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 namely, a true international tribunal, with obligatory

system,

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.18

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

prize court from which the appeal may be taken is not named, but a further article provides that it may be taken after judgment in the court of first instance, or only after an appeal, as the municipal law of the belligerent captor may decide. To prevent unnecessary delay in the disposition of cases in the national courts, it is provided that but one appeal shall lie from the original judgment, and that, if the national courts shall fail to give final judgment within two years from the date of the capture, the case may be carried directly to the International Court. As, under the laws of Congress, resort may be had to the Supreme Court of the United States, which, though not a foreign court, is a court acting under a different sovereignty, only from the final decree of a State court of last resort, I think we may assume that by analogy Congress would require that parties exhaust their remedies in the local courts before resorting to an appeal to the International Court. This would limit the appeal to the final decrees of the Supreme Court, except in cases where no appeal lies to that court under Revised Statutes, section 695.

But the question still remains as to the power of the Senate, or of Congress, to provide for a review of cases adjudicated in the Supreme Court of the United States a court created by the Constitution, whose original jurisdiction, at least, is fixed by the same instrument. Congress has provided for an appeal to that court, with certain limitations, from all inferior Federal courts, and, with certain other limitations, from the highest courts of the several States. But no power is given to review a decision of the Supreme Court, and I know of no method by which this can be done. But the power to review given to the International Prize Court implies the power to reverse, and the Supreme Court of the United States, while much given to reversing the decrees of inferior courts, and occasionally even itself, is so little accustomed to being reversed that as a private citizen I would not undertake to say what answer that court would make to an application to transmit its record to the International Bureau, which seems to be a kind of clerk's or registrar's office. I have no doubt the application would be given respectful consideration. One may hope in the interests of humanity that the court may see its way clear to granting it. clear to granting it. There is nothing in the Con

stitution prohibiting it, and it is quite possible that under its general power over the jurisdiction and procedure of its courts, and to provide for the general welfare, Congress may, so far as it can act upon the subject at all, waive so much of its sovereignty as to allow an appeal from its own to an international court. One can not be familiar with the practice of the Supreme Court without recognizing the impossibility of one member speaking for all; but we may rest assured that its decisions will be given in the spirit of justice and amity to other nations, as well as in consonance with the letter of the Constitution.

This appeal is by no means a general one, but is limited to judg ments affecting the property of a neutral power or individual, or affecting enemy property, and relating to cargo on board a neutral ship, or an enemy ship captured in neutral territorial waters, or in violation of some convention in force between the belligerent powers, or of the laws of the belligerent captor. Although the appeal must in general be taken by a neutral power or individual, in the latter class of cases it may be taken by a subject or citizen of an enemy

power.

Limited as this jurisdiction is in respect to persons and property, it extends to a great variety of possible subjects. Indeed, there is scarcely a question connected with the rights of neutrals in time of war that may not be brought before the court for adjudication. The convention requires the appointment of fifteen judges of known proficiency as jurists in questions of international maritime law, and of the highest moral reputation, nine of whom are necessary to constitute a quorum, or seven if the judges are less than eleven. A majority of these must almost necessarily be neutrals, though by article 15 judges from certain contracting powers-viz, Germany, the United States, Austria-Hungary, France, Great Britain, Italy, Japan, and Russia are always summoned to sit, and by article 18 the belligerent captor and the neutral is each entitled to appoint a naval officer to sit as assessor, but with no voice in the decision. These judges are appointed for six years, with power of reappointment. There is also a provision that if a belligerent power has no regular judge upon the court it may ask that a judge appointed by