The unpaid installments of interest due on the so-called Pious Fund of the Californias. Referred to Hague Tribunal. Recission of contract of Lorenco Marques Railroad.

Seizures of property of Orr & Laubenheimer et al, by Nicaraguan authorities. Imprisonment and maltreatment of V. H. McCord by Peruvian authorities. Injuries to person and property received by American citizens from Spanish authorities in Island of Cuba.

To terminate claims commission sitting under above agreement.

Extending time of above.

Extending time of above.

Seizures of Russian cruisers of schoon-
ers, James Hamilton Lewis, et al, for
illegal sealing.

Claims of Salvador Commercial Co. for
certain acts and grievances suffered.
"All claims owned by citizens of the
United States against Venezuela which
have not been settled by diplomatic
agreement or by arbitration."

Claims of San Domingo Improvement
Co., et al, for relinquishment of certain
railroad and other properties; also for
bonds of Republic owed by claim-

ants.41

An important international engagement, entered into by the President alone, and which, on account of its adjustment of claims of American citizens may be put under this head, was the final protocol signed by the allies at Pekin, September 7, 1901, after the termination of the Boxer uprising. It contained provisions for the payment of indemnity to American citizens (as well as to the subjects of other powers); it created an international commission to receive and distribute the indemnity; and assigned, as security for payment, the revenues of the Chinese maritime and other customs. It also contained provisions of a political character, such as the punishment of Chinese officials involved in the Boxer affair, the razing of the Taku forts, the prohibition of the importation of arms and ammunition for two years,

44. Moore, International Arbitrations, pp. V. 4687, 4698, 4768, 4770, 4795, 4802-08. Foreign Relations of U. S. 1900, Appx. I 3; Ibid, 1903, p. 804. Congressional Record Feb. 13, 1905. Crandall, op. cit. p. 86. Butler, op. cit. pp. 459, 461, 487, 494 501.

a definition of the limits of the legation quarter, a reform in the Chinese Ministry of Foreign Affairs, the improvement of navigation of certain Chinese rivers, etc., etc.

Although stipulating a date for the withdrawal of the military forces of the allies from Pekin, and therefore partaking of the character of a peace protocol, it cannot be so regarded, because war, in the legal sense, had not existed between the allies and China. As has been pointed out, a peace protocol does not require the assent of the Senate, being an exercise of the war power intrusted to the President. But the agreement is preliminary and contemplates a subsequent embodiment of its terms in a formal treaty. The Protocol of September 7, 1901, was to all intents and purposes a definite arrangement.

This case is interesting, because it shows how the force of circum-¦ stances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. As has been pointed out above, purely political treaties, are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting and evasive tactics of the Chinese government, would have made impossible anything but an agreement on the spot.

III.

THE LATE ARBITRATION TREATIES AND "AGREEMENTS.” A discussion of "agreements" will not be complete without a brief consideration of the question raised in connection with the recent arbitration treaties which were approved by the Senate, with an amendment which substituted the word "treaty" for "agreement" in article II of the treaties. The article in question reads as follows:

“In each individual case, the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special [agreement] treaty, defining clearly the matter in dispute, the scope of the powers of the arbitrators, etc."

First as to the reasons for the use of the words "special agreement" in the above article. Those who have followed the subject will remember that the attempt at the Hague Conference in 1899, to make arbitration obligatory failed of adoption, although article 19 left the way open to the contracting parties to enter into treaties providing for obligatory arbitration. The first step in this direction was the arbitration treaty between France and Great Britain of October 14, 1903, adopted chiefly through the exertions of Sir Thomas Barclay, president of the British Chamber of Commerce in Paris, and M d'Estournelles, president of the parliamentary and arbitration group of the French Chamber of Deputies. This treaty became the model and its counterpart was concluded in identical terms between some six or more European governments. The same procedure was followed in respect to the identic treaties made by the United States with ten foreign States, beginning with France, November 1, 1904. In view of the fact that the whole list of treaties was supplementary to the Hague Convention, it was desirable that they should be, as far as possible, identical in language. Looking at the French text of the Anglo-French treaty of October 14, 1903, we find that Article 2 reads as follows: “Dans chaque cas particulier, lés Hautes Parties Contractantes, avant de s'adresser à la Cour permanente d'arbitrage, signeront un compromis spécial, determinant l'object du litige, l'éntendue des pouvoirs des arbitres, &c., &c." I

The word "compromis" was used for two reasons.

It has come to have the special meaning of an agreement submitting a controversy to arbitration. Moreover it is the word used in Article 31 of the Hague Convention itself which provides that: "The Powers who have recourse to arbitration sign a special act ("Compromis") in which the subject of the difference is clearly defined, as well as the extent of the arbitrator's powers."

In preparing the text of the several American treaties of arbitration, the nearest English equivalent to the word "compromis" was used; namely, "agreement." Indeed this is the word employed in the English text of the identic arbitration treaty between Great Britain and Spain of February 27, 1904.3

The principal argument which was urged in support of the substitution of "treaty" for "agreement" in the treaties, was that the Senate. could not delegate to the President its treaty-making power. Had the treaties been accepted by the various foreign governments with the above change, then every arbitral arrangement entered into in pursuance thereof, would require the Senate's approval.

The arbitration treaties provided for the submission to arbitration of "differences of a legal nature or relating to the interpretation of treaties between the contracting parties." Although the general opinion was that the possible subjects of arbitration were few and simple, the Senate must have thought otherwise. If in a future treaty of arbitration, the general words of description (“differences of a legal nature or relating to the interpretation of treaties") were replaced by a specific enumeration of cases in which arbitration would be resorted to, it is believed, that the objection of an unconstitutional delegation of power to the President (if any existed) would be removed. A list of such cases will be found in Article 10 of the project submitted by the Russian government to the Hague Conference. This list is incorporated with some changes in the arbitration treaty between Mexico and Spain of January 11, 1902. The Russian list includes: claims of citizens or subjects against foreign governments; the interpretation and applica

2. "Projet de règlement pour la procédure arbitrale internationale preparé par l'Institut de droit internationale-à la Haye, 1875." Arts. 1 and 2. Ibid. Session de Bruxelles, 1895, sec. 2.

This use of the word is, in fact, much earlier. See, Grotius, De jure belli ac pacis, lib. III. c. 20 $46.

Treaty of Ryswick, Oct. 30, 1697 (France and the Empire) Article 7, referring a case to arbitration.

Compare Art. 1006 of the French Civil Code providing,

"Le compromis designera les objets du litige et les noms des arbitres." 3. La Justice International, 2me Année No. 10, p. 122.

}

tion of treaties on the following subjects-posts, telegraphs, railroads, sub-marine cables, collisions at sea, navigation of rivers, industrial and literary property (patents, trade-marks and copyrights), weights and measures, sanitation, inheritance, extradition, and those giving rise to purely technical questions of boundary. 4

The alleged unconstitutional delegation of power to the President might equally be brought against extradition treaties, which specify a list of offenses for which extradition will be granted. As was said in Holmes v. Jennison, referred to above, each act of surrender under an extradition treaty, involves an agreement.

The treaty of March 1, 1889, with Mexico, which created the International Boundary Commission, is a pertinent example of the exercise of this power. 5 This treaty referred to the final decision of the Commission all differences and questions which might arise with respect to that portion of the frontier, where the Rio Grande and the Colorado form the international boundary, and more particularly with respect to the application of the provisions of the treaty of November 12, 1884, which established certain rules for the determination of the location of the boundary in the event of changes in the courses of the two rivers. This treaty would certainly be open to the same objection which could be urged to a general treaty of arbitration of the kind proposed.

Article 23 of the Universal Postal Convention of July 4, 1891, to which the United States is a party, provides that:

I. "In case of disagreement between two or more members of the Union as to the interpretation of the present convention, or as to the responsibility of an Administration, in the case of loss of a registered article, the question in dispute is decided by arbitration. To this end each of the administrations

4. Holls, Peace Conference at the Hague, p. 227.

Since the above was written it has come to the notice of the writer that Russia and Denmark have signed on March 1, 1905, an arbitration treaty of this kind. The list of subjects to be referred to obligatory arbitration is somewhat more restricted than that contained in the Russian project submitted to the Hague Conference. The Russo-Danish Treaty makes arbitration obligatory in the following cases: (a) interpretation or application of conventions relating to private international law, the regime of commercial and industrial associations, matters of procedure, whether civil or penal, or extradition; (b) pecuniary claims where the obligation to pay an indemnity or any other kind of payment is recognized in principle by the two parties. Law Mag. and Rev., Aug., 1905, P. 468.

5. By the Convention of Nov 21, 1900, the duration of the treaty of March I, 1899, was extended indefinitely.

6. Treaties in Force (1889) 415.