Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-05-28
Speech at Annual Commence
ment of Law School
ON DELEGATED POWER
IN MATTER OF TREATY-MAKIN
IN THE UNITED STATES.
Discussed the Differences Between the
President and the Senate Over
Peace Pacts.

CINCINNATI, Ohio. May 27-Differences
between the President and the United
States Senate over peace treaties were dis
cussed today by Secretary of War w H.
TAFT In speech al the annual commence
ment of the Cincinnati Law School His
subject was 'Delegation of Delegated Pow
err" He said:
wv hlle recent attempt to maintain
delegation of delegated power was defeat
ed for the time, think, with Difference to
the great lawyers who denied its validity
that such delegation of delegated power
viii ultimately come to be recognized as
permissible.
The treatymakng power of the United
States Is committed to the President and
with the consent of the Senate two-thirds
thereof concurring. treaty when prop
erly made and confirmed is the law Of the
land. The treaty making power is there
fore analogous to the executive power. 1t
is delegated power and the rule against
the delegation of such delegated power is
certainly as strong as against the delega-
ton of legislative power This is expressly
recognized in the decision Of the Supreme
Court in respect to the reciprocity clause
of the Mckinley bill
The Hague Court.
"By a treaty with a number of powers
the United States agreed to the establish
ment of an international court at The
Hague before which might be submitted
controversies and differences between the
contracting powers. and this treaty refer
red to and contemplated the making Of gen
eral treaties of arbitration between each
two of the contracting parties
These treaties were submitted to the
senate for confirmation, and the Senate
contending that the special agreement
provided In the second clause could not
have any validity on the United States un-
less 1t was concurred in by the Senate.
changed the word agreement to treaty
In order that this construction should not
be doubtful The President regarded
treaty agreeing to arbitration as mere
agreement to agree. and as making no sue
cessful step toward general arbitration of
differences.
THE position of the President was that.
for the purpose of facilitating the settle
ment of international disputes, it was
within the competence of the President and
the Senate, as the treaty making power, to
agree with another nation that all contro-
|ersies within certain defined class should
be submitted to The Hague tribunal and to
provide that the President might without
further consulting the Senate by agree
ment with the representatives Of the other
power, define clearly the matter in dispute
the scope Of the powers of the arbitrators
the periods to be fixed for the formation of
the arbitral tribunal and the safe stages of
the procedure.
The Presidential Power.
The argument is, that, In order that the
treaty-making power may be efficiently
used, and that international controversies
may be speedily sent before a court without
awaiting the slow process OF confrma ton
by the Senate. the. President and the Sem
ate, may after defining the classes of con-
troverses to be settled by arbitration and
fixing the court before which such classes
OF controversies are to be settled confer
upon the executive the power to decide for
the United States whether the controversy
in question is within the class of contro-
versies defined in the treaty, and confer the
power, by subordinate agreement to define
the issues of the controversy and to fix the
details of the procedure.
The mere mandate to the President to
decide whether controversy is within a
class of controversies with respect to which
those two nations have by a binding treaty
agreed that they be submitted to The
Hague tribunal is not delegation Of the
treaty-maktng power at all. 1t Is a mere
comforting of executive discretion, involving
the construction of statute or. what is
the same thing, treaty.
1T Is to be hoped that the question may
be re-examined at some future time and
that some method may be devised by which
general arbitration treaties may be prompt
ly applied to international differences with
out having to secure. In each instance Of
their application, the consent of two-thirds
Of the Senate"