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ship itself in order to become a governor of New York. In truth, it is of course well known that not until Marshall had for some years presided over the Supreme Court was it seen how important a constitutional agency that tribunal could be made.
If, now, it be conceded that Dr. Scott has yielded to the temptation to overstate the quasi-international character of the Supreme Court, it none the less remains true that the exercise by that tribunal of its jurisdiction over controversies between the States of the Union tends strongly to argue the feasibility of a true international court for the adjudication of controversies of a justiciable character between the nations of the world; and that in its rules of practice and the doctrines which it has declared are to be found a jurisprudence that must surely be of great persuasive force to an international court of justice, if, and when, established.
Dr. Scott in his analysis is careful, when opportunity offers, to point out the respects in which the rules of practice of the Supreme Court, and the principles of public law declared by it, would be proper for adoption by an international court and which, therefore, it may be expected, would in fact be adopted. Especially is emphasized in this connection the fact that the Supreme Court has always been careful to remember that it is a court of limited jurisdiction and that, whether or not the point is raised by counsel, the question of jurisdiction is one that the court itself must consider and affirmatively decide before it will proceed with a case.
“The experience of the court in the performance of its judicial duties . . shows," says Dr. Scott, “that a court of limited jurisdiction, such as is the Supreme Court of the United States, and such as a court of the Society of Nations must inevitably be, can be trusted to keep within the law of its creation.”
In this connection, Dr. Scott says that "every attempt of a citizen of one of the States to sue another State of the Union has been frustrated by the court itself as contrary to the Eleventh Amendment of the Constitution negativing that right and privilege." haps too strong a statement. It is true that no citizen, whether of the defendant or other State, has, since the adoption of the Eleventh Amendment, been permitted to obtain a judgment against a State, but in many cases, at the instance of individuals, suits against the officials of a State have been entertained, and their official actions controlled by mandamus as well as by injunction. Furthermore, there
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is the fact that the court has permitted a State to sue and obtain judgment against a State upon a claim, originally possessed by a citizen, but transferred to the plaintiff State. However, the court has allowed a State to sue another State only when it has been the real party of interest. But even this rule it has qualified by allowing a State to sue as parens patrice, that is, where the general interests of its citizens, as for example, their health, is claimed to be prejudiced by the action of the defendant State. With regard to this juridictional point, it does not need to be pointed out that international practice sustains a more liberal doctrine than this and supports the right of a State, if it sees fit, to bring its pressure or influence to bear upon another State in order to bring about the satisfaction by it of purely commercial claims held by citizens of the first state. Dr. Scott, is, however, of the opinion that should an international court of justice be established, no state should be subjected to suit by a citizen of another state except with approval of the plaintiff's government. This rule, he points out, would be in harmony with the rule adopted by the Second Hague Peace Conference, which allows an individual to resort to a prize court and to summons a belligerent captor before it, only with the consent of his own government.
Perhaps the most interesting of all the cases analyzed by Dr. Scott is that of Rhode Island v. Massachusetts (12 Peters, 657), decided in 1838. This was a boundary dispute, and the defendant State strenuously denied the jurisdiction of the court, not only because of its character as a sovereign state, but because the question at issue was a political one. There is not space here to consider, even in outline, the argument of the court in refutation of both of these points, but it is sufficient to say that the case settled the doctrine that, to use the words of Mr. Justice Baldwin, “the submission by the sovereigns or States, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide, according to the appropriate law of the case; which depends on the subject matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission,” Mr. Justice Baldwin goes on to say, “the question ceases to be a political one to be decided by the sic volo, sic jubeo, of political power; it comes to the court to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.
Dr. Scott stresses the point that the Supreme Court has developed a procedure whereby justice may be done between the States without resorting to a compulsory process to bring a defendant State to its bar. Upon failure of a State to appear after being notified of an action brought against it, judgment is not granted pro confesso, the plaintiff being put to full, though of course ex parte, proof. Dr. Scott does not fail to see, however, that the most critical of all questions concerning the powers of an international court, as it has been of the United States Supreme Court, will be its authority to compel obedience upon the part of defendant States to judgments or decrees entered against them. Not until 1846 did the American court find it necessary to enter a final decree in a suit between States, and in that case (Rhode Island v. Massachusetts, 4 How. 591), the decree was a negative one, the claim of the plaintiff State being disallowed and the two parties left in possession of the territories which they already possessed. In 1860, in the case of Kentucky v. Dennison, Governor of Ohio (24 How. 66), the court held that though the Constitution made it a duty of the defendant, as the chief executive of his State, to surrender to the plaintiff State a fugitive from its justice, fulfillment of this obligation could not be compelled by physical force. The language of the court upon this important point deserves quotation. The court, speaking through Chief Justice Taney, said:
The Act (of Congress of 1793] does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.
In the case of South Dakota v. North Carolina (192 U. S. 286), decided in 1904, this being the case earlier referred to in which it was held that a suit might be brought against a State by another State which had become the owner of a claim originally held by one of
1 Chief Justice Taney dissented, and Mr. Justice Story took no part in the decision.
its citizens, the Supreme Court entered a judgment against the defendant State. It happened, however, that this judgment could be satisfied by the sale of tangible property that could be seized and sold, and therefore, the question as to the power of the court to compel the defendant State to assess and collect a tax or by other action upon its part, to pay the amount awarded against it, was not put to the test. However, the court was emphatic as to its power to issue execution as an essential part of its power to enter judgment.
In the suit of Virginia v. West Virginia, which, in one form or another, was several times before the Supreme Court, & decree was entered against the defendant State, and for a time it appeared that, by the refusal of that State to satisfy it, and by reason of the fact that there was no property of the State that might be seized and sold, at last the court would be compelled to decide what specific action should be ordered by it in order that its decree should be given operative effect. As to this, the court, speaking through its Chief Justice, declared that, if necessary, the payment of the judgment could constitutionally be compelled by the exercise of federal authority, even though such compulsion might operate directly upon the governmental agencies of the State. The question involved and affirmatively answered by the court, was stated to be: “May a judgment rendered against a State as a State be enforced against it as such, including the right, to the extent necessary for so doing, of exerting authority over the governmental powers and agencies possessed by the State ?” 2
Although the opinion of the court upon this point was a unanimous one, Dr. Scott is of opinion that it was an unfortunate and, indeed, constitutionally an unnecessary one. He criticizes the argumentative force of the historical references in the court's opinion and again states his conception of the Federal Constitution as an instrument of government not imposed from above upon subordinate political communities, but drafted by sovereign, free and independent States, its restrictions being "self-denying ordinances or voluntary renunciations of power which they would otherwise have exercised."
In what has gone before there has been opportunity to touch upon only a few of the interesting points raised by the cases which are discussed. Whether or not one agrees with certain of the personal opinions which Dr. Scott has expressed, one must recognize the fidelity and acumen with which he has analyzed and stated the arguments of court and counsel. No one in America has done more than has Dr. Scott for the advancement of the movement to substitute the orderly processes of law for physical force in the settlement of controversies arising between the member states of the society of nations. By the preparation of these three volumes that have furnished the material for this review, he has placed international jurisprudence in still greater debt to himself.
2 In final result it did not become necessary for this compulsion to be applied, for West Virginia finally paid the judgment, and satisfaction was entered upon the records of the court on March 1, 1920.
W. W. WILLOUGHBY.
De Iure Belli ac Pacis Hugonis Grotii. Edited by P. C. Molhuysen.
Leyden: A. W. Sijthoff, 1919. pp. xv, 752. In these postbellum days of heaving internationalism the name of Hugo Grotius compels the same undiminished admiration as of yore. Any new edition of his most famous work, “On the Law of War and Peace," is sure to meet warm welcome. Especially ought this to be true of this latest edition, because it hails from the land of Grotius.
As the editor notes in his preface, there are four editions of the De Iure, those of 1625, 1632, 1642, and 1646, done by Grotius himself, and due mention is there made of the corrections of text, changes in type, etc., in the successive editions. But no attempt is made to give a complete list of the various editions of the text, practically no bibliography is cited, nor is the Amsterdam Gronovius edition of 1702, which has a text of almost as clear and large type as this latest Dutch text, mentioned at all.
That the Cambridge University Press, in 1853, printed a beautiful text, with an abridged translation by William Whewell, or that the Carnegie Institution of Washington, in 1913 began its series of “Classics of International Law” (now transferred to the Carnegie Endowment for International Peace), with a photographic reproduction of the 1646 edition, 'accompanied by a notice of a forthcoming annotated text and complete translation, is left wholly as a matter of conjecture for any non-international consultant of this latest Dutch edition. Perhaps even Grotius himself would resent his compatriot's sedulously nationalistic bias in passing over the international range of his editors. But perhaps this editor takes all that for granted.