lishment, therefore, of arbitration means the cancellation of the term "vital interests" as applied to politics.

Can we hope for justice from arbitration? We might, in view of the course of our discussion, respond by asking: "Has justice been obtained through war?" Long ago legislators found that the wager of battle failed to secure justice as between man and man. Without lengthening the argument, we may believe that armed conflict has not, on the whole, advanced the rule of right. When at one time war has served to check inordinate ambition, at as many others it has furthered its purposes.

We may concede that in private matters justice has often gone forward with halting steps, has even at times seemed to go backward, yet who among us would dispense with the conclusions of judge and jury and revive the wager of battle?

From the beginning, with the advantage of national precedents and experiences, we may expect arbitration to bring us approximate justice. That always exact justice should be rendered may not be expected. The members of our Supreme Court, differing as they frequently do most vitally, will not say that this tribunal has never erred. But, despite the possibility of error, we find that order and the well-being of the community must be maintained even at the chance of individual injustice, a chance which no human skill can eliminate.

But arbitral history leads us to the conclusion that more than an approximation of right may be expected, that a tribunal which is the center of observation by the whole world will seek to give and will give a judgment as nearly righteous as may be.

In the whole history of arbitrations, but one has ever been suspected of corruption, and, by joint agreement, its findings were reviewed. Slight criticism may be made of the generality of other like tribunals. To-day doubtless even the English will agree that the findings of the Alabama Joint High Commission were just.

Of the four arbitral sentences given by the Permanent Court of Arbitration at The Hague, but one-that in the Venezuelan Preferential Case-has received serious criticism. Even in this case, judicial settlement, though perhaps erroneous, was immensely valuable.

Let it not be said that the ideas to which I have sought to give expression are too advanced, are impractical. It is only by "hitching our wagon to a star " that we may progress. Let us not forget that there is nothing blinder and stupider, nothing less practical than the so-called practical man, that only among the dreamers of dreams of human advancement are to be found those who the flow of events demonstrate to have had the clearness of vision of the truly practical man.

CONSTITUTIONALITY OF THE PROPOSED INTERNATIONAL PRIZE COURT-CONSIDERED FROM THE STANDPOINT OF THE UNITED STATES.

THOMAS RAEBURN WHITE.

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 Government 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.

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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) "* 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 that power exists depends upon two questions:

(1) Whether the grant of the treaty-making power to the President 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 (Art. II., Sec. 2) :

• Senate Document No. 444, page 49.

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.

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 vs. 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 vs. Vasse, I Peters, 193, Mr. Justice Story, referring to the treaty of May 22d, 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 re-examinable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim cannot be brought again under review in any judicial tribunal; an amount once fixed is a final ascertainment of the damages or injury.”*

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, provided for the submission of questions of a similar nature to a permanent tribunal, either

*Other cases to the same effect are the La Ninfa, 75 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.