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 MAY, 1911, No. 4 
 
 Published Quarterly by American Society for Judicial Settlement 
 of International Disputes. 
 
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 By the Articles of Confederation, the Ameri- 
 can States made the United States, in Con- 
 gress assembled, “the last resort on appeal” 
 in all disputes between them, and authorized 
 the Congress, upon the complaint of any State 
 against another, to institute a special tribunal, 
 according to a method prescribed by the 
 Articles, for the final decision of the dispute. 
 By the Constitution, the people of the United 
 States and the States of the Union established 
 a Supreme Court of the United States and 
 made it a tribunal for the judicial settlement 
 of all interstate and international disputes in 
 which the United States or the States of the 
 Union might be involved with each other or 
 with foreign states, and which were capable 
 of being settled by the exercise of “the judicial 
 power” of the United States. By these two 
 documents, therefore, it was recognized as an 
 American doctrine that disputes between 
 
 3 
 
states may, under some circumstances, prop- 
 erly be settled according to the decision of 
 courts — or, to put it inversely, that courts 
 may, under some circumstances, properly have 
 jurisdiction over states. 
 
 Now that the states of the society of nations 
 are on the point of establishing a Court of 
 Arbitral Justice for the settlement of such in 
 ternational disputes as are capable of judicial 
 determination, it becomes interesting to dis- 
 cover the process by which the Supreme Court 
 of the United States has been evolved. It may 
 be that by tracing this line of development, 
 some light may be thrown upon the questions 
 which are now presenting themselves in re- 
 gard to the proposed international court. 
 
 The institutions of a people are in part the 
 expressions of their political, social and eco- 
 nomic beliefs, and in part the result of experi- 
 ments made by them and of improvements 
 upon institutions which have stood the test of 
 experiment. It is necessary, therefore, in this 
 inquiry, to examine first the nature of the 
 political, social and economic beliefs of the 
 founders of the American commonwealth ; 
 then, to investigate their experience in the 
 working of those institutions set over them by 
 
 4 
 
England as their mother country, or estab- 
 lished by themselves, which bore an analogy 
 to the Supreme Court of modern times, and to 
 ascertain the process by which these early 
 institutions were improved and adapted to the 
 changing environment. 
 
 In our search for the political doctrine held 
 by the American colonists which may reason- 
 ably be thought to have manifested itself in 
 our Supreme Court, we perhaps may find a 
 clue in a remark made by Grotius in his Three 
 Books of Peace and War. Describing the 
 power which a State ought to exercise over 
 its colonies (lib. i, cap. iii, sec. 21), he says 
 that while the Latins described the power of 
 the mother city or state by the word imperare, 
 to command, and regarded it as having the 
 imperium, or empire, over the colonies, the 
 Greeks “more modestly” described the power 
 of the mother city by the word raao-av, to dis- 
 pose or set in order, and regarded the mother 
 city as having the ^ye^ovia that is, the hege- 
 mony, leadership in judgment or supreme juris- 
 diction. The American colonists regarded 
 England, their mother country, as the Greek 
 colonists regarded their mother city. They 
 recognized that England had a leadership in 
 judgment and hence a supreme jurisdiction 
 
 5 
 
over the Colonies for the purpose of disposing 
 and setting in order their affairs to the extent 
 that might be necessary for the common de- 
 fence and for the general welfare, but they 
 denied its power to command. They insisted 
 that the execution of the judgments of the 
 mother country was of right in the Colonies 
 and that, in extreme cases, where its decisions 
 were palpably unjust, the Colonies might re- 
 fuse to adopt or execute them. 
 
 The American colonists went farther, and 
 denied to their own governments and to all 
 governments the power of absolute com- 
 mand, holding that government in every form 
 is essentially leadership in judgment. To 
 place it beyond doubt that their governments 
 did not have the imperium of the Latins, but 
 only the hegemony of the Greeks, they adopted 
 the custom of binding their governments by 
 written constitutions regarded as emanating 
 from the people, limiting the powers which the 
 government was authorized to exercise and 
 placing it in the position of an authorized 
 agent of the people. Their representative 
 assemblies they called, in some cases, general 
 courts; and they held the members of such 
 assemblies responsible as members of a 
 supreme tribunal. Every act of government 
 
 6 
 
they regarded as an act of judgment, and they 
 considered that the persons appointed to gov- 
 ern were but the leaders in the judgment. 
 They held that the final judgment rested in the 
 whole people, who confirmed by their acqui- 
 escence and conformity those acts of govern- 
 ment which by common consent were regarded 
 as necessary and just, and who ultimately 
 nullified such acts of government as by com- 
 mon consent were regarded as unnecessary and 
 unjust. With regard to every governmental 
 act, the question in their minds was, whether 
 the act in question appealed to their reasons 
 and consciences as necessary and just under 
 the circumstances. If the general consensus 
 was that the act of government was necessary 
 and just, the people executed it as a matter of 
 choice and free will. Governmental commands 
 and prohibitions, in their view, thus derived 
 their force from the judgments on which they 
 were based and on the general acquiescence in 
 the judgment as necessary and just. 
 
 The social ideas of the American colonists 
 were based upon Christianity. The people 
 were thus at the same time individualists and 
 humanitarians and sought to find the middle 
 ground between selfishness and altruism. 
 They believed in the equality of all men before 
 
 7 
 
God by reason of the common and equal crea- 
 tion of all men by God, and held to the concep- 
 tion of a law of nature imposed by God, which 
 is supreme over all human action and rela- 
 tionship and to which all men, states and 
 peoples are equally subject. This law of 
 nature was to their mind composed of those 
 principles of natural justice, based primarily 
 on the equal right and duty of self-protection 
 and self-preservation, which are implanted in 
 man by God, and which are in part revealed 
 and in part discoverable by the enlightened 
 reason and conscience. All governmental acts 
 they believed were to be judged by the people 
 according to this supreme law. 
 
 The economic ideas of the American colon- 
 ists were similar to their social ideas. As 
 individualists they opposed monopoly and 
 caste and believed in the fundamental rights 
 of self-protection and self-preservation, called 
 the rights of life, liberty and property. As 
 humanitarians they believed that trade, com- 
 merce and intercourse ought to be free and 
 universal, limited only by the necessities of 
 self-protection and self-preservation. 
 
 Holding these views, the American colonists 
 regarded the colonies as commonwealths and 
 free states, and at the same time thought it 
 
 8 
 
not inconsistent that these free states and 
 commonwealths should be parts of the English 
 empire and the English commonwealth. They 
 willingly assented to those provisions of the 
 colonial charters which required that the gov- 
 ernmental acts of the colonies should be con- 
 sistent and harmonious with the governmental 
 acts of England. The effect of this was, to 
 make the law of England a supreme law of the 
 colonies, governing not only the people of the 
 colonies, but the colonies themselves. But 
 to this law they could not yield absolute 
 supremacy consistently with their conception 
 of a supreme and universal law of nature 
 emanating from God. They therefore regarded 
 the English empire and commonwealth, and 
 each of the constituent states, as subject in 
 the first instance to the law of England as a 
 supreme law, but as also subject in the last 
 resort to the law of nature. The English and 
 colonial courts and governments also recog- 
 nized the law of nations, composed of the prin- 
 ciples of international conduct and relationship 
 agreed upon by independent states and mani- 
 fested in treaties or in their political action, 
 though even this law the American colonists 
 regarded as subordinate to the law of nature. 
 Disputes between the states forming the 
 
 9 
 
English empire and commonwealth, involving 
 questions capable of judicial determination, 
 were thus to be decided by courts. The local 
 law of the colony was applied in cases where it 
 was solely applicable, and the law of England 
 or the law of nations were also applied where 
 applicable, the one or the other being supreme 
 according to the nature of the case; the law 
 of nature governing all cases not covered by 
 the other lav/s and being supreme over all. 
 
 Realizing, however, that there were disputes 
 between states, as between individuals, in- 
 volving dignity or vital interests, which were 
 not susceptible of decision by the cold and dis- 
 passionate methods of investigation and adju- 
 dication, and which could only be settled by 
 methods taking into account passions, senti- 
 ments and prejudices, they believed that the 
 settlement of disputes between the states com- 
 posing the English empire and commonwealth 
 ought to be in the charge of a specially con- 
 stituted tribunal fitted by training to act 
 judicially where the judicial method was 
 applicable and to act diplomatically where the 
 judicial method was inapplicable. Yielding 
 reasonable deference to England as the mother 
 country, they were willing to entrust her with 
 the duty of establishing and maintaining such 
 
 10 
 
a tribunal. During the Colonial period, the 
 people of the Colonies consented that the arbi- 
 tration or adjudication of disputes between the 
 Colonies or between one or more of the Colonies 
 and England should be conducted before tri- 
 bunals in England established by the English 
 government for that purpose. When by the 
 Revolution there ceased to be a mother country 
 to act as arbitrator and judge between the 
 American States, it was inevitable that their 
 political, social and economic beliefs should 
 find expression in a system of their own 
 for carrying on such arbitrations and adju- 
 dications. 
 
 Having thus attempted to form some con- 
 clusion concerning the development of the 
 doctrine of jurisdiction of courts over states 
 as a matter of political, social and economic 
 belief, it becomes necessary to examine the 
 experience of the Americans in the working of 
 institutions which culminated in the establish- 
 ment by them of the Supreme Court of the 
 United States. 
 
 It may be objected that such an investiga- 
 tion is without practical value as bearing upon 
 the institution of the proposed Court of Arbitral 
 Justice, because the institutions of which the 
 Americans had experience were those which 
 
 ii 
 
existed under a political union formed by 
 England and the Colonies and held together by 
 the power of England. Such institutions, it 
 may be urged, have no resemblance to or bear- 
 ing upon the institutions which a body of inde- 
 pendent states would find it for their interests 
 to form. 
 
 It must indeed be admitted that the tribunals 
 in England which settled the disputes of the 
 American Colonies were the product of English 
 statesmanship supported by English force, and 
 that these institutions were accepted by the 
 Colonies and in no sense created by them. At 
 the same time, it is to be remembered that all 
 unions or combinations of individuals or states 
 arise out of the same circumstances and have 
 the same objects — they are for the common 
 defence and for the general welfare. It mat- 
 ters little from what standpoint each of the 
 parties enters upon the negotiations. Whether 
 they start from a position of assumed equality 
 or from a position of assumed inequality, the 
 union or combination will tend to perfect itself 
 by conforming to the facts as they exist, and 
 the institutions of the union or combination 
 will tend to take the form which best suits the 
 needs of all the parties. In spite, therefore, of 
 the fact that the Supreme Court of the United 
 
 12 
 
States had its origin in the institutions of 
 the English empire and commonwealth and 
 the British empire, and exists today as an 
 institution of the American Union, it by no 
 means follows that American experience of 
 these institutions may not be of value at this 
 time to the states of the society of nations. 
 
 In the English realm and empire, from the 
 earliest times until the Revolution of 1641, 
 the tribunal knov/n as “the King (or the 
 Queen) in Council” played the most important 
 part. From 1660 until about 1770, it had a set- 
 tled and peculiar jurisdiction, as opposed both 
 to the jurisdiction of the body known as the 
 Parliament, established in 1295, composed of 
 King, Lords and Commons, and to that of 
 the ordinary courts of justice of the realm. 
 The King in Council was legally the King 
 advised by his Privy Council. This council 
 was composed of men selected by the King for 
 their social influence and their expertness in 
 statesmanship, law and economics. By their 
 advice the King made treaties with inde- 
 pendent states, exercised jurisdiction over an- 
 nexed countries, and carried on the govern- 
 ment of the realm according to customary 
 principles and according to Parliamentary 
 acts. 
 
 13 
 
During the reign of Elizabeth, the govern- 
 ment of England was carried on almost en- 
 tirely by the Queen in Council. Few Parlia- 
 ments were held, and the action of those which 
 were held was largely devoted to registering 
 the decrees of the Queen in Council and levy- 
 ing taxes to be expended as the Queen in 
 Council might direct. 
 
 An examination of the charters of discovery 
 granted by Queen Elizabeth to Sir Humphry 
 Gilbert and Sir Walter Raleigh shows that it 
 was her purpose, had colonies been established 
 under these charters, to govern them by her- 
 self, advised by her Privy Council. Judging 
 from the system pursued by Elizabeth and her 
 predecessors in the case of Ireland and Jersey, 
 there would have been a Governor and Privy 
 Council in each of the American Colonies, sub- 
 ordinate to and in correspondence with the 
 Queen in Council. The bond of union between 
 England and the Colonies would have been 
 considered to arise from the common allegiance 
 of all English-born people, and their descend- 
 ants, to the person of the reigning monarch. 
 Under this system the Colonies and their citi- 
 zens would have been subject to the Queen in 
 Council as a supreme tribunal. 
 
 14 
 
The system of government by councils 
 which prevailed in England during Elizabeth’s 
 time was a favorite system at that time 
 throughout Europe. The feudal system was 
 on the point of giving place to the representa- 
 tive system, but during the last half of the 
 sixteenth century there was a reaction towards 
 the feudal system. Spain, the most successful 
 colonizing power of that day, was governed by 
 councils. Its relations with its colonies were 
 in charge of a specially selected and distin- 
 guished body of men who formed the Council 
 of the Indies, which was assisted by a subor- 
 dinate Council of Trade. A similar system 
 prevailed in Portugal. In the Empires of 
 Venice and Genoa, then passing into decay, 
 the relations with the oversea colonies and 
 trading-posts had been in charge of a central 
 tribunal. 
 
 When James VI of Scotland came to the 
 throne of England as James I in 1603, after the 
 death of Elizabeth, a new situation was begin- 
 ning to be formed on the Continent of Europe. 
 Spain and Portugal, claiming the whole world 
 outside of Europe under Papal bull, were de- 
 clining, and the northern powers of the Con- 
 tinent under the lead of Henry IV, King of 
 France, were trying to arrange a European 
 
 15 
 
Concert to regulate Europe and all the rest of 
 the world. The movement was ostensibly 
 aimed against Spain and Austria, but it was 
 evident that any Concert of the Continental 
 powers must inevitably in the long run be 
 turned against England. It became necessary 
 for England, whose trade was already almost 
 strangled by hostile regulations of Continental 
 powers, to gain colonies for itself in America 
 and to hold them against any possible Con- 
 tinental coalition. A systematic plan of coloni- 
 zation was therefore entered upon in which 
 the great lawyers of England, among them 
 Coke, Bacon and Popham, participated. 
 
 Just as these plans were being prepared, an 
 event occurred in England which, as the 
 Colonial documents and literature show, had 
 a profound influence on the people of the 
 American Colonies. This was the settlement 
 of a dispute between England and Scotland 
 according to a decision made by the Judges of 
 England. When King James became King of 
 both countries, the question arose, what rights 
 the citizens of the two states should have 
 against each other while their peoples were 
 thus united through the person of the King. 
 Commissioners were appointed by the legisla- 
 tures of the two states, and an agreement was 
 
 16 
 
reached except upon the question of what 
 rights the citizens of Scotland should have in 
 England, and vice versa. In 1604, the English 
 House of Commons brought the negotiations 
 to a temporary close by insisting that the 
 rights of the Scots in England should be such 
 only as they were entitled to according to the 
 principles of law and established precedents. 
 The House of Lords insisted upon an arrange- 
 ment for naturalizing in England by statute all 
 persons born in Scotland after the Union; it 
 being agreed that all persons born before the 
 Union were aliens, who could be naturalized 
 only by the methods applicable to aliens. A 
 great hearing of the question was had, which 
 was given the form of a Conference between 
 the Lords and Commons of England, to which 
 all the judges of England were summoned as 
 advisers of the Conference. The effect of the 
 whole arrangement was to constitute the 
 judges of England an Extraordinary Tribunal 
 to determine judicially the dispute between 
 England and Scotland. At the hearing Sir 
 Francis Bacon acted as leading counsel, and 
 prominent lawyers of the House of Commons 
 argued the case from the standpoint of the 
 civil law, “the law of nations and of reason,” 
 the history of nations, and the common law. 
 
 17 
 
All the cases in the English year books and 
 reports arising out of England’s connection 
 with the principalities and duchies in France 
 and the Low Countries, with Ireland, and with 
 Jersey and Guernsey, were examined. The 
 case is reported in the State Trials under the 
 title of the Case of the Postnati. In an opinion 
 in which the principles of lav/ and the prece- 
 dents were fully discussed, the judges arrived 
 at the unanimous conclusion that Scots born 
 after the accession of James to the throne of 
 England were entitled in England to full civil 
 rights of person and property, but had no 
 political rights; and that Scots born before the 
 Union were aliens in England. Though the 
 judges in their opinions necessarily based 
 themselves on English law and precedents, 
 the investigation of counsel and the reasoning 
 of the judges took so wide a range that the 
 principles laid down were really those of uni- 
 versal law, and the effect of the decision was 
 to recognize a supreme common law governing 
 the relations between England and all the 
 countries politically connected v/ith her. The 
 decision of the judges was accepted by the 
 people of England and Scotland, and the dis- 
 pute was thus judicially settled. A test case 
 called Calvin’s Case, involving the same ques- 
 
 18 
 
tions as the Case of the Postnati, was brought 
 two years later to the Court of King’s Bench, 
 and was heard before all the judges, the 
 decision being the same. By reason of the 
 nature of the points decided in the Case of 
 the Postnati, and the manner of the decision, 
 and by reason of the fact that this decision did 
 in fact settle the difficulty between England 
 and Scotland, the Case of the Postnati had the 
 dignity of an international adjudication and 
 illustrated the possibility of Courts having 
 jurisdiction over States. 
 
 Incidentally, the judges in their opinions in 
 these cases, stated the principles which in the 
 past had governed the relationship between 
 England and the countries subordinately con- 
 nected with her; thereby in fact establishing 
 the principles upon which the relationship be- 
 tween England and the American Colonies was 
 to rest. The King in Council was recognized as 
 having a superintending legislative power and 
 jurisdiction over all countries subordinately 
 connected with England, to be exercised by 
 orders in council or by writs. The Parliament 
 was recognized as having a superintending 
 legislative power over such countries above 
 that exercised by the King in Council, this 
 power being exercised by means of Acts of 
 
 19 
 
Parliament in which the Colonies were 
 specially named. A special Act relating to a 
 country outside the realm of England — which 
 was necessarily not represented in the Parlia- 
 ment — could be intelligently framed only after 
 investigation of the facts and hearing of the 
 parties concerned. In passing such special 
 Acts, therefore, the Parliament, if it acted rea- 
 sonably and conscientiously, necessarily acted 
 both as a tribunal having jurisdiction over 
 such countries and as a legislature. 
 
 When, therefore, the English colonization of 
 America began, in 1606, not only were the 
 minds of the people of England habituated to 
 the idea of government through councils of 
 experts sitting as tribunals as well as legisla- 
 tures, but they had just had an object lesson 
 in international adjudication. The English 
 colonists of America had moreover special 
 cause to be familiar with the Case of the 
 Postnati and Calvin’s Case, for the principles 
 laid down in them in fact formed the un- 
 written constitution governing the relations 
 between England and the American Colonies. 
 A permanent tribunal in England exercising 
 jurisdiction in disputes between England and 
 the Colonies, or between one Colony and 
 another, determining their rights against each 
 
other according to sound political, legal, social 
 and economic principles, was probably re- 
 garded by all as an appropriate means for 
 maintaining proper relations between them. 
 It was of course impossible at that time for 
 the Colonies to be united with England by 
 representation in Parliament, and such a tri- 
 bunal was the only practicable bond of union 
 between them. Such a tribunal was not in- 
 consistent with a system of local self-govern- 
 ment in the Colonies; indeed it depended for 
 its success upon a recognition of their self- 
 governing statehood, and of their power and 
 duty to execute the judgments of the tribunal 
 in so far as they appealed to the reason and 
 conscience of the people of the Colonies as 
 reasonably necessary and just. 
 
 By the Charter of 1606, James I claimed all 
 North America between 34 0 and 45°, — that is, 
 all the region between what is now South 
 Carolina and what is now Canada, — calling it 
 “Virginia”; and divided it into two districts 
 overlapping between 38° and 41 0 , one of which 
 was probably intended to be a northern and 
 the other a southern viceroyalty, — the middle 
 line falling very close to what was later on 
 “Mason and Dixon’s Line” between the 
 Northern and Southern States. In each of 
 
 21 
 
the grand divisions provision was made for an 
 English Colony with specified boundaries. 
 The local government of each Colony was 
 placed in charge of a local Council, called the 
 “Council of the First (or Second) Colony,” to 
 be appointed by, and to act under the instruc- 
 tions of the King in Council. The Charter 
 also provided for a Council in England, to be 
 “Council of Virginia.” The ultimate and 
 supreme power over the Colonies was recog- 
 nized as vested in the whole State and Gov- 
 ernment of England, and this power was to be 
 executed, so far as the Charter shows, by the 
 King in Council. The “Council of Virginia” 
 was given jurisdiction, subject to final decision 
 of the King in Council, to determine disputes 
 between the Colonies, and advise the King 
 concerning the general social and economic 
 situation ; the Charter providing that this 
 Council was to have the “superior managing 
 and direction only of and for all matters that 
 may concern the government, as well of the 
 several Colonies, as of and for any other part 
 or place within the aforesaid precincts of four 
 and thirty and five and forty degrees.” 
 
 The likeness between the system of govern- 
 ment established by this Charter, and the 
 Spanish system, is apparent. The Council of 
 
Virginia corresponded to the Council of the 
 Indies and the Council of each Colony to the 
 local Audiencia in each of the Spanish colonies 
 which conducted the local government. The 
 Charter made no provision for representative 
 Assemblies in the Colonies — in this respect 
 also conforming to the Spanish system. Some 
 basis is to be found for a belief that this 
 Charter shows Spanish influence in the fact 
 that England and Spain were then in close 
 relationship under the Treaty of 1604, and that 
 Spanish ideas were prevalent at the English 
 Court. As, however, the Charter was drawn 
 by the most eminent English lawyers, and as 
 the English scheme of colonization of America 
 was strongly opposed by Spain, it seems more 
 reasonable to believe that the Council of Vir- 
 ginia was a development of the ideas underly- 
 ing the English Privy Council than that it was 
 based on any foreign model. 
 
 The Charter of 1606 proved ineffective, 
 because it did not induce sufficient emigration. 
 There was no precious metal to produce quick 
 returns to the colonists. They could only 
 hope for the slow return from agriculture and 
 trade; and this necessitated the use of large 
 amounts of capital and systematic operations 
 for colonizing the country and protecting and 
 
 23 
 
supplying the colonists until they could 
 become self-supporting. In 1609, the “First 
 Colony” referred to in the Charter of 1606 
 was organized as a colonizing and trading 
 joint-stock corporation called the Virginia 
 Company, which was authorized to colonize 
 and govern the region at present included 
 within Virginia and the country to the west- 
 ward. The Company was given the privilege 
 of the general and local government of the 
 country granted, and the monopoly of its 
 trade. The governing board of the Company 
 in England was constituted by the Charter the 
 “Council for Virginia” and was subordinate 
 to the King in Council. By an amendment in 
 1611, the adventurers were allowed to sit with 
 the Councillors, and the meetings were called 
 “Courts” of the Company. Four “Great and 
 General Courts” in each year were required to 
 be held “for the handling, ordering and dis- 
 posing of matters and affairs of greater weight 
 and importance, and such as shall or may in 
 any sort, concern the weal public and general 
 good of the said Company and Plantation.” 
 This Charter was unsatisfactory. By the 
 people of England it was objected to as giving 
 to the Company a monopoly; the King re- 
 garded it as too democratic and republican, 
 
 24 
 
and as likely to lead to too radical ideas in the 
 Colonies; the nobility found fault with it be- 
 cause it allowed merchants to sit in one of the 
 King’s councils. 
 
 The admission of merchants to membership 
 in this council was, it would seem, due to the 
 economic necessities of the situation. The 
 opening of the sea-route to India and America, 
 the closing of the Mediterranean to the 
 Oriental trade by the Mohammedan invasion 
 of what is now Turkey, the consequent ruin of 
 Venice, and the decline of Spain and Portugal 
 through extravagance and bad government, 
 had made the English Channel the Mediter- 
 ranean of the world, and London, as the most 
 secure port on the Channel, was becoming the 
 metropolis. England required a permanent 
 economic connection with America, in order 
 that raw material might be secured and an in- 
 creased market for English manufacturers 
 might be provided. The tribunal in England 
 having jurisdiction over the relations of the 
 American Colonies, in order to be efficient, had 
 to be so organized as to be able to cope with 
 economic as well as with social and political 
 questions. The system was perfected half a 
 century later, by the institution of a Council 
 
 2 5 
 
of Trade, subordinate to the King in Council, 
 having charge of these economic relations. 
 
 Under the Charter of 1609, the local govern- 
 ment of Virginia took on a democratic and re- 
 publican aspect. To the Governor and Coun- 
 cil appointed by the King in Council was added 
 in 1621, by consent of the King in Council, a 
 representative “House of Burgesses,” all to- 
 gether constituting the General Assembly of 
 Virginia. In the Ordinance of the Company 
 establishing this system occurred the remark- 
 able provision that no orders of the General 
 Courts of the Company should bind the Col- 
 ony unless ratified by the General Assembly of 
 Virginia, — a provision which left to the Gen- 
 eral Courts of the Company what was essen- 
 tially a power of adjudication, and gave Vir- 
 ginia the power of executing the judgments of 
 the Courts of the Company according as these 
 judgments were approved by the public senti- 
 ment of the people of Virginia. This ordi- 
 nance, representing as it did the maximum of 
 self-government which was ever granted by 
 England to any of the Colonies, was regarded 
 by all the Colonies as a fundamental constitu- 
 tion determining the relationship not only 
 between England and Virginia, but between 
 England and all the Colonies. 
 
 26 
 
In 1620, an experiment was made of another 
 system, resembling somewhat that of the Vir- 
 ginia Company. A colonizing and trading cor- 
 poration of forty members with power of self- 
 perpetuation by the name of “Council for New 
 England,” was chartered by James I, with 
 power of government and trade monopoly 
 throughout North America from 40° to 48°, — 
 that is, approximately from what was after- 
 wards “Mason and Dixon’s Line” to the 
 mouth of the St. Lawrence. The meetings 
 of the council was described in the Charter 
 as “Courts.” The Company, which was at the 
 same time “Council” and a “Court,” thus con- 
 stituted a tribunal in England having jurisdic- 
 tion, subject to the King in Council, of the 
 colonies to be formed in this great region. As 
 a corporation it was subject to have its charter 
 forfeited for cause by quo warranto proceed- 
 ings; and its monopoly made it vulnerable. 
 The opposition of Parliament to monopolies 
 was so great that the corporation did little 
 more than make grants of land. 
 
 Charles I, upon coming to the throne in 
 1625, abolished the Virginia Company, and 
 took Virginia under the direct government of 
 himself advised by his Privy Council, without 
 any subordinate council. In 1628 he granted 
 
 27 
 
a Charter to the Company of Massachusetts 
 Bay, empowering it to colonize the region sur- 
 rounding what is now the city of Boston, with 
 full powers of government and without ex- 
 press reservation of control by the King in 
 Council or by Parliament. The meetings of the 
 Company were described in the Charter as 
 “Courts,” and four “Great and General 
 Courts” of the Company were to be held in 
 each year. It was not specified whether the 
 Company should be located in England or in 
 Massachusetts Bay. 
 
 This Charter was based upon principles of 
 government inconsistent with the Latin theory 
 of government held by Charles I, and his 
 Privy Council, according to which the binding 
 force of governmental acts was derived from 
 the King’s command, and so evidently mace 
 the public judgment supreme within the 
 Colony, that when the Company removed to 
 Massachusetts Bay, it became specially obnox- 
 ious to the King in Council, and the charge 
 was made that the Charter was obtained “sur- 
 reptitiously.” 
 
 In 1635, the Council for New England sur- 
 rendered its Charter and the King created a 
 special commission to regulate all the English 
 Colonies in America and elsewhere, composed 
 
 28 
 
of the highest clerical and lay officials of the 
 realm — William Laud, Archbishop of Canter- 
 bury, being the President. This commission 
 was invested with full powers, and it seems to 
 have been responsible only to the King in per- 
 son. It was expressly given power to deter- 
 mine all disputes between the Colonies. The 
 Letters Patent read, in this respect: 
 
 “Farther, be it known that we constitute 
 you, or any five or more of you, our commis- 
 sioners, to hear and determine, according to 
 your sound discretions, all complaints whatso- 
 ever, whether against the Colonies themselves, 
 or their Presidents or Governors, either at the 
 instance of the party aggrieved, or upon infor- 
 mation concerning injuries done, * * * 
 
 and to summon the parties before you, and 
 they having been heard, * * * by them- 
 
 selves or by their attorneys, to extend to 
 them full and complete justice.” 
 
 This tribunal was also authorized to hear and 
 determine controversies between the Colonies 
 and England, their powers extending to the 
 revocation of “charters surreptitiously or un- 
 duly obtained or prerogatives granted on terms 
 prejudicial to the rights of the Crown or of 
 foreign princes;” the commission being re- 
 quired to proceed in such cases “according 
 
 29 
 
to the law and custom of our realm of 
 England.” It was this tribunal which directed 
 that a quo warranto suit be brought against 
 the Massachusetts Bay Colony to forfeit its 
 Charter, on the ground that the Charter was 
 obtained surreptitiously and unduly and that 
 it was not intended to authorize the whole 
 government of the Colony to be removed to 
 America. 
 
 The arbitrary methods of Archbishop Laud 
 led the Colonies to distrust the commission as 
 formed, but they recognized the necessity of 
 a reasonable judicial control by the King in 
 Council. In 1638, the General Court of Mas- 
 sachusetts Bay, in its answer to the demand 
 of the commission to surrender up the Charter 
 for cancellation, declared that Massachusetts 
 Bay was “ready to yield all due obedience to 
 our Sovereign Lord the King’s Majesty, and 
 to your Lordships under him.” The expression 
 “due obedience” or “due subjection” was often 
 used in the Colonial documents as describing 
 the relation of the Colonies to England, to 
 signify that they regarded themselves as 
 subject only to the power of England duly 
 exercised, — that is, exercised to the extent 
 needful for the common good. They regarded 
 themselves as free states or commonwealths, 
 
 30 
 
and based their subjection to the reasonable 
 jurisdiction of England partly on their con- 
 sent, partly on the economic necessities of the 
 case, and partly on the moral compulsion grow- 
 ing out of their special relationship to England 
 and their general relationship with the rest of 
 the world. 
 
 The position taken by the General Court of 
 the Massachusetts Bay Colony was in har- 
 mony with the prevailing sentiment in Eng- 
 land. In 1640, the Parliament by an act de- 
 clared and “regulated” the powers of the King 
 in Council and defined its jurisdiction as a 
 tribunal. This act provided: 
 
 “That neither his Majesty, nor his Privy 
 Council, have or ought to have any jurisdic- 
 tion, power or authority, by English bill, peti- 
 tion, articles, libel, or other arbitrary way, to 
 examine or draw into question, determine or 
 dispose of the lands, tenements, hereditaments, 
 goods or chattels of any of the subjects of this 
 kingdom ; but that the same ought to be tried 
 and determined in the ordinary courts of 
 justice and by the ordinary course of law.” 
 
 The effect of this statute was to differentiate 
 the King in Council from the ordinary courts 
 of justice of the realm of England and to make 
 the King in Council an Extraordinary Court 
 
 31 
 
for the judicial settlement of disputes arising 
 outside of the realm of England but within 
 the English empire. In the exercise of this 
 extraordinary jurisdiction it acted according 
 to the equity of the laws of England, inasmuch 
 as all the Colonial charters provided that the 
 Colonial law should be not inconsistent with 
 the law of England. 
 
 In 1638, the people of the town of Windsor, 
 Hartford and Wethersfield, in what is now 
 Connecticut, without any charter from Eng- 
 land, “associated and conjoined” themselves 
 “as one public state or commonwealth.” In 
 their articles of “combination and confedera- 
 tion,” they provided for two “General Assem- 
 blies or Courts” to be held annually and to be 
 composed of deputies of the towns. The 
 whole State was spoken of in the articles as 
 a “Jurisdiction.” A Governor and six Assist- 
 ants were to be elected and were to have 
 power “to administer justice according to the 
 laws here established, and for want thereof 
 according to the rule of the word of God.” It 
 was provided that the General Court should be 
 “for the making of laws and any other public 
 occasion which concerns the good of the Com- 
 monwealth,” — a power sufficiently broad to 
 enable the General Court to adjust disputes 
 
 32 
 
between the constituent towns and to make 
 treaties with their neighbor “Commonwealths” 
 or “Jurisdictions.” 
 
 In the Massachusetts Bay “Body of Stat- 
 utes” of 1641, the “Commonwealth” of Massa- 
 chusetts Bay was spoken of as a “Jurisdiction.” 
 
 In 1643, when England was distracted by 
 the civil war, the Colonies of Massachusetts 
 Bay, New Plymouth, Connecticut and New 
 Haven found themselves in a position where 
 they were obliged to defend themselves from 
 external attack and where they were at the 
 same time in danger of war among themselves 
 unless they could find a peaceful way of 
 settling their disputes. They accordingly en- 
 tered into a Confederation, by the name of 
 “The United Colonies of New England.” One 
 of the Articles of Confederation provided : 
 
 “If any of the Confederates shall hereafter 
 break any of these present articles, or be any 
 other way injurious to any of the other Juris- 
 dictions, such breach of agreement, or injury, 
 shall be duly considered and ordered by the 
 Commissioners for the other Jurisdictions, 
 that both peace and this present Confederation 
 may be entirely preserved without violation.” 
 
 Before tribunals organized according to this 
 provision, several disputes between the Col- 
 
 33 
 
onies regarding boundaries were heard and 
 determined. The case of the greatest conse- 
 quence which came before these tribunals, how- 
 ever, was that between Massachusetts and 
 Connecticut involving the right of Connecticut 
 to impose duties on the navigation of the Con- 
 necticut River, in consideration of the main- 
 tenance by Connecticut of a fort at the mouth 
 of the river. The case was decided in favor 
 of Connecticut and was twice afterwards 
 argued on rehearings asked by Massachusetts. 
 Retaliation by Massachusetts finally resulted 
 in a free trade system among the Confederates. 
 
 On November 3rd, 1643, three months after 
 the New England Confederation was formed, 
 the Lords and Commons, who then constituted 
 the legislature of England under a provisional 
 government practically republican in form, 
 passed an ordinance establishing a new com- 
 mission with full jurisdiction over all the 
 English colonies. The Earl of Warwick was 
 named as president of the commission, and Sir 
 Henry Vane, John Pym, and Oliver Cromwell 
 were among the members. One of its first 
 acts was to grant a charter to Providence 
 Plantations, which had been excluded from the 
 Confederation on account of the strong indi- 
 vidualistic doctrine of the settlers there. In 
 
 34 
 
this charter the commission asserted its juris- 
 diction to determine disputes between the 
 Colonies by a clause which read: 
 
 “Always reserving to the said Earl and 
 Commissioners, and their successors, power 
 and authority to dispose the general govern- 
 ment of that, as it stands in relation to the 
 rest of the Plantations in America, as they 
 shall conceive, from time to time, most con- 
 ducive to the general good of the Plantations, 
 the honor of his Majesty, and the service of 
 the State.” 
 
 This commission, and its successor, the Com- 
 mittee of the Council of State for the Planta- 
 tions, established when the English Common- 
 wealth was instituted in 1649, permitted the 
 United Colonies of New England to operate 
 under their Articles of Confederation in sub- 
 ordination to the supreme power of the Com- 
 monwealth; and the Confederation continued 
 in full vigor until the restoration of Charles 
 II in 1660. 
 
 Under Cromwell, provision was made for 
 determining the economic as well as the politi- 
 cal relations of the Colonies by the institution 
 of a Council of Trade, which was subordinate 
 to the Committee of the Council of State for 
 the Plantations. The Council of Trade acted 
 
 35 
 
as a tribunal of first instance or a master in 
 chancery, deciding routine matters and re- 
 serving the more important questions for the 
 decision of the Committee of the Council of 
 State for the Plantations and later of the Lord 
 Protector in Council. From the beginning the 
 Colonies had had the practice of sending com- 
 missioners to England or employing agents 
 there to represent their interests in special 
 emergencies before the King in Council. 
 Massachusetts Bay, in 1637, had sent agents 
 to represent it before the Laud Commission. 
 This now began to become a settled custom, 
 but it was fifty years after this time before the 
 system came into full operation. 
 
 The passage of the Navigation Act in 1651, 
 by the Parliament of the Commonwealth, 
 brought up in acute form the question how 
 the relations between England and the Col- 
 onies, and between the Colonies individually, 
 ought to be determined. The object of this 
 Act was to restrict the trade of the Colonies to 
 the English market, and to place the whole 
 carrying trade in the hands of English ship- 
 owners, thus giving England the monopoly of 
 the trade of the Colonies. This action was 
 acquiesced in by some of the Colonies, as a 
 reasonable regulation of their foreign and 
 
 36 
 
intercolonial trade necessitated by the circum- 
 stances. Others regarded it as evidencing the 
 adoption by England of a theory of absolute 
 power over the Colonies. It appeared to them 
 to show that England had accepted the 
 “Colonial Pact” theory invented by Richelieu 
 a few years before, by which the claim of 
 France to absolute power over her Colonies 
 had been concealed under the pretext that 
 there existed a Fundamental Compact between 
 France and her Colonies by the terms of which 
 the Colonies were assumed to have granted to 
 France a monopoly of their trade in considera- 
 tion of her assumed promise to protect them. 
 On this theory, there was no occasion for a 
 tribunal in England having jurisdiction over 
 the Colonies. They had no rights against 
 England, and were bound implicitly to obey 
 the edicts of England. All the Colonies more- 
 over objected to Acts of Parliament which 
 purported to affect them, because it was evi- 
 dent that Parliament was not organized as a 
 tribunal but as a representative of territorial 
 districts in England. Upon the passage of the 
 Navigation Act in 1651, Virginia revolted from 
 the Commonwealth, claiming that the Act was 
 a violation of the principle that the subjection 
 of the American Colonies was to a proper tri- 
 
 37 
 
bunal in England, and that the Colonies were 
 subject to no legislatures except their own. 
 Commissioners were sent by the Common- 
 wealth Parliament to Virginia, who, under in- 
 structions, succeeded in settling the contro- 
 versy by agreeing to Articles of Capitulation 
 in which it was declared that Virginia (and, 
 by necessary implication, all the other Col- 
 onies) owed only “due obedience and subjec- 
 tion to the Commonwealth of England,” and 
 that the “submission and subscription” of Vir- 
 ginia was a “voluntary act” on her part. 
 
 This great constitutional settlement between 
 the Commonwealth of England and the Ameri- 
 can Colonies made the validity of the Naviga- 
 tion Act and of all other governmental acts of 
 England relating to the Colonies depend upon 
 whether or not they were reasonable and just 
 under the circumstances, the Colonies having 
 the right, at least in extreme cases, to deter- 
 mine the question of reasonableness and just- 
 ness as well as England. In case of deadlock, 
 there was no solution except through agree- 
 ment in conference, or through arbitration, or 
 through judicial decision by the King in Coun- 
 cil, or through war. The relations between 
 England and the Colonies and between the 
 Colonies individually, under this settlement. 
 
 38 
 
bore a close resemblance to those of states 
 which are subject to the principles of inter- 
 national law. 
 
 With the restoration of Charles II in 1660 
 and the cessation of the domestic troubles of 
 England, a systematic reorganization of the 
 American Colonies was begun. As the system 
 was developed during the century succeeding 
 his accession, three general objects were pur- 
 sued — the establishing of direct and close com- 
 munication between each Colony and England ; 
 the directing of the trade of each towards 
 England as the common market ; and the 
 maintaining of a permanent political connec- 
 tion between all parts of the empire. In pur- 
 suance of the first object the Dutch and Swedes 
 were dislodged from the regions about the 
 Hudson and Delaware Rivers, and the whole 
 sea coast from what is now the southern 
 boundary of Georgia to what is now the north- 
 eastern boundary of Maine was divided so that 
 ultimately there were formed twelve Colonies, 
 each having a good harbor from which ships 
 could sail direct to England. In pursuance of 
 the second object, the Navigation Act was 
 continued and more stringent provisions were 
 made for carrying it into effect, it being the 
 general understanding, at least in the Colonies, 
 
 39 
 
that this Act was an exceptional measure neces- 
 sitated by the circumstances and dependent for 
 its validity upon its reasonableness and neces- 
 sity and upon their consent or acquiescence. 
 In pursuance of the third object, the general 
 jurisdiction of the relations of the Colonies was 
 placed in charge of the King advised by a 
 standing committee of the Privy Council 
 known as the Committee of the Privy Council 
 for Plantation Affairs, which was itself as- 
 sisted by a subordinate judicial and administra- 
 tive body of experts known as the Board of 
 Commissioners for Trade and Plantations. This 
 subordinate tribunal was appointed by the 
 King in Council, and was specially concerned 
 with economic questions, though it appears to 
 have had a general jurisdiction. Important 
 matters, particularly those involving diplo- 
 matic and political action with reference to 
 the Colonies, were referred by this subordinate 
 council to the Committee of the Privy Council 
 for Plantation Affairs. 
 
 During the last years of the reign of Charles 
 II and during the reign of James II this sys- 
 tem of managing the relations with the Col- 
 onies was rendered unpopular in America by 
 the arbitrary methods pursued, and particu- 
 larly by the attempts of these monarchs to 
 
 40 
 
centralize the system by the abolition of the 
 corporate and proprietary charters of the Col- 
 onies and by the substitution for them of 
 charters converting each Colony into a royal 
 province, ruled by a Governor and Council ap- 
 pointed by the King. It seems probable that 
 it was intended by them to form the Colonies 
 into two viceroyalties — a northern and a 
 southern — composed of provinces ; the dividing 
 line being that of 40°. When this plan was 
 abandoned, various schemes for uniting the 
 Colonies under a Governor General and a Gen- 
 eral Council appointed by the King in Council 
 were agitated. William Penn, who in 1693 
 had published a plan for uniting Europe under 
 a general government, proposed in 1697 to the 
 English Government a plan for uniting the 
 American Continental Colonies under a general 
 government, subject to the supremacy of Eng- 
 land. All plans for a union, however, failed, 
 and until shortly before the American Revolu- 
 tion, the King in Council was the bond of 
 union between England and the Colonies and 
 between each Colony and all the others. 
 
 In 1700, the Commissioners for Trade and 
 Plantations recommended that the practice of 
 having agents in London be adopted by all the 
 Colonies, and most of them thereafter adopted 
 
 41 
 
the practice. The Colony agents occupied a 
 relationship to Parliament somewhat similar 
 to that of a delegate without power to speak 
 or vote, or even to sit in the body, yet recog- 
 nized by committees and in some cases called 
 to the bar of the House of Commons to present 
 the views of the Colonies. As respects the 
 King in Council, their relationship was semi- 
 diplomatic. As respects the Commissioners 
 for Trade and Plantations, their position was 
 essentially that of attorneys in England for 
 the Colonies. Thus the whole governmental 
 establishment of Great Britain stood in the 
 relation of a supreme tribunal for the Colonies 
 rather than a supreme legislature. Even Acts 
 of Parliament were regarded as deriving their 
 binding force from the acquiescence of the 
 Colonies in them as necessary and just regula- 
 tions for the common defence and general wel- 
 fare. 
 
 The merger of England and Scotland in 
 1707, by which was formed the United King- 
 dom of Great Britain, brought various new 
 ideas and influences to bear upon the relations 
 between the Colonies and the mother country ; 
 but under the British empire the system 
 whereby the King in Council acted as the 
 bond of union was not essentially changed. 
 
 42 
 
During the decade between 1730 and 1740, the 
 system probably obtained its highest degree of 
 perfection and its greatest success. 
 
 From about the year 1700 until shortly be- 
 fore the Revolution, the King in Council was 
 both the supreme political tribunal of the em- 
 pire and the supreme court of appeals of the 
 empire. Besides the political committee al- 
 ready mentioned — the Committee of the Privy 
 Council for Plantation Affairs, — there existed 
 a judicial committee known as the Committee 
 for Appeals. This latter committee had juris- 
 diction of appeals from the supreme courts of 
 the Colonies. As appears from the statement 
 of Lord Mansfield in the great case of Camp- 
 bell v. Hall, decided in the King’s Bench in 
 1774, it was the law that the King in Council 
 could do nothing as respects the Colonies 
 which was “contrary to fundamental princi- 
 ples”; from which it appears that it was the 
 duty of the King in Council, in exercising 
 jurisdiction over the Colonies, to recognize 
 and regard, both in its political and its judicial 
 action, the fundamental rights of the individual 
 to life, liberty and property. Disputes between 
 the Colonies, or in which a Colony or Great 
 Britain was involved, were within the jurisdic- 
 tion of the King advised by the Committee of 
 
 43 
 
the Privy Council for Plantation Affairs, who 
 arranged the method of trial in each case. 
 
 Several cases involving the boundaries be- 
 tween Colonies were settled between 1700 and 
 1770 by the political committee of the King in 
 Council. One of these was that which arose 
 in 1736 between Maryland and Pennsylvania 
 in regard to a part of the region which is now 
 Delaware. After much trouble between the 
 border populations and many ineffectual at- 
 tempts of the local governments to adjust the 
 matter, the dispute came to the King in Coun- 
 cil in 1750. As it appeared that the contro- 
 versy arose out of an agreement between the 
 Lords Proprietors, who were within the juris- 
 diction of the English courts by reason of their 
 residence in England, the King in Council ac- 
 quiesced in a plan whereby a suit in chancery 
 for specific performance of the agreement and 
 for the settlement of boundaries and the quiet- 
 ing of title was to be brought by the Proprietor 
 of Pennsylvania against the Proprietor of Mary- 
 land in the English court of chancery, the right 
 to jurisdiction over the region in question to 
 be settled by order in council according to the 
 decision. The suit, by the title of Penn v. 
 Lord Baltimore, was accordingly brought, and 
 was heard and adjudicated by Lord Chancellor 
 
 44 
 
Hardwicke. Upon report of the decision of 
 the court of chancery to the King in Council, 
 an order in council was made in conformity 
 with the decision, establishing the right of 
 Pennsylvania to jurisdiction over the region in 
 dispute. 
 
 In granting a motion of the defendant to 
 make the Attorney General a party, Lord 
 Hardwicke said (Ridgeway, 332) : 
 
 “This is a question between feudatory 
 Lords, Proprietors of Provinces, and concern- 
 ing not only their private interest, but the 
 rights of government and the rights of private 
 persons. . . . The disputes of private per- 
 
 sons in the Provinces are determined in the 
 courts of the Province, on which a writ of 
 error by way of appeal lies before the King in 
 Council. Therefore questions between Pro- 
 prietary Lords, in analogy to the ancient law 
 of the Marches, must be determined before the 
 King in Council. . . . 
 
 “If . . . Proprietary Lords are to alter 
 
 the bounds of their Provinces without the 
 privity and consent of the Crown, by whom 
 alone such powers are vested, directed and dis- 
 posed, consider the inconveniences that must 
 follow; this is no less than transferring lands 
 into different jurisdictions, legislations, etc., 
 
 45 
 
you subject the people to different govern- 
 ment, different assemblies, laws, courts, taxes, 
 etc., to which they never assented by their 
 delegates.” 
 
 Delivering the opinion on final hearing (i 
 Vesey Sr., 444), Lord Hardwicke said: 
 
 “This cause [is] for the determination of 
 the right and boundaries of two great Provin- 
 cial Governments and three Counties; of a 
 nature worthy the judicature of a Roman 
 Senate rather than of a single Judge; and my 
 consolation is, that if I should err in my 
 judgment, there is a judicature equal in dig- 
 nity to a Roman Senate that will correct it. . . 
 
 “It is certain that the original jurisdiction in 
 cases of this kind relating to boundaries 
 between provinces, the dominion and propri- 
 etary government, is in the King and Council ; 
 and it is rightly compared to the cases of the 
 ancient Commotes and Lordships Marches in 
 Wales ; in which if a dispute is between private 
 parties it must be tried in the Commotes or 
 Lordships, but in those disputes where neither 
 had jurisdiction over the other, it must be 
 tried by the King and Council; and the King 
 is to judge, though he might be a party; this 
 question often arising between the Crown and 
 one Lord Proprietor of a Province in America ; 
 
so in the case of the Marches it must be deter- 
 mined in the King’s court, who is never con- 
 sidered as partial in these cases; it being the 
 judgment of his judges in [the King’s Bench] 
 and chancery. So where before the King in 
 Council the King is to judge, and is no more 
 to be presumed partial in one case than in 
 another.” 
 
 Another case of disputed boundaries which 
 came before the King in Council for settle- 
 ment was that of New Hampshire against 
 Massachusetts. There being in this case no 
 Lords Proprietors, of whose persons the 
 English courts might have jurisdiction, and 
 no agreement, — the case arising under the 
 Charters of the Colonies, — the King in Council 
 ordered a reference of the case to a commis- 
 sion in America composed of twenty persons, 
 who were to be the five eldest councillors of 
 the Colonies of New York, New Jersey, Nova 
 Scotia, and Rhode Island, any five being a 
 quorum, and their decision being reviewable 
 by the King in Council. The Massachusetts 
 Assembly wished the reference to be to “wise 
 disinterested persons” to be chosen equally by 
 or in behalf of the parties, those in behalf of 
 Massachusetts “to be chosen by the Assembly 
 of that Province out of the neighboring gov- 
 
 47 
 
ernments;” but this request was denied and the 
 commissioners were named by order in council. 
 
 About the year 1755, the system began to 
 break down. In part this was no doubt due to 
 the recrudescence of autocratic and absolutist 
 ideas throughout the European world. In part 
 it was probably also due to the necessities of 
 international trade. The close and continuous 
 contact of British traders and government 
 officials with the peoples of the Orient and 
 the tropics who understood no governmental 
 power which was not absolute, had led the 
 British government to claim and assert 
 absolute power over these peoples, and it 
 doubtless appeared to British statesmen that 
 to recognize the American Colonies as subject 
 only to a jurisdiction on the part of Great 
 Britain was inconsistent with the exercise of 
 the absolute pov/er which it seemed necessary 
 to assert in dealing with Oriental and tropical 
 peoples. However this may be, Great Britain 
 about the year 1755 began to advance the 
 claim that it had absolute power throughout 
 the empire, with the right to monopolize the 
 trade of all the subordinate parts and to tax 
 them for the general defence and welfare; the 
 excuse for the claim of absolute power being 
 the assumed duty of Great Britain to protect 
 
 48 
 
all parts of the empire. This system, called 
 in France, as has been said, the system of 
 le Pacte Colonial, was in England called “the 
 Mercantile System.” 
 
 The war between Great Britain and France 
 for the ten years from 1753 to 1763, which was 
 largely fought on American soil and in which 
 British and American soldiers served side by 
 side, delayed and concealed the carrying out 
 of the new policy. The British and Americans 
 fraternized and good feeling reigned. The 
 acquisition of Canada by Great Britain as the 
 result of the war, however, brought matters 
 to a head. British America, instead of consist- 
 ing of a row of seaboard colonies inhabited by 
 British settlers, with direct communication 
 from each by sea to Great Britain, became a 
 great region into which, through the St. Law- 
 rence and the Mississippi, French and Spanish 
 influences had penetrated, and containing a 
 great body of uncivilized aboriginal in- 
 habitants. At one stroke, the old system of 
 government was made impossible, and a new 
 situation created which, as it seemed to 
 British statesmen at least, could be met only 
 by the exercise of absolute power. 
 
 Immediately a system of absolutism was put 
 in force. By edict of the King in Council in 
 
 49 
 
1763, the western bounds of the old Colonies 
 were limited to the Allegheny Mountains, and 
 the whole of Canada (which included the 
 Northwest Territory) placed under the gov- 
 ernment of the Crown. In 1764, the Colonies 
 were taxed by Act of Parliament for the gen- 
 eral purposes of the empire, both inter- 
 nally by a Stamp Act and externally by 
 tariff duties on goods imported into the 
 Colonies. When the Stamp Act was repealed, 
 Great Britain by a Declaratory Act of Parlia- 
 ment asserted its absolute power in the empire. 
 By this Act, it was declared that the Parlia- 
 ment of Great Britain “had, hath and of right 
 ought to have full power and authority to make 
 laws and statutes of sufficient force and 
 validity to bind the colonies and people of 
 America, subjects of the Crown of Great 
 Britain, in all cases whatsoever.” 
 
 The Americans stood for the old system. 
 They were willing to recognize Great Britain 
 as having jurisdiction over the Colonies as free 
 states, reserving their right of judgment, at 
 least in extreme cases, for the protection of 
 their honor and dignity and for their self- 
 preservation. They acknowledged the suprem- 
 acy of Great Britain in reasonably and justly 
 regulating the common affairs of the states 
 
 50 
 
of the empire, particularly in regulating the 
 intercolonial commerce and the foreign com- 
 merce of the empire and of all its constituent 
 states. They considered that this jurisdiction 
 ought to be exercised by a properly constituted 
 tribunal in Great Britain of which the King 
 should be the head, and they were even will- 
 ing to conform to acts of Parliament passed 
 in the reasonable exercise of this jurisdiction; 
 but they would not accept even a theoretical 
 claim of absolute power over them, however 
 benevolent might be the despotism. 
 
 The issue raised by the Stamp Act, the 
 Declaratory Act, and the Tea Act, was 
 whether Great Britain had legally unlimited 
 power over the colonies as their supreme abso- 
 lute legislature or whether it had a legally 
 limited power — that is, a jurisdiction over 
 them — as their supreme tribunal and supreme 
 executive legislature. The Americans at first 
 tried to find a legal limitation of the powers of 
 Great Britain in the Colonial Charters and in 
 the British Constitution, but failed to make 
 out a complete case. The charters were acts 
 of the British Crown and recognized the 
 power of Parliament without mentioning con- 
 ditions or limitations, and the only doctrine 
 of the British Constitution which could be 
 
applied was that which asserted the injustice 
 of taxation without representation — a doctrine 
 which had in fact no application, because the 
 Americans refused to be represented in a Par- 
 liament three thousand miles away and the 
 British refused to allow such a representation. 
 
 Burke declared that the British empire of 
 that day could not be constituted on the basis 
 that Great Britain was essentially the supreme 
 tribunal of the empire. No peace in the Brit- 
 ish empire was possible, he asserted, in his 
 Speech on Conciliation, which was to “depend 
 upon the juridical determination of perplexing 
 questions, or the precise marking of the 
 shadowy boundaries of a complex govern- 
 ment.” Great Britain, or Great Britain and 
 the American Colonies integrated in a common 
 representative Parliament, he asserted in his 
 Speech on American Taxation, must of neces- 
 sity exercise absolute power in the empire. 
 
 “The Parliament of Great Britain,” he said, 
 “sits at the head of her extensive empire in 
 two capacities: One as the local legislature 
 
 of this island, providing for all things at home 
 immediately and by no other instrument than 
 the executive power. The other, and I think 
 her nobler capacity, is what I call her imperial 
 character, in which, as from the throne of 
 
Heaven, she superintends all the several in- 
 ferior legislatures, and guides and controls 
 
 them all without annihilating any 
 
 It is necessary to coerce the negligent, to re- 
 strain the violent, and to aid the weak and 
 deficient, by the overruling plenitude of her 
 power. She is never to intrude into the place 
 of others, whilst they are equal to the common 
 duties of their institution. But in order to 
 enable Parliament to answer all these duties 
 of provident and beneficent superintendence, 
 her powers must be boundless. Such, sir, is 
 my idea of the Constitution of the British em- 
 pire as distinguished from the Constitution of 
 Britain.” 
 
 Burke’s Speech on American Taxation closed 
 the issue between Great Britain and America. 
 From that moment the Continental Congress 
 realized that they were called upon to decide 
 a single momentous question — for Burke’s plan 
 of integrating Great Britain and the Colonies 
 in a common representative Parliament was 
 recognized as wholly impracticable — which 
 was, whether the American Colonies should 
 remain a part of the British empire on the 
 understanding that Great Britain’s power in 
 the empire should thereafter be a power to 
 command instead of a power to lead the Col- 
 
onies in judgment, or whether they should 
 declare themselves independent states and or- 
 ganize a political union independent of Great 
 Britain and the British empire, in which their 
 political ideas should be applied. If they took 
 the latter course, it was necessary to state rea- 
 sons which would appeal to the civilized world 
 why Great Britain should not exercise abso- 
 lute power in the empire, for the doctrine of 
 Great Britain was the accepted doctrine of 
 Europe. It was useless for such a purpose to 
 talk of rights under the Colonial charters or 
 under the British Constitution. It was neces- 
 sary for them to base themselves on universal 
 and fundamental principles and to commit 
 the American States forever to the principles 
 announced. 
 
 The Continental Congress was equal to the 
 emergency. By the Declaration of Indepen- 
 dence the American Colonies, as free, indepen- 
 dent and united states, denied the claim of 
 Great Britain to exercise absolute power in the 
 British empire by asserting as a universal doc- 
 trine that supreme power in civilized society 
 is limited by “the laws of nature and of 
 nature’s God,” and that the function of all 
 governments is to exercise jurisdiction under 
 this law for the purpose of “securing” to each 
 
 54 
 
individual those “unalienable rights” with 
 which all men are endowed by their Creator 
 for their self-protection and self-preservation — 
 called in the Declaration the rights of “life, 
 liberty and the pursuit of happiness” — and to 
 which all are equally entitled by reason of 
 the creation of all men by the common Creator. 
 The binding force of all acts of government 
 was held to arise from the exercise of this 
 jurisdiction by the government and from the 
 acquiescence of the governed, as beings en- 
 dowed with reason and conscience, in the 
 necessary and just judgments of the govern- 
 ment, made for the purpose of securing the 
 fundamental rights of the individual. 
 
 The Declaration of Independence was also 
 a Declaration of Union. By laying down these 
 principles of government, it had the negative 
 effect of eliminating Great Britain as the 
 supreme government of the colonies; by as- 
 serting the union of the American States to 
 support these principles, it had the affirmative 
 effect to commit the individual States and the 
 United States to the principles of government 
 which it declared. 
 
 Accepting the principle that the supreme 
 power of government is the power to judge, it 
 follows from the fact that each state must 
 
 55 
 
necessarily have relations with its own citizens 
 and with persons and states external to itself, 
 that if a State assumes to finally determine 
 these relations, it acts as a judge in its own 
 cause. By the Declaration of Independence, 
 the American Union acted as a judge in its 
 own cause in declaring the political connection 
 between Great Britain and the Colonies to 
 have been dissolved by the acts of Great 
 Britain. The Americans based their judgment 
 on the ground that the action of Great Britain 
 was in violation of the fundamental rights of 
 the individual. Recognizing, however, the 
 danger to the peace of the world from states 
 acting as judges in their own causes, they 
 declared, in the Declaration, that whenever 
 states so act, “a decent respect to the opinions 
 of mankind requires that they should declare 
 the causes which impel them.” 
 
 Before the Revolution, the American Col- 
 onies, though they regarded themselves as free 
 states or commonwealths, were willing to have 
 the disputes between themselves and with the 
 mother country settled by the King in Council, 
 though that was a tribunal of the mother coun- 
 try and was open to the objection that it was 
 a judge in its own case. Because that tri- 
 bunal that was composed of men trained in 
 
 5*S 
 
political, social and economic judgment and 
 was headed by the King, who was by his office 
 bound to be impartial, they accepted and exe- 
 cuted its adjudications. 
 
 Burke, in his Speech on Conciliation, said: 
 “We are, indeed, in all disputes with the Col- 
 onies, by the necessity of things, the judge. 
 But I confess that the character of judge in 
 my own cause is a thing that frightens me. 
 Instead of filling me with pride, I am exceed- 
 ingly humbled by it. I cannot proceed with 
 a stern, assured, judicial confidence, until I 
 find myself in something more like a judicial 
 character. I must have these hesitations as 
 long as I am compelled to recollect that, in my 
 little reading upon such contests as these, the 
 sense of mankind has at least as often decided 
 against the superior as the subordinate power.” 
 The humility which Burke regarded as 
 necessary in one who is called upon to be a 
 judge in his own cause would seem to be as 
 likely to create a bias in him favorable to his 
 adversary as pride would create in favor of 
 himself. The only reasonable means by 
 which bias can be avoided by individuals, 
 peoples or states, whether the judgment be 
 required to be given in one’s own cause or in 
 the cause of others, would seem to be training 
 
 57 
 
and education in judgment, and an apprecia- 
 tion of the truth which Burke stated, that 
 every judgment will ultimately be reviewed by 
 “the sense of mankind,” which will “as often 
 decide against the superior as the subordinate 
 power.” 
 
 Upon the promulgation of the Declaration 
 of Independence the Congress regarded itself 
 as the successor of the King in Council. Until 
 the Articles of Confederation were adopted, it 
 exercised the powers which had been exercised 
 by the King in Council over the Colonies pre- 
 vious to the Declaration. By the Articles of 
 Confederation, these powers were reduced to 
 writing and given the sanction of a mutual 
 agreement of the States. As the King in Coun- 
 cil had been recognized as “the last resort, on 
 appeal,” in disputes between the Colonies, the 
 Articles of Confederation made the Congress 
 a tribunal of the same kind, for the same pur- 
 pose, and authorized it to act, as the King in 
 Council had done, by means of a tribunal insti- 
 tuted in each case under its auspices. 
 
 In the Constitution, the people of the United 
 States and the States of the Union divided 
 between the Congress, the President, and the 
 Supreme Court the powers granted by the 
 Articles of Confederation to the Congress of 
 
the Confederation, and, in addition, granted to 
 the Congress the power to legislate in execu- 
 tion of the powers granted to it. They also 
 granted to Congress the power to regulate by 
 legislation the interstate and foreign commerce 
 of the United States. To the Supreme Court 
 naturally fell the function of determining dis- 
 putes between the States of the Union, and the 
 remarkable provision was added that foreign 
 States might avail themselves of the jurisdic- 
 tion of the Supreme Court if they had dis- 
 putes with States of the Union. This pro- 
 vision was perhaps suggested by the fact that 
 the American Colonies, though holding them- 
 selves to be free states in some respects for- 
 eign to Great Britain, had appeared before the 
 King in Council as plaintiffs and defendants 
 and had found it an impartial tribunal, though 
 it was a national tribunal of Great Britain. 
 The Constitution preserved the dignity of the 
 United States and of the States by recognizing 
 their rights to act as judges in their own 
 causes, if they saw proper, as respects claims 
 of individuals against them. Inasmuch as the 
 Supreme Court was granted only the “judicial 
 power” of the United States, its jurisdiction 
 was, it would seem, limited to the decision of 
 cases which are of such a nature as to be 
 
 59 
 
capable of judicial settlement. Opportunity 
 was provided for settling disputes between 
 States by conference or arbitration by the pro- 
 vision of the Constitution which recognized 
 the right of the States to enter into treaties or 
 contracts with each other by consent of the 
 Congress; and if there be disputes between 
 States of the Union which are not capable of 
 judicial settlement, the States involved may, it 
 would seem, establish in each case of dispute, 
 by consent of Congress, a political tribunal for 
 the settlement of the dispute. 
 
 It will have been noticed, in the course of 
 this investigation of the process of the develop- 
 ment of the American doctrine of jurisdiction 
 of courts over States that the fundamental 
 political belief of the people of the American 
 colonies and of the United States has always 
 been that there exists a supreme universal law 
 governing the actions of States, which secures 
 to each individual his right of self-protection 
 and self-preservation, and that the actions of 
 states, nations and empires, are void so far as 
 they are inconsistent with the “securing” of 
 these “unalienable rights.” It may well be 
 questioned whether it is not through this con- 
 ception of a universal supreme law that there 
 exists among the American people the concep- 
 
 60 
 
tion of a constitutional law which is supreme 
 over States, and which is formed by agreement 
 of the people and States concerned to live in 
 indissoluble union. If this constitutional law 
 has its sole basis in agreement, there may be a 
 question as to its supremacy and as to the in- 
 dissolubility of the Union. An agreement 
 which is supreme over those who agree to it, 
 and which is indissoluble, is a self-contradic- 
 tion. Indissolubility of an agreement, and its 
 supremacy over those who agree to it, must 
 depend upon some other fact than the agree- 
 ment of the parties. 
 
 The theory that the supremacy of the Con- 
 stitution of the United States arises from the 
 agreement of the people and States of the 
 United States was invoked in the Civil War as 
 a reason for dividing the Union into two unions 
 when the people of the two sections differed in 
 their opinions concerning the nature of the 
 Constitution which they desired. The Union 
 was upheld by those who believed in the exist- 
 ence of this supreme universal law referred to 
 in the Declaration of Independence which se- 
 cures “the unalienable rights” of all men to 
 “life, liberty and the pursuit of happiness.” 
 After the war, the Union was by the fourteenth 
 amendment again expressly committed to the 
 
 61 
 
maintenance of this law; which thus became 
 the real bond of union between the people and 
 States of the Union. By that amendment and 
 the fifth amendment, the Supreme Court, in 
 all cases brought before it, whether by or 
 against States or persons, was authorized to 
 hold invalid any act of any legislative body, of 
 any executive or administrative official, or of 
 any court, — whether of a State or of the 
 United States, — which deprives any person of 
 his life, liberty or property without due pro- 
 cess of law. Under this authority the Supreme 
 Court exercises a jurisdiction over States and 
 over the United States similar to that which 
 the ordinary courts of justice exercise over pri- 
 vate individuals. It is a logical and reasonable 
 ground for maintaining and preserving the 
 Union that the Union is the ultimate protector 
 and preserver of this law, and that in order to 
 perform this function it must have a supremacy 
 over the actions of constituent States to the 
 extent necessary to enable it to perform the 
 function. 
 
 The question therefore arises, whether a 
 true international court can ever exist until 
 the nations of the world recognize this 
 supreme universal law. Until such recog- 
 nition is mr.dt, the powers of any body of men 
 
 62 
 
called an international court can, it wou.d 
 seem, never rise higher than a mere inter- 
 pretation of treaties; for conventions are but 
 joint treaties and supremacy of treaties or con- 
 ventions over national law by agreement can 
 of necessity exist only so long as the agree- 
 ment exists, unless the agreement is itself the 
 recognition of a supreme universal law. A 
 court to interpret treaties would be useful, but 
 it would be an instrumentality and adjunct of 
 the states creating it, and would be bound by 
 their agreements, even though such agree- 
 ments might palpably deprive individuals of 
 life, liberty or property without due process 
 of law. 
 
 If it be the fact, as American beliefs and 
 experience would seem to indicate, that the 
 test of the international character of a court 
 is not whether it is established by the nations, 
 but whether it administers a law which is 
 supreme over the nations, there is, it would 
 seem, no objection to national courts having 
 jurisdiction to settle disputes in which 
 foreign states or semi-foreign states (now 
 called colonies or dependencies) are involved 
 with citizens or states of the nation. Once 
 it is recognized that a national court may 
 administer a law which is supreme over 
 
 63 
 
states, there is no reason why, if the court 
 is learned and impartial, it should not be 
 resorted to by foreign states for the judicial 
 settlement of their disputes. So also federal 
 states or empires may form their own courts 
 for the administration of this supreme law 
 as between their own constituent states, and 
 may provide for the resort of foreign states 
 to these tribunals. 
 
 By the establishment of such national, 
 federal or imperial courts having jurisdiction 
 over states by administering this supreme uni- 
 versal law, the supreme international court 
 — when one shall be established by agreement 
 of the nations — will be safeguarded, as the 
 Supreme Court of the United States is safe- 
 guarded by the fact that every court in the 
 United States administers this universal 
 supreme law. Under such an arrangement 
 the Supreme Court becomes “the last resort, 
 on appeal,” in disputes between states, and 
 has the benefit of the consideration and action 
 of other courts. 
 
 Such an international supreme court would 
 of course need to be safeguarded in every 
 possible way, so that its attention might be 
 invoked only when the sifting process has 
 been carried to the last extremity and when 
 
 64 
 
the final issues have been determined and the 
 material facts on both sides have been stated 
 in the most succinct form. During the 
 colonial period, England and Great Britain 
 found it necessary to have the King in Council 
 assisted by a subordinate council to act as 
 master in chancery or referee, and to investi- 
 gate social and economic questions. It was 
 also found necessary that the King in Council 
 should have power to appoint commissioners 
 for investigating facts at a distance from 
 Great Britain and should have, indeed, all 
 the powers necessary to make its jurisdiction 
 effective. Such powers, it would seem, an 
 international supreme court ought to have. 
 
 In view of the fact that states may represent 
 the claims of their citizens against foreign 
 states, the volume of business of a supreme 
 international court will tend to be increasingly 
 large, and it will become increasingly neces- 
 sary as it has in the case of the Supreme 
 Court of the United States, that the juris- 
 diction of such a court should, so far as 
 possible, be limited to deciding questions 
 which it has been impossible to decide by 
 agreement or by resort to any other tribunal. 
 
 If it be the case, as it appears to be, that 
 one of the functions of such an international 
 
 65 
 
supreme court would be to administer this 
 supreme universal law, it would follow that 
 it ought to have jurisdiction, similar to that 
 which the Supreme Court of the United 
 States has under the Fourteenth Amendment, 
 in cases where a citizen of the state com- 
 plains against his own state for its violation 
 of his fundamental rights as an individual. 
 Jurisdiction of such cases, would, it would 
 seem, be as useful for doing away with 
 the necessity of civil war as would the juris- 
 diction of cases between states for doing away 
 with the necessity of foreign war. 
 
 This examination of the development of the 
 American doctrine of jurisdiction of courts 
 over states will, it is hoped, have served to 
 show that the Supreme Court of the United 
 States exists not merely as a part of the 
 Federal Union for the interpretation of the 
 Constitution, but that it has a reason for its 
 existence which appeals equally to all the 
 nations of the world, in that it expounds and 
 applies the supreme universal law securing the 
 fundamental rights of the individual, which 
 the Constitution recognizes and which binds 
 all nations and peoples; and in that it upholds 
 the fundamental rights of the states is the best 
 means of upholding this law. 
 
 66 
 
It would seem, therefore, that it is imma- 
 terial whether the nations of the world shall 
 federate in the same way that the United 
 States have federated or in any other way; 
 or whether they shall remain substantially as 
 they are at present. The close relationship 
 of federal union under a general government 
 may be too intimate for the separated and 
 diverse nations of the world, and the most 
 efficient bond of union may be this supreme 
 universal law securing the fundamental rights 
 of the individual against all governmental 
 action, administered by the courts of all the 
 nations, federal states and empires of the 
 world, and in the last resort on appeal by an 
 international supreme court established by the 
 nations. 
 
 67 
 
Ammratt S’orirtg fnr 3'uhtrlal g’BltUirmtt nf 
 Sntentatuntal Dtspitlpa 
 
 ©fficrra 
 
 Honorary President, William Howard Taft. 
 
 President, James Brown Scott, 
 
 Washington, D. C. 
 
 Vice-President, John Hays Hammond, 
 Washington, D. C. 
 
 Secretary, Theodore Marburg, 
 
 Baltimore, Md. 
 
 Treasurer, J. G. Schmidlapp, 
 
 Cincinnati, Ohio. 
 
 Life membership, $100; Sustaining membership, $10 a year; 
 Annual membership, $i a year. 
 
 Remit to treasurer, J. G. Schmidlapp, Cincinnati, U. S. A. Address 
 inquiries to secretary, Theodore Marburg, Baltimore, U. S. A. 
 
 The proceedings of the “Judicial Settlement” Conference at 
 Washington, December 15-17, 1910, will be printed in English. 
 French, German and Spanish. Each member of the Society' will 
 be entitled to one copy. Non-members may procure them by 
 remitting the price, One Dollar, to 
 
 TUNSTALL SMITH, Assistant Secretary, 
 
 The Preston, Baltimore, U. S. A. 
 
Amrriratt ©nrtelij for Suirtrial &fltlrnifnt of 
 international iteputefi 
 
 Ahmsert; (ttomtril 
 
 Lyman Abbott, New York. 
 
 Edwin A. Alderman, Virginia. 
 
 James B. Angell, Michigan. 
 
 Simeon E. Baldwin, Connecticut. 
 
 Richard Bartholdt, Missouri. 
 
 Alexander Graham Bell, Washington, D. C. 
 
 R. L. Borden, Ottawa, Ont. 
 
 Theodore E. Burton, Ohio. 
 
 Joaquin D. Casasus, Mexico City, Mexico. 
 
 George E. Chamberlain, Oregon. 
 
 Winston Churchill, New Hampshire. 
 
 George B. Cutten, Wolfville, N. S. 
 
 William R. Day, Ohio. 
 
 Jacob M. Dickinson, Washington, D. C. 
 
 Andrew S. Draper, New York. 
 
 Charles W. Eliot, Massachusetts. 
 
 Charles E. Fenner, Louisiana. 
 
 William Dudley Foulke, Indiana. 
 
 James Cardinal Gibbons, Maryland. 
 
 George Gray, Delaware. 
 
 Charles Noble Gregory, Iowa. 
 
 Peter S. Grosscup, Illinois. 
 
 Joseph F. Johnston, Alabama. 
 
 David Starr Jordan, California. 
 
 Harry Pratt Judson, Illinois. 
 
 William H. King, Utah. 
 
 George W. Kirchwey, New York. 
 
 Philander C. Knox, Washington, D. C. 
 
 Charles F. Libby, Maine. 
 
 Francis B. Loomis, Washington, D. C. 
 
 Horace H. Lurton, Tennessee. 
 
 R. McBride, Victoria, B. C. 
 
 Pablo Macedo, Mexico City, Mexico. 
 
 Charles Marcil, Ottawa, Ont. 
 
 Sidney E. Mezes, Texas. 
 
 S. C. Mitchell, South Carolina. 
 
 Francis G. Newlands, Nevada. 
 
 L. Oppenheim, Cambridge, England. 
 
 Thomas Nelson Page, Washington, D. C. 
 
 Walter H. Page, New York. 
 
 W. Peterson, Montreal. 
 
 Sir Thomas Raleigh, London, England. 
 Whitelaw Reid, London, England. 
 
 William Renwick Riddell, Toronto, Ont. 
 
 Uriah M. Rose, Arkansas. 
 
 A. C. Rutherford, Edmonton, Alberta. 
 
 Walter Scott, Regina, Saskatchewan. 
 
 Albert Shaw, New York. 
 
 Hoke Smith, Georgia. 
 
 Bishop Robert Strange, North Carolina. 
 
 Sir Charles Hibbert Tupper, Vancouver, B. C. 
 George Turner, Washington. 
 
 Charles R. Van Hise, Wisconsin. 
 
 Benjamin Ide Wheeler, California. 
 
 William Allen White, Kansas. 
 
 George G. Wilson, Rhode Island. 
 
 Prince de Cassano, Italy. 
 
Publications of the American Society for Judicial 
 Settlement of International Disputes — 
 
 1. The New Era of International Courts, by 
 Simeon E. Baldwin. August, 1910. 
 
 2. The Necessity of a Permanent Tribunal, by 
 Ernest Nys. November, 1910. 
 
 Supplement — The American Society for Judicial 
 Settlement of International Disputes, by James 
 Brown Scott. November, 1910. 
 
 3. The Importance of Judicial Settlement, by Elihu 
 Root. February, 1911. 
 
 4. The Development of the American Doctrine of 
 Jurisdiction of Courts Over States, by Alpheus H. 
 Snow. May, 1911. 
 
 A6Z209efrOa 
 
 sauBjqn AjisjaAiun 0) l n Q 
 
 The Third National Peace Congress will be held in 
 Baltimore, McCoy Hall, Johns Hopkins University, May 
 3-5, 1911, under the joint auspices of all the leading 
 societies in America devoted to the cause of the settle- 
 ment of international disputes by means other than ivar. 
 Noted men from all parts of the country will take part 
 in the congress.