e agent of the States. In the words
of Chancellor Kent: "The better opinion would seem to be, that such a
power of cession of the territory of a State without its consent does
reside exclusively in the treaty-making power, under the Constitution of
the United States, yet sound discretion would forbid the exercise of it
without the consent of the local government who are interested, except
in cases of great necessity, in which the consent might be presumed." 1
Comm. 166-167 and note. This seems also to have been substantially the
view of Marshall and Story. _See_ Willoughby, On the Constitution, I (2d
ed., 1929), 575-576. The second suggested limitation, which was urged at
tremendous length by Chief Justice White in his concurring opinion for
himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244,
310-344 (1901), boils down simply to the question of correct
constitutional procedure for the effectuation of a treaty; and much the
same may be said of the third alleged limitation. This limitation was
first suggested in connection with the Hague Convention of 1907
providing for an International Prize Court as a result of appeal from
the prize courts of belligerents. To this arrangement President Taft
objected that the treaty-making power could not transfer to a tribunal
not known to the Constitution part of the "judicial power of the United
States," and upon this view of the matter dispensation was finally
granted the United States in a special protocol whereby this nation was
allowed, in lieu of granting appeals from its prize courts to the
International Court, to be mulcted in damages in the latter for
erroneous decisions in the former. It is submitted that President Taft's
position was fallacious, for the simple reason that not even the whole
American nation is entitled to judge finally of its rights or of those
of its citizens under the law which binds all nations and determines
their rights; and that, therefore, the whole American nation never had
any authority to create a judicial power vested with any such
jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S.
580, 598 (1884). The law of nations seems of itself to presuppose a
tribunal of nations with coextensive jurisdiction. Thus there is no
reason why a completely independent nation like the United States may
not consent to be bound by the decisions of such a tribunal without any
derogation from its rightful sovereignty. And if "the autho