an international court would seem anomalous from a linguistic standpoint at least,109 but legislation providing that in certain classes of cases appeals should go from inferior Federal courts to an international court 110 instead of to the Supreme Court would seem entirely within the competence of Congress.

A system whereby all cases involving international law or treaties should be adjudicated in first instance in an inferior Federal court with appeal to an international court would seem to present no unconstitutional conflict with the judicial power of the United States, and, in view of the reciprocal advantages which such a system might offer to American citizens, would seem within the proper scope of treaty-making and hence within the constitutional competence of the treaty power. Congress would have to amend the Judicial Code before such a system could operate, but its political obligation to render a treaty of this character executable would seem the same as with the many other treaties requiring supplementary legislation.

There appears to be general agreement that the sine qua non of an improved world organization is the establishment of an international

256, cl. 8) and the former in cases against consuls (ibid., sec. 24, par. 18; sec. 233; Bors v. Preston, 111 U. S. 252). From 1875 to 1911 State courts exercised concurrent jurisdiction in cases against consuls (18 Stat. 318; Wilcox v. Luco, 118 Cal. 639 (1898); Judicial Code, 1911, sec. 256, par. 8). Yet the Constitution gives the Supreme Court original jurisdiction "In all cases affecting ambassadors, other public ministers and consuls." (Art. 3, sec. 2, cl. 2.)

109 Though in New York the "Supreme Court" is not the highest appellate court, and in all the States appeal lies from the State "supreme" court to the United States Supreme Court. The latter was contested in the extended controversy between John Marshall and Virginia, in which the State, although admitting that cases within national judicial power could be transferred from inferior State to inferior Federal courts, maintained that appeals could not go from the highest State court to the Supreme Court of the United States. Marshall's position, sustaining the constitutionality of Article 25 of the Judicial Code of 1789 (virtually repeated in the Judicial Code of 1911, sec. 237), providing for such appeals, has been uniformly followed. Martin v. Hunter, 1 Wheat. 304; Cohen v. Virginia, 6 Wheat. 406; W. E. Dodd, John Marshall and Virginia, Am. Hist. Rev., 12: 776. 110 If the subject were within the original jurisdiction of the Supreme Court, an original jurisdiction in an inferior Federal court with appeal to the international court could be provided concurrently with the inherent original jurisdiction of the Supreme Court. Thus appeal to the international court would be optional with the parties.

court. The stability of such a court and its capacity to define and develop international law would seem much greater if its jurisdiction were founded in part upon the nature of the case 1108 rather than entirely upon the nature of the parties, as has been usually suggested." A case between states is very likely to involve questions of national honor or national policies, and decision on purely judicial grounds without considerations of expediency is frequently found impossible. Thus Borchard, in arguing for an international court with final jurisdiction over pecuniary claims against states, brought by individuals, says:

112

The divorce of pecuniary claims from political considerations, a union which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent tribunal, must make a universal appeal to man's sentiment for justice.

The most far-reaching questions of international law, customary or conventional, may be involved in controversies between private individuals, either of the same or of different nationalities, or between individuals and a state. With an international court exercising appellate jurisdiction in all cases involving international law or treaty,113 judicial determination of these questions could frequently be obtained in the routine of an established institution, with comparatively little danger of arousing national susceptibilities. The way would thus be open for

1108

Jurisdiction is primarily dependent upon the nature of the case in the proposed International Prize Court (XII Hague Convention, 1907, Arts. 3, 4, 5; Charles, Treaties, p. 250) and in the Central American Court of Justice, 1907 (Arts. 2, 3; Malloy, p. 2399).

111 Jurisdiction of cases where both parties were states was alone provided in the draft Convention for the Creation of a Judicial Arbitration Court, The Hague, 1907, Arts. 17, 21.

112 E. M. Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 864. See also pp. 328, 373, 443, and in The New Republic, 7: 196 (June 24, 1916).

113 The jurisdiction would, of course, have to be defined in detail. Cases of pecuniary claims by aliens; private rights upon succession of sovereignties; maritime cases involving the general law, such as salvage and collision, prize captures and piracy; cases involving the privileges of sovereigns, diplomatic, consular, naval and military officers; cases of territorial boundaries, jurisdictional limits, and extraterritorial jurisdiction, and all cases involving the interpretation of treaties, are some of the classes which might be included.

gradually building up a series of binding and authoritative precedents. on numerous questions of international law, and when controversies between nations arose there would be considerable probability that the question had already been so covered by decided precedents that it would furnish neither a bona fide clash of opinion nor an excuse for veiling political aims.

The merit of such an international court, as compared with a court exercising jurisdiction only in cases between states, is evidenced by the actual jurisdiction exercised by the Supreme Court of the United States.114 As compared with the number of cases which come before the Supreme Court because involving the Constitution, laws or treaties. of the United States, or admiralty and maritime law the number is insignificant which come before it because the parties are States of the Union or persons of different States, and it is its authoritative interpretations of the Federal Constitution, national statutes, treaties, and maritime law which has made the Supreme Court an institution of remarkable value.

The logic of making jurisdiction dependent upon the case rather than the parties was recognized in the International Prize Court Convention, but the expedient adopted by the United States in the protocol would seem to sacrifice some of this advantage, for the intervention of sovereignties, with the continual possibility of arousing susceptibilities, is the very thing to be avoided. If the interpretation here suggested is correct, there seems to be no constitutional obstacle to considering such a court.

TREATY POWER AND EXECUTIVE POWER

A conflict between treaties and the executive power, which, according to the Constitution,115 is vested in the President of the United States, has never been seriously considered,116 and such a conflict seems impos

114 For distinction of the jurisdiction of the Supreme Court as determined by the character of the case and by the character of the parties, see Cohen v. Virginia, 6 Wheat. 264, 378, 393; U. S. v. Texas, 143 U. S. 621 (1891); Kansas v. Colorado, 185 U. S. 125.

115 Art. 1, sec. 1, cl. 1.

116 The Senate report on the Taft arbitration treaties of 1911, in defending the prerogatives of the Senate, says: "It is said that the powers of the President under the Constitution are given up by the 3d clause of Article 3, just as much as those

sible until a legal distinction between the functions of the Executive and the treaty power is formulated. Executive discretion in both political 117 and administrative 118 matters has undoubtedly been limited by numerous treaty provisions.

The competence of the treaty-making power to delegate its own discretion has, however, been doubted.119 Thus, in international arbitration parties, the Senate has generally insisted upon its prerogative, as a constituent of the treaty power, to participate in the conclusion of each compromis submitting a specific case to arbitration.120 In refusing consent to the ratification of the provision of the Taft arbitration treaties of 1911 which gave final decision upon the question of justiciability to a joint high commission, the majority of the Senate Committee on Foreign Relations reported: 121

This recommendation is made because there can be no question that, though the machinery of the joint commission, as provided in Articles II and III and with the last clause of Article III included, the Senate is deprived of its constituent power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission, powers which, under the Constitution, devolve upon the Senate. . To vest in an outside commission the power to say finally what the treaty means by its very general and indefinite language is to vest in that commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making.

of the Senate. If this is true it only makes the case more serious, but the President, under the provisions of Articles 2 and 3, although he would be bound by the decision of the Commission, can nevertheless control the formation of that body." Cong. Rec. 47: 3935, and 62d Cong., 1st. sess., S. Doc. 98, pp. 5–6.

117 As in arbitration and peace treaties.

118 As in treaties establishing international administrative unions, for postal, telegraphic and radio service, sanitary inspection, etc.

119 The well-known principle that Congress cannot delegate legislative power (Field v. Clark, 143 U. S. 649) is founded on the provision that "all legislative powers herein granted shall be vested in a Congress" (Art. 1, sec. 1). There is no specific provision prohibiting a delegation of treaty-making power.

120 The arbitration treaties negotiated in 1904 were withdrawn because of the Senate's insistence on this point, and in the treaties of 1908 it was expressly provided that the compromis be made by the President "by and with the advice and consent of the Senate." (Art. 2.) See also reservations to I and II Hague Conventions, 1907. (Malloy, pp. 2247, 2259.)

121 Cong. Rec., 47: 3935; also 62d Cong., 1st. sess., S. Doc. 98, p. 6.

A logical carrying out of this theory would seem to deny any power to conclude treaties in good faith, for all treaties require interpretation, and to say that the interpretation must always be according to the will of the existing treaty-making power of the United States, however that may differ from the intent of the original negotiation, is virtually to substitute political expediency for treaty obligation. Good faith would seem to require that the true intent of the instrument govern its application through its entire life, and it is hard to see where a more impartial determination of what this intent was could be obtained than in an international tribunal.122

The minority report of the Senate committee,123 in which Senator Root had a hand, pointed out that the majority view could "not be maintained except on the theory that all general treaties of arbitration" involve a like unconstitutional delegation of power, the only difference being that the treaties under consideration submitted "certain described classes" of cases to arbitration, instead of particular cases. The decision of the joint high commission on what questions are justiciable “is not delegating to a commission power to say what shall be arbitrated;

122 W. Kaufmann (Die Rechtskraft des Internationalen Rechtes, Stuttgart, 1899, p. 102) calls attention to the necessity that treaties be interpreted from an international rather than a national standpoint, and the courts have held in France that "no nation has the right to interpret to its advantage the obscure provisions of a treaty or to delegate such examination to its courts. . . . The interpretation of a treaty in case of difficulty can result only from a reciprocal agreement of the two governments." (Dalloz, Juris. Gen., Supt., t. 17 (1896), s. v. Traité Int., No. 14.) American courts have generally interpreted treaties on legal principles (U. S. v. Rauscher, 119 U. S. 407, 419), but in interpreting "political questions" have followed the legislative and executive departments (Foster v. Neilson, 2 Pet. 203, 308), though not if manifestly contrary to the true intent of the instrument. (Castro v. De Uriarte, 16 Fed. 93.) See also S. E. Baldwin, Am. Law Rev., 35: 222; Wharton, 2: sec. 133.) The German Reichsgericht refused to interpret an Italian commercial treaty with reference to analogous provisions of earlier treaties, but held that "the interpretation of the individual provisions (of treaties) permits the autonomy of the state" which executes it. (Urtheil des Deutsches Reichsgerichts, Feb. 15, 1892, Ent., Str. 22: 372.)

123 62d Cong., 1st. sess., S. Doc. 98, p. 9. This report was signed by Senators Root and Cullom. In a special minority report, Senator Burton pointed out that even after decision by the joint high commission the compromis would go to the Senate. "In such case, as in every other case, it would be within the power of the Senate to refuse its advice and consent to the special agreement, but it would be contrary to its treaty obligation." Ibid., p. 12.