WRIGHT— LIMITATIONS UPON N'ATIONAL POWERS. 213 



The XII Hague Convention of 1907 proposed an International Prize 

 Court with appellate jurisdiction in prize cases. Doubts as to its 

 constitutionality were felt by Secretary Root, on the grounds of 

 this case, and he instructed the American delegation to the London 

 Naval Conference (designed to codify the law for this court) to 

 propose a supplementary protocol, whereby, instead of subjecting 

 decisions of the United States courts to appeal and possible re- 

 versal in the International Prize Court, a direct claim might be 

 brought there against the United States " in the form of an action 

 in damages for the injury caused by the capture." ^'^^ This sug- 

 gestion was adopted by the Naval Conference in a final protocol^"* 

 and was ultimately incorporated in a protocol signed by all signa- 

 tories of the original Prize Court Convention.^"^ 



" The (American) delegation remarked that for certain states the func- 

 tioning of the International Prize Court is not compatible with that of the 

 Constitution. The decision of national courts cannot be annulled by for- 

 eign decisions in certain countries, such as the United States of America. 

 Recourse to the Prize Court might have that effect of annulling a decision 

 of the Supreme Court of the United States of America, a result incom- 

 patible with their Constitution." ^^^ 



The option permitted by the protocol would eliminate this possibility. 

 It seems probable that the difficulty might have been equally met 

 by domestic legislation providing special courts for the original 

 hearing of Prize Cases. 



'' Congress," said the Supreme Court in the Gordon Case, " may un- 

 doubtedly establish tribunals with special powers to examine testimony and 

 decide, in the first instance, upon the validity and justice of any claim 

 for money against the United States, subject to the supervision and control 

 of Congress, or a head of any of the executive departments." ^"'^ 



The establishment of such special tribunals not exercising the 

 judicial power of the United States would, however, be a cumber- 



i*'3 U. S. For. Rel., 1909, p. 303. 



^^*Ibid., p. 318; Report of U. S. delegates, Ibid., p. 305, and President 

 Taft's message, Dec. 6, 1910, Ibid., 1910, p. viii. 



^f5 Charles, Treaties, p. 263. Neither the Protocol nor the original con- 

 vention has been ratified though ratification was advised by the Senate, Feb. 

 15, iQii- 



106 Proceedings, London Naval Conference, British Par. Pap. Misc. No. 

 5 (1909), p. 222. See American statement. Ibid., p. 216. 



lo'^ Gordon v. U. S., 117 U. S. 697. 



