BY
HON. WILLIAM HOWARD TAFT
Institutional advances in the progress of the world are rarely made
abruptly. They are not like Minerva, who sprang full-armed from the
brain of Jove. If they are to have the useful feature of permanence
they must be a growth so that the communities whose welfare they
affect may grow accustomed to them as natural and so accept them. Our
so-called Anglo-Saxon civil liberty with its guaranties of the Magna
Charta, the Petition of Right, the Bill of Rights, the Habeas Corpus
Act and the Independence of the Judiciary, constituting the unwritten
British Constitution, made our American people familiar with a body
of moral restraints upon executive and legislative action to secure
the liberty of the individual. The written limitations upon Colonial
legislative action in Colonial charters granted by the Crown and their
enforcement by the Privy Council of England probably suggested to the
framers of our Federal Constitution that the principles of British
Constitutional liberty be given written form and be committed to a
Supreme and Independent Court to enforce them as against the Executive
and Congress, its coördinate branches in the Government. The step,
epochal as it was, from judicially enforcing such limitations against
a subordinate Legislature under a written charter of its powers, to a
judicial enforcement of the limitations imposed by the sovereign people
on the Legislature and Executive that they the people had created in
the same instrument, was not radical but seemed naturally to follow.
The revolted Colonies after the Revolution, though united by a common
situation and a common cause in their struggle with Great Britain, and
acting together through the Continental Congress in a loose and voluntary
alliance, were sovereigns independent of each other. The Articles of
Confederation, which declared their union to be permanent, were not
agreed to and ratified in such a way as to be binding until some five
years after the Declaration of Independence. Meantime it had become
increasingly evident that, strong as were their common interests, they
had divergent ones, too, which might embarrass their kindly relations.
The leagues of Greece had furnished an example of confederations of
small States, forced together by a common oppressor and foe, which had
found it wise to settle their own differences by some kind of arbitral
tribunal. The office which the Privy Council and the Crown had filled in
settling inter-colonial controversies suggested an analogy less remote
than those in Grecian history and prompted the adoption of a substitute.
So there was inserted in the Articles of Confederation a provision for a
“court to determine disputes and differences between two or more States
of the Confederation concerning boundary jurisdiction or any other cause
whatever.” The complainant State was authorized to present a petition to
Congress stating the matter in question and praying for a hearing. Notice
of this was to be given by order of Congress to the other State in the
controversy, and a day was assigned for the appearance of the two parties
by their lawful agents who should agree upon judges to constitute a court
for hearing the matter in question. If they could not agree, Congress
was then to name three persons out of each of the thirteen States. From
this list each party was required alternately to strike out one until the
number was reduced to thirteen, and from these thirteen not less than
seven nor more than nine names, as Congress should direct, were in the
presence of the Congress to be drawn by lot, and the persons whose names
were so drawn, or any five of them, constituted the court to hear and
finally determine the controversy.
Proceedings were instituted under this provision before the Constitution
by New Jersey against Vermont, by New York against Vermont, by
Massachusetts against Vermont, by Pennsylvania against Virginia, by
Pennsylvania against Connecticut, by New Jersey against Virginia, by
Massachusetts against New York, and by South Carolina against Georgia.
Only one of these cases came to hearing and decision by a court selected
as provided. That was the case of Pennsylvania against Connecticut,
involving the governmental jurisdiction over the valley of Wyoming and
Luzerne county. The court met and held a session of forty-one days
at Trenton in New Jersey. Able counsel represented the parties, and
the court made a unanimous decision in favor of Pennsylvania, without
giving reasons. A compromise is suspected, because Connecticut promptly
acquiesced, and soon thereafter, with the approval of the Pennsylvania
delegation, Congress passed an act accepting a cession by Connecticut
of all the lands claimed by it west of the west line of Pennsylvania,
except the Western Reserve, now in Ohio, which Connecticut was thus given
ownership of, and which it sold and settled. A number of the other cases
were compromised, and in some no proceedings were taken after the initial
ones.
In the Constitutional Convention the necessity for some tribunal to
preserve peace and harmony between the States was fully conceded by
all, but the form of court was the subject of some discussion. One
proposal was that the Senate should be a court to decide between the
States all questions disturbing peace and harmony between the States,
while the Supreme Court was given only jurisdiction in controversies
over boundaries. Ultimately, however, the judicial power of the United
States exercised through the Supreme Court was extended to “controversies
between States,” without exception.
To those who do not closely look into this jurisdiction of the Supreme
Court it seems no different from that of the ordinary municipal court
over controversies between individuals. The States are regarded merely
as municipal or private corporations subject to suit process, trial,
and judgment to be rendered on principles of municipal law declared by
statute of State Legislature or Congress, or established as the common
law. It is assumed that the Constitution has destroyed the independence
and sovereignty of the States and made the arrangement a mere domestic
affair. This is a misconception. The analogy between the function of
the Supreme Court in hearing and deciding controversies between States
and that of an international tribunal sitting to decide a cause between
sovereign nations is very close. When the suit by one State against
another presents a case that is controlled by provisions of the Federal
Constitution, of course there is nothing international about it. But most
controversies between States are not covered by the Federal Constitution.
That instrument does not, for instance, fix the boundary line between two
States. It does not fix the correlative rights of two States in the water
of a non-navigable stream that flows from one of the States into another.
It does not regulate the use which the State up stream may make of the
water, either by diverting it for irrigation or by using it as a carrier
of noxious sewage. Nor has Congress any power under the Constitution to
lay down principles by Federal law to govern such cases. The Legislature
of neither State can pass laws to regulate the right of the other State.
In other words there is nothing but international law to govern. There
is no domestic law to settle this class of cases any more than there
would be if a similar controversy were to arise between Canada and the
United States.
For many purposes, the States are independent sovereigns and not under
Federal control. They have lost the powers which the people in the
Constitution gave to the Central Government; but in the field of powers
left to them each is supreme within its own limits, and by the exercise
of that power may trespass on the exercise of similar power by its
neighbor. How is such a conflict to be settled? It may be by diplomacy,
i.e., by negotiation and compromise agreement, but this under the
Constitution must be with the consent of Congress. It might be settled by
war, but the Constitution forbids. And the State invaded by the forces of
another State can appeal to the General Government to resist and suppress
the invasion, no matter what the merits of the quarrel. In other words,
one of the attributes of sovereignty and independence which the people in
ordaining the Constitution took away from the States was the unlimited
power to make agreements between each other as to their respective
rights, and the other was that of making war on each other when other
means of settlement failed.
What did the people through the Constitution substitute for these
attributes of unrestricted diplomatic negotiation and compromise and
the right to go to war over such interstate issues? The right of the
complaining State to hale the offending State before the Supreme Court
and have the issue decided by a binding judgment.
Now, can the complaining State bring every issue between it and another
State before the Supreme Court? No. The only issues which the Court
can hear and decide are questions which in their nature are capable
of judicial solution. Mr. Justice Bradley first called such questions
“justiciable,” and Chief Justice Fuller and Mr. Justice Brewer used the
same term. There are issues between States of a character which would
be likely to lead to high feeling and to war if they arose between
independent sovereignties, and which the Supreme Court cannot decide
because they are not capable of judicial solution. In such cases between
States of course there can be no war, because the Federal Government
would suppress it. Therefore, if an amicable understanding cannot be
reached, the States are left with an unsettled dispute between them and
no way of deciding it. They must put up with the existing state of things.
There have been several interesting cases before our Supreme Court
illustrating the character of the jurisdiction I have been describing.
Chicago built a sewage canal to drain her sewage with the aid of the
waters of Lake Michigan into the Desplaines River, then into the
Illinois, and then into the Mississippi, from which St. Louis and other
Missouri towns derived their water supply. The Governor of Illinois was
empowered to open the canal. The State of Missouri brought suit in the
Supreme Court of the United States to enjoin the State of Illinois and
the Sanitary District of Chicago from continuing the flow, on the ground
that the impurities added to the Mississippi water had greatly increased
the typhoid fever in Missouri. It was held that this was a subject matter
capable of judicial solution—that Missouri was the guardian of her
people’s welfare and had a right to bring such a suit, and, if she made a
clear case, to enjoin such use of the Mississippi and its tributaries.
Mr. Justice Shiras, in upholding the jurisdiction (Missouri vs. Illinois,
180 U.S. 208, 241), spoke for the Court as follows:
“The cases cited show that such jurisdiction has been exercised in cases
involving boundaries and jurisdiction over lands and their inhabitants,
and in cases directly affecting the property rights and interests of a
State. But such cases manifestly do not cover the entire field in which
such controversies may arise, and for which the Constitution has provided
a remedy; and it would be objectionable, and indeed impossible, for the
Court to anticipate by definition what controversies can and what can not
be brought within the original jurisdiction of this Court.
“An inspection of the bill discloses that the nature of the injury
complained of is such that an adequate remedy can only be found in this
Court at the suit of the State of Missouri. It is true that no question
of boundary is involved, nor of direct property rights belonging to the
complainant State. But it must surely be conceded that, if the health
and comfort of the inhabitants of a State are threatened, the State
is the proper party to represent and defend them. If Missouri were an
independent and sovereign State, all must admit that she could seek a
remedy by negotiation, and, that failing, by force. Diplomatic powers and
the right to make war having been surrendered to the General Government,
it was to be expected that upon the latter would be devolved the duty
of providing a remedy, and that remedy, we think, is found in the
Constitutional provisions we are considering.”
This hearing was on demurrer. When the case came before the Court again
on the merits, Mr. Justice Holmes delivered the judgment of the Court,
and, while affirming the jurisdiction of the Court, pointed out the
difficulties the Court has in exercising it and the care it must take in
doing so. He said in the course of his opinion:
“It may be imagined that a nuisance might be created by a State upon a
navigable river like the Danube which would amount to a _casus belli_ for
a State lower down unless removed. If such a nuisance were created by a
State upon the Mississippi, the controversy would be resolved by the more
peaceful means of a suit in this Court.”
Speaking of this provision in the Constitution extending the judicial
power to controversies between States, Mr. Justice Bradley in Hans vs.
Louisiana (134 U.S. 1-15) said:
“Some things, undoubtedly, were made justiciable which were not known
as such at the common law; such, for example, as controversies between
States as to boundary lines, and other questions admitting of judicial
solution. And yet the case of Penn vs. Lord Baltimore (I Ves. Sen. 444)
shows that some of these unusual subjects of litigation were not unknown
to the courts even in Colonial times; and several cases of the same
general character arose under the Articles of Confederation, and were
brought before the tribunal provided for that purpose in those articles
(131 U. S. App. 1). The establishment of this new branch of jurisdiction
seemed to be necessary from the extinguishment of diplomatic relations
between the States. Of other controversies between a State and another
State, or its citizens, which, on the settled principles of public law,
are not subjects of judicial cognizance, this Court has often declined to
take jurisdiction.”
A very satisfactory discussion of the scope of the power of the Supreme
Court to settle controversies between States is contained in Mr. Justice
Brewer’s opinion in the suit brought by Kansas against Colorado to
restrain the latter from absorbing so much of the water of the Arkansas
River flowing from Colorado into Kansas as seriously to interfere with
the supply of water from the river for irrigation purposes in Kansas. He
said (206 U. S. 95, 99):
“When the States of Kansas and Colorado were admitted into the Union they
were admitted with the full powers of local sovereignty which belonged
to other States (Pollard v. Hagan, supra; Shively v. Bowlby, supra;
Hardin v. Shedd, 190 U. S., 508, 519); and Colorado by its legislation
has recognized the right of appropriating the flowing waters to the
purposes of irrigation. Now the question arises between two States, one
recognizing generally the common law rule of riparian rights and the
other prescribing the doctrine of the public ownership of flowing water.
Neither State can legislate for nor impose its own policy upon the other.
A stream flows through the two and a controversy is presented as to the
flow of that stream. It does not follow, however, that because Congress
cannot determine the rule which shall control between the two States,
or because neither State can enforce its own policy upon the other, the
controversy ceases to be one of a justiciable nature, or that there is
no power which can take cognizance of the controversy and determine the
relative rights of the two States. Indeed, the disagreement, coupled with
its effect upon a stream passing through the two States, makes a matter
for investigation and determination by this Court....
“As Congress cannot make compacts between the States as it cannot in
respect to certain matters by legislation compel their separate action,
disputes between them must be settled either by force or else by appeal
to tribunals empowered to determine the right and wrong thereof. Force
under our system of government is eliminated. The clear language of the
Constitution vests in this Court the power to settle those disputes. We
have exercised that power in a variety of instances, determining in the
several instances the justice of the dispute. Now, is our jurisdiction
ousted, even if, because Kansas and Colorado are States sovereign and
independent in local matters, the relations between them depend in any
respect upon principles of international law? International law is no
alien in this tribunal....
“One cardinal rule, underlying all the relations of the States to each
other, is that of equality of right. Each State stands on the same level
with all the rest. It can impose its own legislation on no one of the
others, and is bound to yield its own views to none. Yet, whenever, as
in the case of Missouri v. Illinois, 180 U. S., 208, the action of one
State reaches through the agency of natural laws into the territory of
another State, the question of the extent and the limitations of the
rights of the two States becomes a matter of justiciable dispute between
them, and this Court is called upon to settle that dispute in such a
way as will recognize the equal rights of both and at the same time
establish justice between them. In other words, through these successive
disputes and decisions this Court is practically building up what may not
improperly be called interstate common law.”
Controversies between one State and another, or its citizens, which are
not justiciable or capable of judicial solution find examples in the
suits brought before the Supreme Court. One case of which the Supreme
Court refused to take jurisdiction was Wisconsin vs. the Pelican
Insurance Company (1 U. S.), in which the State of Wisconsin sought to
enforce against a Louisiana insurance company a judgment rendered in a
Wisconsin court for penalties imposed by a Wisconsin statute upon foreign
insurance companies for failure to comply with statutory regulations of
its business. It was held that neither under international comity nor law
was one nation required to enforce extra-territorially the criminal law
of another nation, and that therefore the controversy presented was not
one of which as between the States of the Union the Supreme Court could
take cognizance. Again, in Louisiana vs. Texas, 176 U. S., 1, Louisiana
sought to restrain the Governor of Texas from so enforcing a quarantine
law as to injure the business of the people of Louisiana. The law itself
on its face was a proper one for the protection of Texas. In dismissing
the suit the Court said:
“But in order that a controversy between States, justiciable in this
Court, can be held to exist, something more must be put forward than
that the citizens of one State are injured by the maladministration of
the laws of another. The State cannot make war, nor enter into treaties,
though they may, with the consent of Congress, make compacts and
agreements. When there is no agreement, whose breach might create it, a
controversy between States does not arise unless the action complained of
is State action, and acts of State officers in abuse or excess of their
powers cannot be laid hold of as in themselves committing one State to a
distinct collision with a sister State.
“In our judgment, this bill does not set up facts which show that the
State of Texas has so authorized or confirmed the alleged action of
her health officer as to make it her own, or from which it necessarily
follows that the two States are in controversy within the meaning of the
Constitution.”
CONTROVERSIES BETWEEN INDEPENDENT NATIONS SUGGEST THEMSELVES
WHICH ARE NOT CAPABLE OF JUDICIAL SOLUTION AND YET ARE QUITE
CAPABLE OF LEADING TO WAR
Thus suppose _C_ nation in the exercise of its conceded powers admits to
its shore, and indeed to its citizenship, the citizens or subjects of _A_
nation and excludes those of _B_ nation from both. The discrimination is
certainly within the international right of _C_ nation, but it may lead
to acrimony and war. This is not a justiciable question, nor one that
could be settled by a court.
The so-called General Arbitration Treaties negotiated by Secretary
Knox with France and England used the word “justiciable” to describe
the kind of questions which the parties bound themselves to submit to
arbitration. They defined this to include all issues that could be
decided on principles of law or equity. The issue whether a question
arising was justiciable and arbitrable was to be left to the decision of
a preliminary investigating commission. The term justiciable and indeed
the whole scheme of these treaties were suggested by the provision for
settling controversies between States in the Federal Constitution and
the construction of it by the Supreme Court. The controversies between
States, decision of which was not determined by rules furnished by the
Constitution or by Congressional regulation, were strictly analogous to
questions arising between independent nations, and were to be divided
into justiciable and non-justiciable questions by the same line of
distinction. The treaties were not ratified by the United States Senate,
but their approval by England and France and by the Executive of this
country constitutes a valuable and suggestive precedent for the framing
of the Constitution and jurisdiction of an arbitral court to be one of
the main features of a league of peace between the great nations of the
world.
Now, is it idle to treat such a league as possible? Well, let us take
England and Canada. For a hundred years we have been at peace. For that
century we have had a frontier between us and Canada four thousand miles
long which is entirely undefended by forts or navies. We have had issue
after issue between the two peoples that because of their nature might
have led to war. But we have settled them by negotiation, or, when that
has failed, by arbitration, until now it is not too much to say that the
“habit” of arbitration between us is so fixed that a treaty to secure
such a settlement in future issues would not make it more certain than
it is. I concede that conditions have been favorable for the creating
of such a customary practice. The two peoples have the same language
and literature, the same law and civil liberty and the same origin and
history. Each had a wide domain, in the settlement and development of
which their energies and ambitions have been absorbed. The jealousies and
encroachments of neighbors in the thickly populated regions of Europe
have not been present to stir up strife. And yet we ought not to minimize
the beneficent significance of this century of peace by ignoring the fact
that many of the issues which we have settled peaceably seemed at the
time to be difficult of settlement and likely to lead to war. The Alabama
Claims issue and the Oregon Boundary dispute were two of this kind.
It is interesting to note that we now have two permanent arbitral
English-American Commissions settling questions. One of them is to
determine the equitable rules to govern the use of waters on our national
boundary in which both nations and their citizens have an interest, and
to apply them to causes arising. The analogy between the function which
the Supreme Court performed in the Kansas and Colorado case in regard
to the use of the Arkansas River and that of this Commission in respect
to rivers traversing both countries and crossing the border is perfect.
Having thus reached what is practically the institution of a League and
Arbitral Court with England and Canada for the preservation of peace
between us, may we not hope to enlarge its scope and membership and give
its benefits to the world?
Will not the exhaustion in which all the belligerents, whether victors or
vanquished, find themselves after this awful sacrifice of life and wealth
make them wish to make the recurrence of such a war less probable? Will
they not be in a mood to entertain any reasonable plan for the settlement
of international disputes by peaceable means? Now, can we not devise such
a plan? I think we can.
The Second Hague Conference has proposed a permanent court to settle
questions of a legal nature arising between nations. But the signatories
to the convention would under such a plan not be bound to submit
such questions. Nor were the conferring nations able to agree on the
constitution of the court. But the agreement on the recommendation for
the establishment of such a court shows that the idea is within the
bounds of the practical.
To constitute an effective League of Peace we do not need all the
nations. Such an agreement between eight or nine of the Great Powers of
Europe, Asia, and America would furnish a useful restraint upon possible
wars. The successful establishment of a Peace League between the Great
Powers would draw into it very quickly the less powerful nations.
What should be the fundamental plan of the League?
It seems to me that it ought to contain four provisions. In the first
place, it ought to provide for the formation of a court which would be
given jurisdiction by the consent of all the members of the League to
consider and decide justiciable questions between them or any of them,
which have not yielded to negotiation, according to the principles of
international law and equity, and that the court should be vested with
power, upon the application of any member of the League, to decide the
issue as to whether the question arising is justiciable.
Second—A Commission of Conciliation for the consideration and
recommendation of a solution of all non-justiciable questions that
may arise between the members of the League should be created, and
this Commission should have power to hear evidence, investigate the
causes of difference, and mediate between the parties and then make its
recommendation for a settlement.
Third—Conferences should be held from time to time to agree upon
principles of international law, not already established, as their
necessity shall suggest themselves. When the conclusions of the
Commission shall have been submitted to the various parties to the League
for a reasonable time, say a year, without calling forth objection, it
shall be deemed that they acquiesce in the principles thus declared.
Fourth—The members of the League shall agree that if any member of the
League shall begin war against any other member of the League, without
first having submitted the question, if found justiciable, to the
Arbitral Court provided in the fundamental compact, or without having
submitted the question, if found non-justiciable, to the Commission of
Conciliation for its examination, consideration, and recommendation, then
the remaining members of the League agree to join in the forcible defense
of the member thus prematurely attacked.
First—The first feature involves the principle of the general arbitration
treaties with England and France, to which England and France agreed,
and which I submitted to the Senate, and which the Senate rejected or
so mutilated as to destroy their vital principle. I think it is of the
utmost importance that it should be embraced in any effective League
of Peace. The successful operation of the Supreme Court as a tribunal
between independent States in deciding justiciable questions not in
the control of Congress nor under the legislative regulation of either
State furnishes a precedent and justification for this that, I hope,
I have made clear. Moreover, the inveterate practice of arbitration,
which has now grown to be an established custom for the disposition of
controversial questions between Canada and the United States, is another
confirmation of the practical character of such a court.
Second—We must recognize, however, that the questions within the
jurisdiction of such a court would certainly not include all the
questions that might lead to war, and therefore we should provide some
other instrumentality for helping the solution of those questions which
are non-justiciable. This might well be a Commission of Conciliation—a
commission to investigate the facts, to consider the arguments on both
sides, to mediate between the parties, to see if some compromise cannot
be effected, and finally to formulate and recommend a settlement. This
may involve time, but the delay, instead of being an objection, is really
one of the valuable incidents in the performance of such a function by
a commission. We have an example of such a Commission of Conciliation
in the controversy between the United States and Great Britain over the
Seal Fisheries. The case on its merits as a judicial question was decided
against the United States, but the world importance of not destroying the
Pribiloff Seal herd by pelagic sealing was recognized and a compromise
was formulated by the arbitral tribunal, which was ultimately embodied in
a treaty between England, Russia, Japan, and the United States. Similar
recommendations were made by the court of arbitration which considered
the issues arising between the United States and Great Britain in respect
to the Newfoundland Fisheries.
Third—Periodical conferences should be held between the members of the
League for the declaration of principles of international law. This is
really a provision for something in the nature of legislative action by
the nations concerned in respect to international law. The principles of
international law are based upon custom between nations established by
actual practice, by their recognition in treaties and by the consensus
of great law writers. Undoubtedly the function of an Arbitral Court
established as proposed in the first of the above suggestions would lead
to a good deal of valuable judge-made international law. But that would
not cover the whole field. Something in the nature of legislation on the
subject would be a valuable supplement to existing international law. It
would be one of the very admirable results of such a League of Peace that
the scope of international law could be enlarged in this way. Mr. Justice
Holmes, in the case of Missouri vs. Illinois, to which I have already
referred, points out that the Supreme Court in passing on questions
between the States and in laying down the principles of international
law that ought to govern in controversies between them should not and
can not make itself a legislature. But in a League of Peace there is no
limit to the power of international conferences of the members in such a
quasi-legislative course, except the limit of the wise and the practical.
Fourth—The fourth suggestion is one that brings in the idea of force.
In the League proposed, all members are to agree that if any one member
violates its obligation and begins war against any other member, without
submitting its cause for war to the Arbitral Court if it is a justiciable
question, or to the Commission of Conciliation if it is otherwise, all
the members of the League should unite to defend the member attacked
against a war waged in breach of plighted faith. It is to be observed
that this does not involve the members of the League in an obligation to
enforce the judgment of the Court or the recommendation of the Commission
of Conciliation. It only furnishes the instrumentality of force to
prevent attack without submission. It is believed it is more practical
than to attempt to enforce judgments after the hearing. One reason is
that the failure to submit to one of the two tribunals the threatening
cause of war for the consideration of one or the other is a fact easily
ascertained, and concerning which there can be no dispute, and it is a
palpable violation of the obligation of the member. It is wiser not to
attempt too much. The required submission and the delay incident thereto
will in most cases lead to acquiescence in the judgment of the Court or
in the recommendation of the Commission of Conciliation. The threat of
force against plainly unjust war—for that is what is involved in the
provision—will have a most salutary deterrent effect. I am aware that
membership in this League would involve on the part of the United States
an obligation to take part in European and Asiatic wars, it may be, and
that in this respect it would be a departure from the traditional policy
of the United States in avoiding entangling alliances with European or
Asiatic countries. But I conceive that the interest of the United States
in the close relations it has of a business and social character with
the other countries of the world—much closer now than ever before—would
justify it, if such a League could be formed, in running the risk that
there might be of such a war in making more probable the securing of the
inestimable boon of peace to the world that now seems so far away.