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the signatories to the League. It contemplates the opportunity of any member of the League, having a cause of complaint against any other member of the League, to sue such member in this court and bring it into court by proper process. The complainant's pleading will, of course, state its cause of action. The defendant may wish to question the jurisdiction of the court on the ground, for instance, that the cause of action stated by the complainant does not involve a justiciable issue; that it can not be decided on principles of law or equity.
The court, upon this preliminary question, must decide upon its jurisdiction. If it finds the question not to be justiciable, it must dismiss the complaint; but it may properly refer its investigation to the Commission of Conciliation. If it finds that it is justiciable, it must require the defendant nation to answer.
What I have to discuss is whether the President and the Senate, constituting the treaty-making power for this Government, may consent, for and on behalf of the United States, to the settlement of any justiciable issue arising between the United States and any other member of the League by this permanent court; and whether it may leave to that court the power to decide whether the issue raised is a justiciable one.
It was argued against a similar provision in the general arbitration treaties with England and France that such a stipulation constituted a delegation by the President and Senate of the authority reposed in them over the foreign relations of our Government and therefore that it was ultravires. Both upon reason and authority this objection is untenable. The United States is a nation, and, from a foreign standpoint, a sovereign nation, without limitation of its sovereignty It may, therefore, through its treaty
making power, consent to any agreement with other powers relating to subject matter that is usually considered and made the subject of treaties. The well-known language of Mr. Justice Field, in the case of Geofrey v. Riggs, 133 U. S. 258, leaves no doubt upon this point. It is as follows:
That the treaty power of the United States extends to all proper subjects of negotiations between our Government and the Governments of other nations, is clear. . . . The treaty power, as expressed in the Constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the Government, or of its Departments, and those arising from the nature of the Government itself, and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government, or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."
Issues that can be settled on principles of law and equity are proper subjects for decision by a judicial tribunal. Such issues have been settled by Boards of Arbitration, agreed to by independent sovereigns since there were governments. The first provision agreed to by the United States for an arbitration of this kind was in the Jay Treaty in 1794; and since that time there have been eighty-four international arbitrations to which an American nation was a party. In forty, or nearly one-half of these, the other party was an European Power, while the arbitrations between American nations were forty-four. To about two-thirds of all of these the United States was a party, the number of arbitrations between other American powers being fourteen. Of this
number, there were ten that related to questions of boundary, which are, of course, questions capable of solution on principles of law and equity.
In such cases, it was never suggested that the Government was delegating any power at all to the tribunal. A submission to a judicial decision is not a delegation of power as to an agent. It is a submission of an issue to a judge. It is an error to call such a submission a delegation, or to determine its validity on principles of delegation of power as that is limited in constitutional law. In the discussion of the general arbitration treaties in the Senate, there was a suggestion that the agreement to submit to a court questions which had not yet arisen described only by definition and classification, with power in the court to take jurisdiction, was more of a delegation of power than the mere submission of an existing question to arbitrators. There is, however, not the slightest difference in principle between the two. If one is a delegation, the other is. If one is invalid, the other is; and if one is not invalid, the other is not.
Nor does the right to determine jurisdiction of the court involve in principle any more of a delegation than the mere voluntary submission of the issue to the court. It only somewhat enlarges the issues to be submitted. The question whether the court has jurisdiction of an issue is dependent on the question of law, involving the construction of the treaty, and such a subject matter is the commonest instance of the class of questions submitted to arbitration or a court. More than this, the Senate has consented from time to time to arbitrations on issues which may arise in the future and defined by language of the treaty of submission.
The last notable instance, and the one which involved a really permanent court is the advice and consent by our
Senate to the Hague International Prize Court Convention in which a permanent international prize court was established, and the United States bound itself to submit all questions, arising between it and foreign nations in respect to questions of prize in naval warfare, to this international prize court, and to abide the decision, even though that decision might involve, as it generally would, the reconsideration of an issue already decided by the Supreme Court of the United States. The treaty is not in force because England did not finally approve, but our Senate approved it. The International Prize Court must of necessity pass upon its own jurisdiction, and by agreement between the parties, its decision is to be accepted and to be carried out in good faith. The question as to whether commissioners of arbitration, under the Jay Treaty, had power to determine their own jurisdiction was brought by Rufus King, American Minister in London, to the attention of Lord Grenville who submitted the question to Lord Chancellor Loughborough. The Lord Chancellor resolved the difficulty by declaring:
“ 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."
A similar question was raised by the British Government in regard to the power of the Geneva Tribunal to deal with what were known as the “indirect claims," and her arbitrators decided that they did not have jurisdiction of the indirect claims, and this was acquiesced in by both Governments.
In correspondence with the Chilean Minister over an arbitration between this country and Chile, Mr. Olney, then Secretary of State, used this language:
But the question whether any particular claim is a proper one for the consideration and decision of an international commission is necessarily one which the commission itself must determine. The conventions under which such commissions are organized usually describe in general terms the class of cases of which the commission is to take jurisdiction, and whether any particular case presented to it comes within this class the commission must, of course, determine. The decisions of the late commission, both interlocutory and final, are binding upon both Governments, the latter absolutely so, the former unless reversed, after proper proceedings for a rehearing."
I come now to the other objection. The third plank of the platform is as follows:
“Third: The signatory powers shall jointly use forthwith both their economic and military forces against any one of their number that goes to war, or commits acts of hostility, against another of the signatories before any question arising shall be submitted as provided in the foregoing."
It is objected to this clause that it violates the Constitution in that the effect of such a treaty signed by the United States would take away from Congress the power,
upon it by section eight of article one, to declare war.
I had the pleasure and privilege of hearing Mr. Bryan advance this argument at the Lake Mohonk Conference. He said that we should need an amendment to the Constitution before we could agree to any such provision. He said that in order to carry out the provision we must have a joint council of the powers to determine when the time had arrived for military action and war, and that this would substitute the action of the council for the constitutional discretion of Congress.
I venture to think that this view is wholly without founda