and in charge of General Bright commanding a brigade of militia. The Marshal summoned a posse comitatus of two thousand men, but delayed further action that there might be time for reflection. The Governor appealed to President Madison to interfere, who firmly refused. The State authorities gave way, the writ was served, and the money paid over. General Bright and his men were indicted, tried, convicted, and sentenced in the United States Circuit Court. The difficulty arose in the early history of the Court and was occasioned by a conviction that the Federal Courts were without jurisdiction because of the Eleventh Amendment.

The experience of the Supreme Court in enforcing its decrees without a resort to force affords encouragement to believe that the judgments of the Court of Arbitral Justice will be in like manner respected by any nation which submits a controversy for its adjudication. It is true that the Supreme Court has behind it the strength of the nation, and that no State is at all likely to measure its strength against that of the United States. On the other hand, no nation is to be compelled to submit its differences to the Arbitral Court and if it comes into the court with any particular question, it does so of its free will and accord. It can

not be supposed that having voluntarily taken that step it will decline to abide by the judgment pronounced. It could not do so without covering itself with dishonor before the nations of the world.

Difficulty there had been some years earlier over a decision rendered by the court, in Chisholm v. Georgia, 2 Dallas, 419. In 1792 the Supreme Court issued a writ against the State of Georgia at the suit of Chisholm, a citizen of South Carolina, who sought payment of a private claim. The writ was returned duly served upon the Governor and Attorney-General. The State made no appearance and judgment was rendered by default. In the meanwhile the legislature of Georgia passed resolutions denying the obligation of the State either to answer the process or to obey the judgment of the court. Later, after judgment was actually rendered, the legislature announced the penalty of death against anyone who presumed to enforce the process within the State of Georgia. In this case there was no resistance to the Marshal. The collision was only threatened. It never came. The plaintiff delayed proceedings, awaiting action on the Eleventh Amendment which had already been proposed and soon was ratified by the States. Thereupon the Supreme Court renounced jurisdic

tion "in any case past or future" in which a State was served by a citizen of another State, and the matter ended.

The organic act proposed by the Conference is defective in that it does not determine the number of the judges or the manner in which they are to be appointed. Upon these matters, the Conference could come to no agreement, and it was left open, the understanding being that some conclusion might be reached through subsequent negotiations.

The Brazilian plan, that each nation invited to The Hague should have the right to name one of the judges, would result, in case it were adopted, in making the Court unwieldy. As Mr. Scott pointed out in his address at The Hague, forty-six judges form a judicial assembly, not a court. The Supreme Court of the United States only consists of nine members. The English Supreme Court of Judicature consists of thirty-three judges, but it is divided into a High Court of Justice and a Court of Appeal. In the Court of Appeal there are nine judges. The High Court of Justice is divided into three divisions. In the King's Bench division there are eighteen judges, in the Chancery division fifteen, and in the Probate division and Admiralty division, only two. The suggestion that a Court of fifteen judges is large enough is sound. The convention establishing the International Prize Court fixed the number of judges at fifteen, and provided that nine should constitute a quorum. Is there any good reason why the same provision should not be incorporated into the convention respecting the Arbitral Court?

Mr. Choate addressed the Conference on two different occasions concerning the selection of the judges. He submitted ten different propositions and urged, with all the earnestness of which he was capable, the adoption of some one of them, even though it should be accepted simply as a provisional scheme. One proposals was for a court of seventeen judges and that eight of the larger nations having a more numerous population and larger commercial and industrial interests, and therefore confronted with more frequent controversies, should have a constant representation in the court, while the smaller nations were each to have representation for a longer or shorter period by a system of rotation. Another proposal was for the Conference to determine by vote a definite number of nations who should each be authorized to appoint a judge for the full term of the court. Still another proposal was that the Conference should elect a prescribed number of judges, each nation having an equal voice and

casting one vote. The last of his proposals was that each signatory power should propose a judge and an assistant and that the list thus made should be submitted to each signatory power, and that every power voting at the same time should choose from this list, each nation voting for fifteen judges and fifteen assistants, and the fifteen judges and the fifteen asistants who received the greatest number of votes should be declared elected.

M. de Martens submitted a plan which was that each country designate an elector taken from the list of members of the Permanent Court and that these forty-five electors should in their turn choose fifteen judges, who should constitute the court.

Mr. Choate was ready to adopt any one of the ten plans, but the Conference could agree upon none of them.

Article XV respecting the Prize Court is as follows:

"The judges appointed by the following contracting powers: Germany, the United States of America, Austria-Hungary, France, Great Britain, Italy, Japan and Russia, are always summoned to sit. The judges and deputy judges appointed by the other contracting powers sit by vote, as shown in the table annexed to the present convention, and their duties may be performed successively by the same person. The same judge may be appointed by several of the said powers."

It is difficult to understand why such a provision could be adopted as respects the Court of Prize, but could not be accepted as respects the Arbitral Court.

It would seem, too, that it should be entirely practicable to agree upon some uniform principle concerning the method by which a government entitled to appoint a judge to membership in the court should make the appointment. While the differences in the methods of governments make it impossible to agree upon a uniform mode of appointment, they should not make it impossible to reach an agreement upon a uniform principle. It ought to be possible to agree that each government entitled to appoint a judge should make the appointment in the same manner it appoints the judges in its own courts of last resort. A judge selected by the United States should be nominated by the President and confirmed by the Senate. In England the appointment would be by the Crown acting on the advice of the Prime Minister, who generally would be governed by the advice of the Lord Chancellor. In France the appointment would be made by the President, acting on the advice of the Minister of Justice. In Germany it would be made through the Federal Council and the Emperor.

The International Court should be a world court, the court of all the nations. The existence of such a Court ought to appeal especially to the small nations, because it would secure to them that protection against more powerful states which their own. strength could not afford. Before such a court all states would be equal. "It is only," as James Brown Scott well said, "when we leave the realm of law and face brute force that inequality appears. It is only when the sword is thrown upon the scales of justice that the balance tips."

But if the small and the great states cannot agree upon the choice of the judges of a world court, the failure to reach an understanding upon this essential point should not long deter the United States, England, Germany and the other great powers from coming to an agreement and establishing the court and putting it into immediate operation with the understanding that the other states would be admitted from time to time as soon as they could agree to accept the scheme as finally adopted.

In an important particular, I find myself unable entirely to agree with the organic act as submitted by the Conference. Under that act the court not only has jurisdiction to decide questions of law, but it is also given concurrent jurisdiction with the Permanent Court of 1899 over questions other than those of a judicial nature, and which may be submitted by way of arbitration. It

is also provided that a delegation of three judges is competent to settle the compromis referred to in Article 52 of the convention for the pacific settlement of international disputes, and that it may do so in certain cases when the request is made only by one of the parties concerned. I have found it impossible to rid myself of the conviction that it would be better if the court could be restricted exclusively to questions of a judicial nature, and that all other questions should be left to the Permanent Court of 1899. I would prefer a court, like the Supreme Court of the United States, which shall decide purely legal questions on the basis of respect for law. All through its history our Supreme Court has endeavored to confine the exercise of its powers strictly to matters of a judicial character. The wisdom of its course has been amply justified. It would seem that there would also be some considerable advantage if the International Prize Court and the Court of Arbitral Justice should be merged in a single tribunal. It is difficult to see adequate reason for keeping them distinct. To unite them would increase the dignity of the Court.

Henry Wade Rogers.

LIFE INSURANCE-SUICIDE AND EXECUTION FOR CRIME

In the December number of the YALE LAW JOURNAL,' I find a very interesting discussion, involving an important question which has evoked a variety of judicial opinion in this country and in England. The question may be thus stated: What effect is produced upon the policy of life insurance by the suicide of the insured, or by his legal execution, in those cases where the policy has been taken out in good faith, and where suicide and execution are not expressly named in the policy as exceptions to the insurer's liability?

I agree with the YALE LAW JOURNAL. that suicide and execution for murder, in this connection, may conveniently be put upon the same plane, and also that, in pursuing our investigation, we must take into account two different kinds of policies. Of these, the one class includes cases where the insured, who has taken out the policy and who pays the premiums, is also designated in the policy as beneficiary. The payee clause of such a policy usually states that the insurance money is payable to the insured, "his executors, administrators or assigns". This kind of insurance is the property of the insured, subject to claims of his creditors, subject to his own power of disposal except as limited by law or by the contract itself, and, if undisposed of by the insured, the proceeds of the insurance, upon his death, become a part of his estate as truly as any other kind of property which he may own at the time of his decease.

The other class includes those many cases where, as beneficiary in the policy, appears the designation of some third person or persons, usually wife or children or both, and where, either by rule of law or by provision of the contract, this appointment of beneficiary, so far as the insured is concerned, is final and irrevocable.

Here we have a very different situation from that presented in connection with the policies first described. Here, though he may be entitled to retain possession of the instrument, the policy cannot fairly be said to belong to the insured. Its valid continuance, indeed, may depend upon the continued payment of pre

22 YALE LAW JOURNAL, pp. 158-162, citing the author's treatise on Insurance.-Ed.

2 Central Nat. Bank v. Hume (1888), 128 U. S., 195, 9 Sup. Ct. 41, 32 L. Ed., 370.