New-York tribune., 1899-04-13
IRRITATION AND CONSTITUTION.

A.,ont;on ;s caIIed to n recent decision or the
Court NJ Cessation Mt Rome concerning interna-
,iopal arbitration. II was rendered in the we'll
lnovn Ccrruti case which had long been mat
ter of contention between the Italian ana Coioin-
bian governments. but which was settled snort
time ago through arbitration. Some phase OF
detail of It appears to have been carried pe1ore
the Italian courts in appeal against the arui'rai
decision. The Court OF Cessation, or supreme
court, of Italy declares, however, that the na-
tional courts have no jurisdiction In the matter.
The courts Of n nation cannot set ASIDE hor
modify the findings of an international court OF
arbitration.
That decision Is theoretically. from one point
of view. sound. An international trlounai 's
pomnally superior to a national one. More
over. when n nation submits case to. arbltra-
tion II is bound by good faith and honor, to
abide by tie result, and not make 1t subject 10
thc approval of SOME subordinate and ex parte
tribunal of its own creation. All that goes WITH
ont saving. And yet Il Is not a convincing ar
cument in favor of general and unlimited arDi-
trotion On the contrary, it denotes In the clear
cst manner one Of the most serious flaws in the
system of arbitration, objections to It, or
limitations Of It, Our own Supreme Court IS
said never TO have had occasion to make or to
consider the making Of such decision as that
of the Italian court When, II ever, 1t docs have
such occasion. something uncommonly Interest
ing will happen.
For the question raised will be simply this:
Can stream rise higher than its source? Or
can there be a constitutional warrant for an
extra or unconstitutional act? Arbitration is
not provided for in the Constitution, save in the
or bn docs
vide for the making OF treaties, and declares by
whom they are to be made and by whom rati-
fed. But is it conceivable that the Constitution
contemplates the making Of treaties which shall
violate its own express commands? Would
treaty be valid for example, which bound this
Nation to levy taxes on articles exported from
the States. when the Constitution explicitly for
bids such tax? Or il this Government nego-
tiated treaty binding it TO make Protestant
ism or Catholicism the State religion, or agree
ing to establish human slavery here is it con-
ceivable that such treaty would be valid?
That would be amendment Of the Constitution
by treaty. 1t would be revolution by treaty.
We take It that Congress cannot invest Con-
gresslonal committee with greater power than
| Congress Itself possesses. principal cannot
confer upon an agent greater authority than his
! own That is automatic Then a treaty nego-
tiated under the Constitution cannot be regard
ed as superior to the Constitution itself. In
| that view Of the case it Is not easy to see how
the Supreme Court of the United States could
possibly agree with the decision Of the Italian
Court OF Cessation. If ii should not agree with
II. all arbitration would have to be conducted
on the understanding that no award in conflict
with the Constitution would he accepted. If, on
the other hand. 1t did agree with it. and II were
understood that the Constitution might be set
aside. modified or abrogated by a tribunal of
arbitration. why then. we imagine, the Ameri-
can people would become about as fond Of ar
bitration as His Satanic Majesty is reputed to
be Of holy water.