v. Baugh 35 in 1893 Justice Brewer, speaking for the court, reviews many decisions and shows that the rule determining who are fellow-servants is governed by general and not local law, and that the federal courts are not controlled by the State decisions, but are free to exercise an independent judgment. A like rule was applied in determining the validity of county bonds in the hands of innocent buyers, and the court refused to be bound by State decisions in Commissioner v. Coler.36 Decisions to like effect might be indefinitely collated, but these are sufficient. It is believed they strongly support the right of the proposed court to exercise an independent judgment " uncontrolled by the decisions of the courts of the captor's country. As Mr. Hannis Taylor has observed: 37 "As the largest experience in the actual conduct of blockades during the last century fell to the lot of Great Britain and the United States, a certain practical value should attach to a set of principles recognized by both as necessary for the maintenance of a practice which refuses to shackle belligerents with too severe and impracticable restrictions." Messrs. Smith and 32 100 United States, 239. 33 102 United States, 14. 34 107 United States, 20. 35 13 Sup. Ct. R., 914. 36 23 Sup. Ct. R., 811. 37 Inter. Law, S. 676. fication of the general project, yet, alluding to the institution of this tribunal, speaks of the belief that "a blessed precedent would be established for the indefinite extension of the principle of judicial decision to other controversies between nations. Any step seeming to tend towards an approximation to that ideal must forcibly appeal to the best spirits of our time." Yet it further characterizes that convention as an abandoning of vital rights "to the control of a court with power and with inclination to whittle them away." After saying that it can not justify the convention without further limitation, it closes with these somewhat insular sentiments: We can not give any foreigners carte blanche to make laws for our fleet and to shorten at their discretion our arm upon the sea." Already England has called a conference of nations to consider the codification of the law of prize, and our State Department has given out that the United States will participate. The task attempted is no less difficult than important. The results of the conference must be anticipated with anxiety and interest. We ought not, however, to overlook the fact, of paramount importance, that in this International Prize Court appears a new creation of vast possibilities as the beginning of a new judicial international system, namely, "a true international tribunal, with obligatory jurisdiction." 99 47 No achievement in the whole history of international negotiation. can be recalled which gives promise of weightier or more beneficent consequence. It is the great step forward in the reign of law and order in the chaos of international affairs. Whatever difficulties may be foreseen or modifications sought, this fruitful beginning of progress ought not to be abandoned or its significance lessened or forgot. 48 CHARLES NOBLE GREGORY. 47 Dr. Paul S. Reinsch, Pol. Sc. Rev., February, 1908, p. 218. 48 The Hon. Henry Billings Brown, Associate Justice of the Supreme Court of the United States (retired), has recently expressed a weighty doubt as to the constitutionality of any convention giving an appeal from the Supreme Court of the United States, since the Constitution vests the judicial power of the United States" in the Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." THE PROPOSED INTERNATIONAL PRIZE COURT Had the Second Hague Conference done nothing more than adopt the convention for the establishment of an International Prize Court, it would have sufficiently justified its being called together and refuted the criticisms of those who, because it did not accomplish all its most enthusiastic supporters desired, have sought to belittle its results. It marks an important step forward in the adjustment of international differences. It provides for the first time, so far as I know, for the compulsory arbitration of certain questions, though of a limited class, and establishes a court which shall have a superior jurisdiction over the courts of the signatory powers. The convention is not only significant in this particular, but because of its potentiality in the possible creation of other courts of more enlarged powers, which may ultimately go far toward the peaceful settlement of all international disputes which do not involve the integrity of the territory or the vital interests or honor of the particular powers. These are generally admitted to be beyond the scope of arbitration. This convention was the outcome of two propositions one by the German delegation for the establishment of a high international court of prizes, and the other by the British delegation for a permanent court of international appeals. Both these delegations agreed, and indeed it was the opinion of the entire conference, that there was a clear distinction between land and sea operations, in the fact that the former are carried on against the enemy alone, and require no judicial authorization; while the latter, dealing as they do with the property of neutrals who are alleged to have violated their neutrality, require a judicial determination both of the question of violation and of the fact of neutral ownership. It is only by such determination that diplomatic reclamations can be avoided. Necessarily, these proceedings must be carried on in a court of the belligerent captor. No captor could be expected to send his prize to a port of the country to which she belonged, for condemnation, since every objection made to the partiality of the one would be equally applicable to the other. Hence, from time immemorial, the courts of the capturing power have asserted the jurisdiction of determining the validity of the capture. While no suspicion may attach to the integrity or impartiality of these courts, their judgments are largely governed by the local law, which in this respect may differ from the international law. That the national courts should differ among themselves with respect to the rights of neutrals is no more than would naturally be expected from the fact that one court may belong to a strong naval state, interested in enlarging belligerent powers, while another may belong to a neutral state, enjoying a large trade with the belligerents. If any court dealing with prize cases can be suspected of partiality, it would naturally be that of the belligerent captor, since to the ordinary motives which bias the opinions of even the best of men are added those of patriotism and a desire to encourage that arm of the government which is engaged in fighting its battles. Under such circumstances it is not strange that complaints are sometimes made that their judgments do not conform to international law, or that the courts lean unduly towards sustaining a capture made by persons acting in good faith, but in ignorance of all the facts. They certainly can not be expected to have much sympathy for, or to properly appreciate the legal rights of, those who are seeking to take advantage of the misfortunes of their country to carry on an illicit but profitable trade. With a view, then, of obtaining a court which, by its dignity, the number, learning, and impartiality of its judges, should command the confidence not only of the belligerents and of neutral maritime powers, but of the whole civilized world, the conference adopted the convention for the establishment of an international court. We are confronted upon the threshold of the convention with the power of the President and the Senate under the Constitution to assent to the creation of a foreign court, with jurisdiction over the courts created by Congress, and even over the Supreme Court of the United States. The appeal is given as a matter of right from the prize court of the belligerent captor, and may be based upon the ground that the judgment was wrong, either in fact or in law. The THE PROPOSED INTERNATIONAL PRIZE COURT Had the Second Hague Conference done nothing more than adopt the convention for the establishment of an International Prize Court, it would have sufficiently justified its being called together and refuted the criticisms of those who, because it did not accomplish all its most enthusiastic supporters desired, have sought to belittle its results. It marks an important step forward in the adjustment of international differences. It provides for the first time, so far as I know, for the compulsory arbitration of certain questions, though of a limited class, and establishes a court which shall have a superior jurisdiction over the courts of the signatory powers. The convention is not only significant in this particular, but because of its potentiality in the possible creation of other courts of more enlarged powers, which may ultimately go far toward the peaceful settlement of all international disputes which do not involve the integrity of the territory or the vital interests or honor of the particular powers. These are generally admitted to be beyond the scope of arbitration. This convention was the outcome of two propositions - one by the German delegation for the establishment of a high international court of prizes, and the other by the British delegation for a permanent court of international appeals. Both these delegations agreed, and indeed it was the opinion of the entire conference, that there was a clear distinction between land and sea operations, in the fact that the former are carried on against the enemy alone, and require no judicial authorization; while the latter, dealing as they do with the property of neutrals who are alleged to have violated their neutrality, require a judicial determination both of the question of violation and of the fact of neutral ownership. It is only by such determination that diplomatic reclamations can be avoided. Necessarily, these proceedings must be carried on in a court of the belligerent captor. No captor could be expected to send his prize to a port of the country to which she belonged, for condemnation, |