CONSTITUTIONALITY OF THE PROPOSED INTERNATIONAL PRIZE COURT-CONSIDERED FROM THE STANDPOINT OF THE UNITED STATES The twelfth convention adopted by the Second International Peace Conference at The Hague provides for the establishment of an International Prize Court, to which appeals may be taken from the national prize courts of the various signatory powers, or such of them as shall approve the convention. The third article of the convention provides: The judgments of national prize courts may be brought before the International Prize Court 1. When the judgment of the national prize court affects the property of a neutral power or individual; 2. When the judgment affects enemy property and relates to (a) Cargo on board a neutral ship; (b) An enemy ship captured in the territorial waters of a neutral power, when that power has not made the capture the subject of a diplomatic claim; (c) A claim based upon the allegation that the seizure has been effected in violation either of the provisions of a convention in force between the belligerent powers or of an enactment issued by the belligerent captor. The appeal against the judgment of the national court can be based on the ground that the judgment was wrong either in fact or in law. As indicated by the article quoted, the validity of the seizure of the prize is determined in the first instance by the courts of the belligerent captor, from which an appeal lies, in the cases mentioned, to the International Prize Court at The Hague. If the convention establishing this court is ratified by the Senate of the United States, and legislation supplemental thereto is enacted by Congress, we shall have a condition which is a novelty in our system of jurisprudence. Cases originating in the courts of the United States will be capable of removal by appeal to a court located on foreign soil, not forming a part of our judiciary system, and not subject to the control or supervision of the United States Govern ment or any Department thereof. The provision for such appeals, either directly from the district courts or after appeal to the Supreme Court, will doubtless include certification of the record, preserving the status quo of property involved pending the appeal, and submission to the decision when rendered, even though it may reverse the Supreme Court of the United States. It was stated in the report of the delegates of the United States to the Second International Peace Conference that "the question of the constitutionality of the proposed International Court of Prize as a treaty court would seem to be precluded by the decision of the Supreme Court of the United States. In re Ross (140 U. S., 453).” 1 That case, however, while upholding the power of the United States to provide by treaty a consular court in a foreign country, is by no means authority for the proposition that it may by treaty or act of Congress confer upon a foreign tribunal appellate jurisdiction of cases originating in courts of its own country. Whether the power exists to provide for appeals to the proposed court depends upon two questions: (1) Whether the grant of the treaty-making power to the Presi dent and the Senate includes the power to provide for the judicial settlement of questions of an international nature. (2) Whether this power is limited by the grant of the judicial power of the United States to the Federal courts, so as to exclude the power to provide by treaty for the appeal to an international tribunal of prize cases originating in our own courts. The Constitution provides (Article II, section 2): He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Laying aside for the moment the question as to any limitation implied by the constitutional grant to the Federal judiciary, the power of the United States to provide by treaty for the establishment of international courts and the adjustment of international differences therein is free from doubt. 1 Senate Doc. No. 444, page 49. 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 * 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 |