rules and principles upon which all important powers are in substantial agreement. The danger of premature attempts to procure formal international sanction for certain principles is obvious. When subjects not ripe for such action are submitted, the more reactionary view will often be strengthened by the resolutions of the conference. One or more of the great powers will interpose an objection to really progressive action, and the result will be that, in order outwardly to save its credit before the world and to respond to the clamor for action, the conference will adopt a set of resolutions or a convention, so colorless, indefinite, and lenient, as to weaken the authority of the principles sought to be established. It is difficult to see what is to be gained by certain formal pronouncements of the present conference, such for instance as those upon the duties of neutrals, submarine mines, the status of merchant ships in enemy ports at the beginning of war, and the conversion of merchantmen. These conventions embody in the main the practice which heretofore even the most reactionary among the powers would not openly have dared to question. Undoubted advantage has, however, been gained along certain lines. The settlement of the problems involved in the so-called Drago doctrine is a highly valuable result. The establishment of definiteness in the time of commencement of war, the exemption of unfortified towns from bombardment by naval forces, the more complete extension of Red Cross activities and privileges to maritime warfare, will all be welcomed as distinct advances. The provision added to the convention concerning land warfare, that it shall not be permissible for a belligerent state to declare void or suspended, the rights, in possession or action, of alien enemies, is perhaps the most radical change introduced, although it has passed almost unnoticed, thus far. Of special importance is the establishment of a true international tribunal with obligatory jurisdiction-the prize court. Unfortunately, the conference was not able, under the circumstances, to complete the arrangements for this institution, and it remains to be seen what will be done by the special conference which is to be convoked. It is plain, that constituted as it has been, the Hague conference is not an ideal instrument for legislation. The program has been prepared by the power issuing the invitation and it necessarily reflects special views and interests. Other governments keep their plans secret and the exact character of the proposals to be made is revealed only as the conference proceeds. Consequently everyone is cautious and on the qui vive for surprises. Delegations refuse to commit themselves to schemes the tendency of which cannot be completely fathomed at the time. The range of discussion is unduly extended, the energies and activities are dispersed over too large a field. In contrast to the great international conferences of our day, the earlier congresses, e.g., that of Vienna, and that of Paris (1856), had before them the solution of specific political problems; their negotiations could therefore result in definite action, although even they engaged in an abundance of futile debate. Recent conferences, such as those of The Hague or of the International Union of American Republics are expected to deal with the entirety of international relations and in some more or less definite way to advance the cause of civilization. The organization of the Hague conference has not been favorable to efficient work, nor is strict parliamentary procedure followed. Commissions are subdivided into committees, the chairmen of which conduct the proceedings according to their personal sense of fitness. Motions are accumulated and resolutions are amended beyond recognition. The confused results are then entrusted to an editing committee which is thus in a position to exercise great influence through the form it may give to resolutions or conventions. Of course any power retains the right to abstain from voting or to interpose its veto, but this results in delay and obstruction rather than in the promotion of effective action. It may be expected that as international institutions increase in number and functions, the work of the conference will also become more definite and concrete. The juridical work of the permanent tribunal and of the prize court will reveal specific problems which will call for authoritative settlement at one of these great congresses. The resolution calling for a future conference contains a provision according to which a committee of preparation is to be constituted two years before the convening of the main body. Upon the work of such a committee with respect to the program and mode of procedure, the success of future conferences will largely depend. The main condition of permanent success lies, however, in the realization of a more pervading feeling of solidarity among the great powers and among the leaders of opinion in the various countries. The American nation is by nature placed in an exceptionally favorable position, not hemmed in by jealous and suspicious neighbors, with a free sway of dominion and of influence over a continent lavish in natural resources. Not being fettered by some of the more harassing necessities of European countries, embodying in its diplomatic traditions the principles of friendly coöperation, it may be hoped that our nation will continue to take a leading and creditable part in the development of the relations which find their center in the Hague conference. But to this end it will be necessary that we should not only advocate and introduce international reforms, but ratify them when they have assumed the form of treaties and thus pass beyond an empty homage to the broader ideals of international life. BIBLIOGRAPHY To January 1, 1908 Acte final et conventions de la deuxième conférence, Revue de droit international, ix, no. 6. Courrier de la conférence, published at The Hague, 1907. London Times, daily reports. New York Post, correspondence by A. S. Hershey. Outlook, correspondence by E. F. Baldwin. Correspondence concerning a second peace conference, Washington, 1906. W. T. Stead, in Contemporary Review, December, 1907. Am. Journal of Int. Law, i, 944. Memoires diplomatiques. During conference. Tardieu in Rev. d. deux Mondes, xxxix, 803; Revue de Paris, July, 1907. POLITICAL THEORIES OF THE SUPREME COURT FROM 1789-1835 CHARLES G. HAINES INTRODUCTION Prior to the time of the organization of the national government under the Constitution of 1787 the province of a court was very definitely determined. In accordance with the principles of ancient custom, a court was a tribunal established by law with the power to hear controversies between persons and to administer relief or punishment. It was the business of a court to interpret, pronounce and execute the law, to decide controversies and enforce rights. In the words of Lord Coke, "a court is a place where justice is judicially ministered.”1 Such was the traditional position of a court when the Federal Constitution went into operation in 1789. A supreme court was provided for, to be organized by congress, in whose hands was placed the authority to create such inferior courts as might be necessary to carry out the judicial duties allotted to the federal government. The supreme court which was established by one of the first acts of the congress which met in 1789 very soon recognized and affirmed the limited and definite field for the exercise of judicial authority. The judicial department, said Chief Justice Marshall, "has no will in any case. *** Judicial power, as contra-distinguished from the power of the laws, has no existence. Courts are the mere instruments of the law." Even at an earlier day Justice Story had expressed a similar view. In the Dartmouth College case he states that "it is not for judges to listen to the voice of persuasive eloquence or popular appeal. We have nothing to do but pronounce the law as we find it and having done this our justification must be left to the impartial judgment of our 1 Co. Litt. 58a. 2 Osborne v. Bank of the United States, 9 Wheaton, 738. country." Thus it was judicially determined that courts were merely the interpreters and expounders of the law of the land. It did not then fully appear that a slight departure from the realm of duties of 'courts of justice, practiced for more than a quarter of a century, was to lead to the evolution of a unique principle in governmental development whereby the courts of the United States would be obliged to enter the field of the discussion of political theories and would be involved in the subtle and elusive problems of politics. James Otis in his argument on Paxton's case of the writ of assistance announced a principle which has led to the assumption of relatively new powers by the courts of the United States and has had a momentous influence on the development of the American system of government. Otis argued in reliance upon the statement of Lord Coke and the dicta of other English judges that "where an act of parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." Regardless of the fact that the principle then enunciated had practically been repudiated in England, it was accepted by the colonists and at an early period incorporated into the legal systems of the States. Sir William Blackstone in his Commentaries, first published in 1765, admitted "that the rule is generally laid down that acts of parliament contrary to reason are void," adding, however, "but if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it." Yet in direct contradiction to the practice of legislative supremacy so firmly established in England by 1688, and contrary to the prevalent tendencies of the time, the colonial courts adopted the principle that a law contrary to the constitution or contrary to natural law and justice was void and that it was the duty of the courts to restrain the legislative authorities. The courts of New Jersey seem to have led the way in establishing this precedent in the case of Holmes v. Walton, decided in the year 1780. Two years later in Virginia it was announced that the court had power to declare any resolution or act of the legislature or of 4 Wheaton, 519. See note on Paxton's case: Thayer, Cases on Constitutional Law, vol. i, p. 48, et al. See Thayer, vol. i, p. 51. 6 Cited in 4 Halstead, 444. |