Obrázky stránek
PDF
ePub
[graphic]

with safety to each and all and without loss of dignity to any, to adjust properly the relations of each to the other and to determine scientifically and fairly the questions concerning the existence, rights, and boundaries of the smaller nations and the claims of the nationalities which are aspiring to nationhood. A treaty of peace so made would form a sound basis for the future orderly and peaceful cooperative development of all nations, and would greatly simplify the work of the international directorate which would be formally instituted after the war through a constitutional convention of all nations.

LEGAL LIMITATION OF ARBITRAL

TRIBUNALS

LEGAL LIMITATION OF ARBITRAL

TRIBUNALS

Reprinted from University of Pennsylvania Law Review, Vol. 60,

December, 1911

UNT

NTIL the year 1776, the doctrine prevailed uni

versally among the civilized nations that there

must be one part of the government of every independent state in which was vested legally unlimited power; the part of the government which exercised this legally unlimited power being regarded as the source of the law of the state. In some states, this legally unlimited power was regarded as vested in the Monarch; in others in Parliament.

In 1776, as the result of ten years' consideration by the American Colonies of the claim of Great Britain that its Parliament had the right to exercise legally unlimited power over them, the United States of America came into existence under a Declaration of Independence, which was at the same time an Agreement of Union, and the preamble of which was a Fundamental Constitution of the United States. By this Fundamental Constitution, which today exists in full force, underlying the Constitution of 1787,-a new political doctrine was advanced and a new political system was founded. According to this Fundamental Constitution, all governmental power is held to be legally limited primarily by the principles of supreme universal law, and secondarily by the supreme organic law of each particular society, made theoretically by all the people of the society assembled, and determining the structure of the society and the relations of the parts. The principles of supreme universal law are those which grow out of the nature of man and society. Each political society as a necessity to its own existence is regarded as securing to each individual his self-protection and selfpreservation—the protection and preservation of the individual being necessary to the protection and preservation of society. These rights of the individual, growing out of his human nature and his relation to his Creator, and out of the nature of human society, are held to be "unalienable" and hence universal. The Declaration does not purport to state all the principles of the supreme universal law. It only declares that "among” these unalienable rights are the rights of “life, liberty and the pursuit of happiness.” The rights thus named are clearly rights of self-protection and self-preservation. On the necessity of selfprotection and self-preservation in order that society may exist, and on the necessity of there being an organization of every society, made theoretically by all the people assembled, before there can be a government, the preamble of the Declaration of Independence based the American doctrine that all governmental power is by the necessity of the case legally limited. The American doctrine of legally limited governmental power became thus opposed to the European doctrine of legally unlimited governmental power, and there was founded an American system which was opposed to the European system.

The success of the United States in the American Revolution established the American system. In 1787, the Constitution of the United States was adopted, giving to the world a proof that the American system could be worked out in a practical form. By the Con

« PředchozíPokračovat »