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law in the great days of Ulpian and Papinian, international law should continue to develop from precedent to precedent rather than by definition in treaty or code. Premature definiteness is likely to suggest means of violating the spirit within the letter."
However that may be of established portions of international law, certainly those portions relating to international organization are not yet ready for codification. Many writers find flexible constitutions better than rigid constitutions, even in long-established states.*4 Cer
43 See Baty, U. of Penna. Law Review, 63: 703 (June, 1915); Wright, “The Legal Nature of Treaties,” this JOURNAL, 10: 707 (Oct., 1916).
44 Bagehot, The English Constitution, N. Y., 1893, p. 98; Bryce, Studies in History and Jurisprudence, 1: 139, et seq.; Dicey, The Law of the Constitution, 8th ed., pp. 122 et seq. American writers are inclined to resent the charge that their constitution is excessively “rigid.” (Infra, note 45.) In the narrow sense the distinction between a rigid and a flexible constitution depends upon the ease of amendment, i.e., the difference between the process of constitutional amendment and the process of ordinary legislation. The distinction, however, may be given a broader application, not to the constitution as a written document, but to the constitution considered as the entire body of rules, principles and conventions governing the organization and activity of the government. In this sense a constitution becomes more rigid as the provisions of the written constitution become more detailed. The formal document may be very difficult to amend, yet the constitution, in the broader sense, may be exceedingly flexible, provided the formal document is confined to the barest outlines of organization, leaving details to be filled in by legislative, executive, administrative or judicial interpretation and practice. Thus, the flexibility of a constitution varies not only with the ease of amendment, but also with the generality of expression and the degree of discretion allowed the interpreting authorities. Where, as on the continent of Europe, constitutions are usually left to the interpretation of the political departments of government, they may change sporadically according to the whims of politics, though it must be noticed that administrative courts have tended to assume an increasingly judicial character and to extend their control of public law at the expense of purely political organs. Where, as in the United States, much of the constitution is interpreted by the ordinary courts, the constitution is likely to change slowly but continually. “I recognize," says Justice Holmes, "that judges do and must legislate. But they can do so only interstitially. They are confined from molar to molecular motions." (Southern Pacific v. Jensen, 244 U. S. 205, 1917.) Where, as in England, a sharp distinction exists between the law and the conventions of the constitution, some portions, especially those dealing with the guarantees of individuals against the government, change slowly by judicial law-making and infrequent acts of parliament, while the conventions dealing especially with the relations of cabinet, Lords and Commons, change more rapidly with the play of party politics. (See Munro, The Government of the United States, New York, 1919, p. 59.)
tainly the world organization just a-borning would soon strangle in a rigid constitution. The drafters of the Covenant wisely saw that the organization of the League could only be prescribed in the barest outlines. The functions, procedure and powers of its organs and their relation to national governments must be free to develop by “understandings," as has the English Constitution for the past thousand
45 The successful creation of a "rigid” constitution for the United States in 1787 may be thought to discredit this opinion. America, however, was much further advanced in organization in 1787 than is the world in 1920. Nor is it true that the constitution "was struck off at one time by the brain and purpose of man.” In the main it simply formulated established British and colonial practices. Finally, we may question whether the constitution has in fact proved particularly "rigid" since 1787. Elucidation of its flexibility after the manner of Bagehot's analysis of the British constitution may be described as the thesis of President Wilson's discussions of American government.
“Ours,” he says in Congressional Government (1885), "is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law; its tap-root at least is the Constitution; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap center of a system of government vastly larger than the stock from which it has branched. The Constitution itself is not a complete system, it takes none but the first steps in organization, .. and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental system would snap asunder a Constitution which could not adapt itself to the new conditions of an advancing society. .. Our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect vine." (pp. 7-9.)
The same thought is developed in Constitutional Government (1908). "Living political constitutions must be Darwinian in structure and in practice. Fortunately, the definitions and prescriptions of our constitutional law though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance. ... The Government of the United States has had a 'vital and normal organic growth and has proved itself eminently adapted to express the changing temper and purposes of the American people from age to age.” (p. 57.)
Bryce remarks to the same effect: "The American Constitution has changed, is changing, and by the law of its existence must continue to change, in its substance and practical working even when its words remain the same." (Ameri can Commonwealth, 1888, ed. 1891, p. 390.)
Beard explains the method of constitutional evolution in the United States : “Only fifteen (now nineteen) new clauses, it is true, have been added by way of
In conclusion, the writer believes the phrase in question is important because it insists upon the applicability of the constitutional history of nations, especially of England, to the problem of international organization. The “acceptance” of political guarantees and the "prescription" of moral principles are recognized as of value. But these have been tried in the past and have proved insufficient. Consequently an organization to “maintain” justice and treaty obligations is required. But the great problem remains. How to establish' an organization at the same time effective and controlled? How to reconcile liberty and independence for states with the enforcement of law and order? The answer is sought in "the firm establishment of the understandings of international law as the actual rule of conduct among governments.' The constitution of the League of Nations is to be built up of understandings in the twilight zone of law and morality, enjoying the regularity of obedience of one and the flexibility of the other, infinitely tenacious yet capable of indefinite adaptation. This conception of the way in which international organization may develop should commend itself to students of the constitutional history of nations.
amendment to the written document, but Congress has filled up the bare outline by elaborate statutes; party operations have altered fundamentally the spirit and working of much of the machinery; official practice has set up new standards from time to time; and the supreme court, by generous canons of interpretation, has expanded, in ways undreamed of by the Fathers, the letter of the law. In fact, the customs of our constitution form as large an element as they do in the English constitution. A correct appreciation of the evolutionary character of the federal system is, therefore, necessary for a true understanding of the genius of the American political institutions." (American Government and Politics, 1910, p. 60.) Professor Munro in his recent book on the Government of the United States (1919) is especially emphatic on this point. (p. 57.)
A PERMANENT COURT OF INTERNATIONAL JUSTICE
For years partisans of justice between nations have advocated the establishment of a High Court of the Nations to decide every dispute between States, parties to its creation, according to the rules of law which in the opinion of the judges of such a court apply to the dispute and which has been submitted by one or other state in controversy to the court.
The First Hague Peace Conference of 1899 declared itself in favor of the arbitration of disputes between States as the most equitable way of settling and getting them out of the way. It went further by providing a permanent panel of arbiters from whom a temporary tribunal could be chosen by the States in controversy for the adjustment of the dispute upon the basis of respect for law. The conference did not stop here. It provided a code of arbitral procedure to be used by the parties unless they should care to vary it and adopt a procedure more suitable to the particular case.
This was a great step in advance. It was not a permanent court, but it made it easier to take the next step.
This the Second Hague Peace Conference of 1907 did by adopting a draft Convention for the establishment of a Court of Arbitral Justice. This Convention provided for the organization, jurisdiction and procedure of a permanent court to be located at The Hague, composed of judges to be appointed in advance of cases and to serve for a period of twelve years.
The Conference was, however, unable, owing to the pressure of other business and the limited time at its disposal, to devise a method of selecting the judges generally acceptable to its members.
The acceptance of the principle of permanence and the adoption of a draft convention for a permanent court of justice as distinct from a temporary court of arbitration made it easier to take the third step.
This an Advisory Committee of Jurists did at The Hague in the months of June and July of the present year by agreeing upon a method of selecting the judges acceptable to the representatives of ten states. This Committee was appointed by the Council of the League of Nations, and was, in the language of the League of Nations Official Journal for June, 1920, “composed of ten members, five of whom are nationals of the five great Powers and five nationals of smaller Powers," as follows: Messrs. Adatci (Japan), Altamira (Spain), Bevilaqua (Brazil), replaced by M. Fernandes, Baron Descamps (Belgium), Hagerup (Norway), de Lapradelle (France), Loder (Netherlands), Lord Phillimore (Great Britain), Messrs. Ricci Busatti (Italy), and Elihu Root (United States).
The members of the Committee were without instructions; they were not, however, free agents. They were appointed by the Council of the League of Nations to advise that body in the performance of its duties under Article 14 of the Covenant:
The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.
The Committee was therefore to draft a permanent Court of Justice, not of Arbitration, to render judgment between parties and to advise the Council or Assembly in other cases.
To this extent the Committee was to act under instructions. Again Article 13 of the Covenant practically settled the jurisdiction of the Court, providing as it does :
The Members of the League agree that whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration.
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 extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration.
For the consideration of any such dispute the court of arbitration to which the case is referred shall be the court agreed on by the parties to the dispute or stipulated in any convention existing between them.
Then, again, while the court was to be principally the court of the members, it was undoubtedly to be open to non-members upon such