the Allies that "merchandise hidden in the wrappers, envelopes, or letters, contained in the mail-bags" may be seized.

In the next place, the United States and Allied Governments agree that "genuine correspondence" is inviolable, but the United States does not admit that "belligerents may search other private sea-borne mails for any other purpose than to discover whether they contain articles of enemy ownership carried on belligerent vessels or articles of contraband transmitted under sealed cover as letter mail," except in the case of an effective blockade.

The gist of the complaint of the United States is that the Allied Governments have seized and confiscated mail from vessels in port instead of at sea.

They compel neutral ships without just cause to enter their own ports or they induce shipping lines, through some form of duress, to send their mail ships via British ports, thus acquiring by force or unjustifiable means an illegal jurisdiction. Acting upon this enforced jurisdiction, the authorities remove all mails, genuine correspondence as well as post parcels, take them to London, where every piece, even though of neutral origin and destination, is opened, and critically examined to determine the "sincerity of their character," in accordance with the interpretation given that undefined phrase by the British and French censors. Finally the expurgated remainder is forwarded, frequently after irreparable delay, to its destination. Ships are detained en route to or from the United States or to or from other neutral countries, and mails are held and delayed for several days and, in some cases, for weeks and even months, even though not routed to parts of North Europe via British ports. * The British and French practice amounts to an unwarranted limitation on the use by neutrals of the world's highway for the transmission of correspondence.

It may thus be seen that the difference is one of application or mode of procedure. It is the question as to whether the right of visit and search must continue to be exercised on the high seas; or whether, under the circumstances of changed methods of transportation, of improved modern devices for evading discovery, and of the dangers from submarines, the rules pertaining to the mode of exercising the right of search must not be modified so as to meet present-day conditions. On this point the Allies would seem to have the better of the argument. The attitude of the United States appears to be needlessly obstructive, legalistic, and technical. We stand upon the letter rather than the spirit of our rights. The Memorandum presented by the Allied Governments of France and Great Britain on February 15, 1916, contains one palpable hit:

Between December 31, 1914 and December 31, 1915, the German or AustroHungarian naval authorities destroyed, without previous warning or visitation, 13

mail ships with their mail-bags on board, coming from or going to neutral or Allied countries, without any more concern about the inviolability of the dispatches and correspondence they carried than about the lives of the inoffensive persons aboard the ships.

It has not come to the knowledge of the allied governments that any protest touching postal correspondence was ever addressed to the Imperial Governments.

Is not our Government in this matter straining at a gnat and swallowing a camel?

AMOS S. HERSHEY.

THE CASE OF VIRGINIA v. WEST VIRGINIA

On June 14, 1915, in the case of Virginia v. West Virginia (238 U. S. 202), the Supreme Court of the United States awarded Virginia the sum of $12,393,929.50, to be paid by West Virginia with interest thereon at the rate of five per centum from July 1, 1915, until paid. In this most recent decision of the Supreme Court in this long drawn-out and carefully argued case, decided on June 12, 1916, Virginia petitioned a writ of execution against West Virginia "on the ground that such relief is necessary as the latter has taken no steps whatever to provide for the payment of the decree." West Virginia resisted the petition for three reasons, which are thus stated by Chief Justice White, delivering the opinion of the Supreme Court:

(1) Because the State of West Virginia, within herself, has no power to pay the judgment in question, except through the legislative department of her government, and she should be given an opportunity to accept and abide by the decision of this court, and, in the due and ordinary course, to make provision for its satisfaction, before any steps looking to her compulsion be taken; and to issue an execution at this time would deprive her of such opportunity, because her legislature has not met since the rendition of said judgment, and will not again meet in regular session until the second Wednesday in January, 1917, and the members of that body have not yet been chosen; (2) because presumptively the State of West Virginia has no property subject to execution; and (3) because although the Constitution imposes upon this court the duty, and grants it full power, to consider controversies between States and therefore authority to render the decree in question, yet with the grant of jurisdiction there was conferred no authority whatever to enforce a money judgment against a State if in the exercise of jurisdiction such a judgment was entered.

These objections on the part of West Virginia are of a kind to give the jurist pause, although they do not seem to impress the layman, who believes that a court cannot be a court unless it has power to com

pel the appearance of a State before its bar, and unless it has power to execute its judgments against a State by force. The Supreme Court, however, is not composed of laymen, as its carefully considered and wonderfully brief judgment in this case shows:

Without going further [Chief Justice White says, speaking for the court, after stating the three objections of West Virginia], we are of the opinion that the first ground furnishes adequate reason for not granting the motion at this time.

The prayer for the issue of a writ of execution is therefore denied without prejudice to the renewal of the same after the next session of the legislature of the State of West Virginia has met and had a reasonable opportunity to provide for the payment of the judgment.

The procedure of the Supreme Court in the matter of suits between states is as important as it is interesting, and it is believed that it might be of more than passing interest to note some of the cases of suits between states and the practice and procedure of the Supreme Court in such matters.

Article III, Section 2, of the Constitution extends the judicial power of the United States "to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; * to controversies be

tween two or more States," and the Supreme Court is vested with original jurisdiction in cases "in which a State shall be a party." The Supreme Court has, therefore, jurisdiction of a case by a State against another State of the American Union, but as a court it can merely take jurisdiction of a case involving law or equity. It naturally and necessarily follows that the court must determine whether the case presented to it is one involving law or equity; that is to say, the Supreme Court is obliged to determine upon the threshhold whether or not the case is justiciable.

The right of a court so to do seems to be inherent and to be equally well settled in international as in national law. Thus, Lord Loughborough held that the Mixed Commission, organized under Article 7 of the Jay Treaty, must determine its jurisdiction, stating "that the doubt respecting the authority of the commissioners to settle their own jurisdiction was absurd; and that they must necessarily decide upon cases being within, or without, their competency." (Moore's International Abitrations, Vol. I, p. 327.) The question arose and was elaborately considered in the case of Rhode Island v. Massachusetts (12 Peters 657), decided in 1838, in which Massachusetts objected to the

jurisdiction of the court on the ground that the question (one of boundary) involved sovereignty, which was a political, not a judicial, question. In delivering the judgment of the court, Mr. Justice Baldwin said:

Before we can proceed in this cause, we must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two States of this Union, sovereign within their respective boundaries, save that portion of power which they have granted to the federal government, and foreign to each other for all but federal purposes.

*

Those States * adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more States. By the Constitution, it was ordained, that this judicial power, in cases where a State was a party, should be exercised by this court as one of original jurisdiction. The States waived their exemption from judicial power (6 Wheat. 378, 380), as sovereigns by original and inherent right, by their own grant of its exercise over themselves in such cases, but which they would not grant to any inferior tribunal. By this grant, this court has acquired jurisdiction over the parties in this cause, by their own consent and delegated authority; as their agent for executing the judicial power of the United States in the cases specified.

As to the distinction between a political and a judicial question, Mr. Justice Baldwin, speaking for the court, said:

The founders of our government could not but know, what has ever been, and is, familiar to every statesman and jurist, that all controversies between nations, are, in this sense, political and not judicial, as none but the sovereign can settle them. In the Declaration of Independence, the States assumed their equal station among the Powers of the earth, and asserted that they could of right do, what other independent states could do, "declare war, make peace, contract alliances," of consequence, to settle their controversies with a foreign Power, or among themselves, which no State, and no Power, could do for them. They did contract an alliance with France, in 1778; and with each other, in 1781; the object of both was to defend and secure their asserted rights as states; but they surrendered to Congress, and its appointed court, the right and power of settling their mutual controversies; thus ́ making them judicial questions, whether they arose on "boundary, jurisdiction or any other cause whatever." There is neither the authority of law or reason for the position, that boundary between nations or states, is, in its nature, any more a political question, than any other subject on which they may contend. None can be settled without war or treaty, which is by political power; but under the old and new confederacy, they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before. We are thus pointed to the true boundary line between political and judicial power and questions. A sovereign decides by his own will, which is the supreme law within his own boundary (6 Pet. 714; 9 Ibid. 748;) a court or judge decides according to the law prescribed by the sovereign power, and that law is the rule for judgment. The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power

to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.

*

These considerations lead to the definition of political and judicial power and questions; the former is that which a sovereign or state exerts by his or its own authority, as reprisal and confiscation (3 Ves. 429); the latter is that which is granted to a court or judicial tribunal. So, of controversies between states; they are in their nature political, when the sovereign or state reserves to itself the right of deciding of it; makes it "the subject of a treaty, to be settled as between states independent," or "the foundation of representations from state to state." This is political equity, to be adjudged by the parties themselves, as contradistinguished from judicial equity, administered by a court of justice, decreeing the equum et bonum of the case, let who or what be the parties before them. (Rhode Island v. Massachusetts, 12 Pet. 657, 720, 736-738.)

It thus appears from this that the Supreme Court of the United States, invested by the Constitution with original jurisdiction in suits between States of the Union, passes upon and determines its competency, and in so doing necessarily decides whether the particular question submitted to it is properly within its jurisdiction; that is to say, whether it is justiciable, in the sense that it involves law or equity.

If the States in controversy accept the jurisdiction of the court and appear by counsel, the case takes the usual course, resulting in a judgment for plaintiff or defendant. The question, however, early arose, how the defendant State should be summoned before the court, whether its presence could be compelled or whether, in its absence, the plaintiff could present his case ex parte and judgment be rendered by default.

In the case of New Jersey v. New York (3 Peters 461), decided by the Supreme Court in 1830, the State of New York did not appear and the State of New Jersey asked for a subpoena to be issued against New York to appear by counsel and argue the question. Chief Justice Marshall, delivering the opinion of the court, said:

As no one appears to argue the motion on the part of the State of New York, and the precedent for granting the process has been established upon very grave and solemn argument, in the case of Chisholm v. State of Georgia, 2 Dall. 419, and Grayson v. State of Virginia, 3 Ibid., 320, the court do not think it proper to require an ex parte argument in favor of their authority to grant the subpana, but will follow the precedent heretofore established. The court are the more disposed to adopt this