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for the purpose of defining the questions and the powers of the arbitrators in that case, was to be made by the Executive without reference to the Senate. By a vote of more than 5 to 1 the Senate amended these treaties so as to secure the submission of all such special agreements to the Senate for its advice and consent. The treaties thus amended were not presented by the administration. to the other contracting powers and never became operative. In 1908 Mr. Root, then Secretary of State, negotiated similar treaties with various powers in which the right of the Senate to advise and consent to all special agreements made under these treaties was explicitly provided for. Approved by President Roosevelt and by him submitted to the Senate, these treaties were ratified by the Senate without opposition and are still the law of the land. The two treaties now submitted remove the exceptions made in their predecessors as to questions affecting national honor, vital interests, independence, or the interests of third parties, and substitute therefor in Article I a statement of the scope of arbitration which is designed by its terms to exclude all questions not properly arbitrable.
Article I is as follows:
[Here follows, in the Report, Article I of the Treaty, as printed on p. 26]
It will be observed that by the terms of this article every difference arising between the two nations is to be submitted to arbitration if such differences "are justifiable in their nature by reason of being susceptible of decision by the application of the principles of law or equity," and it follows necessarily that all differences which are not justiciable in their nature by reason of not being susceptible of decision by the application of the principles of law or equity are excluded from arbitration under the terms of this article. It will also be observed that all special agreements made under this article must be submitted to the Senate for its advice and consent. To this article the committee recommends a slight verbal amendment, which only serves to make clearer the meaning of the article and which need not detain us here.
If, following the example of the treaties of 1908, these treaties stopped at this point with the article defining the scope of the subjects to be submitted to arbitration, the committee would have found no difficulty in recommending to the Senate its immediate ratification. The definition of the questions to be submitted to arbitration in these new treaties is, it is true, very large and general and somewhat indeterminate. It is stated that these questions are to be justiciable by reason of being susceptible of decision by the application of the principles of law or equity.
In England and the United States, and wherever the principles of the common law obtain, the words "law or equity" have an exact and technical significance, but that legal system exists nowhere else and does not exist in France, with which country one of these treaties is made. We are obliged, therefore, to construe the word "equity" in its broad and universal acceptance as that which is "equally right or just to all concerned; as the application of the dictates of good conscience to the settlement of controversies." It will be seen, therefore, that there is little or no limit to the questions which might be brought within this article, provided the two contracting parties consider them justiciable.
Under Article I, however, taken by itself, no question could be dealt with unless the treaty-making powers of both countries were agreed that it was justiciable within the meaning of the article. The most vital point, therefore, to be decided would be whether the question was justiciable according to the principles of law and equity. Everyone agrees that there are certain questions which no nation, if it expects to retain its existence as a nation, will ever submit to the decision of anyone else, and by reserving the power to pass upon all special agreements each party to the contract reserves at the same time the power to reject as not justiciable any of these questions which it is admitted no nation could submit to an outside judgment without abandoning its sovereignity and independence.
These treaties, however, do not stop with the article which defines and enlarges the scope of arbitration. In Articles II and III provision is made for the establishment, if either party desires it, of a joint commission of inquiry. Such a commission is to be preliminary to arbitration and is to examine into and report upon the subject of the controversy between the two contracting parties. These articles follow in the main the provisions of The Hague convention of 1907 now in force for the establishment of such commissions. The committee ventures to think that some of the changes here made from The Hague provisions are not in the direction of an advance, but of a retreat, because they revive the idea of confining membership in the commission, if insisted upon by either party, to nationals instead of to wholly disinterested outsiders, which is the conception of The Hague convention. But the important part of these two articles is contained in the last clause of Article III, a point at which these two treaties depart widely from The Hague provisions. The clause in question is as follows:
It is further agreed, however, that in cases in which the Parties disagree as to whether or not a difference is subject to arbitra
tion under Article I of this Treaty, that question shall be submitted to the Joint High Commission of Inquiry; and if all or all but one of the members of the Commission agree and report that such a difference is within the scope of Article I, it shall be referred to arbitration in accordance with the provisions of this Treaty.
It will be seen by examination of the clause just quoted that if the joint commission, which may consist of one or more persons, which may be composed wholly of foreigners or wholly of nationals, decides that the question before them is justiciable under Article I it must then go to arbitration whether the treaty-making power of either country believes it to be justiciable or not. A special agreement, coming to the Senate after the joint commission had decided the question involved to be justiciable, could not be amended or rejected by the Senate on the ground that in their opinion the question was not justiciable and did not come within the scope of Article I. By this clause the constitutional powers of the Senate are taken away pro tanto and are transferred to a commission, upon the composition of which the Senate has no control whatever. It is said that the powers of the President under the Constitution are given up by the third clause of Article III just as much as those of the Senate. If this be true it only makes the case more serious; but the President, under the provisions of Articles II and III, although he would be bound by the decision of the commission, can nevertheless control the formation of that body. To arrange the membership of the joint commission, however, so as to defeat an adverse decision in advance would not be consonant with the spirit of the treaty, but none the less that power of indirect control remains in the hands of the President and in his hands alone.
In approving Article I of the treaty the committee assents to the arbitration of all questions coming within the rule there prescribed. The terms in which the rule is stated are, however, quite vague and indefinite, and they are altogether new in international proceedings. It is possible that others may take an entirely different view from that entertained by the committee or by the negotiators of the treaty as to what was meant by justiciable or as to what was meant by the principles of law or equity when applied to international affairs, and in the absence of any established rules of international law for the construction of such provisions and of any precedents, others might put upon these provisions a construction entirely different from that which the treaty-making power now intends. Under these circumstances to vest in an outside commission the power to say finally what the treaty.
means by its very general and indefinite language is to vest in that commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making.
The last clause of Article III, therefore, the Committee on Foreign Relations advises the Senate to strike from the treaty and recommends an amendment to that effect. This recommendation is made because there can be no question that through the machinery of the joint commission, as provided in Articles II and III and with the last clause of Article III included, the Senate is deprived of its constitutional power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission powers which, under the Constitution, devolve upon the Senate. It seems to the committee that the Senate has no more right to delegate its share of the treaty-making power than Congress has to delegate the legislative power. The Constitution provides that before a treaty can be ratified and become. the supreme law of the land it shall receive the consent of two-thirds of the Senators present. This necessarily means that each and every part of the treaty must receive the consent of two-thirds of the Senate. It can not possibly mean that only a part of the provisions shall receive the consent of the Senate. To take away from the Senate the determination of the most important question in a proposed treaty of arbitration is necessarily in violation of the treaty provisions of the Constitution. The most vital question in every proposed arbitration is whether the difference is arbitrable. For instance, if another nation should do something to which we object under the Monroe Doctrine and the validity of our objection should be challenged and an arbitration should be demanded by that other nation, the vital point would be whether our right to insist upon the Monroe Doctrine was subject to arbitration, and if the third clause of Article III remains in the treaty the Senate could be debarred from passing upon that question.
One of the first of sovereign rights is the power to determine who shall come into the country and under what conditions. No nation, which is not either tributary or subject, would permit any other nation to compel it to receive the citizens or subjects of that other nation. If our right to exclude certain classes of immigrants were challenged, the question could be forced before a joint commission, and if that commission decided that the question was arbitrable the Senate would have no power to reject the special agreement for the arbitration of that
subject on the ground that it was not a question for arbitration within the contemplation of Article I. In the same way our territorial integrity, the rights of each State, and of the United States to their territory might be forced before a joint commission, and under Article III, in certain contingencies, we should have no power to prevent our title to the land we inhabit from being tried before a court of arbitration. To-day no nation on earth would think of raising these questions with the United States, and the same is true of other questions, which will readily occur to everybody. But if we accept this treaty with the third clause of Article III included, we invite other nations to raise these very questions and to endeavor to force them before an arbitral tribunal. Such an invitation would be a breeder of war and not of peace, and would rouse a series of disputes, now happily and entirely at rest, into malign and dangerous activity. To issue such an invitation is not, in the opinion of the committee, the way to promote that universal peace which we all most earnestly desire.
To take from the Senate, in any degree or by any means, the power of saying whether a given question is one for arbitration or not is to destroy the power of the Senate on the most important point to be decided in connection with differences arising with any other nation. Even if it were constitutional, to deprive the Senate to this extent of their share in the treaty-making power would be most unwise and most perilous. The Senate of the United States is as earnestly and heartily in favor of peace and of the promotion of universal peace by arbitration as any body of men, official or unofficial, anywhere in the world, or as any one concerned in the negotiation of arbitration treaties. The history of the United States for a period of more than 70 years exhibits a record of arbitration treaties unequaled by that of any other nation on earth. Every one of those treaties has received the cordial assent of the Senate of the United States. The Senate to-day is heartily in favor, in the opinion of the committee, of enlarging to the utmost practicable limit the scope of general arbitration treaties. The committee recommends to the Senate the approval of the enlarged scope for arbitration proposed in Article I, but it declines to admit that the destruction of the constitutional powers of the Senate is necessary to the promotion of peace and arbitration, or that their maintenance diminishes by a hair's breadth the enlarged scope which these treaties propose for arbitration as the true method for the settlement of international controversies.
We have discussed the abandonment of the power of the Senate to take part in the construction and application of the treaty in particular cases as they arise with no
selfish concern for the prerogatives or rights of the Senate itself, but rather with solicitude that the Senate shall perform the duty which has been imposed upon it by the Constitution and shall not, by its own act, deprive itself of the power to perform that duty. The inclusion of the Senate as a part of the treaty-making power was provided upon mature consideration in the Constitution and was deemed to be adapted to our system of government. It has, on the whole, proved of the highest usefulness for the prevention of hasty and ill-considered agreements with other powers and for the preservation of the interests of all and every part of the American people. So long as that duty rests upon us we must continue to perform it with courage and firmness and without evasion or abdication.
The committee itself, and in the opinion of the committee the Senate also, has no desire to contract the ample boundaries set to arbitration in the first article. But it must be remembered that if we enter into these treaties with Great Britain and France we must make like treaties in precisely the same terms with any other friendly power which calls upon us to do so. This adds to the gravity of the action now to be taken, for nothing could be so harmful to the cause of peace and arbitration or to their true interests as to make a general arbitration treaty which should not be scrupulously and exactly observed. As has been already said, there are questions which no nation will consent to submit to the decision of anyone but themselves. The only way to keep such questions from being forced forward, which is in itself promotive of dissension, ill feeling, and perhaps war, is by the reservation to each of the contracting parties of the power to decide whether or not a question is properly justiciable within the letter and spirit of the treaty.
There are certain questions at the present stage of human development which, if thus forced forward for arbitration, would be rejected by the country affected without regard to whether, in so doing, they broke the general arbitration treaty or not. In the opinion of the committee it should not be possible, under the terms of any treaty, for such a deplorable situation to arise. Nothing ought to be promised that we are not absolutely certain that we can carry out to the letter. If the third clause of Article III remains in the treaty it is quite possible that the unhappy situation just described might arise and the treaty would then become, not what we fondly hope it will be, a noble instrument of peace, but an ill-omened breeder of bitterness and war. For that reason, as well as on constitutional grounds and in the best interests of peace and arbitration itself, the committee recommends that this clause be stricken from the treaty.
THE WASHINGTON CONVENTION AND DINNER The Seventh Annual Convention and dinner of the Navy League will be held in Washington, D. C., February 22 and 23. Among the distinguished guests and speakers will be President William H. Taft and the Secretary of the Navy, George v. L. Meyer.
General Horace Porter, President of the Navy League, will preside; and delegates from Hawaii, California, and other parts of the country will be present.
A special feature of the Convention will be the large public meeting to be held in the Memorial Continental Hall, D.A.R. The regular sessions of the Convention will be held at the New Willard Hotel, where the dinner will be given. Among the various pleasure trips will be a visit to Mount Vernon, during the afternoon of Washington's Birthday. Arrangements will also be made for a trip to Annapolis, Saturday morning, February 24.
NAVY LEAGUE 1912 PROGRAM
The Directors of the Navy League, at a recent meeting, decided on a comprehensive plan for extending the usefulness of the organization, and a committee is now making an effort to secure annual subscriptions to the amount of $10,000 to supply funds to carry on this work.
While the Navy League looks with favor on all practical peace measures and believes thoroughly in the principle of arbitration in the adjustment of international difficulties, yet the leaders of the organization regret that so much of the work of the various Peace Societies should be directed along the lines of opposition to the upbuilding and maintenance of the Navy. It is to be hoped that, during the coming year, no portion of the $500,000 annual income of the Carnegie Peace Fund will be spent in further opposing the administration program of building two battleships a year. Dr. Carus, editor of the "Open Court," recently paraphrased the language, but not the meaning, of the well-known proverb, "Wouldst thou have peace, prepare for war," by the following: "Wouldst thou conjure upon any country the clouds of war, induce its government to disarm, to indulge exclusively in the joys of peace, and to imitate the lamb, a symbol of peaceable innocence and perfect goodness." The immense amount of literature that has been circulated the past two years in opposition to building additional battleships is a menace to peace, instead of an instrument of peace.
ANNUAL MEETING OF THE ADMIRAL BUNCE SECTION
The annual meeting of the Admiral Bunce Section, of Hartford, Connecticut, was held Thursday evening, December 14, with Captain Francis B. Allen in the chair. Among other members present were ex-Governor Coffin, ex-Governor Roberts, Judge John A. Stoughton, and Arthur H. Dadmun, Corresponding Secretary of the Navy League. A most interesting paper was presented by Frederick Knapp, giving the results of several years research of the speaker and ex-Governor Coffin among old records bearing on the work of John Fitch in first applying steam to the propulsion of vessels.
The present officers of the Section were re-elected and a full delegation was chosen to attend the annual convention at Washington.
ANNUAL MEETING OF THE ADMIRAL DAHLGREN SECTION
The Annual meeting of the Admiral Dahlgren Section of Scranton, Pa., was held November 23, and the following officers and Board of Governors were elected for the ensuing year:
Chairman, Hon. J. Benjamin Dimmick.
Vice-Chairman, A. C. Fuller.
Secretary, E. K. Roden.
Treasurer, S. Fletcher Weyburn.
Recorder, E. C. Dean.
Col. Arthur Long, L. M. Horton, John M. Harris, L. A. Osborne, T. F. Penman, John W. Howarth.
Preceding the business meeting, the members of the Scranton Section were guests of the Board of Governors at dinner. Major T. F. Penman presided as toastmaster, and at the close of the meeting gave a resumé of the activity of the section during the past year. Capt. E. K. Roden, the secretary, informed the members that he had received assurance from the Navy Department that the next cruiser to be launched by the Government, will be given the name "Scranton." He also gave an interesting account of the proceedings of the Navy League Convention in Los Angeles, speaking in the highest terms of the entertainment afforded the delegates by the Chamber of Commerce and of the general good accomplished by the convention.
Comdr. P. Andrews. Chief of Bureau of Navigation
Ensign E. S. R. Brandt.
P. A. Paym. T. J. Bright.
..Bureau of Steam Eng., Navy Department Ensign G. Bradford. Asiatic Station Mids. F. Bradley. Wait orders ..Idaho Monterey Lieut. A. L. Bristol, jr... Amer. Embassy, Berlin Lt. Comdr. W. D. Brotherton..Navy Yard, Boston Rhode Island Rhode Island Asiatic Station .Rhode Island Asiatic Station
Ensign A. W. Brown..
Mids. W. P. Brown.
Btsn. F. Bruce..
Ensign H. D. F. Burdick.
Lieut. F. D. Burns.
Surg. D. N. Carpenter.
Ensign F. S. Carter.
Comdr. J. F. Carter.
ORDERS TO OFFICERS, DECEMBER 1-30, 1911 (Names of vessels of the Navy are in italics)
Lieut. A. G. Howe.
.....Kansas .Birmingham Home; wait orders Sta., Newport Asiatic Station .North Dakota Asiatic Station Asiatic Station ....Delaware
Ch. Btsn. J. E. Cartwright..Torpedo
Ch. Carp. T. B. Casey..
Lieut. Comdr. L. A. Cotten. Naval Intelligence Office
Lieut. Comdr. T. T. Craven.
Dir. Target Practice and Eng. Competitions
Chap. S. K. Evans..
Lieut. P. Foley.
Mids. F. H. Fowler.
St. Louis ..Hannibal .Nebraska General Board Hannibal Lieut. O. W. Fowler. Home; wait orders Mids. P. F. Foster. ... Utah Mate H. Forsdal. Naval Hospital, Las Animas, Colo. Ensign H. H. Forgus.. Lieut. Comdr. F. N. Freeman.
Lieut. H. G. Fuller..
Saratoga Connecticut Rhode Island North Dakota Farragut
. Asiatic Station
P. Asst. Surg. J. E. Gill.
Ch. Gun. C. E. Jaff..
Lieut. Comdr. J. V. Klemann
Paym. Cl. H. H. Koppang.
Army & Navy Gen. Hospital, Hot Springs, Ark.
Aid Secretary of the Navy
Ch. Mach. A. T. Percival.
Asst. Paym. M. H. Philbrick.
Ch. Mach. J. P. Richter.
P. A. Surg. W. S. Pugh, jr.. Nav. Hosp., Puget Sd.
St. Louis Sick leave; 3 months . Nashville .Independence Nav. Hosp., Phila. .Home; wait orders .Louisiana Barry .Navy Department St. Louis . Louisiana .Maryland .Asiatic Station .Rhode Island ..New Jersey North Carolina San Francisco Rhode Island .North Dakota Command Newark .Massachusetts
P. Asst. Surg. A. H. Robnett.
Board of Inspection & Survey for Ships
..Naval Hospital, Naval Home, Philadelphia Ch. Mach. H. Smith. Sick leave: 3 months Mids. J. H. Smith.. .Rhode Island
Ensign W. W. Smith.
Asst. Surg. D. D. V. Stuart.
Surg. E. Thompson.. Naval Station, Guantanamo
Lieut. J. H. Towers...
Navy Yard, Washington, D. C.
Surg. U. R. Webb.. Naval Hospital, Canacao, P. I. Ch. Mach. L. H. Wentworth..
.Birmingham P. A. Pm. R. B. Westlake..Navy Yd., Portsmouth Ch Btsn. D. White. .Asiatic Station Comdr. H. A. Wiley. .Asiatic Station P. A. Paym. F. P. Williams. Nav. Hosp., N. Y. Rear Admiral A. B. Willets....Navy Department Med. Insp. G. B. Wilson.. . Home; wait orders P. Asst. Surg. C. K. Winn. .Dixie Rear Admiral C. McR. Winslow. Louisiana Lieut. J. S. Woods... St. Louis Payr. R. H. Woods...Navy Pay Office, Portsmouth Lieut. Comdr. D. W. Wurtsbaugh. . Aid Comdr.-in-Chief U. S. Asiatic Fleet Ch. Carp. J. P. Yates. .Asiatic Station Ensign R. S. Young. Asiatic Station Lieut. R. F. Zogbaum, jr.. ....Louisiana