xiv MINUTES. 



performance of which not only involved the exercise of care, dis- 

 crimination and judgment, but, because of the number and compre- 

 hensiveness of the essays submitted, was also exceptionally laborious. 



Considering the manner in which the Comm.ittee on Award has 

 discharged its functions, I perhaps might be justified in regarding 

 my present duty as ended. But in expressing to the author my own 

 congratulations on his work and its results, I venture, as one who 

 has been somewhat connected with the study and management of 

 foreign relations, to advert to certain questions which profoundly 

 affect the character of our government and our conduct as a nation, 

 and whose importance transcends the bounds of individual opinion. 



One of these questions relates to the extent to which what Dicey 

 calls " constitutional understandings " are applicable to the deter- 

 mination of powers or of the exercise of powers under the American 

 constitutional system. It has always seemed to me that so-called 

 constitutional understandings are logically much more of the essence 

 of things under the British system than under the American system. 

 The difference may be likened to that which, in estimating the law- 

 making force and effect of judicial precedents, exists between judi- 

 cial decisions under the English common law and judicial decisions 

 in countries whose law is fundamentally incorporated in codes which 

 judicial decisions merely profess to interpret. My own investiga- 

 tions have led me to the conclusion that the weight attached to 

 judicial interpretations in code countries is greater than is commonly 

 supposed in England and the United States, while England and the 

 United States give less effect to judicial decisions as law-making and 

 law-fixing deliverances than even these two countries themselves 

 generally suppose. Nevertheless, there is a clear logical distinction 

 and also a clear practical difference between the law-determining 

 effect of judicial decisions in the one class of countries and in the 

 other. 



Another question of vast importance in the United States is that 

 of the extent to which treaties may be exposed to the objection of 

 invalidity because they may be thought to conflict with the federal 

 constitution. As no court, in spite of various disturbing dicta as to 

 what conceivably might be done, has as yet actually held a treaty 



