believes correctly, that delegation of this power to a mere majority of the two houses of Congress without the President's approval would be an unconstitutional delegation of legislative power." 61

An extended controversy has arisen over the delegation of power to the President by general arbitration treaties, to make the compromis or instrument submitting specific cases to arbitration. The I Hague Convention of 1899, as also that of 1907, provided a panel of arbitrators, a method for selecting a court and a procedure for arbitrating cases. By Article 16, the parties including the United States recognized arbitration "as the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods." Under these provisions, in 1903, President Roosevelt submitted the Pious Fund claim against Mexico to the Hague Tribunal, without consulting the Senate.62 Opinion has differed as to whether the Hague Convention delegated this power. Simeon E. Baldwin has said: 63

"The Hague Convention when ratified by the Senate, became thus a standing warrant, or, so to speak, a power of attorney, from the United States to the President, to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration."

Ex-Secretary of State Foster, however, took a contrary view: 64

"I apprehend that should our government decide to refer any dispute with a foreign government to the Hague Tribunal, President Roosevelt, or whoever should succeed him, would enter into a convention with the foreign 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."

61 "A statute or a treaty might end upon the occurrence of a fortuitous event or upon the determination of a certain fact or of a certain condition by a certain officer, he having no discretion on the subject at all; but when it becomes a question of the exercise of his judgment or his discretion about whether the law should remain in force or whether it should be repealed, considering the good of the country, that would be an unlawful delegation of legislative power." Senator Walsh, Mont., Cong. Rec., Nov. 8, 1919, 58: 8609. "I doubt whether the President can be deprived of his veto power under the Constitution even with his own consent." President Wilson, letter to Senator Hitchcock, Jan. 26, 1920.

62 Willoughby, op. cit., p. 475.

63 Yale Review, 9: 415, quoted, Willoughby, op. cit., p. 476.

64 Yale Law Jl., 11: 76, quoted Willoughby, loc. cit.

66

67

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. 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,68 though in this case treaty submission had been expressly required by the general arbitration treaty with Great Britain of 1908,60 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." 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 of a "special treaty."7 In 1908, however, Secretary Root con

65 Infra, sec. 171.

66 Art. 21, Malloy, Treaties, p. 1117.

67 Ibid., pp. 1870, 1889.

68 Ibid., p. 835.

69 Art. II, Ibid., p. 814.

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

71 Willoughby, op. cit., pp. 473–475; Taft, The United States and Peace, 1914, p. 95; Sutherland, op. cit., p. 129.

cluded many treaties substantially of the form of the Hay treaties with the Senate amendment.72

73

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. 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., whether it had jurisdiction. This treaty and protocol, although never operative, were consented to by the Senate in 1911.7

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.

A constitutional objection of a different 76 Charles, Treaties, p. 262. kind connected with this convention is considered, infra, sec. 64. The Hague Convention of 1907 provided in article 53 that the Permanent Court might

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 President, in the other to an international commission." Neither case. 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., Ist sess., S. Doc. 98, p. 6; Cong. Rec., 47: 3935.

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.

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 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

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.

82 See infra, sec. 139.