-

the nations; and they will be sadly disappointed because The Hague Conference of 1907 does not realize their dreams and usher in the parliament of man the federation of the world. But let them take heart. A forward step will be taken; an advance will be made toward the reign of peace and justice and righteousness among men, and that advance will go just so far as the character of the great mass of civilized men permits. There lies the true measure of possibility and the true origin of reforming force. Arbitrations and mediations, treaties and conventions, peace resolutions, declarations of principle, speeches and writings, are as naught unless they truly represent and find a response in the hearts and minds of the multitude of the men who make up the nations of the earth, whose desires and impulses determine the issues of peace and war. The end toward which this assemblage strives the peace of the world — will be attained just as rapidly as the millions of the earth's peoples learn to love peace and abhor war; to love justice and hate wrongdoing; to be considerate in judgment and kindly in feeling toward aliens as toward their own friends and neighbors; and to desire that their own countries shall regard the rights of others rather than be grasping and over-reaching. The path to universal peace is not through reason or intellectual appreciation, but through the development of peace-loving and peace-keeping character among men; and that this development, slow though it be as measured by our short lives, is proceeding with steady and unremitting advance from generation to generation no student of history can question. The greatest benefit of the Peace Conference of 1907 will be, as was that of the Peace Conference of 1899, in the fact of the Conference itself; in its powerful influence molding the characters of men; in the spectacle of all the great powers of the earth meeting in the name of peace, and exalting as worthy of honor and desire, national self-control, and considerate judgment and willingness to do justice.

THE FIRST ANNUAL MEETING OF THE SOCIETY OF INTERNATIONAL LAW.

On the 19th and 20th of April last the American Society of International Law met at Washington for its first annual meeting, which was attended by an unexpectedly large number of the members and the programme, which was published in the last issue of the JOURNAL, was successfully carried out. A number of papers of marked ability and interest were read, and the general discussion of the several subjects presented for consideration, which followed the formal addresses, was of a high order. The addresses and proceedings were reported in full and will be found in the Annual Year Book of the Society, a copy of which when published will be sent to each member.

The sessions closed with a banquet on Saturday evening which was largely attended. The speakers of the evening were Honorable Elihu Root, President of the Society, who presided; Honorable James Bryce, Honorable Richard Olney, and Honorable Horace Porter.

The first annual gathering of the members was notable for the number

of leading professors and practitioners of international law who took part and for the value of the work done, and it had the unusual distinction of having as its presiding officers in succession, the Secretary of State, two former Secretaries of State, and the Secretary of Commerce and Labor. The Society may well be congratulated that in the first year of its organization it has more than justified its existence, and also has established just claims to speak with authority in carrying on the work which it has undertaken.

At its annual business meeting the Society elected two honorary members, both men of distinction and standing in the world of International Law, Professor Thomas Erskine Holland, K. C., D. D., LL. D., and Professor Heinrich Lammasch, the latter on the nomination of the Chief Justice of the United States Supreme Court.

The officers of the Society, elected for the ensuing year, are as follows:

CHANDLER P. ANDERSON, Treasurer.

JAMES BROWN SCOTT, Recording Secretary.

CHARLES HENRY BUTLER, Corresponding Secretary.

THE GROWTH OF INTERNATIONAL LAW UNDER A PERMANENT COURT OF

ARBITRATION.

As stated in the opinion of the United States Supreme Court delivered by Mr. Justice Brewer in the recent case of Kansas v. Colorado, in referring to the jurisdiction of that Court, "International law is no alien to this tribunal"; and the questions decided in that case are of peculiar interest in their relation to the developments of international law under a permanent Court of Arbitration. It will appear from an examination of the opinion in the case, which is quoted at some length among the judicial decisions in this issue, that although the Court took

jurisdiction of the controversy between Kansas and Colorado by virtue of the judicial power conferred upon it under the Constitution, yet in effect it sat as a tribunal of arbitration between two independent sovereignties, and in the decision of the case applied not the statute law of the Federal Government, for it was distinctly held that the matter was beyond congressional jurisdiction, nor the local law of either State, but, in the language of the opinion, "what may not improperly be called interstate common law", which, if established by an international tribunal, would be called the common law of nations.

The question at issue, as stated in the opinion, was

whether Kansas has a right to the continuous flow of the waters of the Arkansas River, as they existed before any human interference therewith, or Colorado the right to appropriate the waters of that stream so as to prevent that continuous flow, or that the amount of the flow is subject to the superior authority and supervisory control of the United States?

On the question of national control it appeared that the navigability of the Arkansas River was not affected, and it was held that the reclamation by irrigation of the arid lands of the States was not one of the enumerated or implied powers of Congress. The argument urged in support of such a power by the Federal Government, which intervened in the case, that there are

legislative powers affecting the nation as a whole which belonged to, although not expressed in the grant of powers,

was disposed of as in direct conflict with the doctrine that this is a government of enumerated powers.

Notwithstanding this lack of federal jurisdiction over the question so far as Congress is concerned, the Supreme Court held that its own jurisdiction extended under the Constitution to the matter in controversy. The opinion points out the significant difference in the grant of powers to the legislative and to the judicial branches of the government, showing that, on the one hand, there is no general grant of legislative power, all legislative powers which are granted being defined, and, on the other hand, that there is no limitation or enumeration of the judicial powers granted and that such grant comprises the entire judicial power of the nation. On this point it is said in the opinion

when the judicial power of the United States was vested in the Supreme and other Courts, all judicial power which the nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution, it must be held to embrace all controversies of a justiciable nature arising within territorial limits of the nation, no matter who may be the parties thereto.

The opinion then proceeds to point out that although each State has full jurisdiction over waters and the beds of streams within its own borders and

may determine for itself whether the common-law rule in respect to riparian rights or that doctrine that obtains in the arid regions of the West of the appropriation of the waters for the purposes of irrigation shall control,

yet neither State can impose its own policy on the other, and Congress cannot enforce either rule on any State. But, as stated in the opinion, it does not follow, however, that because Congress cannot determine the rule which shall control between the two States, or because neither State can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature or that there is no power that can take cognizance of the controversy and determine the relative rights of the two States.

Jurisdiction over the parties and the subject-matter having thus been established, the question of what system or principles of law must be applied in deciding the mutual rights of the parties still remained to be determined. The situation presented is a close parallel, if not identical, with the submission of a controversy by two independent nations to an international arbitration tribunal for settlement. Legislative control being eliminated, the Court was obliged to turn elsewhere for the law to be applied, and after an examination of its international and commonlaw authority and jurisdiction, the opinion asserts the right of the Court to itself determine what law shall be applied and to establish the principles of law governing interstate controversies. Its power to sit as an international tribunal, if necessary, and to ascertain and determine the principles of international law is shown; and it is further shown that a common law between States may be developed, with respect to which, as between individuals, there must be a first statement of each principle. In the language of the Court,

as it does not rest on any statute or other written declaration of a sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions of the Courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely add

certainty.

The fact that this power to determine the justice of interstate disputes had been exercised by the Court in a variety of instances is adverted to, and it is shown that whenever the action of one State

reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States

become a matter of justiciable dispute between them, and this Court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.

The Court then uses the significant language referred to above:

In other words, through successive disputes and decisions, this Court is practically building up what may not improperly be called interstate common law.

In arriving at the principles to be applied in the settlement of this controversy the Court holds that it

is not limited to the simple matter of whether any portion of the waters of the Arkansas is withheld by Colorado,

but must consider the effect of what has been done in each State, and that the dispute must be so adjusted as to secure so far as possible to Colorado the benefits of irrigation without depriving Kansas of the right of the like beneficial effects of a flowing stream. It is recognized nevertheless, that the Court has not authority to make a contract between two States, and that

Colorado could not be upheld in appropriating the entire flow of the Arkansas River, on the ground that it is willing to give and does give to Kansas something else which may be considered of equal value.

The cardinal rule of equality of right between States is adopted and at the same time it is held that each State in its relations to others is to some extent bound by the principles to which it is committed under its own laws. Thus, as Kansas is shown under the decisions of its Courts to recognize the right of appropriating the waters of a stream for the purpose of irrigation, subject to the condition of an equitable division between the riparian proprietors, the Court is of the opinion that

she cannot complain if the same rule is administered between herself and a sister State. And this is especially true when the waters are, except for domestic purposes, practically useful only for the purposes of irrigation.

The underlying principle adopted by the Court as controlling in this case is the right of equitable division of the waters between the States and in applying this principle, the Court sifts out from a mass of evidence, the ascertained and anticipated benefits and detriments throughout the whole course of the Arkansas River resulting from the use of its waters, and finds that in Colorado great benefits are derived from the present uses for the irrigation of arid lands and that in Kansas the diminution of the flow of water on account of the uses for irrigation in Colorado