This particular question has not been raised in connection with the League of Nations Covenant because, according to Article XIII, disputes can be submitted to arbitration only by consent of the parties and in the United States this consent would be indicated by the treaty-making power in concluding the instrument of submission. Senator Knox and others have, however, in effect asserted that the powers conferred upon the Council and Assembly of the League of Nations are in part legislative, and hence in so far the treaty would be unconstitutional.84 It is believed that this criticism overlooks three important aspects of the Covenant. (1) "Decision at any meeting of the Assembly or of the Council (except where otherwise expressly provided) shall require the agreement of all the members of the League represented at the meeting," "85 thus the United States would not be delegating legislative power any more than it has in participating in international conferences such as the Hague, Algeciras or Versailles ConferIt will be noticed that it is not the agreement of the American representative which is required but of the "member of the League," that is, of the United States itself, and as has been noticed the United States cannot be bound by any agreement unless the proper constitutional organ has acted.88 Thus if the decision was of a character which could only be made by the treaty-making power, the United States would not be bound until the Senate had consented. Apparently the only decisions, aside from questions of procedure,87 which by express exception might be made without consent of the United States, are to admit new members (Art. I)

ences.

88 The scheme drafted by Mr. Root and others for the international court authorized by Article XIV of the Covenant would, however, raise the issue, since Article XXXIV provides: "In the event of a dispute as to whether a certain case is within any of the categories above mentioned, the matter shall be settled by the decision of the court." Am. Jl. Int. Law, Supp. 14: 379 (Oct., 1920). This was modified by the Assembly of the League of Nations in December, 1920, Ibid., 15: 264.

84 Address in Senate, March 1, 1919.

85 Art. V. The United States is by the terms of the Covenant represented in both the Council and the Assembly.

86 Supra, sec. 24.

87 These may be settled by a majority vote (Art. V). Amendments to the Covenant, though requiring ratification by only a majority of the members represented in the Assembly, require ratification by all the members

which requires two-thirds of the Assembly but which is clearly not an exercise of legislative power, and to make a report in a dispute likely to lead to a rupture, to which the United States is a party. (Art. XV.)88 This will be discussed presently.

89

(2) The other consideration which seems to have been overlooked by critics of the Covenant is that no legislative or binding political power has been conferred upon the Council or Assembly. The powers of these bodies are limited to the giving of "advice or the making of "proposals," "recommendations" or "reports," which even if unanimous are of binding effect in only three cases. These three cases are: (a) The limits of armament once agreed upon by members "shall not be exceeded without the concurrence of the Council." (Art. VIII, sec. 4.) (b) If a country has voluntarily accepted a mandate, and has neglected to fully define "the degree of authority, control or administration" which it is to exercise, the Council may "explicitly define" these powers in each case. (c) A dispute likely to lead to a rupture (Art. XXII, sec. 8.) must be submitted to the Council or Assembly and if no solution is reached the Council or Assembly make a report.

"If a report by the Council is unanimously agreed to by the members thereof, other than the representatives of one or more of the parties to the dispute, the members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report." (Art. XV, sec. 6.)

represented in the Council, thus always including the United States (Art. 26).

88 See Lowell, The Covenanter, N. Y., 1919, p. 81, and British Official Commentary, printed in Pollock, The League of Nations, London, 1920, p.

208.

89 Lowell, The Covenanter, pp. 40, 80. Some doubt exists as to whether the "advice" which the Council may give as to the method of carrying out the guarantees of Article X is obligatory. Lowell (Ibid., p. 40) and Pollock (op. cit., p. 128) believe not, while the Official Swiss Commentary holds that for members that have assented to the "advice," if unanimous, it is obligatory. (League of Nations, World Peace Foundation, III, No. 3, p. 125.) So far as the "advice" extends merely to an interpretation of the meaning of the treaty, we are inclined to agree with the latter opinion (supra, sec. 35), which appears to be consonant with the interpretation of similar terms in article XVI by the Second Assembly of the League (see Report of International Blockade Committee, Second Assembly Document No. 28, part II, and resolutions adopted October 4, 1921, Official Journal, Special Supp. No. 6, p. 25).

If the dispute is submitted to the Assembly it has the same effect "if concurred in by the Representatives of those Members of the League represented on the Council and by a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute." (Art. XV, sec. 10.)

Although binding decisions may be given in the first two cases by unanimous action of the Council, the power exercised would not be "legislative" but merely a carrying out of the policy already agreed upon in the treaties providing for disarmament or acceptance of the mandatory. Decision on such a question clearly may be delegated. In the third case which relates to the settlement of political controversies which the parties have not agreed to submit to arbitration, it will be observed that the decision even if unanimous with exception of the parties to the dispute is not strictly binding. If the United States were a party to the dispute it would not be legally bound to follow the report, even if all other members of the Council or Assembly had signed it. Doubtless, however, there would be a practical compulsion, in view of the fact that it could get no members of the League as allies in case it went to war with the other party to the dispute.o1

(3) A third consideration which should be noticed is that the most discussed provisions of the Covenant such as Articles X, XII, and XVI do not delegate power at all. They are guarantees which leave to the members of the League discretion in deciding upon the method for carrying them out in concrete cases." Of course the United States would have to follow constitutional provisions in doing so. It does not appear that there is any unconstitutional delegation of legislative power in the League of Nations Cov

enant.

93

92

64. Limitations Derived from Powers of the Judiciary.

The constitutionality of a treaty seems never to have been questioned on the ground that it was itself an exercise of 90 Supra, sec. 60.

91 See British Commentary, Pollock, op. cit., p. 212; Swiss Commentary, op. cit., p. 137.

92 Lowell, The Covenanter, p. 37.

93 W. H. Taft, The Covenanter, p. 60 et seq. See also Wright, Am. Jl. Int. Law, 12: 75, and supra, sec. 59.

judicial power though treaties or arbitrations based upon them have interpreted statutes and international law and the courts have followed such decisions." Nor is there any encroachment upon the judicial power when treaties vest judicial powers in bodies other than the supreme and inferior courts of the United States. Consular courts abroad and international courts founded on treaty do not exercise "the judicial power of the United States" in the meaning of Article III of the Constitution95 and foreign consular courts in the United States for the trial of seamen of vessels of the consul's nationality have been held of "ministerial" rather than judicial character, though the grounds for this distinction is not apparent.9

A treaty depriving courts of any inherent right, privilege or power would, undoubtedly, be void," though a treaty may exempt certain persons from the judicial power of subpoena" and need not provide security of tenure and compensation for the judges

94 U. S. v. La Ninfa, 75 Fed. 513; Comegys v. Vasse, 1 Pet. 193 (1828); Meade v. U. S., 9 Wall. 691; Wright, Am. Jl. Int. Law, 12: 85, and supra, note 75.

95" The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. . . . The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other." In re Ross, 140 U. S. 453 (1890). Nor is the "Judicial power of the United States " exercised by congressional courts in the territories (Am. Ins. Co. v. Canter, 1 Pet. 511); nor by presidential courts organized in territory under military occupation (Neeley v. Henkel, 180 U. S. 109) or in annexed territory under military government. (Cross v. Harrison, 16 How. 164; Magoon, Reports, pp. 16, 30.) Such presidential courts may exercise local jurisdiction but may not be given an admiralty and prize jurisdiction. (Jecker v. Montgomery, 13 How. 498.)

96 Cushing, Att. Gen., 8 Op. 390, 1857. See also the Königin Luise, 184 Fed. 170 (1910), and Wright, Am. Jl. Int. Law, 12: 71.

97 Infra, sec. 53.

98 Dillon's case, supra, sec. 46.

in consular and other courts it establishes, as they do not exercise the "judicial power of the United States." "9

Treaties cannot vest courts exercising "the judicial power of the United States" with non-judicial functions.100 Thus doubt has been expressed whether treaties could provide for appeal from federal courts to an international tribunal, since with such a review by an authority not exercising "the judicial power of the United States" the original hearing by the federal court would be rendered non-judicial in character. Such an international tribunal could not be endowed by Congress with the "judicial power of the United States" since its judges could not be assured the security of tenure and compensation required of courts exercising that power and the Supreme Court has expressly held that courts established by Congress in the territories and courts established abroad or in the United States by treaty do not exercise that power.101 In the case of Gordon v. United States the Supreme Court refused to hear appeals from the Court of Claims which would subsequently be reviewable by the Secretary of the Treasury, saying:

102

"The Supreme Court's jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment in the legal sense of the term, without it. Without such an award judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. . . . Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress." The XII Hague Convention of 1907 proposed an International Prize Court with appellate jurisdiction in prize cases. Doubts as to its constitutionality were felt by Secretary Root, on the grounds of this case, and he instructed the American delegation to the London Naval Conference (designed to codify the law for this court) to 99 Supra, note 95. 100 Supra, sec. 55. 101 Supra, note 95.

102 Gordon v. U. S., 117 U. S. 697.