to the extent such powers were conferred by statute, which to authorize action by him, must be duly and legally in operation.

It results from all of the foregoing facts and principles that the war has ended internationally, both as a matter of fact and of law; that domestically the war powers ceased with the end of actual hostilities; and that, therefore, we are already at peace, both internationally and domestically, without any further act by either the Executive or legislative branches of the Government.

It is difficult to condense without impairing the Senator's argument. It may be said, however, that its dominant note embodies the contention that the agreement of November 11, 1918, between Germany and the Allies was not an armistice but a capitulation; that it was not a truce but a termination of the war; that it was an end of the struggle by conquest. Hence all war powers of this nation became dormant again, and their continued exercise by the President since November 11th were usurpations; since, under the Constitution, they became effective with and during active hostilities only. This being true, a joint resolution repealing that of April 6, 1917, is not only proper but essential to restrain the Executive from assuming war powers in a time of actual peace.

It is obvious that such an attitude defeats the purpose for which it is assumed. If the armistice was a capitulation, if it imposed final terms upon the completely vanquished foe, accepted by that foe because helpless to reject them, it follows that there was subsequent need neither for a peace convention at Versailles, nor for a peace resolution at home. It follows, too, that all acts, whether legislative or administrative, involving the exercise of war powers subsequent to November 11, 1918, were unwarranted and illegal. But the Supreme Court. of the United States has declared otherwise, and events the world over conspire to condemn the Senator's contention, which I do not think has been accepted anywhere. It was vigorously and I think effectively, assailed by Senator McCumber before the

vote was taken upon the resolution. I think it perfectly proper to assume that the great Senator from Pennsylvania resorted to that line of argument because it presented the only basis upon which his resolutions could be sustained.

But the resolution itself refutes the contentions of its author and discloses its unavoidable intrusion upon the domain of the treaty-making power. The Senator, not content with a simple declaration of repeal, makes elaborate provision regarding property rights, losses, damage to person or property until treaty stipulations shall have been made with Germany concerning them and extending favored-nation treatment to America and waiving divers pecuniary claims against the United States, to obtain which the President is requested to open negotiations with the government of Ger

many.

It also stipulates that until by treaty or legislation it is otherwise determined, the United States, although it has not ratified the treaty does not waive any of its rights, privileges, indemnities, etc., to which it and its nationals have become entitled under the armistice or any extensions or modifications thereof or which have been stipulated for its benefit under the terms of the treaty itself.

These disingenous reservations were inserted in the resolution because without it the status of the United States and many of its nationals would have otherwise been seriously compromised by its passage. But with them the resolution at once assumes the form of a peace condition or covenant wholly foreign to the legislative authority of Congress and requiring both negotiation with and acceptance by Germany for its accomplishment. These stipulations and conditions were obviously essential to the national interest and to those of its citizens. Being essential, they were embodied in the resolution. But when so embodied the resolution ceased to be one of simple repeal and became instead a peace proposal to Germany dependent upon German assent for

its efficiency. Thus transformed, it passed from the jurisdiction of Congress to that of the Executive as the custodian of the treaty-making power.

It may be instructive to refer briefly to some of the complications which would beset us were we to make peace with Germany by Congressional resolution. Under the Alien Custodian Act, the government has seized and in many cases, sold alien property aggregating something like a thousand millions of dollars. It also seized all enemy shipping in our harbors when war was declared. This belongs to German nationals and involves many millions more. E. converso, Germany took over the property of American citizens within the empire when hostilities began, and must in the nature of things account for them, which presupposes an agreed procedure. The United States has in war always respected the ownership of property strictly private in character. Unless forfeited by crime or by offenses of the owner, it can be seized only by way of military necessity for the safety or other benefit of the army. If he has not fled, the commanding officer will give receipt for such property, which may enable the spoliated owner to obtain indemnity. The Hague Conference of 1907 duly ratified by the Senate in March following, specifically provides that the property of an enemy cannot be confiscated.

Under these conditions, the Knox or any other resolutions establishing peace without an agreement with Germany constitutionally negotiated, would not the United States and her citizens become liable under international law to Germany and to her citizens for all this property seized? And if so, to what extent or degree could the peace resolution be available as a defense to such claims? I do not know. I do not think anyone knows. But I do not believe it would constitute a reliable defense for this government should proceedings for the enforcement of Germany's claim be instituted in the Hague Tribunal or such Courts of International Justice as are now in con

templation. A bare repeal of the war resolution, therefore, which is admittedly within the powers of Congress, if approved by the President, would as regards claims and controversies growing out of the war, put us adrift upon unknown and uncharted seas.

My conclusions, reached with some reflection and stated with some hesitation, is that the Congress may, if it so chooses, repeal any previous resolution or act declaring war. But it must content itself with the act of repeal. It cannot without invading the treaty-making power, attach clauses or conditions to its act, to be accepted or considered by the enemy.

Instances are not entirely wanting of an assertion by Congress of the power to share the treaty-making power. One of them was successful in that it was accepted by the people as a fait accompli. I refer of course to the joint resolution regarding Texas. Under the administration of Mr. Tyler, a treaty was negotiated between the United States and the Republic of Texas under the terms of which the latter was to be admitted into the Union as one of its sovereign states. That treaty became the subject of a bitter and somewhat prolonged controversy, which resulted in its rejection by the Senate. The admission of Texas thereby became a paramount issue in the Presidential campaign of 1844, wherein Mr. Polk defeated Mr. Clay by a small popular majority. Mr. Polk, impelled by the dominant purpose and personality of Andrew Jackson, urged the acquisition of Texas and of Oregon up to the latitude of 54°-40"; a policy which successfully appealed to the national sentiment of the time. The result spurred the Administration of Mr. Tyler to a renewed effort for the immediate acquisition of Texas.

During its closing days, a series of joint resolutions, varying from each other in many essential details, but all aimed at the common purpose of admitting Texas, was introduced in both Houses. These culminated in the adoption of a joint resolution by a very considerable majority, which re

ceived the approval of the President, the terms of which were formally accepted by the Republic of Texas which was thereupon received into the Union. The incident provoked one of the most interesting and exciting discussions of the Constitutional power of Congress to be found in the record. of its proceedings. The opponents of the resolution contended, and I think unanswerably, that the admission of a foreign sovereignty in the American Union could be constitutionally accomplished only by a negotiated treaty, as had been recently attempted. Among their arguments was that under the Constitution, Senators must have been citizens for nine, and Representatives must have been citizens for seven years before the election; qualifications which could not, in the nature of things, attach to the residents and citizens of a distinct and separate sovereignty suddenly merging itself. into that of the Union. It was, of course, contended by the proponents of the resolution, that the power to admit states being without limitation, applied alike to foreign and domestic communities and therefore was lawfully invoked under any circumstances and in any case when the admission of a proposed state was contemplated. But surely this clause must have been intended to apply to territories within and controlled by the United States.

Although the resolution actually accomplished the purpose, I am satisfied that it was ultra vires, a clear invasion of the treaty-making power by the Congress, and hence a violation of the organic charter. Von Holst, commenting upon the incident, stresses Calhoun's assertion in 1847, that he had taken this step because he was convinced that even then no annexation treaty would have received the assent of the Senate, and adds that

"the bridal dress in which Calhoun led the beloved of the Slavocracy to the Union was the torn and tattered Constitution."

The Texas incident offers the nearest approach to a precedent for the recent peace resolution that can be found; yet it is to be

noted that no advocate or supporter of it made any reference to the fact. It was cited by opponents of the resolution, not as fortifying it, but as an unfortunate instance of party excess which contributed mightily to the anti-slavery sentiment and doubtless hastened that issue to its bloody crisis. We use it as a warning to be shunned, not as an example to be followed.

At the risk of lengthening this paper unduly, let me add that the examination of such a problem as this never fails to arouse my reverent regard for the wisdom and prescience of the framers of the American Constitution. They seem to have provided for almost every exigency which the events of the future might unfold, albeit some of them might appeal to other than constitutional methods of arbitration. They distributed its powers and balanced its limitations with a skill that shall ever bear testimony to their genius and their patriotism. They made possible the success of a unique experiment in popular government. Their work was by no means perfect, for time has suggested and their posterity have wrought great changes in their handicraft. Yet it fully merits the eloquent eulogium of Gladstone as the greatest scheme of government ever struck off at a given time by the hand of man.

Party politics beget antagonisms frequently acrimonious and sometimes virulent. Under the stress of controversy the best of men are sometimes prone to use their power in a manner and to a degree which their judgment in cooler hours of reflection will not approve. This was among the perils against which Washington solemnly warned his countrymen. Let us not, either now or hereafter, whatever the excitement or provocation, do or seek to do either for partisan or other advantage, that which under our Constitution may not be done at all, or must be done in some other way or through the agency of some other department. For an untoward and unjust procedure, however exigent or temporarily desirable, may, in the immortal words of

Henry Grattan, arise to sting us in the future. Whatever the emergency of the moment or the urge of controversial passion, whatever the apparent demands of an aroused constituency, impatient of delay and dreading the consequences of measured and orderly processes, tried out by experience and sanctioned by law, a wise and dispassionate statesmanship will adhere to the lines and precepts of the Constitution. The stately march of a people's government, dispensing even-handed justice, safeguarding life and property, vouchsafing ordered liberty to all men under the law, will continue through the years which lie beyond, only when the limitations upon public authority are at all times observed. If changes are demanded by the progress of events, let them be made in harmony with the methods which have been provided for their attainment and which have in the past proved ample for their purpose. Respect for the law and obedience to authority, are indispensable to the perpetuity of popular government. The decline of these public virtues is the greatest and most sinister evil of the hour. It signifies a diseased public sentiment, impatient of restraint and rebellious of majority rule. We who are temporarily entrusted with the powers of state may be in some degree responsible for the prevalence of this unfortunate evil. Let us not accentuate its development by supplying it with political examples. Conscious of the need at this time for holding the ship to its chartered course through an angry sea, let us rather adhere with undue persistence to both the form and the substance of constitutional procedure and shape our foreign relations to the scheme and structure of the organic law. The necessity for summary action, however insistent, will not assume the proportions of an overshadowing danger. The prevailing war status is technical only. Hostilities ceased long ago and peace, though not yet sanctioned by the formula of an international covenant, has in fact returned to our beloved country. We can for a while better endure the transient em

PAGE, J. The action was to recover from the carrier prepaid freight. The complaint alleges the shipment of 500 bales of cotton from Wil mington, N. C., to Genoa, Italy, and the prepay. ment of freight charges, amounting to $22, 116.96, by the steamship Guadalquiver, pursuant to a bill of lading issued by the master of said vessel, a copy of which is annexed to the complaint and made a part thereof; that the Guadalquiver was sunk in the high seas by an enemy submarine and the 500 bales of cotton were wholly lost; that the agreement to transport the said merchandise was not carried out. and the cotton was not delivered to the order of the shippers or their assigns, as provided in the bill of lading; demand and refusal of repayment of the prepaid freight. The answer sets up three separate defenses, to which the plaintiff demurred for insufficiency.

The court overruled the demurrers to the first and third and sustained the demurrer to the second, giving the plaintiff leave to withdraw the demurrers to the first and third defenses and to reply thereto. The demurrer to the first defense should have been sustained. The answer admits the issuance of the bill of lading and that the copy attached to the complaint is a correct copy.

It is sought to set up a prior contract of February 1st, for shipment of these goods, and that it was thereby agreed that the freight should be prepaid, and that the freight so prepaid should be retained by the defendant in any event, ship or goods lost or not lost, and that the shipment was to be made by Alexander

Sprunt & Son in accordance with the regular bill of lading of the defendant, which said bill of lading, as was known to the shippers, contained a provision that all freight should be prepaid and should be retained by the carrier in any event, ship or goods lost or not lost. It is then alleged that the shipment of the goods mentioned in the complaint was made, and the master of the ship issued bills of lading therefor, and the ship sailed and was sunk by an enemy submarine before her arrival. The defense further alleges an insurance of the goods, together with the prepaid freight; that after the loss of the ship the insurance company fully indemnified the holder of the bill of lading, and paid to the said holder all losses sustained, and an assignment to the insurance company of any and all rights and claims which he might have against these defendants.

In so far as the defense sets up the insurance and assignment to the insurance company, it is insufficient, as the complaint alleges such assignment and an assignment by the insurance company to plaintiff; that there has been a mesne assignment of a cause of action is not a defense, if the complaint alleges an assignment by the mesne assignee to the plaintiff prior to the commencement of the action.

In so far as the defense seeks to set up another agreement than that contained in the bill of lading, it is insufficient. It is not alleged that the provision in regard to the retention of prepaid freight was omitted by mistake or fraud, nor that the master did not have authority to issue the bill of lading that was issued. The law is well settled that the bill of lading is not a mere receipt for goods shipped, but is also the contract under which they are shipped, and that the terms thereof cannot be varied by extrinsic evidence of another prior contract in relation thereto. John Vittuci Co. v. Canadian Pac. Ry. Co. (D. C.), 238 Fed. 1005; Germania Fire Ins. Co. v. Memphis & Charlestown R. R. Co., 72 N. Y. 90, 93, 28 Am. Rep. 113; Hill v. Syr., Bing. & N. Y. R. R. Co., 73 N. Y. 351, 29 Am. Rep. 163. When we consider that this bill of lading was a negotiable bill, transferable by indorsement, the reason of the rule requiring the bill to be the final statement of the contract becomes evident.

The law is well settled in this country, contrary to the English cases, that prepaid freight, in the absence of an agreement to the contrary, must be returned to the shipper if the goods do not arrive. Nat. Steam Nav. Co. v. Int. Paper Co., 241 Fed. 861, 862, 154 C. C. A. 563, and cases cited; The Gracie D. Chambers, 253 Fed. 182, 183, 165 C. C. A. 82, affirmed 248 U. S. 387,

39 Sup. Ct. 149, 63 L. Ed. 318. Bills of lading are quite generally drawn with such a clause as the defendant sets forth incorporated therein. This is an important provision of the contract, and unless it is incorporated in the bill of lading its absence cannot be supplied by evidence of prior negotiations with reference thereto.

The order, in so far as appealed from, is reversed, with $10 costs and disbursements to appellant, and the demurrers to the first and third defenses are sustained, with $10 costs. All

concur.

NOTE-Duty of Carrier to Return Prepaid Freight if Not Delivered.-Inferences from the American doctrine, as stated by the instant case. are that in an ordinary bill of lading, the carrier must return the goods on which freight has been prepaid, where there is failure to deliver and if the goods are lost, his general duty is to pay their value. But in England the rule is that the shipper cannot recover for the loss of the freight, that is to say, the goods, but by the shipment of freight prepaid, the shipper vests his interest in the goods, pro tanto, in the ship owner, who only has the right to sue for their loss. Nat. S. Nav. Co. v. International Paper Co., 241 Fed. 861, 154 C. C. A. 563. The English law, therefore, puts an end to all inquiry as to the cause of failure to deliver freight, but gives to the shipper the right to recover from the shipowner the value of the goods, he tracing action against whomsoever caused the loss.

In the case of the Gracie D. Chambers, 253 Fed. 182, 165 C. C. A. 82, the freight was not lost, but was not delivered and the action for return of the freight prepaid, as was held in Griggs v. Austin, 3 Pick (Mass.) 20, 15 Am. Dec. 175, was maintainable. And it was thought the intent was that the carrier should keep the freight, where he does not deliver the cargo, unless such failure is due to a peril not excepted in the bill of lading or charter party. The American rule applied in the Gracie D. Chambers case was held to deny recovery to the shipper where clearance was denied where an embargo prevented the vessel from going into the danger zone during the war. This ruling was affirmed in 248 U. S. 387, 63 L. ed. 318. Learned Hand, D. J., dissented, claiming that there was a frustration of the voyage in limine and there was unearned freight, a position which has much apparent merit.

The case of Ocean S. Co. v. U. S. Steel Products Co., 239 Fed. 823, 152 C. C. A. 609, holds, that a shipowner has no right to demand freight as carned, notwithstanding that bill of lading provides that the freight is to be considered as earned, and therefore libels for recovery of damage to goods were not maintainable where before the delivery of the bills of lading on which was stamped a statement that the goods had been received in good order, they were actually damaged by fire after loading.

This question seems to this annotator quite interesting, the English rule being very much harder than that applied under what is called the