States to the national courts does not limit the power of the Federal Government to provide by treaty for the decision of any question of an international nature. Being not so limited the United States may by treaty provide for the adjudication of prize cases in any manner it may deem expedient, either in an international court of first instance or after a primary decision in its own courts.9

It may, perhaps, be thought a startling doctrine that the Federal Government may by treaty establish courts to exercise a portion of the jurisdiction vested by the Constitution in the national judiciary. But this power will necessarily be limited to cases involving questions of an international nature, such as those now under discussion. In matters concerning only questions of municipal law there can be no such interference.

Even if it were not abundantly upheld by authority, the power of the United States to provide by treaty for the judicial determination of all cases of an international character could be upheld on the ground of necessity and from the nature of the thing. The people, in whom was vested all governmental power, committed to the legislative and executive authorities the great powers to declare war, make peace, and conclude treaties. The management of foreign relations was in general and unlimited terms committed into their hands. What could be more intimately connected with these functions or more necessary to their exercise than the power to provide for the judicial decision of questions likely to involve us in inter

A suggestion has been made that questions which are ultimately to be decided by commissions or courts established by treaty are not judicial questions, and will not be taken cognizance of by courts of the United States; and that in the event of a provision for appeals from district courts or from the Supreme Court of the United States to the International Prize Court at The Hague, the courts of the United States will decline to take jurisdiction of prize cases in the first instance. It is not perceived that this argument has any substantial merit. As we have seen, the decision of such cases in so far as they involve the rights of foreign nations or individuals have never been final, but have always been subject to reversal by a temporary international court or commission. This has not hitherto interfered with the assumption of jurisdiction by the lower courts and no reason is perceived why it should do so in future. Furthermore, a mere provision by treaty for the final solution of such questions in a regular permanent manner would in no wise change the essential nature of the questions involved; as they have been judicial heretofore, they will continue to be judicial hereafter.

national difficulties; and what more unlikely than an intention to limit powers necessary for the preservation of our national existence, by any grant to a department of government destined to oper ate exclusively upon the inhabitants of the United States or others who voluntarily bring themselves within its authority. It is a very reasonable assumption that our fathers intended the grant of judicial power to be exercised within the limits of the United States to be subject to the great and unlimited power of making treaties which was to regulate our relations with all the peoples of the earth.

THOS. RAEBURN WHITE.

THE HAGUE CONVENTION RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS IN

NAVAL WAR 1

The purpose of this convention, as indicated in the preamble, is to harmonize the existing divergent views of states concerning the relations between neutrals and belligerents in the event of naval war, and to anticipate the difficulties to which such divergence may give rise, by framing rules of general application to meet the case where hostilities may have unfortunately broken out.2

The advantages of an international agreement accomplishing such a purpose must be apparent. The benefit derived from the fact of codification may in itself, in the estimation of some foreign offices, afford ample reason for the approval of rules of conduct not heretofore believed to be sanctioned by general consent.

The great problem confronting the committee which prepared the convention was to reconcile the right of the neutral to afford asylum with its duty to abstain from participation.3

The first four articles of the convention relate to the inviolability of neutral territory. Article 1 declares:

1 The text of this convention, with an appended English translation, is contained in the AMERICAN JOURNAL OF INTERNATIONAL LAW, Supplement, II, 202. 2 The report of the comité d'examen declares: "La chose essentielle, c'est que tous sachent à quoi s'en tenir et qu'il n'y ait pas de surprise." (Report to the Conference, 3.)

3 The convention was the work of a comité d'examen, by whom it was presented to the Third Commission and was, after amendment, reported by that commission to the conference. The comité d'examen was composed of the

following members:

President, Count Tornielli (Italy); reporter, Mr. Renault (France); RearAdmiral Siegel (Germany); Rear-Admiral Sperry (United States); Commander Burlamaqui (Brazil); Mr. Lou Tseng-Tsiang (China); Mr. Vedel (Denmark); Captain Chacon (Spain); Sir E. Satow (Great Britain); Captain Castiglia (Italy); Mr. Tsudsuki (Japan); Mr. Hagerup (Norway); Lieutenant-Commander Ferraz (Portugal); Mr. Teharykow (Russia); Mr. de Hammerskjöld (Sweden); and Turkhan Pasha (Turkey).

Belligerents are bound to respect the sovereign rights of neutral powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality.

Article 2 declares:

Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war ships in the territorial waters of a neutral power, constitutes a violation of neutrality and is strictly forbidden.

These provisions arouse inquiry, first, as to the nature and extent of the duty of the belligerent to respect neutral territory; secondly, concerning the duty of the neutral to prevent violations of neutrality.

That neutral territory should not be the scene of naval hostilities is generally appreciated. The principle of the inviolability of the territory of a state is not, however, due to the existence of a condition of war between other powers, or to the neutral character of the state itself. Each nation, by reason of its political independence, has the right to insist that no act in derogation of its sovereignty be com mitted within its territory or territorial waters.* An act of war there perpetrated by the naval vessel of a friendly state is as offensive to the local sovereign as the commission of a common crime.

It is to be observed also that the duty of the belligerent to respect neutral territory is not measured by the neutral's duty of prevention. There may be places within the territorial waters of the neutral where a naval engagement would be offensive to the local sovereign, and where the latter, by reason of its lack of knowledge or power, might be under no obligation to either belligerent to prevent the conflict.5

It is essential that within neutral waters every belligerent act be forbidden, the commission of which, if tolerated by the neutral, would constitute a breach of neutrality on its part. This is accomplished by article 1.

The prohibition expressed in article 2 is comprehensive and emphatic. Inquiry is made whether the prohibition is intended to cover

4 Report to the Conference, 3 and 4.

" Id., 3-4.

every possible situation. Although a belligerent can not be said to possess the right to commit warlike acts in neutral waters, it is not true that all such acts are, on principle, unjustifiable. The commission of an act of hostility on grounds of self-defense is not a wrong to the neutral. It is unnecessary to elaborate circumstances warranting such conduct. It may be observed, however, that the belligerent war ship which fires the first shot at the enemy is not necessarily taking the initiative, or beginning hostilities.

Article 3 declares:

When a ship has been captured in the territorial waters of a neutral power, this power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize, with its officers and crew, and to intern the prize crew.

If the prize is not in the jurisdiction of the neutral power, the captor government, on the demand of that power, must liberate the prize, with its officers and crew.

When the neutral has faithfully employed the means at its disposal either to prevent the commission of the hostile act or to undo the wrong which may have been done, its duty is fulfilled. The practice of nations indicates clearly that the neutral is not the guarantor of the safety of belligerent vessels within the territorial waters of the former."

It is obviously just that provision should be made imposing on the captor government the duty to liberate a prize with its officers and crew wrongfully taken in neutral waters.

Article 4 declares that

A prize court can not be set up by a belligerent on neutral territory or on a vessel in neutral waters.

The reporter points out the fact that this article simply embodies what has long been the law of nations. It was accepted without dispute.8

See Lawrence, Inter. Law, 541; Hershey, Inter. Law and Diplomacy of the Russo-Japanese War, 262, note. Compare award of the arbitrator in the case of the Brig General Armstrong, Moore, Inter. Arbitrations, II, 1092; see also Hall, Inter. Law, 5th ed., 624.

7 See Moore, Inter. Law Dig., VII, 1092, 1095, 1101.

Report to the Conference, 6.