Fifty Years of Public Service Part 33

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, Washington, "_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.

I told the President in advance of the action of the Senate what would be done, and he rather curtly remarked that the matter was closed, and that he would not ask the other Governments to agree to the treaties as amended. And no further action was taken on the treaties.

When Secretary Root entered the State Department he took an entirely different view of the subject. I do not know whether Mr. Root was of the opinion that the Senate was right in insisting on what it considered to be its duty in amending the treaties, but I do know that he negotiated arbitration treaties with Austria, China, Costa Rica, Denmark, France, Great Britain, Haiti, Italy, j.a.pan, Mexico, The Netherlands, Norway, Paraguay, Peru, Portugal, Salvador, Spain, Sweden, and Switzerland, every one of which treaties contained the stipulation that the special agreements referred to in article two were to be made by the President of the United States, by and with the advice and consent of the Senate. These treaties were promptly ratified and are a part of the supreme law of the land to-day.

Secretary Root was very wise in negotiating and sending to the Senate this series of Mondel or world treaties. All the Nations of the world were agreeing to these treaties among themselves, and it would have been a rather remarkable condition if the United States, of all the great Nations, should have remained aloof. I do not believe that Mr. Root had any difficulty in obtaining the consent of the signatory powers to the treaties, with the stipulation that the special agreement should come to the Senate for ratification; but for some reason or other, at the time when the first treaties were under consideration, President Roosevelt, as indicated in the letter which I have quoted, and probably more particularly Secretary Hay, were both very much incensed at the action of the Senate, and permitted the first treaties to expire.

This general movement in the direction of arbitration was one of the most important events of the beginning of the twentieth century.

The importance of the adoption of this principle by the Nations of the world cannot be overestimated. It has been well said that international arbitration is the application of law and of judicial methods to the determination of disputes between Nations, and that this juristic idea in the settlement of international disputes is largely an outgrowth of the international relations, the new and advanced civilization of the nineteenth century.

I do not believe the time will ever come when wars will cease,-- the United States obtained its independence by means of a revolution and war; but peace and arbitration have been advocated by the great majority of the enlightened statesmen of the world. There were many great wars during the nineteenth century, including our own Civil War, the greatest, the bloodiest, recorded in all history; but during this century arbitration has made wonderful strides.

In the same period there were four hundred and seventy-one instances of international settlements involving the application of the principle of international arbitration. Many of these arbitrations were of the greatest importance; and I remark here that in the number of arbitrations and the importance of the questions involved, the United States and Great Britain have unquestionably led the way. In fact, since the War of 1812, every subject of dispute between the two Nations, which it was found impossible to settle by diplomacy, has been submitted to arbitration. Only within a few years the Alaskan boundary was settled by arbitration, and within the past year a fisheries dispute, a cause of embarra.s.sment since 1818, was submitted to The Hague tribunal and a decision rendered, which, though not entirely satisfactory to the United States, we accepted as the final settlement.

We have uniformly adopted arbitration as a means of settlement for disputes with the Central and South American Republics. With Mexico the treaty of Guadalupe Hidalgo, of 1848, stipulates that future disputes between the two republics shall be submitted to arbitration.

We have a general arbitration treaty for the settlement of pecuniary claims with all the Central and South American Republics. At the first Hague Conference, which met in 1899, a general arbitration treaty was agreed to. It was a non-compulsory arbitration, and at the time represented the farthest steps in advance in the direction of arbitration which all the Nations were willing to take together.

That treaty was perfected at the second Hague Conference of 1907; and, in addition, a series of treaties were agreed to concerning the opening of hostilities, the laws and customs of war on land, the rights and duties of neutrals, submarine contact mines, bombardment by naval forces, the right of capture in naval war, neutral powers in naval war, an international prize court, and the discharge of projectiles from balloons, and the Geneva Convention was revised. Aside from the prize court treaty, concerning which there were Const.i.tutional objections, these treaties were ratified by the Senate, the United States being one of the first Nations of the world to take this step. Unlike the first Hague Conference, the South American Republics partic.i.p.ated in the Second Conference, and it was the first time in all the world's history that the representatives of all the independent Nations in the world gathered together in the interest of peace and agreed on certain principles which should guide them in the conduct of war, if war must come.

I take pride in the fact that the treaties agreed to at the first Hague Conference, and the treaties agreed to at the second Hague Conference, and the series of Mondel treaties, were reported from the Committee on Foreign Relations, and ratified by the Senate during my chairmanship of the Committee on Foreign Relations.

The last step to date in the interest of the peaceful settlement of international disputes has been taken by President Taft in the arbitration treaties between the United States and Great Britain and between the United States and France, both of which were signed by the representatives of this and the other two Governments in August, 1911. The ban of secrecy has been removed from these doc.u.ments, and I feel at liberty to make brief mention of them, although, as they still are pending in the Senate, I should not feel disposed to discuss them at length. The treaties mark an advance over the arbitration treaties of 1908 in that they bring into arbitration a much wider range of subjects than is covered by the older conventions. In the latter, questions of "national honor," "vital interest," etc., were excluded from consideration, whereas, under the pending agreements, "all differences which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law and equity,"

are made subject to arbitration under the rules laid down in the doc.u.ments.

There also is a provision granting to the Commission created by the treaties the right to determine whether any given question presented to it may be considered justiciable under the language of the treaties. This latter provision is regarded by the President and Secretary Knox as highly desirable in the interest of the expedition of business, but it met such opposition in the Committee on Foreign Relations that its elimination from the treaties was recommended to the Senate. The objection to the provision is based upon the theory that it would deprive the Senate of its const.i.tutional right to pa.s.s upon all treaties. I have not accepted this view, because I do not believe in hampering working bodies when such a course can be avoided without doing violence to the fundamental law as I believe in this case it can be.

With this provision expunged, the Committee is largely favorable to the treaties, and they are now pending in the Senate. It, however, has become evident that they cannot be speedily acted upon, and as I write, in the closing days of the special session, called at the beginning of the Sixty-second Congress, the indications are strong that they will be compelled to go over to the regular session in December for final consideration. What their fate then may be no one can foretell.

It is well understood that if these treaties should be ratified they will be followed by similar agreements with the other civilized nations of the world. The spirit of arbitration has taken strong hold on our big-hearted and peace-loving President, and I am confident that he will leave no stone unturned to promote good will among nations as he is wont to do among men. Whatever differences of opinion there may be, regarding the details of any particular negotiation, no person of whatever party or creed can doubt President Taft's splendid patriotism and devotion to the highest ideals of citizenship. I am sure that these treaties have been inspired by these sentiments, and, being honest and benevolent in their purpose, the principle they embody must prevail in the end.

CHAPTER XXIX t.i.tLES AND DECORATIONS FROM FOREIGN POWERS

The Const.i.tution of the United States provides:

"No t.i.tle of n.o.bility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of Congress, accept of any present, emolument, office, or t.i.tle of any kind whatever from any king, prince, or foreign State."

When I became chairman of the Committee on Foreign Relations, there were numerous bills pending, and numerous requests submitted through the State Department, for authority, on the part of officers of the United States, to accept gifts and decorations from foreign Governments. At first I was disposed to consent to the report and pa.s.sage of such bills, and during the first year or two they were reported from the committee from time to time and pa.s.sed in the Senate. The House did not act upon the individual bills, but a so- called "omnibus bill" was pa.s.sed in the House containing all the bills that previously had been pa.s.sed by the Senate, and in addition quite a number of House bills. I had not realized until then how extensive the practice had become, and I thereupon determined to use what influence I had to put a stop to it. Since then but two decorative bills of an exceptionally meritorious nature, one in favor of Captain T. deWitt Wilc.o.x, and one in favor of Admiral B.

H. McCalla, have been enacted by Congress.

I thoroughly disapprove of the practice, and wanted to put an effectual stop to it. At the same time the requests came pouring in from session to session, and certain Senators, both on the committee and others who were not members of it, insisted and urged that favorable action be taken in behalf of officers of the United States in whom they were interested. After more than two hundred requests had acc.u.mulated, I determined to appoint a subcommittee to consider the whole matter and report to the committee such cases as were meritorious, or to adopt a general rule against the whole practice. As chairman of that subcommittee, I appointed Mr. Root, and with him Mr. Lodge, Mr. Carter, Mr. Bacon, and Mr. Stone. The subcommittee, on March 10, 1910, submitted its report, which was adopted by the full committee and submitted to the Senate. Besides reviewing at considerable length the reasons for legislation, the report included the following salient features:

First, the existence of the provision in the Const.i.tution indicates that the presumption is against the acceptance of the present, emolument, office, or t.i.tle. A habit of general and indiscriminate consent by Congress upon such applications would tend practically to nullify the Const.i.tutional provision, which is based upon an apprehension, not without foundation, that our officers may be affected in the performance of their duties by the desire to receive such recognition from other Governments. A strong support for the view that the practice should not be allowed to become general is to be found in the fact that the Government of the United States does not confer decorations or t.i.tles, or--unless in very exceptional cases--make presents to the officers of other Governments. The report then recommended that the following five rules be observed;

"1. That no decoration should be received unless possibly when it is conferred for some exceptional, extraordinary, and highly meritorious act, justifying beyond dispute a special mark of distinction.

"2. That no presents should be received except such articles as are appropriate for souvenirs and marks of courtesy and appreciation, and having an intrinsic value not disproportionate to such a purpose.

"3. That the acceptance of presents within the limitation above stated should be further limited to cases in which some exceptional service or special relation justifying the mark of courtesy exists between the recipient and the Government offering the present.

"4. That no offer of any other t.i.tle or emolument or office should be considered.