Publications of the Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW WASHINGTON, D. C. BY THE EDITOR OF AND UNIFORM WITH THIS COLLECTION of Cases Judicial Settlement of Controversies Between An Analysis of Cases decided in the Supreme Court The United States of America A Study in International Organization I can not refrain from asking your Lordships to consider how the subject has been viewed by our brethren in the United States of America. They carried the common law of England along with them, and jurisprudence is the department of human knowledge to which, as pointed out by Burke, they have chiefly devoted themselves, and in which they have chiefly excelled. (Lord Campbell in Regina v. Millis, 10 Clark & Finnelly, 777, decided in 1844.) Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand. (Chief Justice Fuller in Kansas v. Colorado, 185 United States, 125, 146-147, decided in 1902.) Confederations have existed in other countries than America; republics have been seen elsewhere than upon the shores of the New World; the representative system of government has been adopted in several states of Europe; but I am not aware that any nation of the globe has hitherto constituted a judicial power in the same manner as the Americans. (Alexis de Tocqueville, De la Démocratie en Amérique, 2 Vols., 1835, Vol. I, p. 158.) The Supreme Court of the United States, which is the American Federal institution next claiming our attention, is not only a most interesting but a virtually unique creation of the founders of the Constitution. . . The suc cess of this experiment has blinded men to its novelty. There is no exact precedent for it, either in the ancient or in the modern world. (Sir Henry Sumner Maine, Popular Government, 1886, pp. 217–218.) American experience has made it an axiom in political science that no written constitution of government can hope to stand without a paramount and independent tribunal to determine its construction and to enforce its precepts in the last resort. This is the great and foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme Court of the United States. (Edward John Phelps, The United States Supreme Court and the Sovereignty of the People, 1890, Orations and Essays, 1901, pp. 58-59.) The extraordinary scope of judicial power in this country has accustomed us to see the operations of government and questions arising between sovereign states submitted to judges who apply the test of conformity to established principles and rules of conduct embodied in our constitutions. It seems natural and proper to us that the conduct of government affecting substantial rights, and not depending upon questions of policy, should be passed upon by the courts when occasion arises. It is easy, therefore, for Americans to grasp the idea that the same method of settlement should be applied to questions growing out of the conduct of nations and not involving questions of policy. (Elihu Root, Judicial Settlement of International Disputes, 1908, Addresses on International Subjects, 1916, pp. 151–2.) JUDICIAL SETTLEMENT OF CON- OF THE AMERICAN UNION us. CASES DECIDED IN THE SUPREME COURT COLLECTED AND EDITED BY JAMES BROWN SCOTT, A.M., J.U.D., LL.D. America has emerged from her struggle into tranquility and freedom, into affluence IN TWO VOLUMES VOL. I NEW YORK OXFORD UNIVERSITY PRESS AMERICAN BRANCH: 35 WEST 32ND STREET 1918 |
