Fifty Years of Public Service Part 32

"I can not refrain from referring to my belief that no amendment to the treaty should be made. The delimitation of Panama and Colon involves several things which can only be satisfactorily adjusted on the ground by joint action. There are several other points in the treaty which will require a mutual working agreement, or regulation, including sanitation. While the treaty covers broadly all these things, my observation here is that the details of development of the authority conferred by the treaty in these regards can not be satisfactorily carried out by amendments, but should be done through a mutually agreed upon regulation or understanding reached here on the ground between the two countries.

The executive power here can secure for the convention ample authority to do such things without their being referred to the convention hereafter. Would it not be possible and best to adopt this course with these amendments to the treaty; will bring up here much discussion of many articles which can all be avoided and our purpose gained by above course. Any time when any specific grants of land or power not implied in the treaty is desired, it appears to me the wise course to take will be to do this by a supplemental convention.

"(Signed) Buchanan."

Secretary Hay showed the most eager anxiety to have the treaty ratified as it stood, and he wrote me quite a lengthy letter on the subject, which I now feel at liberty to quote.

"Department of State, Washington.

"_January 20, 1904_.

"Dear Senator Cullom:--

"I enclose a copy of a letter from the Panama Minister which he sent me last night. He, as well as Mr. Buchanan, who is on the ground, is greatly disturbed over the possible complications which may arise if amendments are added to the treaty in the Senate. Of course, I need not say n.o.body questions the right of the Senate to amend the treaty as may seem to them best. I am only speaking of the matter of opportuneness and expediency. We insisted on an immediate ratification of the treaty by the Panama Government, and they acceded to our wishes. If we now, after a very long delay, send the treaty back to them amended, you can at once imagine the state of things that it will find there. The moment of unanimity and enthusiasm, which only comes once in the life of a revolution, will have pa.s.sed away and given way to the play of politics and factions. They will have a certain advantage which they have not had before in dealing with the matter. We shall have ratified the treaty with amendments, which gives them another chance to revise their perhaps hasty and enthusiastic action. They will consider themselves as ent.i.tled to make amendments as well as we, and it needs only a glance at the treaty to show what an infinite field of amendments there is from every point of view. The Junta in making their report to the present Const.i.tutional Convention said that, although many of the provisions seemed harsh and hard, yet it was judged for the public good to accept it as it was. When they get the amended treaty in their hands again, they will compare it with the treaty we made with Colombia, and see how vastly more advantageous to us this treaty is than that one was, and there are never lacking in a body of men like the Const.i.tutional Convention a plenty of members who like to distinguish themselves by defending the interests of their country through the advantageous amendment of a treaty. Meanwhile the country will be open to the intrigues of the Colombians, and even to the military attacks upon the frontier.

"All these considerations would, of course, have no weight whatever if the amendments were vital to our interests, but, as I said to you yesterday, it was the opinion of all of us who have studied the matter that every point made by the amendments was intended to be covered--I do not say how successfully--by the provisions of the treaty itself. This letter of Mr. Varilla's shows that the intentions of each Government were thoroughly understood by the other, exactly in the sense of the amendments now proposed. I earnestly hope that our friends in the Senate may see the strength of our present position if the treaty is ratified without amendment, and the certain complications that will arise if, after a long debate here, the treaty is put once more in the hands of the Panamans for reconsideration and amendment.

"If the object of the amendments, as some people say, is to get it ratified by the new permanent Government, nothing is easier. I have no doubt we can have a solemn resolution of that sort adopted by the Convention at any time.

"Very sincerely yours, "John Hay.

"The Honorable S. M. Cullom, "United States Senate."

After nearly a month and a half of debate in executive session, devoted to its consideration, the treaty was finally ratified without amendment.

Considerable discussion arose over the question of the recognition of Panama and the right of that country to make the treaty at all.

I contended in the Senate, in open as well as executive session, that the new Republic of Panama had a perfect right to make the treaty with the United States because it was a complete, sovereign, and independent State. The recognition given the new Government was the highest recognition we could accord. It was not a recognition of belligerency, which is only a recognition that war exists; it was not a virtual recognition, which is a recognition only for commercial purposes; but it was what Pomeroy and Fillmore define to be a formal recognition--that is, an absolute recognition of independence and sovereignty. The recognition of the Republic was a complete and formal recognition of independence, because the President had received an envoy-extraordinary and minister- plenipotentiary from that State. The United States Senate was a party to that complete and formal recognition, because we confirmed the nomination of Mr. Buchanan as envoy-extraordinary and minister- plenipotentiary to that country.

This ended the long fight over the construction of the Panama Ca.n.a.l --at least, so far as it in any way involved the jurisdiction of the Committee on Foreign Relations. With the ratification of the treaty, the subject was transferred to the Committee on Interoceanic ca.n.a.ls, where, during every session, matters of more or less importance connected with the ca.n.a.l are considered.

I do not know whether or not it was wise to change from the Nicaraguan to the Panama route. Senator Hanna and Senator Spooner were responsible for the change; and time alone will demonstrate whether we acted wisely.

CHAPTER XXVI SANTO DOMINGO'S FISCAL AFFAIRS

For some years the Santo Domingo protocol and treaty were before the Committee on Foreign Relations, and in the Senate. They came before the Senate very suddenly. On January 20, 1905, there appeared in the press what purported to be a protocol, agreed to by Commander Dillingham on the one hand, and Minister Sanchez of the Dominican Republic on the other, by the terms of which the United States was to take charge of the custom houses of the Dominican Republic, adjust and liquidate its debt, and generally to take charge of the fiscal affairs of the Republic. By the terms of this protocol, it was to go into effect February 1, and there was no provision at all for Senatorial action. Senator Bacon and other Democratic Senators became very much aroused over this as a usurpation of the rights of the Senate. Resolutions were introduced, calling upon the State Department for information, and the subject was considered by the committee at several meetings.

I confess that I too was considerably surprised at the action of the State Department, and I called on Secretary Hay one morning and asked to be informed as to the facts.

Secretary Hay stated that he would communicate with me in writing, which he did on March 13, 1905, saying:

"In answer to your verbal request, I submit herewith a statement of the facts with reference to the making of the Santo Domingo protocol, and enclose herewith a copy of the protocol of January 20, 1905. That protocol was not drawn up by the Department of State and was never seen by any of its officials until it appeared in the newspapers on January 22d last, as given out by the Dominican officials. The Department has never authorized its signing; it never gave any instructions authorizing its signature; and no full powers had ever been given authorizing the signature on the part of the United States Government. The Minister of Foreign Affairs of the Dominican Republic visited Washington during the Spring of 1904, and during a stay of nearly three months repeatedly solicited the a.s.sistance of the United States Government for the restoration of order in the island and for the regeneration of his country, but the responsible officials of the Department advised against meeting his request, and the President, to whom the matter was referred, decided against taking any action as long as it could wisely be avoided.

"The Dominican Government again brought the matter to the attention of the United States Minister at Santo Domingo the latter part of 1904. In the meantime an investigation had been going on quietly by our Government through Commander Dillingham, to obtain information as to the real condition in the island. After the President became thus familiar with the situation there, and on the report of the United States Minister, and after repeated requests for help from the Dominican Government, the Department of State, on January 6, 1905, prepared a cablegram setting forth the basis on which alone the United States would be able to render a.s.sistance. . . .

"Neither that cablegram nor any other despatch whatsoever went further than simply lay down a basis; and acting on this, but without instructions authorizing it, the Dillingham-Sanchez protocol was signed. The Department was advised by cable on January 20 that an arrangement had been agreed to, and thereupon the Department officials at once set to work to prepare a treaty; and its officials were actually engaged in drafting one to send to Santo Domingo, when the publication of the protocol of January 20 appeared. The Department at once cabled to Santo Domingo to forward a copy of the protocol; and as soon as its text could be received, the Department began work in making amendments and adjusting terms on which the United States Government could consent to act. As soon as the two Governments could arrive at substantial agreement as to the terms, full powers were communicated to Dawson, and the protocol now before the Senate was accordingly signed.

"In view of the misapprehensions that at once arose, growing out of publication of the protocol, which upon its face stated it was to go into effect February 1st, and from which it might naturally be inferred it was intended to go into effect before the Senate could have an opportunity to consider it, and without its having been referred to the Senate for consideration, I considered the question of the propriety of stating the fact that no instructions and no powers had ever been granted authorizing the signing of the protocol of January 20. The decision was reached that repudiation of the action of Dillingham and Dawson might be construed as a censure, and that it might cause offence to them as well as to their friends, who might feel that when the circ.u.mstances should become fully known, that Dillingham and Dawson were justifiable in a.s.suming the responsibility they did in signing the protocol instead of making a formal memorandum of the basis agreed on and communicating it to the Department for the drafting of a treaty. Both of these officials have a record of faithful and skilful service and competency, and it was hoped when the facts should become more fully known, a correct understanding of the actual situation would remove any ill effects of previous misapprehension.

"The department has been advised that the protocol of January 20 was given out for publication by the Dominican Government in order to calm the popular mind on account of its uncertainty as to the character of negotiations which were actually being carried on between the two Governments.

"(Signed) John Hay."

From 1865, until the time that the United States a.s.sumed the collection of customs, conditions in Santo Domingo were about as bad as they could be in every respect. One revolution succeeded another. There had been twenty-six different Administrations since 1865, only one of which was brought about by means of a regular election. Most of the others were caused by revolutions, a.s.sa.s.sination, forced resignations, and a general condition of anarchy. Debt after debt, bond issue after bond issue, piled up, each Administration seemingly bent only on seeing how much actual cash could be raised, utterly regardless of obligations a.s.sumed. None of the princ.i.p.al and only a trifling portion of the interest were paid, and it seems that the different Administrations never had any intention of liquidating the obligations of the Republic. The princ.i.p.al portion of the bonds was held by European creditors.

But finally the Santo Domingo Improvement Company, an American corporation, succeeded as the fiscal agents of the Republic, to float its bond issues. The improvement company was displayed, and its claim was settled for four million, five hundred thousand dollars. Then a protocol was entered into between the United States and Santo Domingo by which the manner of payment was submitted to arbitration, our arbitrators being Judge George Gray and John G.

Carlisle. An award was rendered providing that an agent of the United States should take possession of certain custom houses, in order to pay a debt which the Government of Santo Domingo had acknowledged to be due an American corporation.

This did not satisfy foreign creditors, French, Belgian and Italian, who had actually been given, by an agreement with Santo Domingo, the right to collect revenues at certain custom houses. Santo Domingo appealed to the United States and the foreign Governments threatened that if the United States did not enforce some remedial plan, they would be compelled to take action for the relief of their own citizens, whose claims aggregated twenty million dollars.

Italian warships were already in Santo Domingo waters ready to enforce their demands. This, briefly, was the condition of affairs when the protocol of 1905 was submitted to the Senate for ratification.

For more than a quarter of a century we have had a peculiar interest in Santo Domingo. As is well known, under the Administration of President Grant a treaty was negotiated and sent to the Senate providing for the annexation of Santo Domingo. Senator Sumner was Chairman of the Committee on Foreign Relations, and as such was able to prevent the consideration of the treaty by the committee, and its ratification by the Senate. Some one said that the only objection that Charles Sumner had to the treaty was that President Grant had suggested it first. This was one of the reasons why Senator Sumner was deposed as chairman of the Foreign Relations Committee. It would probably have been better for the United States, and it certainly would have been better for the Dominican Republic, if the treaty had been ratified.

The protocol submitted to the Senate involved very large responsibilities on the part of the United states. It provided that the United States was to adjust all the obligations of the Republic, the arrangement of the payment, to pa.s.s upon all claims of Santo Domingo, determine their amount and validity, take charge of all the custom houses, and collect and disburse the customs receipts, giving to Santo Domingo forty-five per cent of the customs receipts and devoting the balance to the liquidation of her debts.

This protocol had the active opposition of the minority of the committee and in the Senate and, in addition, such conservative members as Senator Hale and other prominent Republicans opposed it. We fought over it in committee month after month; but finally, on March 10, 1905, it was reported by me to the Senate with a large number of amendments. It was considered by the Senate, recommitted at the end of the Congress, and again reported at the following Congress. But those in favor of it became convinced that we did not have the two-thirds necessary to ratify it, and it was never brought to a vote. It was thought that nothing more would be heard of the Santo Domingo protocol; but Senator Root, when Secretary of State, took the subject up _de novo_, and made a new treaty, in which the United States did not a.s.sume the broad obligations it a.s.sumed under the first one, and which was not generally of so complicated a character.

It imposed the duty upon the Santo Domingo Republic itself of arriving at an adjustment with its creditors, conditioned only on the administration of the custom houses by the United States.

In the meantime, an arrangement was made by American banking houses to furnish the money to liquidate the debt; the creditors were satisfied; the foreign debt was liquidated on a basis of fifty per cent of the face value, and domestic debts and other claims less than ten per cent. A loan of twenty million dollars was made through Kuhn, Loeb & Company, of which the Dominican Republic received nineteen million dollars for the payment of its debts; seventeen million dollars was used to satisfy thirty-one million, eight thousand dollars worth of bonded debts, and the remaining two million, two thousand dollars were to go for internal improvements.

There was some objection to the ratification of the treaty negotiated by Secretary Root, but not of a very serious character, and the treaty went through, even Senator Morgan not opposing it. I had the honor of reporting it and having charge of it in the Senate.

The treaty has now been in force several years, and it has proved even more advantageous than was expected when it was ratified. It has restored order in the Republic, and the country's debts are rapidly being liquidated. The time may come when the United States may be compelled to take similar action with some of the other republics south of us. Such action would be beneficial both to the United States and to the people of those republics.

CHAPTER XXVII DIPLOMATIC AGREEMENTS BY PROTOCOL.

During the public discussion of the Santo Domingo question and the protocol by which the Santo Domingo Improvement Company claim was sent to arbitration, and later during the consideration of it, there was criticism of the Executive branch of the Government on account of its disposition to make international agreements of various kinds, and put them into operation without submitting them to the Senate. The practice became more general under President McKinley and Secretary Hay than it had under other Administrations, and it seemed the policy to get along in every case, if possible, without Senatorial action. It was a subject in which I took very great interest; I came to the conclusion that the practice had become too general, and I took occasion to tell Secretary Hay my views.

I found that the State Department, under different Administrations, had submitted private claims of our citizens against foreign Governments to arbitration by protocol. This has been the rule frequently adopted for very many years. There were cases, I found, where the protocol submitting a claim to arbitration had been sent to the Senate and ratified, and it was the general rule that where a claim is presented by a foreign Government against this government, and the same is submitted to arbitration, it is done by treaty.

I took occasion to look into the question of the effect of an unratified protocol. It may be said generally that an unratified protocol differs from a treaty in that the protocol is not ratified by the Senate and is not a part of the supreme law of the land.

Under our system of government, treaties occupy a unique position.

They are not only binding internationally, but the Const.i.tution makes treaties a part of the supreme law of the land--that is, a part of our own munic.i.p.al law. A treaty, if of later date, and in conflict with a law pa.s.sed by Congress, repeals so much of the law as it conflicts with; but an unratified protocol, or any other international agreement, no matter by what name it is called, not submitted to the Senate, does not have the effect of a treaty, as that term is defined in the Const.i.tution. A protocol is binding merely on the Executive who makes it, and, as has been well said, such protocol is binding on the administration in a moral sense only.

Nevertheless it has been the practice to make so-called diplomatic agreements concerning very important matters without their submission to the Senate.

For instance, the agreement of 1817, concerning the naval forces on the Great Lakes, was considered in force and observed by the two Governments for a year or more before it was submitted to the Senate at all. Horse Shoe Reef, in Lake Erie, was transferred to the Government by a mere exchange of notes between Lord Palmerston and Mr. Lawrence, our Minister to Great Britain; and I might refer to a long list of arbitrations, some of very great importance, agreed to by unratified protocols. The very important protocol concluded by the powers after the Boxer troubles in China was not sent to the Senate. Important agreements are often made under the name of _modus vivendi_ without submission to the Senate.

Very little comment is to be found in books on international law concerning protocols or diplomatic agreements. There is no doubt that the Executive has the right to enter into a protocol preliminary to the negotiation of a treaty. This is a common practice. We have such protocols preliminary to treaties of peace. As to the claims protocols, the Executive Department has taken the position that the President, who is in charge of our foreign relations, has wide discretion in settling disputes by diplomacy; and that a claims protocol is in the nature of a settlement of a claim of a citizen of our country against a foreign Government, by diplomacy.

The term "protocol," or diplomatic agreement, or _modus vivendi_, is not found in the Const.i.tution. The Const.i.tution uses only one term in describing agreements between this Government and foreign powers, and that is the term "treaty"; and every agreement between the United States and a foreign Government, to have the effect of a treaty, to be a part of the supreme law of the land, must be ratified as the Const.i.tution prescribes, by a two-thirds vote of the Senate.

When Mr. Root entered the State Department, it seems to me that he stopped the practice very largely of making diplomatic agreements.

It seemed to be his policy, and a very wise one, to seek, rather than avoid, consulting the Senate. I know that under his administration agreements were made in the form of a treaty and sent to the Senate which other administrations would consider they had a perfect right to make without consulting the Senate. It will be wise for future Administrations to adhere to Mr. Root's policy in this respect.

CHAPTER XXVIII ARBITRATION