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faction the significant announcement of the Secretary of State that the proposed constitution of the International Court of Arbitral Justice recommended to the powers in his identic circular note of October 18, 1909, has been received with so much favor as to insure the establishment of such a court in the near future, and it pledges to the President and the Secretary of State the hearty support of the Conference and invokes the cooperation of men of good will everywhere in bringing this beneficent result to pass.

The Conference has further noted with profound interest and satisfaction President Taft's recent declaration in favor of the submission to arbitration of all matters of difference between nations without reservation of questions deemed to affect the national honor, and the Conference expresses the earnest hope that the President and the Senate of the United States will give effect to this wise and far-seeing declaration by entering upon the negotiation of general treaties of arbitration of this character at the earliest practicable moment.

The Conference reaffirms its declaration of last year respecting the portentous growth of the military and naval establishments of the great powers and calls renewed attention to the fact that the rapid development of the instrumentalities of law and justice for the settlement of international differences furnishes to the statesmanship of the civilized world the long-desired opportunity of limiting by agreement the further increase of armaments. The coming celebration of the one hundredth anniversary of the arrangement between Great Britain and the United States definitely limiting the naval force on the Great Lakes and the St. Lawrence to four hundred tons and four eighteen-pounders calls renewed attention to the continued menace to the peace of the world caused by the prevailing conditions and emphasizes the fact, so well expressed by former President Roosevelt in his Christiania address, that with "sincerity of purpose, the great powers of the world should find no insurmountable difficulty in reaching an agreement which would put an end to the present costly and growing extravagance of expenditure on naval armaments."

The unanimous adoption of this platform by a body including men of every shade of opinion respecting the relation of armaments to peace seems strikingly significant of a growing belief that, whatever the possibility of limiting armaments by mutual agreement, it is as a result of the establishment and successful operation of a real international court that such limitation will most naturally and most easily be effected. Coming from so representative an assembly, the platform can hardly fail to be gratifying to the Department of State.

Other official acts of the Conference were a resolution, based on the address of the Dean of Worcester, urging the churches of America to coöperate with those of Great Britain and Germany in fostering international good will; the appointment of a committee "to consider the best method of properly celebrating the completion of one hundred years of peace between the English-speaking peoples of the Western Hemisphere;" and the following self-explanatory resolution:

Resolved, That a Committee of three lawyers, with power to add to their number, be appointed by the Chair, to report to this Conference in 1911, as to the best method of carrying into effect the recommendation of successive Presidents of the United States, that the United States Government be vested with the power to execute through appropriate action in the Federal Courts its treaty obligations, and generally to furnish adequate protection to alien residents in the United States.

The committee appointed under the terms of the last named resolution consists of Elihu Root, Simeon E. Baldwin and George W. Kirchwey. A number of noteworthy addresses were made, among them that of the presiding officer, Nicholas Murray Butler, whose careful analysis of the peace movement and powerful arraignment of the arguments advanced by those who from ignorance, indifference or personal gain, oppose or neglect the movement showed that the peace advocate of today is the truly practical person, and that they are "theorists who, grouping as in a fog, assume that mankind must be forever ruled by brute force and cruelty and lust for power and for gain." William Jennings Bryan's eloquent exposition of the forces that make for peace and his appeal that the United States set an example in checking naval expenditure made a strong impression. The address of the Swiss Minister, dealing with the development or aëronautics, raised some interesting points of international law, while the addresses on the international court of arbitral justice have great permanent value for readers of this Journal. Other points were well brought out in the forceful, clear-cut addresses of Charles W. Eliot, L. S. Rowe, John B. Clark, and the Canadian Minister of Labor.

Next to the dominant judicial note, perhaps the most striking feature of the conference was a spirit of agreement and cooperation, one manifestation of which was the report of a Committee appointed by the Conference last year to consider the establishment of a National Peace Council which shall bring into closer cooperation the different peace and arbitration societies of the United States and direct their work into the most effective channels. The Committee, through their spokesman, George W. Kirchwey, expressed strong hope of definite results in the near future. The success of such a plan would be an achievement of no small importance and would be quite in line with the broad policy that has usually characterized the Mohonk meetings.

1 Consisting of Elihu Root, Andrew Carnegie, Albert K. Smiley, Benjamin F. Trueblood, E. D. Warfield, Lyman Abbott, Edwin D. Mead, George W. Kirchwey, James Brown Scott, and Nicholas Murray Butler.

CONSULAR ADMINISTRATION OF ESTATES OF DECEASED ALIENS.

In the case In re Ghio, the Supreme Court of California has recently rendered a decision in which it is held that an Italian Consul General, entitled by treaty to all of the rights and prerogatives of a consular officer of the Argentine Republic, is not given the right under Article IX of the existing treaty between the United States and the Argentine Republic of July 7, 1853, to administer the estate of a deceased intestate countryman in preference to a local public administrator ciothed with power to administer in such cases by the State law.1

The article in question contains the following provision:

If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the Consul General or Consul of the nation to which the deceased belonged, or the representative of such Consul General or Consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.

The process of reasoning by which the court reaches its conclusion is interesting. It is admitted at the outset that:

The treaty-making power of the Federal Government is so far superior to the law-making power of Congress, that it would authorize the Federal Government to control by treaty the power of the States to confer and limit the right of administration of estates, and the power of the State courts to appoint administrators, so far as the estates of resident citizens of foreign countries are concerned.

Nevertheless, the court later declares that the claim of the consul (the petitioner)

ascribes to the Federal Government the intent, by means of its treaty-making power, to materially abridge the tonomy of the several States, and to interfere with and direct the State tribunals in proceedings affecting private property within their jurisdiction. It is obvious that such intent is not to be lightly imputed to the Federal Government, and that it cannot be allowed to exist except where the language used in a treaty plainly expresses it, or necessarily implies it.

If it be true that the Federal Government may by treaty confer upon a foreign consular officer the right to administer the estate of a deceased countryman, even though Congress lacks the power to do so, the problem whether or not a particular treaty contains such a provision is not to be solved by reference to the effect of its operation upon the local laws of

1 See Judicial Decisions, p. 727.

3

a State. The very language of the Constitution itself announcing the superiority of a treaty shows the fallacy of such a test. The Federal Government has for more than a century been in the habit of concluding treaties constantly affecting the local interests of the several States. The advantages of such agreements have sometimes been questioned; but they have never, in a single instance, been pronounced unconstitutional by the Supreme Court of the United States. No treaty has ever been declared void on the ground that its provisions were in excess of the power lodged in the President and Senate.

There have been several cases where courts have decided that a consular officer possessed the right to administer under the provisions of the Argentine treaty. Save in the case of Re Lobrasciano, a New York decision in 1902, the problem of interpretation has received careless treatment. In that case the court reached the conclusion that the right to intervene in the possession and administration necessarily embraced the right to administer. The court said in part:

It would seem that the only intelligent construction would be that the consul had the right to come between the property and the possession by some one else than himself, with the result that possession must necessarily be landed in him. To intervene in the administration is secondary; he first comes into possession, and then he comes between the administration and the person who might have a right thereto under State law. This is giving to the word "intervene" its ordinary definition, and avoiding its local legal significance. Endeavoring to ascertain the spirit and intention of the language "to intervene in the possession, administration and judicial liquidation of the estate of the deceased," we must have regard for the entire context and we may not select a single word for definition. It must not be viewed, as would a New York statute, from our own local standpoint. It must be borne in mind that there can be but one correct construction of a contract; therefore, as we construe, so must the authorities of Italy; consequently, we must view it from the Italian, as well as our own, standpoint, and from both see what was intended to be accomplished by the use of the words quoted.5

Nowhere has there been a better commentary on the clause in question. Obviously the process of examining the sense in which a single word, such as "intervene," is employed in a standard dictionary is wholly

2 See in Re Lobrasciano's Estate, 77 N. Y. Supp. 1040, 1044.

3 U. S. Constitution, art. VI, sec. 2.

4 See In re Wyman, 191 Mass. 276; In re Fattosini, 67 N. Y. Supp. 1119; In re Lobrasciano, 77 N. Y. Supp. 1040; In re Silvetti, 122 N. Y. Supp. 400; In re Arduino's Estate, 7 Ohio Law Rep., No. 51, p. 369.

577 N. Y. Supp. 1040, 1047.

inadequate as a means of ascertaining the sense in which the parties to a treaty may have used an entire clause. It is reasonable to infer that the contracting parties sought to enable a responsible official of the nationality of a deceased citizen to place himself in control of the assets of the estate. The consul was known to be the natural and proper person to care for such interests. When the Argentine treaty was concluded the practice of civilized nations was to permit consular officers to exercise such rights. This practice was reflected in the views of text-writers. Thus the provisions of the treaty expressed, although in loose form, an acknowledgment or grant of a right which consuls were then supposed to possess.

In the Ghio case the Supreme Court of California is of opinion that the provision that the consular right shall be exercised "conformably with the laws of the country" necessarily precludes consular preference over a local administrator, given by local law a right of appointment; that, in a word, the treaty contemplates that a consular officer shall not have the right to administer when the local laws of a particular commonwealth make contrary provision. If this contention be sound, it follows that the right to administer depends upon the consent of the several States, and that it lies within the power of any one of them to render nugatory what is sought to be given. It is not believed that this inference is to be derived from the language of the treaty. If it had been the intention of the high contracting parties to limit to such degree the right conferred, it is reasonable to assume that the right reserved to the States would have been specified in the agreement."

It is believed that the reference to the local laws in the Argentine treaty refers to procedure rather than to a limitation of the substantial right given; and that it was intended to signify that the consular officer who sought to avail himself of the power given him, should do so in

6 See, for example, communication of Mr. Marcy, Secretary of State, August 21, 1855, to the American Consul General at London; Moore International Law Digest, V, 118.

7 Thus we find, for example, that the Federal Government in the treaty with France of February 23, 1853, was reluctant to agree to permit Frenchmen to acquire and hold real property in the several States of the United States without the consent of such States. Thus the treaty made specific provision in Article VII, that " as to the States of the Union by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right." (See U. S. Treaties in Force, 270.)

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