1 Senate Doc. No. 444, page 49.

2 Other cases to the same effect are The La ffinfa, 15 Fed. Rep., 513; Slieppard 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.

3 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 Statesexcept in courts ordained and established by itself. * * * It would seem, therefore, to follow that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court can not take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested, either in an original or appellate form, in some courts created under its authority.”

This dictum was mentioned with approval in Robertson v. Baldwin, 165 U. S., 275, 278, Brown, J.

4 Among these may be mentioned: The Peterhof, 5 Wall., 28; 4 Moore, Inter. Arb., 3838–3843; The Georgia, 7 Wall., 32; 4 Moore, Inter. Arb., 3957–58; Isabella Thompson, 3 Wall., 155; 4 Moore, Inter. Arb., 3159; The Pearl, 5 Wall., 574; 4 Moore, Inter. Arb., 3159; The Adela, 6 Wall., 266; 4 Moore, Inter. Arb., 3159; The Ouachita Cotton, 6 Wall., 521; 3 Moore, Inter. Arb., 3232.

5 The Belgenland, 114 U. S., 355, 364; The Bound Brook, 146 Fed. Rep., 160; The Salomoni, 29 Fed. Rep., 534; Tellefsen v. Fee, 168 Mass., 188; Norberg v. Hillgrau, 5 N. Y. Leg. Obs., 177.

6 State Papers and Publick Documents of the United States, vol. 4, p. 106.

7 Among other treaties may be mentioned those with Colombia, October 3, 1824, art. 21; Central America, December 5, 1825, art. 28; Brazil, December 12, 1828, art. 28; Chile, May 16, 1832, art. 21; Peru-Bolivia, November 30, 1836, art. 20; Ecuador, June 13, 1839, art. 24; Bolivia, May 13, 1858, art. 24; Colombia, December 12, 1846, art 24; Haiti, November 3, 1864, art. 28; Peru, August 31, 1887, art. 25.

8 The contemporary history of this clause shows, I think, that it was intended merely to prevent irregular condemnation of prizes by other than established courts, as had previously been the practice of the French nation. In the instructions issued to the American commissioners by the Secretary of State occur the following paragraphs which make it clear that such was their purpose. In paragraph 22 it is said:

“Prizes ought to be conducted to the country to which the captors belong, unless the two parties are engaged in hostilities against a common enemy. But in this case the established courts for prize causes in the country to which the prizes are conducted should alone take cognizance of them." Annals of Congress, 6th Congress, 1799–1801. Col. 1118.

In paragraph 27 of his instructions, the Secretary said:

“But a still greater evil remains, and more difficult to remedy — the improperins itution of prize courts. Probably no provision can be explicitly made, other than that each party will take effectual care that the judgments and decrees in prize causes shall be given conformably to the rules of justice and equity, and the stipulations of the treaty, and wi hout any unnecessary delay, by judges above all suspicion, and who have no manner of interest in the cause in dispute. It would be some check on the judges in prize causes if their reasons for condemning were required to be stated, with the other proceedings, in writing; and copies of the whole should, if demanded, be delivered to the commander or agent of the captured vessel without the smallest delay, or, at furthest, within fifteen days after sentence pronounced, and sooner if practicable, and at the expense of the captors (in case of condemnation), not of the captured, who are otherwise sufficiently distressed.

“Prizes, as already observed, should be conducted into the ports of the party at war, or of an associate in the war, and there adjudicated by the regular tribunals. The French have conducted their prizes into neutral as well as belligerent ports; and, when there was no consul to try and condemn, leaving there the prizes, they have carried the papers to a distant place to find a French tribunal; and there, in the absence of the captured party, procured sentences of condemnation, and sold the prizes. The same mode of obtaining condemnation has been uniformly practiced when they carried their prizes into the ports of an associate in the present war. But, without waiting for the result of this farcical trial, it has been common to unlade and sell the cargoes as soon as they reached a port.”Annals of Congress, 6th Congress, 1799–1801, Col. 1120.

In the preliminary draft of the treaty which waa submitted by the American commissioners the language of Article XXVIII, which subsequently became Article XXII of the treaty, was as follows: “I t is further agreed that all prizes shall be conducted to a port of the party at war; and in all cases the established courts for prize causes in the country to which the prizes may be conducted shall alone take cognizance of them.” Col. 1160.

A careful search of available documents with regard to the negotiotion of this treaty has failed to show why the language was changed to read in Article XXII as follows: “It is further agreed that in all cases the established courts for prize causes of the country to which the prize shall be conducted shall alone take cognizance of them.” I think, however, that it is fair to assume the reason for this change was an apparent admission by both parties that where there were allies engaged in war the prize might be conducted into the courts of either and the adjudication there had. It is probable that the words omitted were stricken out for the purpose of permitting the conduct of prizes to the courts of the ally, as well as of the captor, and that there was no intention to provide for the adjudication of prize cases in the courts of neutrals.

9 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 Stateswill 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 inso 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.