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to equity, where the feudal king appears and pleads, as in the case of the Isle of Man; or on an agreement between a foreign sovereign and the East India Company, in their mere corporate capacity. But when the company assumed the character of a sovereign, assert the agreement to be a “federal treaty," between them and the plaintiff, as neighbouring sovereigns, each independent, and the subject matter to be peace and war, political in its nature, on which no municipal court can act by the law of nations, chancery has no jurisdiction but to dismiss the bill. Not because it is founded on a treaty, but because the defendant refused to submit it to judicial power; for, had the company not made the objection, by their answer, the court must have proceeded as in The King of Spain v. Machado [4 Russell, 225], and decreed on the validity, as well as the construction of the treaties. The court, in one case, could not force a sovereign defendant to submit the merits of the case to their cognizance; but in the other, when he was plaintiff, and a subject was a defendant, who appeared and plead, the whole subject matter of the pleadings was decided by judicial power, as a judicial question; and such has been, and is the settled course of equity in England.1

Armed with these precedents, Mr. Justice Baldwin turns his attention in the following passage to the colonies and States of the American Union:

In the colonies, there was no judicial tribunal which could settle boundaries between them; for the court of one could not adjudicate on the rights of another, unless as a plaintiff. The only power to do it remained in the king, where there was no agreement; and in chancery, where there was one, and the parties appeared; so that the question was partly political and partly judicial, and so remained till the declaration of independence. Then the states, being independent, reserved to themselves the power of settling their own boundaries, which was necessarily a purely political matter, and so continued until 1781. Then the states delegated the whole power over controverted boundaries to congress, to appoint and its court to decide, as judges, and give a final sentence and judgment upon it, as a judicial question, settled by specially appointed judicial power, as the substitute of the king in council, and the court of chancery in a proper case; before the one as a political, and the other as a judicial question.

Then came the constitution, which divided the power between the political and judicial departments, after incapacitating the states from settling their controversies upon any subject, by treaty, compact, or agreement; and completely reversed the long established course of the laws of England. Compacts and agreements were referred to the political, controversies to the judicial power. This presents this part of the case in a very simple and plain aspect. All the states have transferred the decision of their controversies to this Court; each had a right to demand of it the exercise of the power which they had made judicial by the confederation of 1781 and 1788; that we should do that which neither states or congress could do, settle the controversies between them. We should forget our high duty, to declare to litigant states that we have jurisdiction over judicial, but not the power to hear and determine political controversies; that boundary was of a political nature, and not a civil one; and dismiss the plaintiff's bill from our records, without even giving it judicial consideration. We should equally forget the '12 Peters, 742-3.

dictate of reason, the known rule drawn by fact and law; that from the nature of a controversy between kings or states, it cannot be judicial; that where they reserve to themselves the final decision, it is of necessity by their inherent political power; not that which has been delegated to the judges, as matters of judicature, according to the law.1

In another portion of his opinion, the learned Justice, speaking of the States of the American Union, says:

Those states, in their highest sovereign capacity, in the convention of the people thereof; on whom, by the revolution, the prerogative of the crown, and the transcendent power of parliament devolved, in a plenitude unimpaired by any act, and controllable by no authority, 6 Wheat. 651; 8 Wheat. 584, 88; adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more states. By the constitution, it was ordained that this judicial power, in cases where a state was a party, should be exercised by this Court as one of original jurisdiction. The states waived their exemption from judicial power, 6 Wheat. 378, 80, as sovereigns by original and inherent right, by their own grant of its exercise over themselves in such cases, but which they would not grant to any inferior tribunal. By this grant, this Court has acquired jurisdiction over the parties in this cause, by their own consent and delegated authority; as their agent for executing the judicial power of the United States in the cases specified.2

In a third and a final passage, for it is impossible to quote or to summarize the whole opinion, Mr. Justice Baldwin not only states the process, the reason for the process, but the procedure to be followed in the actual trial and disposition of controversies between States submitted to a court of justice:

The founders of our government could not but know, what has ever been, and is familiar to every statesman and jurist, that all controversies between nations, are, in this sense, political, and not judicial, as none but the sovereign can settle them. In the declaration of independence, the states assumed their equal station among the powers of the earth, and asserted that they could of right do, what other independent states could do; "declare war, make peace, contract alliances; " of consequence, to settle their controversies with a foreign power, or among themselves, which no state, and no power, could do for them. They did contract an alliance with France, in 1778; and with each other, in 1781: the object of both was to defend and secure their asserted rights as states; but they surrendered to congress, and its appointed Court, the right and power of settling their mutual controversies; thus making them judicial questions, whether they arose on "boundary, jurisdiction, or any other cause whatever." There is neither the authority of law or reason for the position, that boundary between nations or states, is, in its nature, any more a political question, than any other subject on which

1 12 Peters, 743-4.

'Ibid., 720.

Application

to Society of Nations

they may contend. None can be settled without war or treaty, which is by political power; but under the old and new confederacy they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before. We are thus pointed to the true boundary line between political and judicial power, and questions. A sovereign decides by his own will, which is the supreme law within his own boundary; 6 Peters, 714; 9 Peters, 748; a court, or judge, decides according to the law prescribed by the sovereign power, and that law is the rule for judgment. The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case; 11 Ves. 294; which depends on the subject matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court to be decided by its judgment, legal discretion, and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.

It has never been contended that prize courts of admiralty jurisdiction, or questions before them, are not strictly judicial; they decide on questions of war and peace, the law of nations, treaties, and the municipal laws of the capturing nation, by which alone they are constituted; a fortiori, if such courts were constituted by a solemn treaty between the state under whose authority the capture was made, and the state whose citizens or subjects suffer by the capture. All nations submit to the jurisdiction of such courts over their subjects, and hold their final decrees conclusive on rights of property. 6 Cr., 284-5.

These considerations lead to the definition of political and judicial power and questions; the former is that which a sovereign or state exerts by his or its own authority, as reprisal and confiscation; 3 Ves., 429; the latter is that which is granted to a court or judicial tribunal. So of controversies between states; they are in their nature political, when the sovereign or state reserves to itself the right of deciding on it; makes it the "subject of a treaty, to be settled as between states independent," or "the foundation of representations from state to state." This is political equity, to be adjudged by the parties themselves, as contradistinguished from judicial equity, administered by a court of justice, decreeing the equum et bonum of the case, let who or what be the parties before them.1

Questions political in their nature may thus become judicial by submission to a court of justice, to be decided in accordance with principles of law and equity, and we are justified in the belief that the States composing the society of nations can, if they will, agree by convention to submit their disputes to a tribunal of their own creation for the settlement of their controversies, just as the States composing the American Union agreed by constitution to submit their controversies to the Supreme Court of the States.

'12 Peters, 736-8.

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The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution, which I do not doubt every reasonable man will think well warranted, for it cannot be presumed that the general word controversies" was intended to include any proceedings that relate to criminal cases, which in all instances that respect the same Government, only, are uniformly considered of a local nature, and to be decided by its particular laws. (Mr. Justice Iredell in Chisholm v. Georgia, 2 Dallas, 419, 431-432, decided in 1793.)

A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. (Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton, 264, 379, decided in 1821.)

The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to "a case in law or equity," in which a right, under such law, is asserted in a Court of justice. If the question can not be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article But if, in any controversy depending in a Court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. (Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton, 264, 405, decided in 1821.)

That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States. (Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheaton, 738, 819, decided in 1824.)

What then is to be done if these limitations of power are transgressed by any State, or by the United States? The duty of annulling such usurpations is confided by the Third Article of the Constitution to the Supreme Court, and to such inferior Courts as Congress may from time to time ordain and establish. But this remarkable power is capable only of indirect exercise; it is called into activity by "cases," by actual controversies, to which individuals, or States, or the United States, are parties. The point of unconstitutionality is raised by the arguments in such controversies; and the decision of the Court follows the view which it takes of the Constitution. A declaration of unconstitutionality, not provoked by a definite dispute, is unknown to the Supreme Court. (Sir Henry Sumner Maine, Popular Government, 1886, pp. 217-218.)

In order to entitle the party to the remedy a case must be presented appropriate for the exercise of judicial power, the rights in danger must be rights of persons or property; not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity State of Georgia v. Stanton, 6 Wall. 50, 76.

When a right is asserted by a party before a court in the manner prescribed by law, it then becomes a case to which the judicial power extends. This includes the right of both parties to the litigation; and the case may be said to arise whenever its correct decision is dependent upon the construction of the Constitution, laws, or treaties of the United States. (Mr. Justice Miller, Lectures on the Constitution of the United States, 1891, p. 315, note.)

The President of the United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, desiring in pursuance of the principles set forth in Articles 15-19 of the Convention for the pacific settlement of international disputes, signed at The

Hague July 29, 1899, to enter into negotiations for the conclusion of an Arbitration Convention, have named as their Plenipotentiaries, to wit:

The President of the United States of America, Elihu Root, Secretary of State of the United States, and

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, The Right Honorable James Bryce, O. M.,

who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles:

ARTICLE I. 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.

ARTICLE II. 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. It is understood that such special agreements on the part of the United States will be made by the President of the United States, by and with the advice and consent of the Senate thereof; His Majesty's Government reserving the right before concluding a special agreement in any matter affecting the interests of a self-governing Dominion of the British Empire to obtain the concurrence therein of the Government of that Dominion.

Such Agreements shall be binding only when confirmed by the two Governments by an Exchange of Notes.

ARTICLE III. The present Convention shall be ratified by the President of the United States of America by and with the advice and consent of the Senate thereof, and by His Britannic Majesty. The ratifications shall be exchanged at Washington as soon as possible, and the Convention shall take effect on the date of the exchange of its ratifications.

ARTICLE IV. The present Convention is concluded for a period of five years, dating from the day of the exchange of its ratifications.

Done in duplicate at the City of Washington, this fourth day of April, in the year 1908.

ELIHU ROOT [SEAL]
JAMES BRYCE [SEAL]

(Arbitration Convention between the United States and Great Britain, Signed at Washington April 4, 1908. U. S. Statutes at Large, Vol. XXXV, pp. 1960-1961.)

The high contracting powers agree to refer to the existing Permanent Court of Arbitration at The Hague, or to the Court of Arbitral Justice proposed at the Second Hague Conference when established, or to some other Arbitral Tribunal, all disputes between them (including those affecting honor and vital interests) which are of a justiciable character, and which the powers concerned have failed to settle by diplomatic methods. The powers so referring to arbitration agree to accept and give effect to the award of the Tribunal.

Disputes of a justiciable character are defined as disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the nature and extent of the reparation to be made for any such breach.

Any question which may arise as to whether a dispute is of a justiciable character is to be referred for decision to the Court of Arbitral Justice when constituted, or, until it is constituted, to the existing Permanent Court of Arbitration at The Hague. (Article for an International Convention Defining Disputes of a Justiciable Character, proposed by Elihu Root, and printed in the Proceedings of the American Society of International Law, 1919, p. 50, note 1.)

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