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In that year
stitution, the theory of the Declaration was translated into a political fact.
In 1823, the South American countries had become independent and free to choose whatever system they might prefer. The “Holy Alliance” of the powers of Continental Europe threatened to extend the European system to South America by force. President Monroe, with the informal concurrence of both Houses of Congress and with the approval of the American people, in a Message to Congress, announced as the distinctive policy of the United States, that the European system should not be extended to the Western Hemisphere by European force, on the ground that such an extension would tend to destroy the American system, which the people of the United States believed to be essential to peace and order. In that Message he said:
The political system of the Allied Powers is essentially different from that of America. This difference proceeds from that which exists in their respective governments; and to the defence of our own, which has been achieved by the loss of so much blood and treasure, and matured by the wisdom of their most enlightened citizens, and under which we have enjoyed unexampled felicity, this whole nation is devoted. We owe it, therefore, to candor and to the amicable relations existing between the United States and those Powers, to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. .. It is impossible that the Allied Powers should extend their political system to any portion of either continent without endangering our peace and happiness.
The Civil War abolished slavery and thus removed the inconsistency between our doctrine and our practice, which had up to that time led to impossible compromises and to an attempt to regard the preamble of the Declaration as a statement of "glittering generalities.” By the Fourteenth and Fifteenth Amendments to the Constitution the American system was completed.
The European system of legally unlimited governmental power results logically in what is called the “sovereignty” of independent states. “Sovereign” states live theoretically in a condition of omnipotence and unsociability. When they come into contact with other “sovereign” states, they fight or agree. “Sovereign” states are theoretically not subject to “law”; they are above law and make law for non-sovereign communities which they control by force. Hence on the European system judicial settlement of disputes between nations is theoretically inconceivable, and arbitration tends to be only a political compromise made by high diplomatic officials when the ordinary diplomatic officials are unable to agree.
According to the American system, there is no governmental omnipotence and hence no state omnipotence. States are merely large corporations created by the people of the states assembled for the purpose of collective and individual self-protection and self-preservation, and organized and vested with specific powers for this purpose. Like other corporations, states are assumed to exist in society. They are hence amenable to law, and disputes between them are to be settled by courts. Hence the Supreme Court of the United States has jurisdiction of cases to which the United States is a party and of controversies between states. The American states willingly submit their differences to settlement by the Supreme Court, because that Court, like every other part of the American Government, acts under the Bill of Rights and the other provisions of the Constitution and is legally limited by all the applicable provisions of the Constitution in each case that arises before it. In the United States proper, the Supreme Court is legally limited by all the provisions of the Constitutional Bill of Rights, in their literal sense; and also by the organic provisions of the Contitution—the provisions which determine the relations of the states to each other and to the United Statesin their literal sense. In the political society composed of the United States and the countries and places under its jurisdiction, the Supreme Court is legally limited, as it has recognized by its own decisions, by those provisions of the Constitutional Bill of Rights which are of universal import, and by the organic provisions of an unwritten or customary Constitution, based on the Constitution of the United States and formed by applying the provisions of that Constitution, not in their literal sense, but according to "the general spirit of the Constitution,” as reasonable customs, in such manner as may be needful to suit the circumstances of this greater political society and its component parts.
In suits between states, or to which the United States is a party, the Supreme Court, acting under the Constitutional Bill of Rights, holds void and ignores any governmental action occurring in the United States or in any country or place under its jurisdiction, which deprives any person or personality of his or its life, liberty or property without due process of law; and upholds the organic provisions of whichever Constitution may be involved—the written Constitution in the case of the political society known as "the United States of America," and the unwritten one in the case of the greater political society composed of this nation and the countries and places annexed to it and under its jurisdiction.
The United States, however, three years ago agreed by treaties with a number of foreign nations, to submit to arbitration certain kinds of disputes which it might have with them, and it is now proposed to extend some of these arbitration treaties so that they will cover a much wider field. The question arises whether these treaties, if they are constitutional, are consistent with the American system; or to state it differently, whether these treaties, if they are constitutional, do not commit the United States to the European system.
The arbitration treaty between the United States and Great Britain of 1908, and the other existing arbitration treaties of the same year and of later date, provide, among other things, as follows:
“Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th of July, 1899; provided, nevertheless, that they 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.
"In each individual case the high contracting parties, before appealing to the Permanent Court of Arbitration, shall conclude a special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal and the several stages of the procedure."
Nothing is said in these treaties concerning any legal limitations on the power of the tribunal. The parties
. are in each case to conclude a special agreement “defining . . . the
the scope of the powers of the arbitrators." The Convention for the Pacific Settlement of Inter
national Disputes, of the 29th of July, 1899, likewise makes no mention of legal limitations upon the powers of the arbitral tribunal. By that Convention it was agreed that "international arbitration has for its object the settlement of differences between states by judges of their own choice, and on the basis of respect for law.' The arbitrators are to be persons "of known competency in questions of international law," and the powers who have recourse to arbitration are to sign a special act in which “the extent of the arbitrators' powers” is to be “clearly defined.” (Articles, 15, 23, 31.) There is nowhere in the treaties or in the convention any suggestion of limitations upon the arbitral tribunal under a law which is binding upon the tribunal and the disputant nations. The expression “on the basis of respect for law" is indefinite and recommendatory, binding the tribunal to nothing. The powers of the arbitrators are legally unlimited. They may be restricted by the agreement of the parties, but they are not restricted by law.
It may therefore happen that a case between states, or involving a dispute between states, which has been tried by the Supreme Court of the United States acting under all the applicable provisions of the Constitution, and which has been decided by it with reference to these limitations, may be retried in an arbitration proceeding by a tribunal which is without any legal limitation whatever, and decided in an entirely different manner. So the arbitral tribunal may decide a case on the principle of political compromise or on the principle of regulating the balance of power, and without attempting to apply legal principles. Of course, these difficulties might to some extent be met by the special agreement made in each case; but any limitations upon the powers of the arbitrators arising out of the agree