534
THE GREEN BAG
of these was The Hague Convention.1 But the very first treaty of them all, the famous Jay Treaty of 1794, made by Washington himself, and ratified by the Senate, was in effect a general arbitration treaty. It pro vided for three arbitrations before three separate commissions. The first of these was to adjust the boundary between Maine and Nova Scotia. The second was to de cide a multitude of claims pressed by British •citizens against the United States. The third was to decide a multitude of claims pressed by citizens of the United States against Great Britain. The language of the treaty describing these claims is general in its character. It can hardly be maintained that the President cannot make a very gen eral treaty, but can make a pretty general one. Epithets have no place in constitu tional construction.2 3. The effect of a treaty, when once made, is declared by Article VI of the Constitution: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." It follows, therefore, that The Hague Con vention, when ratified by the Senate, became a part of the supreme law of the land. It did not any the less become the áupreme law of the United States, because it is also the supreme law of all the signatory powers —that is to say, of almost all the civilized world . 4. The question has been asked: Where did the President get his power to submit to arbitration the Pious Fund controversy with Mexico? The answer is obvious: Article II, Section 3, of the Constitution provides : "He (the President) shall take care that the laws be faithfully executed." 1 A copy of this is appended to the report of this committee, 1899. J An analogous case is that of extradition treaties. These enumerate a list of offenses for which a surrender will be granted. Each act of surrender involves a separate agreement. Holmes v. Jennison, 14 Peters 150.
The Hague Convention is one of these laws. And the Pious Fund Arbitration was in execution of The Hague Convention. That great treaty, as this committee has pointed out in previous reports, especially that for 1899, contains full provisions for the submission to a competent tribunal of all matters in difference between the signa tory powers. The tribunal has been organ ized. It has judicial offices and a perma nent administrative council at The Hague. It is, to quote from Article XX of the con vention, " A permanent court of arbitration, always open, and exercising its powers, in the absence of an agreement to the contrary, conformably to the rules of procedure in cluded in the present convention." The President's power to submit to the decision of this "permanent court" any mat ter in difference between the United States and any other of the signatory powers, rests on the same basis as his power to direct the attorney general to bring a suit in the Circuit Court of the United States, to recover a debt due to the United States. The "permanent court of arbitration" at The Hague is the Supreme Court of the nations. The sooner that great fact is realized the better it will be for the cause of peace and for the development of the science of inter national law. 5. The object of making additional arbi tration treaties, as we pointed out in our report for 1904, was to bind the nations by express proirtise to submit to the decision of The Hague tribunal matters in difference between them. Those that the Senate re jected were perhaps inaptly phrased. It might have been argued that they limited the scope of The Hague Convention. It may be that their rejection will turn out to be a blessing in disguise. All that is needed, in our judgment, is a treaty with the various nations which joined with the United States in making the rejected treaties expressed substantially in the following terms: All matters in difference between the high contracting parties that are within the
