WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 207 



ident, in the other to an international commission.'''^ Neither case 

 seems to involve a delegation of legislative power, but rather of 

 judicial power, to interpret the treaty. The minority report of the 

 Senate Committee signed by Senators Root and CuUom pointed out 

 that the majority view could "not be maintained except on the 

 theory that all general treaties of arbitration " involve a like un- 

 constitutional delegation of power, the only difference being that 

 the treaties under consideration submitted " certain described 

 classes " of cases to arbitration, instead of particular cases. The 

 decision of the joint high commission on what questions are 

 justiciable " is not delegating to a commission power to say what 

 shall be arbitrated ; it is merely empowering the commission to find 

 whether the particular case is one that the United States have said 

 shall be arbitrated." ^° President Taft, Senator Sutherland, J. B. 

 Moore, and other constitutional authorities have endorsed this 

 opinion. ^^ 



A logical carrying out of the majority theory would seem to 

 deny any power to conclude treaties in good faith, for all treaties 

 require interpretation, and to say that the interpretations must 

 always be according to the will of the existing treaty-making power 

 of the United States, however that may differ from the intent of 

 the original negotiators, is virtually to substitute political expediency 

 for treaty obligation. Good faith would seem to require that the 

 true intent of the instrument govern its application through its entire 

 life, and it is hard to see where a more impartial determination 

 of what this intent was could be obtained than in an international 



'^8 It may be noticed that the Taft treaties accepted the point upon which 

 the Senate had insisted in 1905 and required that the " co)npromis " sub- 

 mitting each case be a treaty consented to by the Senate, even after the 

 Joint High Commission had given its decision. See next note. 



so Ihid., p. 9. This report was signed by Senators Root and Cullom. 

 In a special minority report, Senator Burton pointed out that even after 

 decision by the joint high commission the " couiprouiis" would go to the 

 Senate. " In such case, as in every other case, it would be within the power 

 of the Senate to refuse its advice and consent to the special agreement, but 

 it would be contrary to its treaty obligation." Ibid., p. 12. See also Wright, 

 Am. Jl. Int. Law, 12: 93, Col. Law Rev., 20: 133. 



81 Taft, The United States and Peace, p. 113: Our Chief Magistrate, p. 

 107; Sutherland, op. cit., p. 132; Moore, Independent, Aug. 8, 191 1. 



