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PROVISIONS FOR INSERTION IN TREATIES WITH ENEMY GOVERNMENTS
The Enemy Government admits that even after the conclusion of peace, every Allied and Associated State may exercise, in respect of any enemy or former enemy, the right which it would have had during the war to try and punish any enemy who fell within its power and who had been guilty of a violation of the principles of the law of nations as these result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience.
The Enemy Government recognizes the right of the Allied and Associated States, after the conclusion of peace, to constitute a High Tribunal composed of members named by the Allied and Associated States in such numbers and in such proportions as they may think proper, and admits the jurisdiction of such tribunal to try and punish enemies or former enemies guilty during the war of violations of the principles of the law of nations as these result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience. It agrees that no trial or sentence by any of its own courts shall bar trial and sentence by the High Tribunal or by a national court belonging to one of the Allied or Associated States.
The Enemy Government recognizes the right of the High Tribunal to impose upon any person found guilty the punishment or punishments which may be imposed for such an offence or offences by any court in any country represented on the High Tribunal or in the country of the convicted person. The Enemy Government will not object to such punishment or punishments being carried out.
The Enemy Government agrees, on the demand of any of the Allied or Associated States, to take all possible measures for the purpose of the delivery to the designated authority, for trial by the High Tribunal or, at its instance, by a national court of one of such Allied or Associated States, of any person alleged to be guilty of an offence against the laws and customs of war or the laws of humanity who may be in its territory or otherwise under its direction or control. No such person shall in any event be included in any amnesty or pardon.
The Enemy Government agrees, on the demand of any of the Allied or Associated States, to furnish to it the name of any person at any time in its service who may be described by reference to his duties or station during the war or by reference to any other description which may make his identification possible and further agrees to furnish such other information as may appear likely to be useful for the purpose of designating the persons who may be tried before the High Tribunal or before one of the national courts of an Allied or Associated State for a crime against the laws and customs of war or the laws of humanity.
The Enemy Government agrees to furnish, upon the demand of any Allied or Associated State, all General Staff plans of campaign, orders, instructions, reports, logs, charts, correspondence, proceedings of courts, tribunals or investigating bodies, or such other documents or classes of documents as any Allied or Associated State may request as being likely to be useful for the purpose of identifying or as evidence for or against any person, and upon demand as aforesaid to furnish copies of any such documents.
THE TREATY OF PEACE WITH GERMANY IN THE
UNITED STATES SENATE
By GEORGE A. FINCH
Secretary of the Board of Editors of the JOURNAL; Member of the
Bar of the District of Columbia
For the second time the United States Senate, on March 19, 1920, refused its advice and consent to the ratification of the Treaty of Peace with Germany, signed at Versailles on June 28, 1919. The first rejection took place exactly four months before, namely, on November 19, 1919. The vote on the treaty in November was 39 for and 55 against, and in March 49 for and 35 against. Both votes were upon resolutions of ratification containing reservations and understandings the acceptance of which by the Allied and Associated Powers was made a condition precedent to the going into effect of the ratification of the United States. A resolution of ratification without reservations or conditions of any kind was presented to the Senate on November 19, 1919, and defeated by a vote of 38 for to 53 against. No resolution of this kind was offered or voted upon in March. The treaty has thus failed to receive in either form the concurrence of two-thirds of the Senators present as required by the Constitution for the making of treaties by the President.
These votes do not in themselves, however, give an accurate index to the real attitude of the Senate toward the treaty if full weight be given to the positions assumed by Senators in debate and by their votes in the preliminary stages of the contest for ratification. To understand the parliamentary dilemma into which the treaty has been forced, it is necessary to refer briefly to certain facts in its short but turbulent career affecting ratification and to summarize the efforts of its advocates to obtain the constitutional advice and consent of the Senate.
THE SITUATION PRIOR TO THE SUBMISSION OF
THE TREATY TO THE
The first part of the treaty text to be made public was the Covenant of the League of Nations approved by the Peace Conference on February 14, 1919, which, under the resolution adopted by the conference on January 25, 1919, “should be treated as an integral part of the general treaty of peace. Opposition to the Covenant was expressed in the Senate soon after the text became known in the United States and, when the President returned from Paris to Washington in February, 1919, he invited the members of the Senate Committee on Foreign Relations and of the House Committee on Foreign Affairs to the White House for the purpose of discussing the terms of the Covenant. This took place at a dinner on February 26, 1919.
According to one of the Senators present on that occasion, attention was directed to “what were considered to be vital defects and infringements of our Constitution and form of government. Great changes of our traditional policies were pointed out and discussed, and the President was informed that those changes would be absolutely necessary, and that the Covenant in the form in which it then stood was absolutely unsatisfactory to the Committee on Foreign Relations of the Senate.”1 The objections thus pointed out informally to the President were given more definite form on March 4, 1919, the last day of the Sixty-Fifth Congress, when the following resolution, the consideration of which was prevented by lack of unanimous consent, was inserted in the record bearing the signatures of thirty-seven Senators :
Whereas under the Constitution it is a function of the Senate to advise and consent to or dissent from the ratification of any treaty of the United States, and no such treaty can become operative without the consent of the Senate expressed by the affirmative vote of two-thirds of the Senators present; and
Whereas, owing to the victory of the arms of the United States and of the nations with whom it is associated, a peace conference was convened and is now in session at Paris for the purpose of settling the terms of peace; and
1 Statement of Senator Brandegee, Congressional Record, Nov. 19, 1919, p. 8774.
Whereas, a committee of the conference has proposed a constitution for a league of nations and the proposal is now before the peace conference for its consideration: Now, therefore, be it
Resolved by the Senate of the United States in the discharge of its constitutional duty of advice in regard to treaties, That it is the sense of the Senate that, while it is their sincere desire that the nations of the world should unite to promote peace and general disarmament, the constitution of the league of nations in the form now proposed to the peace conference should not be accepted by the United States; and be it
Resolved, further, That it is the sense of the Senate that the negotiations on the part of the United States should immediately be directed to the utmost expedition of the urgent business of negotiating peace terms with Germany satisfactory to the United States and the nations with whom the United States is associated in the war against the German Government, and that the proposal for a league of nations to insure the permanent peace of the world should be then taken up for careful and serious consideration.2
With reference to the objections to the contents of the Covenant raised by members of the Senate Committee the President has since said:
“I brought the first draft of the covenant of the league of nations over to this country in March last. I then held a conference of the frankest sort with the Foreign Relations Committee of the Senate. They made a number of suggestions as to alterations and additions. I then took all of those suggestions back to Paris, and every one of them, without exception, was embodied in the covenant.” 3
The President's reply to the request of the thirty-seven Senators for the separation of the Covenant from the treaty was given in his speech at the Metropolitan Opera House in New York City on March 4, 1919, in which, after vigorously defending the Covenant, he said:
When that treaty comes back gentlemen on this side will find the covenant not only in it, but so many threads of the treaty tied to the covenant that you cannot dissect the covenant from the treaty without destroying the whole vital structure.
2 Congressional Record, March 4, 1919, p. 4974.
3 Address of the President at Tacoma, Washington, Sept. 13, 1919, Senate Document No. 120, 66th Cong., 1st sess., p. 182.
The original draft of the covenant and the covenant as inally adopted are printed in the Supplement to this JOURNAL for April, 1919, pp. 113 and 128. The alterations made in the original draft are described by President Wilson in his address at the plenary session of the Peace Conference at Paris, April 28, 1919, reporting the final draft for adoption. His address is printed in the Supplement, ibid., p. 124.