resort to the International Prize Court in respect of decisions of their national tribunals shall take the form of a direct claim for compensation, provided always that the effect of this reservation shall not be such as to impair the rights secured under the said convention, either to individuals or to their Governments, and that the terms of the reservation shall form the subject of a subsequent understanding between the powers signatory of that convention.

Upon receipt of the text of the voeu this Government, on March 5, 1909, cabled to its diplomatic agents accredited to the powers represented at the conference its intention to

Send an identic circular note to each of the participating powers, setting forth at length the reasons which influence the United States to request a rehearing de novo of a question involved in a national prize decision, and the means whereby this change of procedure may be effected without interfering with the rights of Governments or individuals under the Prize Court Convention.

In pursuance, therefore, of this express notice and of the deep and abiding interest the United States takes in the establishment of the International Prize Court, the Department of State has the honor to submit to your considerate examination the following observations:

The court contemplated by the Prize Convention of October 18, 1907, is preeminently a court of appeal, with full power to review the decision of a national court of justice, both as to facts and as to the law applied, and, in the exercise of its judicial discretion, not only to affirm or reverse, in whole or in part, the national decision from which the appeal is lodged, but also to certify its judgment to the national court for proceedings in accordance therewith. The International Prize Court, therefore, is an ultimate court of appeal of which, by the convention, national courts are intermediate instances. The purpose of the convention and of the conference which adopted it undoubtedly was and is to secure determination. by an international tribunal of a controversy affecting neutral rights and property arising from capture and confiscation in war and by a series of well-considered judgments to establish by international decisions the principles of international prize law. The Government of the United States is in hearty accord with this purpose and desires to coöperate in its realization, but is, however, of the opinion that the end in view may be effectuated without violating the spirit of the convention and, indeed, without amending it, so that, for those countries unable or unwilling to submit the judgments of their national courts to international review, a simple expedient may be devised by virtue of which the question in controversy, instead of the actual judgment of the national court, may be

submitted to the International Court at The Hague for final determination without sacrificing substance to form, and without interfering with the practice of the United States in such matters. To illustrate this position by concrete examples taken from controversies with Great Britain arising out of the Civil War:

Questions involved in the following cases upon which decisions had been rendered by the Supreme Court of the United States were afterwards submitted to arbitration by the United States under the BritishAmerican Claims Convention sitting under article 12 of the Treaty of Washington, dated May 8, 1871, for decision " according to justice and equity: "

1. Questions which the international tribunal decided adversely to the decision of the Supreme Court of the United States, which international decisions were obeyed by the United States: The Hiawatha, 2 Black, 635, 4 Moore's International Arbitrations, 3902; The Circassian, 2 Wallace, 135, 4 Moore, 3911; The Springbok, 5 Wallace, 1, 4 Moore, 3928; The Sir William Peel, 5 Wallace, 517, 4 Moore, 3935; The Volant, 5 Wallace, 179, 4 Moore, 3950; The Science, 5 Wallace, 178, 4 Moore, 3950.

2. Questions in which the decision of the international tribunal upheld the decision of the Supreme Court of the United States: The Peterhoff, 5 Wallace, 28, 4 Moore's International Arbitrations, 3838; The Dashing Wave, 5 Wallace, 170, 4 Moore, 3948; The Georgia, 7 Wallace, 32, 4 Moore, 3957; The Isabella Thompson, 3 Wallace, 155, 3 Moore, 3159; The Pearl, 5 Wallace, 574, 3 Moore, 3159; The Adela, 6 Wallace, 266, 3 Moore, 3159.

It is therefore evident that the demands of justice would be satisfied by submitting the question involved to impartial international determination, for although the controversy is based upon the decision of a national court of justice, the judgment of the international tribunal, while satisfying the claimant and settling the principle of international law involved, would not affect the validity of the national judgment within its jurisdiction. The national decision would remain in full force so far as the nation is concerned, in that it is not reversed by an international tribunal; but the international law properly applicable to the case would have been determined by an international tribunal, thus establishing for the community of nations the correct principle of international law.

The proposal of the United States leaves untouched and unquestioned the composition of the court, its jurisdiction and procedure, and only

affects the question of appeal in its technical rather than its equitable. sense, because dissatisfaction with the decision of a national court is the cause of the proceeding before the international tribunal, and the judgment of this august tribunal is binding upon the signatory powers by virtue of article 9. The advantage of the proposal lies in the fact that it does not bring national and international decisions into conflict with a reversal of the former by the latter, and without wounding national susceptibility, leaves unaffected the constitutional law of the signatories.

The proposition of the United States is based upon the alternative remedy contained in the second sentence of the second paragraph of article 8 of the International Prize Court Convention, combined with the statements contained in the final paragraph of article 3 and article. 42. For the sake of clearness, these provisions of the convention follow: If the vessel or cargo have been sold or destroyed, the court shall determine the compensation to be given to the owner on this account. (Article 8, second sentence of second paragraph.)

The appeal against the judgment of the national court can be based on the ground that the judgment was wrong either in fact or in law. (Article 3, final paragraph.)

The court takes into consideration in arriving at its decision all the facts, evidence, and oral statements. (Article 42.)

Analyzing these articles, it is apparent that the convention assumes that the captured vessel or cargo may have been sold, destroyed, or otherwise be beyond the power of the captor, in which case only the question of liability with compensation in damages can be considered. In like manner the convention contemplates, in appropriate cases, the retrial of the controversy de novo, because the court is made competent not merely to consider the law, but also the facts involved in the case and to take evidence, by virtue of articles 27 and 35, either at the request of one of the parties or upon the court's initiative, and such evidence may be produced before the court itself or before one or more of its members (article 36). It is thus seen that the convention not only permits evidence to be taken in order to ascertain the facts in controversy, but provides adequate machinery for its presentation, thus permitting a trial of the case de novo both as to the facts involved and the law to be applied. Lest the alternative method contained in the proposal be considered to militate against the speedy determination of the controversy, and that the signatory powers, their subjects and citizens, may seem to be deprived of their right of presenting the controversy to an international

court within the time and in the manner prescribed by the convention, the Department states specifically that the rights secured under the convention, both as to parties and to the periods within which the proceedings shall begin, are expressly recognized by the United States.

This Government therefore proposes that in the instrument of ratification of the International Prize Court Convention each of its signatories specify, on account of the difficulties of a constitutional nature which, in some States, stand in the way of the ratification of the Convention for the Establishment of the International Prize Court, signed October 18, 1907, that any signatory may insert a reservation to the effect that resort to the International Prize Court in respect of decisions of its national tribunals shall take the form of a direct claim for compensation; that the proceedings thereupon to be taken shall be in the nature of a trial de novo of the question at issue; that the judgment of the court shall consist of compensation for the illegal capture, irrespective of the decision of the national court whose judgment is thus called in question, although a certified copy of the national judgment may be submitted to the International Prize Court for its consideration and information; provided, however, that the effect of this reservation shall not be such as to impair the other rights secured under the said convention either to individuals or to their Governments, including the periods within which resort to the International Prize Court shall be made.

The acceptance of this proposal might be expressed in the following

manner:

Whereas, Objections of a constitutional nature in certain signatory States render the ratification of the Convention for the Establishment of an International Prize Court, signed at The Hague October 18, 1907, difficult or impossible; and

Whereas, It is highly desirable that all the powers represented at the Second Hague Peace Conference may be enabled to ratify the convention and coöperate in the labors of the International Prize Court;

Therefore, the Government of

for itself and as

far as the signatories of the International Prize Court are concerned, agrees that any signatory of the aforesaid convention may insert in the act of ratification thereof a reservation to the effect that resort to the International Prize Court in questions affecting judgments of its national tribunals may take the form of a direct claim for compensation, as provided in article 8, second paragraph, last sentence, of the said convention; that the proceedings thereupon to be had shall be in the nature of a trial de novo of the question of liability involved in the alleged illegal act of the captor; that the judgments of the International Prize Court shall thereupon, in accordance with article 8 of the aforesaid convention, decree compensation for the illegal capture, irrespective of the

decision of the national court involved, although a certified copy of the national judgment and the records of the case shall be submitted upon request to the International Prize Court for its consideration and information; and that each signatory consenting to the exercise of this optional and alternative procedure, under article 8 of the aforesaid convention, for States with the constitutional difficulties aforementioned, shall specify its consent to such optional and alternative procedure in the instrument of ratification of the International Prize Court convention;

Provided, however, That the effect of this reservation shall not impair the other rights secured under the aforesaid convention either to governments, their subjects or citizens, or the periods within which resort to the International Prize Court shall be made.

The Department of State assures the signatories of the Convention of October 18, 1907, for the Establishment of an International Prize Court, that the acceptance of this or a substantially similar protocol and its incorporation in the instrument of ratification will remove the constitutional objection to the establishment of the proposed court and will enable the United States to participate in its highly beneficent labors.

The Department of State considers the adoption of the alternative method of procedure for the International Prize Court as calculated to secure not only its definitive establishment, but, in addition, to render possible the composition of the Court of Arbitral Justice. To bring this subject to the attention of the powers represented at the Maritime Conference at London, the Department of State on February 6, 1909, instructed its delegates as follows:

In order to confer upon the prize court the functions of an arbitral court contemplated in the first recommendation of the final act of the second conference, the Department proposes the following article additional to the draft protocol concerning the prize court, next to the last paragraph of your instructions:

"And any signatory of the convention for the establishment of the prize court may provide further in the act of ratification thereof that the international court of prize shall be competent to accept jurisdiction of and decide any case arising between signatories of this proposed article submitted to it for arbitration, and the international prize court shall thereupon accept jurisdiction and adopt for its consideration and decision of the case the project of convention for the estab lishment of a court of arbitral justice adopted by the second Hague conference, the establishment of which was recommended by the powers through diplomatic channels.

"Any signatory of the convention for the establishment of the international court of prize may include in its ratification thereof the proposed articles and become entitled to the benefits thereof."

The Department earnestly hopes and urges adoption of the proposed articles.