are involved, and the case at once becomes a subject for diplomatic correspondence or international adjudication.

But the moment the decision of the tribunal of the last resort has been pronounced [says Wheaton, para. 392, 4th ed.] (supposing it not to be warranted by the facts of the case, and by the law of nations applied to those facts) and justice has been thus finally denied, the capture and the condemnation become the act of the state, for which the sovereign is responsible to the government of the claimant.

This principle of international law, that the judicial power of the belligerent captor does not comprehend a final decision of international questions arising in prize cases, has been fully recognized and acted upon many times by the Government of the United States. in that many cases of prize decided by our Supreme Court have been thereafter submitted to international commissions which have reviewed the judgment of that court and in a number of instances have determined it to be erroneous. These decisions have been uniformly submitted to by all Departments of the United States Government and money paid or property delivered in accordance with their terms. In the case of the Hiawatha (Moore, Inter. Arb., p. 3902) the Supreme Court of the United States had affirmed the judgment of the lower court (2 Black., 635) in condemning the vessel and cargo as a prize, on the ground that at the time of her capture she was attempting to break the blockade established by the United States vessels in Hampton Roads. The question was subsequently submitted to the claims commission established under article 12 of the Treaty of Washington, May 8, 1871, between Great Britain and the United States. The commission awarded damages to the claimants of the vessel and of a portion of the cargo, apparently on the ground that the Supreme Court of the United States was in error in finding that the vessel was attempting to violate the blockade, or that any legal blockade existed at the time of the capture.

In the case of the Circassian (Moore, Inter. Arb., p. 3911) the vessel was condemned as a prize and the decision affirmed by the Supreme Court of the United States (2 Wall., 135). The case having subsequently been submitted to the same commission, large awards were made in favor of the claimants. The judgment of the

Supreme Court of the United States that the Circassian was guilty of attempting to run the blockade was held to be erroneous. The English, American, and continental view of what constituted violating a blockade was much considered in the argument of this case, and the decision in part no doubt was based upon the belief that the Supreme Court of the United States was in error in its construction of the law.

In the case of the Springbok (Moore, Inter. Arb., p. 3928), the vessel having been awarded to the claimants by the Supreme Court of the United States, and the cargo condemned (5 Wall., 1), the commission, disregarding the judgment of the Supreme Court in this respect, awarded the claimants damages for the detention of the vessel.

In the cases of the Sir William Peel, the Dashing Wave, the Volant, and the Science (Moore, Inter. Arb., pp. 3935, 3948, 3950), the question involved was whether the vessels were in neutral waters at the time they were captured. The decision of the Supreme Court of the United States with regard to the Sir William Peel (5 Wall., 517); the Volant (5 Wall., 179), and the Science (5 Wall., 178) were reversed in part, and damages awarded to the complainants. In the case of the Dashing Wave (5 Wall., 170) the judgment was affirmed.

While it may be incorrect to say that these cases were actually reversed in the sense in which we use the word in connection with ordinary cases of appeal, yet the fact remains that the decisions of the Supreme Court of the United States were reviewed at length by the commission, and that contrary conclusions were reached. For all practical purposes these were reversals, and the awards in each case were accepted by the United States and their terms carried out.

There are a number of other cases considered by commissions in which the decisions of the Supreme Court of the United States were determined to have been correct.*

+ Among these may be mentioned: The Peterhof, 5 Wall., 28; 4 Moore, Inter. Arb., 3838-3843; The Georgia, 7 Wall., 32; 4 Moore, Inter. Arb., 3957-58; Isabella Thompson, 3 Wall., 155; 4 Moore, Inter. Arb., 3159; The Pearl, 5 Wall., 574; 4 Moore, Inter. Arb., 3159; The Adela, 6 Wall., 266; 4 Moore, Inter. Arb., 3159; The Ouachita Cotton, 6 Wall., 521; 3 Moore, Inter. Arb., 3232.

This universal practice, concurred in by all Departments of Government, is strongly corroborative of the view expressed that the judicial power of our courts should not be construed to extend to the final settlement of such questions.

I conclude that under the generally accepted rules of international law existing at the date of the adoption of the Constitution the grant of the judicial power of the United States does not include the power to decide finally the rights of foreigners involved in prize cases. The clause which vested the judicial power in the Federal courts is not, therefore, a denial of the power to provide by treaty for the ultimate decision of such questions by international tribunals. 2. The grant of the judicial power of the United States to the Federal judiciary does not limit the power to provide by treaty for the judicial decision of questions of an international nature.

It may be thought unnecessary and, perhaps, unwise to consider a broad proposition, such as this, in view of the fact that the conclusion already reached is sufficient to decide the question now under discussion. It can not fail, however, to add strength to the argument if it should on investigation develop that the power of the Federal Government to provide by treaty for the judicial decision of questions of an international nature is in no case limited by the grant of judicial power to the Federal judiciary.

The proposition above stated recognizes that there is a judicial power which is international and may be exercised by one nation only in cooperation with others. This power comprehends questions of an international character, and is exercised through the medium of international commissions or courts designated or erected by treaty. The judicial power of the United States or of any nation extends to a final adjudication of all cases involving only questions of municipal law in which the decisions of its courts are not reexaminable by any international court or commission; it does not, however, extend to a final decision of questions which are international in character. There is no doubt that the courts of the United States may for convenience examine such questions when they arise in cases properly brought before them, always subject,

however, to the power of the Federal Government to provide by treaty for their decision by other tribunals. In other words, there is a class of cases which are purely municipal and are exclusively within the scope of the judicial power of the United States; there is a second class of cases which are purely international and are entirely without the judicial power of the United States, and within that exercisable only in pursuance of treaties; and there is a third class, which, while cognizable by national courts, also give rise to questions the decision of which may involve us in international difficulties. In the latter class the power of the Federal courts to decide such questions is likely to be taken away through the exercise of the treaty power, whenever it is deemed expedient by the Federal Government. The relation between the treaty-making power in this regard and the national judiciary is not unlike that existing between Congress and the State legislatures in those matters over which they have concurrent jurisdiction; Congress may decide how much, if any, of this common ground may be occupied by the State legislation. So in the matter of the judicial decision of questions of an international nature, the Federal judiciary may decide them when they arise in cases properly before them, yet when the treatymaking power steps in and provides another method that method takes precedence.

The judicial decisions of the highest courts of the United States and the practice of the Government from the foundation of the nation demonstrate the truth of what has been said. There is no doubt that the judicial power of the United States comprehends the decision of all cases arising within its territorial jurisdiction, even though both litigants may be citizens of a foreign country and questions likely to give rise to diplomatic correspondence are involved. It is equally undoubted, however, that the United States may by treaty disturb the exercise of such jurisdiction or destroy it altogether, by providing for the trial of such cases in consular courts erected by treaty. By many treaties now existing claims for wages between the crew of a vessel and the master or owner thereof, and other similar questions, are to be tried in consular courts, and not by the courts of the country where the vessel happens to be. In the

Elwine Kreplin, 9 Blatch., C. C., 438, it was held by a United States circuit court that it had no jurisdiction of a dispute of this kind over wages; that the jurisdiction of a consular court erected by treaty was exclusive of that of the Federal courts. On application to the Supreme Court for a mandamus to compel the circuit court to take jurisdiction (Ex parte Newman, 14 Wall., 151) it was argued that the treaty, if properly so construed, was unconstitutional because

It strips the courts of the United States of the admiralty jurisdiction conferred on them by the Constitution of the United States.

Nevertheless, the mandamus was denied, the Supreme Court apparently approving the decision of the lower court in its entirety, and certainly doing so to the extent of holding that the consular court had jurisdiction and the circuit court had discretion whether or not to take jurisdiction. The correctness of this ruling that such courts may lawfully adjudicate cases involving questions affecting foreign nations or individuals is not open to doubt."

The case of In re Ross, 140 U. S., 453, mentioned in the report of the delegates to the Second International Peace Conference at The Hague, while not authority for the proposition that the proposed International Prize Court is constitutional, fully upholds the power of the United States to create a consular court in a foreign country and to provide for the trial therein of cases which under other circumstances might be tried by the courts of the United States. In the decision of that case Mr. Justice Field said:

The treaty-making power vested in our Government extends to all proper subjects of negotiation with foreign governments. It can equally, with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein.

This language makes it clear that the power to establish consular courts at least is not restrained by the grant of the judicial power to the courts of the United States.

5 The Belgenland, 114 U. S., 355, 364; The Bound Brook, 146 Fed. Rep., 160; The Salomoni, 29 Fed. Rep., 534; Tellefsen v. Fee, 168 Mass., 188; Norberg v. Hillgrau, 5 N. Y. Leg. Obs., 177.