LEGISLATIVE EXPRESSIONS TOUCHING JUDICIAL SETTLEMENT
91. General observations. -- Much of the progress and development of arbitration from a practical point of view has come from the executive rather than from the legislative side of government. We may illustrate this by reference to treaties of arbitration from the time of the Jay Treaty to the latest agreement to arbitrate filed with the League of Nations. In all these the legislature, while under certain constitutions taking a final part, as in the case of the Senate in the United States, has usually played, at least directly, a relatively unimportant rôle. The active moving instrumentality has been universally the executive. Nevertheless it is true that the state of feeling prevailing in the legislature may have had its influence upon the executive, while, when necessary, the ratification or non-ratification of pacts submitted by the executive is a matter of the most vital importance.
Let us now consider legislative reports and debates bearing upon the question.
92. United States. -- The earliest legislative attention to the general subject was given by the legislature of Massachusetts. The American Peace Society on February 6, 1835, urged upon the legislature "that some mode of just arbitration should be established for the amicable and final adjustment of all international disputes instead of an appeal to arms," and that "such steps may be taken in relation thereto as may appear best adapted to promote the end in view." The committee to which reference was had prepared an extended favorable report on which no final action was taken.
In 1837 the representative of the American Peace Society again petitioned to like effect, and the legislature so resolved.
Based doubtless upon the petitions mentioned and others, both privately signed and by the Massachusetts Peace Society, the legislature by resolution approved April 25, 1838, called for the "institution of a Congress of Nations for the purpose of framing a code of international law, and establishing a high court of arbitration for the settlement of controversies between nations." The governor was requested to send a copy of the resolutions and report to the President and to the other state governors for the co-operation of their legislatures.
The American Peace Society, the Vermont Peace Society, and others