government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States and the Hague Convention aright, such would be the only course permissible by those instruments.”

66

65

It may be observed that since the President has power under the Constitution to settle claims of the United States against foreign countries he unquestionably had power to submit the Pious Fund claim to arbitration aside from the Hague Convention or from the arbitration provision of the Mexican treaty of 1848 in force in 1903. Thus claims against Venezuela were submitted to the Hague Tribunal in 1903 and 1909 by executive protocols.67 The North Atlantic Fisheries arbitration with Great Britain, the remaining Hague Case to which the United States has been a party, was, however, submitted by a treaty,es though in this case treaty submission had been expressly required by the general arbitration treaty with Great Britain of 1908,69 and the United States had made express reservation to the Hague Convention of 1907 requiring that submission to the Hague Court be by "general or special treaties of arbitration."

99 70

The same question was raised with reference to the proposed Hay arbitration treaties of 1905, providing for arbitration of “differences" of a "legal nature" which do not affect the "vital interests, the independence or the honor of the two contracting states and do not concern the interests of third parties." These treaties required conclusion of a "special agreement" defining the matter in dispute, the powers of the arbitrators and the procedure. The Senate was willing to consent only if the word "treaty" was substituted for "agreement" and President Roosevelt refused to submit the treaties thus amended thinking that a general arbitration treaty was valueless if each specific submission required conclusion

70 Ibid., p. 2247. See also Scott, ed., Reports of the Hague Conferences, pp. xxvii, 903.

99 71

of a "special treaty." In 1908, however, Secretary Root concluded many treaties substantially of the form of the Hay treaties. with the Senate amendment.72

Aside from the question of policy, it seems that the Hay treaties in their original form would not amount to an unconstitutional delegation of legislative power.73 They merely authorize the President to carry out the policy of arbitrating certain classes of disputes laid down by the general treaty and are well within the decision of Field v. Clark.74

63. Treaty Delegation of Power to International Organs.

Where treaties have delegated power to international bodies, constitutional questions have often been raised. The courts have sustained treaties submitting claims, boundary questions, etc., to international arbitration courts and have held that the decision. of such a court is of the same legal weight in the United States as the treaty itself. Thus after the Bering Sea Arbitration Tribunal had held that American jurisdiction in Bering Sea terminated at the three mile limit, the United States Circuit Court of Appeals refused to apply the acts of Congress for protecting the seal herds, to vessels engaged in sealing beyond that limit.75

Where, however, treaties have provided for an international commission or court which shall decide whether or not a particular dispute is of a justiciable character as defined by the general treaty, doubt has been expressed in the Senate. The proposed international Prize Court Convention of 1907 with its attached protocol of 1910 provided that claims against the United States for defined types of prize decisions might be brought in the international Prize Court by private individuals, and the court would itself decide whether the case was within the described classes i.e., 71 Willoughby, op. cit., pp. 473-475; Taft, The United States and Peace, 1914, p. 95; Sutherland, op. cit., p. 129.

72 As example see British treaty, Malloy, Treaties, p. 814.

73 Crandall, op. cit., p. 120; Willoughby, op. cit., p. 475; Taft, The United States and Peace, p. 95; Moore, Pol. Sci. Quarterly, 20: 403.

74 Field v. Clark, 143 U. S. 649 (1892).

75 U. S. v. La Ninfa, 75 Fed. 513.

whether it had jurisdiction. This treaty and protocol, although never operative, were consented to by the Senate in 1911.78

In 1911 President Taft negotiated arbitration treaties with Great Britain and France providing for the arbitration of defined classes of cases and for decision by an international joint high commission upon the question of whether a specific dispute was within these classes." The Senate Foreign Relations Committee reported adversely on the latter provision: 78

"This recommendation is made because there can be no question that, through the machinery of the joint commission, as provided in Articles II and III and with the last clause of Article III included, the Senate is deprived of its constituent power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission, powers which, under the Constitution, devolve upon the Senate. . . . To vest in an outside commission the power to say finally what the treaty means by its very general and indefinite language is to vest in that commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making."

The delegation of power here objected to was of the same sort as that to which exception had been taken in the Hay treaties of 1905. In the one case, however, delegation was to the Pres

76 Charles, Treaties, p. 262. A constitutional objection of a different kind connected with this convention is considered, infra, sec. 64. The Hague Convention of 1907 provided in article 53 that the Permanent Court might arrange the compromis on application of one party where the dispute is "covered by a general treaty of arbitration concluded or renewed after the present convention has come into force," specifying subjects for compulsory arbitration; and where the dispute arises from contract debts due by one power to the nationals of another. (Malloy, Treaties, p. 2238.) The Senate consented to ratification of the treaty with a reservation to this article asserting that the United States "excludes from the competence of the permanent court the power to frame the 'compromis' required by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the 'compromis' required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise." (Ibid., p. 2248, and Scott, ed., Reports of the Hague Conferences, introduction, p. xxvii.)

77 These treaties though never ratified are printed in Charles, Treaties, pp. 380-389.

78 62d Cong., 1st sess., S. Doc. 98, p. 6; Cong. Rec., 47: 3935.

ident, in the other to an international commission.79 Neither case seems to involve a delegation of legislative power, but rather of judicial power, to interpret the treaty. The minority report of the Senate Committee signed by Senators Root and Cullom pointed out that the majority view could "not be maintained except on the theory that all general treaties of arbitration" involve a like unconstitutional delegation of power, the only difference being that the treaties under consideration submitted "certain described classes" of cases to arbitration, instead of particular cases. The decision of the joint high commission on what questions are justiciable “is not delegating to a commission power to say what shall be arbitrated; it is merely empowering the commission to find whether the particular case is one that the United States have said. shall be arbitrated." 80 President Taft, Senator Sutherland, J. B. Moore, and other constitutional authorities have endorsed this opinion.81

A logical carrying out of the majority theory would seem to deny any power to conclude treaties in good faith, for all treaties require interpretation, and to say that the interpretations must always be according to the will of the existing treaty-making power of the United States, however that may differ from the intent of the original negotiators, is virtually to substitute political expediency for treaty obligation. Good faith would seem to require that the true intent of the instrument govern its application through its entire life, and it is hard to see where a more impartial determination of what this intent was could be obtained than in an international 79 It may be noticed that the Taft treaties accepted the point upon which the Senate had insisted in 1905 and required that the "compromis" submitting each case be a treaty consented to by the Senate, even after the Joint High Commission had given its decision. See next note.

80 Ibid., p. 9. This report was signed by Senators Root and Cullom. In a special minority report, Senator Burton pointed out that even after decision by the joint high commission the compromis" would go to the Senate. "In such case, as in every other case, it would be within the power of the Senate to refuse its advice and consent to the special agreement, but it would be contrary to its treaty obligation." Ibid., p. 12. See also Wright, Am. J. Int. Law, 12: 93, Col. Law Rev., 20: 133.

81 Taft, The United States and Peace, p. 113; Our Chief Magistrate, p. 107; Sutherland, op. cit., p. 132; Moore, Independent, Aug. 8, 1911.

tribunal. The common law doctrine that no one should be judge in his own case would seem as applicable to international as to private relations, 82

This particular question has not been raised in connection with the League of Nations Covenant because, according to Article XIII, disputes can be submitted to arbitration only by consent of the parties and in the United States this consent would be indicated by the treaty-making power in concluding the instrument of submission. Senator Knox and others have, however, in effect asserted that the powers conferred upon the Council and Assembly of the League of Nations are in part legislative, and hence in so far the treaty would be unconstitutional.84 It is believed that this criticism overlooks three important aspects of the Covenant. (1) "Decision at any meeting of the Assembly or of the Council (except where otherwise expressly provided) shall require the agreement of all the members of the League represented at the meeting," 85 thus the United States would not be delegating legislative power any more than it has in participating in international conferences such as the Hague, Algeciras or Versailles Conferences. It will be noticed that it is not the agreement of the American representative which is required but of the "member of the League," that is, of the United States itself, and as has been noticed the United States cannot be bound by any agreement unless the proper constitutional organ has acted.86 Thus if the decision was of a character which could only be made by the treaty-making power, the United States would not be bound until the Senate had consented. Apparently the only decisions, aside from questions of 82 See infra, sec. 139.

83 The scheme drafted by Mr. Root and others for the international court authorized by Article XIV of the Covenant would, however, raise the issue, since Article XXXIV provides: "In the event of a dispute as to whether a certain case is within any of the categories above mentioned, the matter shall be settled by the decision of the court." Am. Jl. Int. Law, Supp. 14: 379 (Oct., 1920). This was modified by the Assembly of the League of Nations in December, 1920, Ibid., 15: 264.

84 Address in Senate, March 1, 1919.

85 Art. V. The United States is by the terms of the Covenant represented on both the Council and the Assembly.

86 Supra, sec. 24.