Part 33 (1/2)
During the year 1904, there was a great general movement all over the world in the direction of arbitration treaties. Indeed, so general did it become, and so universal was the form used, that it became known as the Mondel or world treaty. The treaties were very brief, and merely provided that differences which may arise of a legal nature or relating to the interpretation of treaties existing between two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the permanent court of arbitration established at The Hague; provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting States, and do not concern or involve the interests of third States. There was a second article in the treaty, which provided that in each case a special agreement should be concluded defining clearly the matter in dispute, the scope of the powers of the arbitrator, the periods to be fixed for the formation of the arbitral tribunal, and the several stages of the procedure.
President Roosevelt and Secretary Hay were very much in favor of these treaties, and sent to the Senate, for its ratification, treaties in substantially the foregoing form, with France, Portugal, Great Britain, Switzerland, Germany, Italy, Spain, Austria, Sweden, Norway, and Mexico. The treaties were considered with great care by the Committee on Foreign Relations. We all favored arbitration in theory, and I do not think any one wanted to oppose the treaties; but a number of questions confronted us. I neither have the right nor do I expect to detail what has taken place in the Committee on Foreign Relations; but I can say that the subject was discussed in the press, whether such treaties would not compel us to consider as matters for arbitration claims against the States, growing out of the Civil War and Reconstruction.
In the judgment of some, such claims were proper subjects of arbitration under this Mondel form of treaty.
President Roosevelt, who was following closely the treaties in the Senate, and with whom I had talked concerning these objections, wrote me a letter, which he marked personal, but which appeared in the afternoon papers almost before the letter reached me, it having been given out at the White House, in which he said:
”_January 10, 1905_.
”My dear Senator Cullom:
”I notice in connection with the general arbitration treaties now before the Senate, that suggestions have been made to the effect that under them it might be possible to consider as matters for arbitration claims against certain States of the Union in reference to certain State debts. I write to say, what of course you personally know, that under no conceivable circ.u.mstances could any such construction of the treaty be for a moment entertained by any President. The holders of State debts take them with full knowledge of the Const.i.tutional limitations upon their recovery through any action of the National Government, and must rely solely on State credit. Such a claim against a State could under no condition be submitted by the general Government as a matter for arbitration, any more than such a claim against a county or munic.i.p.ality could thus be submitted for arbitration. The objection to the proposed amendment on the subject is that it is a mere matter of surplusage, and that it is very undesirable, when the form of these treaties has already been agreed to by the several Powers concerned, needlessly to add certain definitions which affect our own internal policy only; which deal with the matter of the relation of the Federal Government to the States which it is of course out of the question ever to submit to the arbitration of any outside tribunal; and which it is certainly absurd and probably mischievous to treat as possible to be raised by the President or by any foreign power.
No one would even think of such a matter as being one for arbitration or for any diplomatic negotiation whatever. Moreover, these treaties run only for a term of five years; until the end of that period they will certainly be interpreted in accordance with the view above expressed.
”Very truly yours, ”(Signed) Theodore Roosevelt.
”Hon S. M. Cullom, U. S. Senate.”
But a more serious question was met when we came to consider the second article of the treaty, which provided that in each case a special agreement should be made defining clearly the matter in dispute, the scope and powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal. The difficulty confronting us was whether it was the intention to submit the special agreements referred to in article two for the ratification of the Senate. It was the unanimous opinion that these special agreements should be submitted to the Senate.
I believe that as the treaties were drafted it would be the Const.i.tutional duty of the President to have each special agreement submitted for ratification, because the article provided that ”the high contracting parties shall conclude such special agreement.”
The Senate is a part of the treaty-making power, and would be included in the term ”high contracting parties.” But the wording of article two left some doubt as to the intention of those negotiating the treaty; and then, again, it might have been claimed that article one, agreeing to arbitrate the questions therein enumerated, might be construed as an agreement in advance on the part of the Senate, to give to the Executive the general power to make arbitration agreements without reference to the Senate. Of course, the Senate, even if it so desired, could not thus delegate the treaty-making power to the Executive alone.
There was so much difference of opinion that I took occasion to submit the question to both President Roosevelt and Secretary Hay, whether it was the intention on the part of the executive department to send these special agreements to the Senate for ratification.
They both replied that it was not; that one of the purposes of the Executive in making the treaties was to enable the Administration to go ahead and make the special agreements without consulting the Senate.
Under these circ.u.mstances, it was almost the unanimous judgment of the Senate that the treaties should be amended by striking out the words ”special agreement”: and subst.i.tuting the word ”treaty,” a Const.i.tutional term about which there could be no doubt. I considered at the time that the declaration and agreement contained in these treaties in favor of arbitration were just as strong, just as broad, and just as obligatory with the proposed amendment as without it.
It was an agreement on the part of the President and Senate that the President and Senate, the treaty-making power, would submit differences to arbitration.
The Senate was severely criticised at the time for being too technical and standing in the way of arbitration; but in my judgment it was not a trifling question. It could not be put aside. Even if the amendment had not been adopted, the President, if he followed the Const.i.tution, should have submitted these special agreements to the Senate for ratification; but he took the positive stand that he would not submit them, and nothing remained for the Senate to do but to a.s.sert and uphold its rights as a part of the treaty- making power, and adopt the amendment to which I have referred.
I do not think I violate any of the rules of etiquette by quoting here President Roosevelt's letter written to me after he had learned, through the press, that the Senate Committee on Foreign Relations had amended the treaties.
”White House, Was.h.i.+ngton, ”_February 10, 1905_.
”My dear Senator Cullom:
”I learn that the Senate Committee on Foreign Relations has reported the arbitration treaties to the Senate, amending them by subst.i.tuting for the word 'agreement' in the second article the word 'treaty.'
The effect of the amendment is to make it no longer possible, as between its contracting parties, to submit any matter whatever to arbitration without first obtaining a special treaty to cover the case. This will represent not a step forward but a step backward.
If the word 'agreement' were retained it will be possible for the Department of State to do as, for instance, it has already done under The Hague treaty in the Pious Fund arbitration case with Mexico, and submit to arbitration such subordinate matters as by treaty the Senate had decided could be left to the Executive to submit under a jurisdiction limited by the general treaty of arbitration. If the word 'treaty' be subst.i.tuted the result is that every such agreement must be submitted to the Senate; and these general arbitration treaties would then cease to be such, and indeed in their amended form they amount to a specific p.r.o.nouncement against the whole principle of a general arbitration treaty.
”The Senate has, of course, the absolute right to reject or to amend in any way it sees fit any treaty laid before it, and it is clearly the duty of the Senate to take any step which, in the exercise of its best judgment, it deems to be for the interest of the Nation. If, however, in the judgment of the President a given amendment nullifies a proposed treaty it seems to me that it is no less clearly his duty to refrain from endeavoring to secure a ratification by the other contracting power or powers, of the amended treaty; and after much thought I have come to the conclusion that I ought to write and tell you that such is my judgment in this case.
”As amended, we would have a treaty of arbitration which in effect will do nothing but recite that this Government will when it deems it wise hereafter enter into treaties of arbitration. Inasmuch as we, of course, now have the power to enter into any treaties of arbitration, and inasmuch as to pa.s.s these amended treaties does not in the smallest degree facilitate settlements by arbitration, to make them would in no way further the cause of international peace. It would not, in my judgment, be wise or expedient to try to secure the a.s.sent of the other contracting powers to the amended treaties, for even if such consent were secured we would still remain precisely where we were before, save where the situation may be changed a little for the worse. There would not even be the slight benefit that might obtain from the more general statement that we intend hereafter, when we can come to an agreement with foreign powers as to what shall be submitted, to enter into arbitration treaties; for we have already, when we ratified The Hague treaty with the various signatory powers, solemnly declared such to be our intention; and nothing is gained by reiterating our adherence to the principle, while refusing to provide any means of making our intention effectual. In the amended form the treaties contain nothing except such expression of barren intention, and indeed, as compared with what has already been provided in The Hague arbitration treaty, they probably represent not a step forward but a slight step backward, as regards the question of international arbitration. As such I do not think they should receive the sanction of this Government. Personally it is not my opinion that this Government lacks the power to enter into general treaties of arbitration, but if I am in error, and if this Government has no power to enter into such general treaties, then it seems to me that it is better not to attempt to make them, rather than to make the attempt in such shape that they will accomplish literally nothing whatever when made.
”Sincerely yours, ”(Signed) Theodore Roosevelt.
”Hon. S. M. Cullom, U. S. Senate.”
This letter was read to the Senate, and notwithstanding the positive declaration by Mr. Roosevelt that he would not ask any of the foreign Governments to consent to the amendment made by the Senate, the treaties were amended and ratified by the Senate.