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United States of America, Belgium, Bolivia, Brazil, British Empire, Canada, Australia, South Africa, New Zealand, India, China, Cuba, Ecuador, France, Greece, Guatemala, Haiti, Hedjaz, Honduras, Italy, Japan, Liberia, Nicaragua, Panama, Peru, Poland, Portugal, Rumania, Serbia, Siam, Czecho-Slovakia, Uruguay.

States invited to accede to the covenant.

Argentine Republic, Chile, Colombia, Denmark, Netherlands, Norway, Paraguay, Persia, Salvador, Spain, Sweden, Switzerland, Venezuela.

Two. First Secretary General of the League of Nations, The Honorable Sir James Eric Drummond, K.C.M.G., C.B.

PLAN FOR A LEAGUE OF NATIONS

TO ENFORCE PEACE 1

Institutional advances in the progress of the world are rarely made abruptly. They are not like Minerva who sprang full armed from the brain of Jove. If they are to have the useful feature of permanence, they must be a growth so that the communities whose welfare they affect may come to regard them as natural, and so accept them. Our so-called Anglo-Saxon civil liberty with its guaranties of the Magna Carta, the Petition of Right, the Bill of

1 Address before the World Court Congress, at Cleveland, Ohio, May 12, 1915.

Rights, the Habeas Corpus Act and the Independence of the Judiciary, constituting the unwritten British Constitution, made our American people familiar with a body of moral restraints upon executive and legislative action to secure the liberty of the individual. The written limitations upon legislative action in colonial charters granted by the Crown and their enforcement by the Privy Council of England, probably suggested to the framers of our Federal Constitution that the principles of British Constitutional liberty be given written form and be committed to a supreme and independent Court to enforce them, as against the Executive and Congress, its coördinate branches in the Government. The step, epochal as it was, from judicially enforcing such limitations against a subordinate legislature under a written charter of its powers, to a judicial enforcement of the limitations imposed by the sovereign people on the legislature and executive that they, the people, had created in the same instrument, was not radical but seemed naturally to follow. The revolted colonies after the Revolution, though united by a common situation and a common cause in their struggle with Great Britain, and acting together through the Continental Congress in a loose and voluntary alliance, were sovereigns independent of one another. The Articles of Confederation which declared their union to be permanent were not agreed to and ratified in such a way as to be binding until some five years after the Declaration of Independence. Meantime, it had become increasingly evident that, strong as were their common interests, they had divergent ones, too, which might embarrass their kindly relations. The leagues of Greece had furnished an example of confederations of small states forced together by a common oppressor and foe, which had found it wise to settle their own differences by some kind of an arbitral tribunal. The office which the

Privy Council and the Crown had performed in settling intercolonial controversies suggested an analogy less remote than those in Grecian history and prompted the adoption of a substitute. So there was inserted in the Articles of Confederation a provision for a “court to determine disputes and differences between two or more States of the Confederation concerning boundary jurisdiction or any other cause whatever." The complainant state was authorized to present a petition to Congress stating the matter in question, and praying for a hearing. Notice of this was to be given by order of Congress to the other state in the controversy and a day was assigned for the appearance of the two parties by their lawful agents who should agree upon judges to constitute a court for hearing the matter in question. If they could not agree, Congress was then to name three persons out of each of the thirteen states. From this list each party was required alternately to strike out one until the number was reduced to thirteen, and from these thirteen not less than seven or more than nine names, as Congress should direct, were in the presence of Congress to be drawn by lot, and the persons whose names were so drawn, or any five of them, constituted the court to hear and finally determine the controversy.

Proceedings were instituted under this provision before the Constitution by New Jersey against Vermont, by New York against Vermont, by Massachusetts against Vermont, by Pennsylvania against Virginia, by Pennsylvania against Connecticut, by New Jersey against Virginia, by Massachusetts against New York, and by South Carolina against Georgia. Only one of these cases came to hearing and decision by a court selected as provided. That was the case of Pennsylvania against Connecticut involving the governmental jurisdiction over the Valley of Wyoming and Luzerne

County. The court met and held a session of forty-one days at Trenton, in New Jersey. Able counsel represented the parties, and the court made a unanimous decision in favor of Pennsylvania, without giving reasons. A compromise is suspected, because Connecticut promptly acquiesced and soon thereafter, with the approval of the Pennsylvania delegation, Congress passed an act accepting a cession by Connecticut of all the lands claimed by it west of the west line of Pennsylvania, except the Western Reserve, now in Ohio, which Connecticut was thus given ownership of, and which it sold and settled. A number of the other cases were compromised and, in some, no proceedings were taken after the initial ones.

In the Constitutional Convention the necessity for some tribunal to preserve peace and harmony between the states was fully conceded by all, but the form of the court was the subject of some discussion. One proposal was that the Senate should be a court to decide between the states all questions disturbing peace and harmony between the states while the Supreme Court was given only jurisdiction in controversies over boundaries. Ultimately, however, the judicial power of the United States exercised through the Supreme Court was extended to “controversies between States," without exception.

To those who do not closely look into this jurisdiction of the Supreme Court, it seems no different from that of the ordinary municipal court over controversies between individuals. The states are regarded merely as municipal or private corporations subject to suit process, trial and judgment to be rendered on principles of municipal law declared by statute of State Legislature or Congress, or established as the common law. It is assumed that the Constitution destroyed the independence and sovereignty of the states

and made the arrangement a mere domestic affair. This is a misconception. The analogy between the function of the Supreme Court in hearing and deciding controversies between states and that of an international tribunal sitting to decide a cause between sovereign nations is very close. When the suit by one state against another presents a case that is controlled by provisions of the Federal Constitution, of course there is nothing international about it. But most controversies between states are not covered by the Federal Constitution. That instrument does not, for instance, fix the boundary line between two states. It does not fix the correlative rights of two states in the water of a non-navigable stream that flows from one of the states into another. It does not regulate the use which the state up stream may make of the water, either by diverting it for irrigation, or by using it as a carrier of noxious sewage. Nor has Congress any power under the Constitution to lay down principles by Federal Law to govern such cases. The legislature of neither state can pass laws to regulate the right of the other states. In other words, there is nothing but international law to govern.

There is no domestic law to settle this class of cases any more than there would be if a similar controversy were to arise between Canada and the United States.

For many purposes the states are independent sovereigns and not under Federal control. They have lost the powers which the people in the Constitution gave to the Central Government; but in the field of powers left to them, each is supreme within its own limits, and by the exercise of that power may trespass on the exercise of similar power by its neighbor. How is such a conflict to be settled? It may be by diplomacy, i. e., by negotiation and compromise agreement; but this, under the Constitution,

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