Whatever may have been supposed at one time, there is no longer any doubt that the people of the United States, by the adoption of the Constitution, founded a nation which in its relations with other countries of the earth has the attributes and powers of any other nation, unless limited by some express or necessarily implied restriction contained in the Constitution. Among such powers is that of making treaties. The people of the United States, in creating the Federal Government, did not withhold to themselves or vest in the States any part of the treaty-making power; it was all vested in general terms in the Federal Government. That Government, therefore, has prima facie all the power which the people of the United States themselves had, or could have, to negotiate with foreign governments or to enter into treaties or agreements of an international character. Whatever limitations of the treaty power may be implied from our fundamental system, by which many of the functions of government are distributed between the States and the nation, there is no doubt that in its strictly international relations the power of the Federal Government in this regard is unlimited unless restricted by some other clause of the Constitution.

In the case of Geofroy v. Riggs, 133 U. S., 258 (1889), it was said:

*

That the treaty power of the United States extends to all proper subjects of negotiations between our Government and the governments of other nations, is clear. * The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its Departments, and those arising from the nature of the Government itself, and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government, or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But with these exceptions it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.

Among such questions there are none which are more proper or necessary for negotiation with foreign countries than those relating to the adjustment of differences of an international character arising between the United States and foreign nations or individuals. There

is not, and never has been, any doubt that the United States can by treaty provide for the arbitration or decision by specially constituted courts of cases involving questions of this nature, and that the decision of such courts is as conclusive as any other decree.

In Comegys v. Vasse, 1 Peters, 193, Mr. Justice Story, referring to the treaty of May 22, 1819, between the United States and Spain, said:

The object of the treaty was to invest the commissioners with full power and authority to receive, examine, and decide upon the amount and validity of the asserted claims upon Spain, for damages and injuries. Their decision, within the scope of this authority, is conclusive and final. If they pronounce the claim valid or invalid, if they ascertain the amount, their award in the premises is not reexaminable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim can not be brought again under review, in any judicial tribunal; an amount once fixed, is a final ascertainment of the damages or injury.2

The universal practice of all Departments of the Federal Government, from the foundation of the nation until now, has been in conformity with this construction, as is evidenced by the long series of international disputes which have been submitted by treaty to mixed commissions or courts agreed upon by the contracting powers, and whose decisions have been accepted and scrupulously performed.

No reason is perceived why, prima facie, a general agreement may not be made with other nations, providing for the submission of questions of a similar nature to a permanent tribunal, either as a court of first instance or after a preliminary trial in the courts of the various nations. That the United States has the same power as any other nation of the world to establish treaty courts in other countries for the adjudication of cases involving the rights of her own citizens has been already decided. (In re Ross, 140 U. S., 453.) From a consideration only of the grant of the treaty-making power, therefore, it would seem clear that unless restricted by some other clause of the Constitution, the Federal Government has the power to

2 Other cases to the same effect are The La Ninfa, 15 Fed. Rep., 513; Sheppard v. Taylor, 5 Peters, 675; Frelinghuysen v. Key, 110 U. S., 63; Boynton v. Blaine, 139 U. S., 306; La Abra Silver Mining Co. v. United States, 175 U. S., 423.

provide for the judicial decision by international courts of any question of an international nature, either in the first instance or after a preliminary trial in the courts of its own country.

The second and more difficult question is whether the grant of the judicial power of the United States to the Supreme Court and such inferior courts as Congress may from time to time establish is a limitation of the power of the Federal Government to provide by treaty for the judicial settlement of questions of an international nature, and particularly whether it is a denial of the power to provide for the appeal of prize cases to the proposed court at The Hague. The Constitution of the United States provides, Article III, section 1:

The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.

Article III, section 2:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority; cases of admiralty and maritime jurisdiction

**

**

to all

to constitute tribunals

It is argued from these provisions that the judicial power of the United States is exclusively vested in the Supreme Court and such inferior courts as Congress may from time to time establish, and that the Federal Government can not by treaty or act of Congress provide for the exercise of judicial power by a court located in a foreign country, not constituted by the Congress of the United States, and superior in authority to the Supreme Court of this nation.3

It will be perceived that the whole of the argument, as applied to

3 This view is supported somewhat by the dictum of Justice Story in Martin v. Hunter's Lessee, 1 Wheaton, 330, where he says:

"Congress can not vest any portion of the judicial power of the United States

the case before us, is that the words "judicial power of the United States" include all judicial power which can be exercised in prize cases originating in the courts of the United States so as to preclude the exercise of judicial power in such cases by an international tribunal.

That this argument is based upon a misapprehension will appear from the following propositions:

1.

The judicial power of the United States, while it comprehends them in the first instance, does not extend to the final adjudication of the rights of foreign nations or individuals which are necessarily involved in prize cases.

The phrase "judicial power of the United States" must be construed in the light of the rules of international law generally accepted now and at the time these words were written into the Constitution. The jurisdiction over questions of prize is by the rules of international law in the courts of the belligerent captor. But the judicial power of the belligerent captor does not extend to a final decision of the cause. The adjudication by its courts may be effective to pass title to property involved, but as between the captor and neutral powers or individuals it is no more than an expression of opinion that the seizure was regular and justifiable, and a declaration that it is adopted by the captor nation as its act. Where the rights of foreign citizens or subjects are adjudicated by municipal courts in ordinary cases the decision is accepted as conclusive because the court, by the voluntary act of the alien, has acquired jurisdiction of the person or the subject-matter. But when a prize is captured upon the high seas, it is taken by force and against its will before a

It would seem,

except in courts ordained and established by itself. therefore, to follow that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court can not take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested, either in an original or appellate form, in some courts created under its authority."

This dictum was mentioned with approval in Robertson v. Baldwin, 165 U. S., 275, 278, Brown, J.

hostile court where the examination is conducted as to the validity of the capture. Under these circumstances it is not only just and equitable, but well settled by the rules of international law, that the decision of such court is not conclusive of the rights of any foreign nation or individual. The action of the judicial department of a nation in this regard is no more final than is that of the executive department in a similar case; in each instance the matter becomes a subject for international adjudication.

This question as to the conclusiveness of a judicial decree by a court of the captor was elaborately considered in the case of the Betsy, which was decided by a mixed commission, appointed by the United States and Great Britain, under Article VII of the treaty of November 19, 1794 (Moore, Inter. Arb., 3160). It was the opinion of one commissioner that the sentence of condemnation having been affirmed upon appeal to the supreme tribunal of the belligerent captor, the Lords Commissioners of Appeals of Great Britain, the commission should be bound by that decision. This view of the case was repudiated by all other members of the commission, both British and American. They held upon abundant authority that the commission had jurisdiction to reconsider the whole case and to reverse the decision of the supreme tribunal of the belligerent captor if in their judgment it was not in accordance with the facts and the law. Mr. Pinckney, one of the commissioners, said in his opinion (Moore, Inter. Arb., p. 3186):

If admiralty decrees are to carry along with them incontrovertible evidence of their own legality—if they are to be sheltered by a veil of imaginary sanctity from all scrutiny or examination into their merits, and if they are to pass upon the world for just, although palpably oppressive, it is in vain that the law of nations has circumscribed prize cognizance and laid down rules of conduct to those to whom it is committed. No sophistry can establish this position that although a flagrant wrong has been done by one nation to another, under the pretext of the law of nations, that very law prohibits retribution, or that an injurious act becomes to all effectual purposes a lawful one for no other reason but because it has been done.

The final decision by the courts of the captor is deemed to be a denial of justice if thought erroneous by the foreigners whose rights