This brings him on page 202 to the main thesis of his book, namely, that "modern war is, if not a judicial procedure, at least a quasi-procedure.' He labors to prove this thesis by reference to the objects of recent wars, the procedure of ultimatums, etc., which accompany their commencement, the appeal to public opinion (as to seconds in a duel), the emergence of neutral rights and duties, the laws of warfare, and the ending of war by negotiations (to which neutrals are admitted, and the original question is returned to the diplomats at the point where they lost control of it). Our author in supporting this thesis admits that the laws of warfare were violated during the recent war, but claims that this was due to lack of sanction and not to the defects of the laws themselves. He also admits that at peace negotiations two equal sovereign Powers do not meet each other, but that victor and vanquished face each other; hence he uses the attenuated term "quasi procedure" as an alternative to judicial procedure. There is evidently great value in this word "quasi"; it is evidently his equivalent for the familiar "more or less." And in his eagerness to prove his thesis our author gives the impression of standing by his theory and disregarding the facts which contradict it. Even the atrocities committed in Belgium (most of which he regards as punitive, that is, judicial), he argues are themselves an evidence of law, namely, the law of a speedy and complete victory, and one of which the Germans in their Kriegsbrauch im Landkriege, 1902, had even given fair warning in advance as to what their enemy should expect. Upon this basis he states his conclusion: Let us develop this law of war, and supply it with sanctions until it has diminished war, just as municipal law has reduced crime.

Looking toward the future, he believes that all peace efforts henceforth should be directed toward this conversion of war into law and should follow the lines laid down by the peace congresses of Rome and Budapest in 1891 and 1896, and the principles stated by such men as Asquith, Balfour and Wilson during the World War. As for the pacifists, he believes that they will be tomorrow what they were yesterday, that is, unanimous on the great principles, but divided into irreconcilable factions on the application of these principles. Especially he believes that there will be among the pacifists the two camps of non-resistants, the opponents of all war, and the "legitimate defenders," the apologists for wars of defense. In his effort to distinguish more clearly between these two groups, he rings the changes upon such terms as "pacifistes," "jurispacistes," "l'Internationale du Droit," etc.

To the reviewer of this book, its author appears to have erred in two respects: first, in regarding war, not as the suspension or the denial of law, but as itself a law; and, second, in regarding the vital question of pacifism in the future as between non-resistants and a police force: whereas the vital question appears to be, whether the society of nations will attempt to base a durable peace upon the coercion of communities by military and

economic force, or upon the organization and exclusive application of the forces other than military and economic which are already within its grasp.

WM. I. HULL.

The United States of America: A Study in International Organization. By James Brown Scott. New York: Oxford University Press, American Branch. 1920. pp. xx, 605.

No person has been more indefatigable than has Dr. Scott in urging forward the project of a permanent court of international justice, nor more controlled by the conviction that the constitutional system of the United States furnishes a prototype of a feasible form of union between the independent States of the world, and that the decisions of the American judiciary provide at once a basis for the jurisprudence of an international court, if and when established, and a demonstration that such a tribunal may with safety and profit be established by the nations of the world. In a recent issue of this JOURNAL (October, 1920), the reviewer published a notice of the two volumes, edited by Dr. Scott, giving the texts of opinions rendered by the Supreme Court of the United States in cases in which controversies between the States of the American Union have been adjusted, and of a third volume in which Dr. Scott analyzed these cases and opinions. In addition, in collaboration with Mr. Gaillard Hunt, Dr. Scott has issued, through the Carnegie Endowment, an edition of James Madison's Notes of Debates in the Federal Convention of 1787, and, in a separate volume, an analysis, by himself, of these Notes. We now have another treatise, issued in the same sumptuous form by the Carnegie Endowment for International Peace, in which Dr. Scott has surveyed the steps leading up to the establishment in 1789 of "a more perfect Union" than that provided by the Articles of Confederation, and has considered with especial care the jurisdiction vested in the judicial department of this more perfect Union.

Preliminary chapters deal with the idea of union of the colonies as it found expression, prior to the Revolutionary War, in the plans of Penn and Franklin; with the movement for independence from Great Britain; with the confederation of the sovereign States, as they had become after their several ties to the mother country had been broken; with the historical precedents-the colonial charters, the rise of representative institutions, the settlement of boundary disputes between the colonies, the character of the constitutions which the thirteen States had adopted for themselves which, in 1787, furnished pragmatic material for the guidance of the framers of the new federal Constitution. The work of the Federal Convention is then carefully analyzed in order to show the nature of the

problem that had to be met, the various alternatives that were offered, and the results finally reached. At every point, the feature that is emphasized is the working out of the problem of obtaining the harmonious coöperation, through law, of independent or quasi-independent States. The Federal Convention is designated as "An International Conference," and the American constitutional system as a "federal" rather than as a "national" union.

Dr. Scott does not slight the functions of the federal executive and the Congress, but his chief concern is evidently with the judiciary, and, of course, particularly with the Supreme Court. The historical origins of this tribunal and of its jurisdiction are carefully traced, the article by J. C. Bancroft Davis on "Federal Courts Prior to the Constitution" and Professor J. F. Jameson's study, "The Precedents of the Supreme Court," being paraphrased for this purpose. The chapter dealing with the establishment of the Supreme Court is entitled "Prototype of a Court of International Justice." After quoting Madison's Notes of the debate in which it was decided by the convention that the Supreme Court should have jurisdiction of controversies between the States, Dr. Scott says:

"We are indeed fortunate to have even this brief account of one of the silent revolutions in the thought and therefore in the practice of mankind, for, with the lessons of history before them and with no exact precedent for their action, the members of the convention recognized that the submission of a dispute between nations to a judicial tribunal makes of it a judicial question, and therefore a proper subject of judicial power, as pointed out by the agent of their creation in the controversy between Rhode Island and Massachusetts decided in 1838."

The chapter closes with the following statement, which deserves quotation in full:

It is obvious that the Society of Nations will be confronted with problems similar to if not identical with the problems which faced the framers of the American Constitution when they set about to create a Supreme Court of the Union which they were rendering more perfect. The Convention creating the closer union of the Society, like the Constitution creating the more perfect union of American States, will need to be interpreted, and the experience of the United States shows that this can best be done by a permanent court of the union.

General conventions or special treaties to which States of the Society of Nations are parties, will need to be interpreted; but, here again, the experience of the American Union, with its tribunal, should be enlightening.

A court of the Society will necessarily be a court of limited jurisdiction; but, with the growth of confidence in that tribunal, its jurisdiction will be enlarged in the way pointed out by the Supreme Court itself; that is to say, by an agreement to submit to the tribunal questions hitherto considered political, questions which, by the very act of submission, become judicial.

Gradually, as the result of experience, the usefulness of the court will be thus enhanced. The possibility of the substitution of law for physical force may dawn upon the statesmen of the modern world just as it dawned upon the framers of the American Union, and the conduct of nations, like the conduct of States of the American Union, be guided and eventually controlled by the principles of justice.

Coercion there must be, for nations, as shown by experience, are even less inclined than individuals to brook control; but the choice is, and it is believed the choice must always be, either for the coercion of law, or for the coercion of arms.

Space will not permit consideration of the chapters of Mr. Scott's book which deal in detail with the nature of judicial power, and the extent of the jurisdiction of the Supreme Court. In these chapters particular attention is, of course, devoted to the power of the court to adjudicate in suits between the States of the Union and in those in which the United States is a party. Again is emphasized, as was emphasized by Dr. Scott in his Judicial Settlement of Controversies between States of the American Union, that, though the Supreme Court decides for itself whether it has jurisdiction of a case brought before it, it has not sought to overstep the limits of its jurisdiction as constitutionally fixed. Hence, arguendo, the same result may be expected of an international court of justice for all nations, should it be established. Dr. Scott does not, however, find it necessary to point out the extent to which the immunity from suit at the instance of private individuals, as guaranteed by the Eleventh Amendment to the Constitution, has been whittled away by court, nor does he find it necessary to dwell upon the doctrines declared in the suit of Virginia against West Virginia.

The volume is well indexed, and, as appendices, the texts of some twenty of the most important source documents are given.

In concluding this notice, the reviewer must admit that the question has arisen in his mind whether Dr. Scott would not have better achieved his purpose if, instead of giving us a very large volume, much of it rehearsing very well known and readily available facts, he had supplied his readers with a critical essay, which could have easily been brought within the compass of a hundred pages, in which would be argued the lessons which the American federal experiment has to teach the world with regard to the maintenance, through law, of international peace and coöperation. W. W. WILLOUGHBY.

The American Supreme Court as an International Tribunal. By Herbert A. Smith, M.A., of the Inner Temple; Professor of Jurisprudence and Common Law, McGill University. New York: Oxford University Press. 1920. pp. viii, 123.

This treatise begins with the affirmation (p. iii) that "whatever form the League of Nations may ultimately take, it must contain some provisions for the settlement by judicial means of justiciable disputes between members of the League." This proposition can hardly be held to have been maintained by the reasons which the author proceeds to bring forward. A League of Nations may, but not must, offer a mode of dealing judicially with any justiciable question arising between sovereign states. States

may form a League of Nations with power to settle some kinds of disputes between them, but not all.

The Supreme Court of the United States is regarded by the author as the "only permanent court, as distinguished from occasional arbitration commissions, which has hitherto attempted in any degree to discharge the functions of a true international tribunal" (p. iii).

He does not write primarily for lawyers, but for the general public. In treating his subject he has the advantages and disadvantages of a foreigner, namely, a certain breadth of view, and, on the other hand, a less intimate knowledge of American legal history. Thus, he quotes what he describes as "Marshall's phrase" to prove that "the American Constitution" was designed to be "a government of laws and not of men," whereas the expression appears in the Constitution of Massachusetts, and was put there by John Adams, following the thought of Harrington (p. 32). So, also, Professor Smith ignores the closing words of the Tenth Amendment of the Constitution of the United States by declaring that "the Federal Government in all its powers is theoretically only an agent enjoying such limited powers as have been delegated to it by the joint authority of the sovereign and independent States" (p. 1). In commenting upon the doctrine of the Dred Scott case, he says that the decision could not be overruled except by a constitutional amendment (p. 51). It could, however, be reconsidered by the court, should it be convinced that it was erroneous. The court does not, as does the British House of Lords, claim to be infallible.

How far has the Supreme Court of the United States dealt with international disputes in the character of an international tribunal? Professor Smith applauds its course in this respect. It has moved steadily but slowly.

It does not feel that it is entitled to consider what may be called the diplomatic or political aspects of any controversy. Nor under the American Constitution would any other than the strictly legal method be possible (p. 57).... The fact that the English Common Law is the foundation of American jurisprudence has supplied the Court with a coherent body of doctrine which enables it to render a series of judg ments resting upon a uniform basis of principle. These principles must be carefully borne in mind when it is desired to create a Court of the Nations with functions in any way resembling those of the Supreme Court of the United States. If we are to establish any kind of permanent tribunal, as distinguished from occasional arbitration commission, we must provide it, in outline, at least, with a consistent body of rules upon which to work (pp. 57, 58).

National boundaries are not always fixed by history, nor readily determinable by courts.

In the present year (1919) the civilized world is busily engaged in breaking up arrangements which have centuries of established title to support them. The fact that an injustice has lasted a long time is an insufficient reason for deciding that it must continue forever. It is not within the province of this essay to lay down rules