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Now as men do take part in government, and as men, either individually or collectively, are neither infallible nor impeccable, it is never to be expected, under any possible constitution or form of government, that authority will always be wisely and justly exercised, that wrong will ever be done, and the rights of individuals never in any instance be infringed; but with the clear understanding that all power is of God, that the political sovereignty is vested in the people or the collective body, that the civil rulers hold from God through them and are responsible to Him through them, and justiciable by them, there is all the guaranty against the abuse of power by the nation, the political or organic people, that the nature of the case admits.
The plan of submission to a joint high commission, composed of three citizens or subjects of one party and the same number of another, is a concession to the fear of being too tightly bound to an adverse decision made manifest in the objections of the Senate committee, because it may well be supposed that two out of three citizens or subjects of one party would not decide that an issue was arbitrable under the treaty against the contention of their own country unless it were reasonably clear that the issue was justiciable under the first clause of the treaty.
The supreme court is placed at the head of all known tribunals, both by the nature of its rights and the class of justiciable parties which it controls. In all the civilized countries of Europe, the government has always shown the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice.
There also is a provision granting to the Commission created by the treaties the right to determine whether any given question presented to it may be considered justiciable under the language of the treaties.
Questions involving boundary lines, the rights of fishermen in waters bordering upon countries with contiguous territory, the use of water-power, the erection of structures on frontiers, outrages upon aliens, are examples of justiciable subjects, and these are made susceptible of adjudication and decision under these treaties.
My own views as to the relative value of the settlement of an international controversy, which is by its nature justiciable, by a body of diplomats and of the settlement by a body of trained jurists were fully set forth in an address which I delivered before the American Bar Association at its annual meeting at Boston on September 5,1919.
This court would provide a practical and convenient tribunal before which we could go voluntarily, but to which we could not be summoned, for a determination of justiciable questions when they fail to be resolved by diplomatic negotiations.
In case of a difference on whether the dispute were justiciable or not, it was to be submitted to a commission of inquiry for decision. If the commission found it was justiciable the question in dispute must be submitted to arbitration. Should the commission find it was not justiciable there would still exist the possibility of war.
We elect to participate in suggesting plans for mediation, conciliation, and arbitration, and would gladly join in that expressed conscience of progress, which seeks to clarify and write the laws of international relationship, and establish a world court for the disposition of such justiciable questions as nations are agreed to submit thereto.
An understanding of the term justiciable may be essential to a full comprehension of the significance and scope of these treaties.
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