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 THE 
 
 ARBITRATION TREATIES 
 
 AN EXAMINATION OF THE MAJORITY REPORT 
 OF THE SENATE COMMITTEE ON 
 FOREIGN RELATIONS 
 
 ALBERT E. PILLSBURY 
 
 Formerly Attorney-General of Massachusetts, Lecturer on Constitutional 
 Law in the Law School of Boston University 
 
 OAK ST, HDSF 
 
 WORLD PEACE FOUNDATION 
 
 29A BEACON STREET, BOSTON 
 
WORLD PEACE FOUNDATION 
 
 (Formerly the International School of Peace) 
 
 PAMPHLET SERIES 
 
 No. i. 
 
 No. 2. 
 
 No. 3. 
 
 April, ign 
 
 Part I. THE RESULTS OF THE TWO HAGUE CONFER¬ 
 ENCES AND THE DEMANDS UPON THE THIRD 
 CONFERENCE. By Edwin D. Mead 
 Part n. SIR EDWARD GREY ON UNION FOR WORLD PEACE 
 Speech in House of Commons, March 13, 1911 
 Part III. THE WORLD PEACE FOUNDATION. By Edwin Ginn 
 Part IV. THE INTERNATIONAL DUTY OF THE UNITED 
 STATES AND GREAT BRITAIN. By Edwin D. Mead 
 
 July, 1911 
 
 Part I. LIST OF ARBITRATION TREATIES 
 
 Compiled by Denys P. Myers 
 Part II. SOME SUPPOSED JUST CAUSES OF WAR 
 By Hon. Jackson H. Ralston 
 Part III. SYNDICATES FOR WAR 
 
 London Correspondence of the New York Evening Post 
 
 October, 1911 
 
 Part I. WHY THE ARBITRATION TREATIES SHOULD 
 STAND. Prepared by Denys P. Myers 
 Part II. WAR NOT INEVITABLE. By Hon. John W. Foster 
 Part III. PARLIAMENTARY GOVERNMENT AND THE 
 INTERPARLIAMENTARY UNION 
 
 By Dr. Christian L. Lange 
 
 Part IV. CHAMBERS OF COMMERCE FOR ARBITRATION 
 
 Without Serial Number 
 
 THE MISSION OF THE UNITED STATES IN THE CAUSE OF PEACE 
 By Hon. David J. Brewer 
 
 THE LITERATURE OF THE PEACE MOVEMENT. By Edwin D. Mead 
 HEROES OF PEACE. By Edwin D. Mead 
 
 EDUCATIONAL ORGANIZATIONS PROMOTING INTERNATIONAL 
 FRIENDSHIP. By Lucia Ames Mead 
 THE WASTE OF MILITARISM 
 
 From the Report of the Massachusetts Commission on the Cost of Living 
 THE GRANGE AND PEACE. Report adopted by the National Grange, 1909 
 For free distribution. Price in quantities, $3.00 per hundred copies 
 
 WORLD PEACE FOUNDATION 
 
 29 A Beacon Street ------ Boston, Mass. 
 
TfliV 
 
 Pt^a. 
 
 THE ARBITRATION TREATIES 
 
 ? An Examination of the Majority Report of the Senate Committee on Foreign 
 Relations, in an Address before the World Peace Foundation, 
 Massachusetts Peace Society and Twentieth Century 
 Club, at Boston, December 14, iqii 
 
 by 
 
 ALBERT E. PILLSBURY 
 
 Formerly Attorney-General of Massachusetts, Lecturer on Constitutional Law 
 in the Law School of Boston University 
 
 The dream of philanthropists, to get rid of war, has almost in a 
 day become the problem of statesmen. What has worked this mir¬ 
 acle? Not that war is unnecessary, foolish, wasteful, brutalizing, 
 and wicked, not that “war is hell,” but it is becoming too expen¬ 
 sive. Modern improvements in the art of butchery and destruc¬ 
 tion have made it so costly that more than one national exchequer 
 is breaking down under the mere attempt to maintain a state of prep¬ 
 aration for it. Statesmen have to take notice of this, and even 
 pseudo-statesmen more or less reluctantly admit that something must 
 be done about it. 
 
 This motive, with the advancing moral sentiment of the world, has 
 given the cause of international arbitration an impetus which the 
 roost confident opponent of war would not have predicted at the begin¬ 
 ning of the twentieth century. The pending treaties of the United 
 States with Great Britain and France are so far in advance of any 
 previous achievement that their importance, not only to our own 
 country and to the other powers concerned but to the cause of 
 civilization throughout the world, can hardly be overestimated. If 
 ratified, they will mark an epoch in the history of international rela¬ 
 tions, and indeed in the history of mankind, as a beginning of the 
 practical abolition of war. 
 
 The Hague Convention of 1907 does not bind any nation by direct 
 agreement to arbitrate any controversy. In our treaties of 1908 with 
 Great Britain and France we agreed to arbitrate all differences of a 
 legal nature or relating to the interpretation of treaties, but with the 
 large exception of such as affect “the vital interests, the independence 
 
4 
 
 i 
 
 or the honor/’ of the parties, or the interests of others. This left 
 undone the vital thing, which is to bring this most difficult and dis¬ 
 turbing class of questions into agreed arbitration and put them 
 beyond the hazard of war. 
 
 Early in the present year President Taft, with a courage and eleva¬ 
 tion of purpose that will remain his highest title to distinction, made 
 overtures to Great Britain and France respectively toward a treaty 
 of arbitration as nearly universal as the present state of public senti¬ 
 ment and human development is supposed to permit. The response 
 was immediate and cordial. The position taken by the President, 
 and the remarkable speech of the British Foreign Secretary in the 
 House of Commons, attracted and fixed the attention of the world 
 upon this undertaking of three of the greatest nations to make a real 
 beginning at the abolition of war, and all civilized mankind has been 
 watching the mighty experiment with eager interest and the most 
 anxious hope for its success. All the auspices appeared favorable. 
 In August the treaties were signed and laid before the Senate for its 
 consent, when the first discordant note was sounded by a majority of 
 the Committee on Foreign Relations, recommending that the vital 
 clause be stricken from the treaties. 
 
 To understand the real issue presented by this action of the com¬ 
 mittee, it is necessary to know what the treaties undertake to do. 
 The two are in substantially the same terms, and may be considered 
 together. The clause of Article I defining the scope of each treaty 
 is as follows:— 
 
 “All differences hereafter arising between the High Contracting 
 Parties, which it has not been possible to adjust by diplomacy, relat¬ 
 ing to international matters in which the High Contracting Parties 
 are concerned by virtue of a claim of right made by one against the 
 other under treaty or otherwise, and wffiich are justiciable in their 
 nature by reason of being susceptible of decision by the application 
 of the principles of law or equity, shall be submitted to the Perma¬ 
 nent Court of Arbitration established at The Hague by the Conven¬ 
 tion of October 18,1907, or to some other arbitral tribunal, as may be 
 decided in each case by special agreement.” 
 
 The great advance beyond the treaties of 1908 is in bringing ques¬ 
 tions of the “national honor” class within the scope of agreed arbitra¬ 
 tion. The substance of the agreement is that all differences, of what¬ 
 ever character, arising by virtue of a claim of right, if justiciable in 
 their nature, shall be arbitrated. Another new and important 
 provision, adopted from the Hague Convention, is that upon request 
 
5 
 
 of either party any controversy may be sent to a Joint Commission 
 of Inquiry for investigation and recommendation, with an interval of 
 a year’s time, if desired; thus securing deliberation, a judicial find¬ 
 ing of the facts, and the advice of a tribunal of high character, as a 
 safeguard against public clamor and the danger of sudden war in hot 
 blood. 
 
 The vital working feature remains, the feature that makes each 
 treaty a real and effective compact of peace. Recognizing that 
 the question of what is a justiciable or arbitrable case may be sub¬ 
 ject to difference of opinion, and that the treaty may go for naught 
 and its benefits be lost if arbitration can be defeated because of such 
 difference, it is further provided that, if the parties disagree as to 
 whether a particular case is within the scope of the treaty as a 
 proper subject of arbitration, this question shall be submitted to the 
 Joint Commission of Inquiry, and, if that body finds that the case is 
 within the treaty description, it shall go to arbitration. This is the 
 final clause of Article III, which is in these terms:— 
 
 “It is further agreed, however, that in cases in which the Parties 
 disagree as to whether or not a difference is subject to arbitration 
 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 difference is 
 within the scope of Article I, it shall be referred to arbitration in 
 accordance with the provisions of this Treaty.” 
 
 This is the crucial point. It is this feature that makes the treaties 
 significant beyond any others ever concluded between nations, for 
 this, and this alone, ensures the arbitration of every justiciable 
 case. This clause is stricken out by the majority of the committee 
 in reporting the treaties to the Senate. The report encountered at 
 the threshold the formidable dissent of Senators Root and Burton 
 with the Chairman, who favor the treaties as they are, and with 
 whom Senators McCumber and Sutherland are now aligned, but 
 it prevented immediate ratification and will destroy, if it prevails, 
 the moral effect and the practical value of the movement of which 
 these treaties are the culmination. It has gone out to the world 
 that the treaties are held up in the American Senate, and this is 
 liable to be taken abroad as representing the sentiment of the coun¬ 
 try. The President appeals from the committee to the people, and 
 it becomes their duty to acquaint themselves with the reasons by 
 which it is sought to justify this action of the majority, that they 
 
6 
 
 may bring to bear upon the situation the controlling force of an en¬ 
 lightened public opinion. 
 
 It is apparent on the face of the report—indeed, the majority make 
 no attempt to conceal it—that their objection to the treaties is wholly 
 because of the supposed invasion of the prerogatives of the Senate. 
 But they appear to fall into the singular error of taking the final 
 clause of Article III, which they would strike out, as meaning that, 
 if the Joint Commission of Inquiry finds a case to be within the 
 treaty, it must then go to arbitration, without any power remain¬ 
 ing in the Senate to interfere or prevent it. 
 
 It might not be an unmixed misfortune if it were so, but such 
 is not the treaty. Senator Burton makes this clear in his dissenting 
 statement, and, if anything can be wanting to his demonstration, 
 Secretary Knox, in his address at Cincinnati, has supplied it. If 
 the Commission finds a case to be within the treaty, then, by the 
 express terms of this clause, “it shall be referred to arbitration in 
 accordance with the provisions of this Treaty” By the provisions 
 of the treaty, in Article I, no case goes to arbitration until the de¬ 
 tails are first settled by a special agreement, to be made on our part 
 by and with the advice and consent of the Senate. According to 
 the plain language, and for all the reasons of the case, this provision 
 operates as fully when the Commission has found a difference to be 
 arbitrable as it does when the parties have agreed at the outset that 
 it is arbitrable. In either event the same procedure follows, of 
 which the special agreement is a part. As this is subject to the 
 consent of the Senate, that body has the same power over the arbi¬ 
 tration in the one case as in the other. 
 
 It may be possible that the attack of the majority upon Article 
 III was wholly due to this mistaken conception of its effect upon 
 the senatorial prerogatives. But when their position is examined 
 sufficiently to see what they are really contending for, this will ap¬ 
 pear unlikely, for a reason which must be noticed. 
 
 While the power of the Senate to interfere and stop an arbitra¬ 
 tion after the Joint Commission has found the case to be arbitrable 
 is as clear and unquestionable as its power to prevent the arbitra¬ 
 tion of any other case by declaring it not properly arbitrable, the 
 actual situation of the Senate in the respective cases is quite dif¬ 
 ferent. When the Commission has found a case to be within the 
 treaty, arbitration would follow as of course, subject only to the 
 power of the Senate to block it by refusing its consent to the spe- 
 
7 
 
 dal agreement. Under ordinary tircumstances the Senate would 
 not be justified to the country, and much less to the adverse party, 
 in thus defeating an arbitration at this stage, as this would properly 
 be regarded as a breach of the faith of the treaty. But if any mis¬ 
 carriage of the Executive, or of a Commission, should ever imperil 
 the national interests,—a case wholly unlikely to occur,— this power 
 could be exercised, and it would be ample for the emergency. The 
 Senate could stop the proceedings, and, if done to avert a real national 
 peril, undoubtedly the country would sustain the act. 
 
 On the other hand, if the final clause of Article III is stricken 
 from the treaties as the majority recommend, the Senate retains not 
 only the power but the unqualified right to prevent arbitration, in 
 any case and so in all cases, if it chooses to say that the case is not 
 properly arbitrable. It is plain, therefore, that the majority stand 
 not merely for an emergency power to prevent an arbitration, which 
 the Senate will retain in any event, but a power which they can exer¬ 
 cise freely and at their pleasure, without being open to the charge 
 of bad faith. In short, they stand not merely for the power, but for 
 the moral and political right, to prevent arbitration in any case if they 
 see fit, keeping the whole subject at all times within their own control. 
 
 This would continue in perpetuity the very state of things that 
 arbitration is designed to put an end to, and is principally valuable 
 for putting an end to. The highest service of arbitration is to place 
 a cause of international offence where statesmen cannot play politics 
 with it, nor an excited populace foment it into sudden war. The 
 issue thus presented by the majority report should be so clearly under¬ 
 stood that there can be no mistake about it. The most hardened 
 advocate of war must be satisfied with the report, and might have 
 written it. If the treaties are so amended, they are destroyed for 
 the purposes of any case in which a third of the Senate is, for any 
 reason, disinclined to arbitration. If the Senate follows the lead 
 of the committee, it is notice to the world that an effective treaty of 
 general arbitration with the United States is impossible. 
 
 The majority could not openly concede that they are dealing the 
 treaties a fatal blow for no better reason than solicitude for their 
 own privileges. They must find some other reason. Accordingly, 
 they do not stop with the mere objection that the treaties deprive the 
 Senate of its control over arbitration. They plant themselves upon 
 the Constitution, and say that the reference to a Commission of the 
 question whether a difference is within the scope of the treaty amounts 
 
8 
 
 to an unconstitutional delegation of the treaty-making power of the 
 Senate. 
 
 This is important, if true. But the question to be referred relates 
 to interpretation of the treaty. In the treaties of 1908 we agreed 
 to arbitrate all questions “ relating to the interpretation of treaties/’ 
 except such as fall into the national honor class, and nothing was 
 heard about the Constitution. 
 
 Probably we should all agree, however, that if the treaties in¬ 
 volve the surrender of any constitutional power of the Senate or 
 its delegation to an international commission in violation of the 
 Constitution, they ought not to be ratified in that form. The most 
 eminent constitutional authority in the committee, and some of 
 the most eminent in the country, have expressed opinions against 
 this view of the majority. It will not be difficult to show, if there 
 is any need of showing, that these opinions are correct and the 
 ground taken by the majority untenable. 
 
 What is the treaty-making power of the Senate? It is con¬ 
 ferred, in a dozen words, by Section 2 of Article II of the Con¬ 
 stitution. The President “shall have power, by and with the 
 advice and consent of the Senate, to make treaties, provided two- 
 thirds of the senators present concur.” The advisory function is 
 only incidental to the consenting power, which is the real power 
 conferred. 
 
 We might stop with this statement, for the fallacy of the majority 
 report is apparent on the face of it. Does the treaty vest in the 
 Commission or divest from the Senate any part of the power of 
 the Senate to consent or refuse its consent to a treaty? Clearly it 
 does not. 
 
 There is another short answer to the constitutional objection. 
 Probably no one would suppose it to be an unconstitutional dele¬ 
 gation of the power of the Senate to submit a particular case to ar¬ 
 bitration on the express condition that the arbitral tribunal finds it 
 to be a justiciable claim of right, capable of decision by principles 
 of law or equity. These or essentially similar conditions must nec¬ 
 essarily be implied, if not expressed, in many treaties of arbitration. 
 The principle involved in the pending treaties is precisely the same. 
 If the one instance is not unconstitutional, the other cannot be. 
 
 But let us examine the supposed constitutional question a fit tie 
 more closely. The consenting power of the Senate necessarily carries 
 
9 
 
 with it the right or privilege of passing upon every question, of fact 
 or law, involved in any case. The Senate could have rejected, 
 from the beginning, every treaty of arbitration, and insisted that 
 no difference with any foreign power should be adjusted save by 
 a direct agreement of settlement, after every question involved had 
 been examined and determined by the Senate itself. Of course, the 
 Senate has never taken this position. On the contrary, it has almost 
 from the adoption of the Constitution been accustomed to consent 
 to treaties of arbitration, and has throughout that long period con¬ 
 sented to a large number of them. 
 
 How do the pending treaties differ from other treaties of arbitra¬ 
 tion to which the Senate has consented? So far as this question is 
 concerned, they differ only by the single provision that, if the powers 
 do not agree as to whether a particular difference is within the treaty 
 description of arbitrable cases, this question may be referred to and 
 decided by an international Commission. 
 
 This is a mixed question of fact and law, involving, first, a knowl¬ 
 edge of the facts of the case, second, such construction of the treaty, 
 if any, as may be necessary to determine whether the case is within 
 it. But in every arbitration the tribunal is empowered to find the 
 facts, so far as they are in dispute, and it necessarily has power to 
 construe the treaty or agreement, not only to determine whether the 
 case presented is within it, but for all other purposes essential to the 
 decision. Otherwise, it could make no decision. 
 
 The only real difference, then, between these treaties and previous 
 treaties of arbitration is that this particular question, whether a case 
 is within the scope of a treaty, may not heretofore have been sub¬ 
 mitted to arbitration by itself. Is there anything in the Constitution 
 which forbids this to be done, or makes it a delegation of the treaty¬ 
 making power of the Senate? 
 
 There are no express limitations on the treaty-making power. 
 Clearly there can be no implied limitation which would exclude 
 treaties of arbitration. A sovereign nation has inherent power to 
 make any sort of treaty, and the whole treaty-making power of the 
 United States is vested in the President with the consent of the Senate. 
 Nor was it ever supposed that there is any implied limitation 
 upon the number or character of questions that may be submitted 
 to arbitration, or the time or order or manner of submission. The 
 power has always been taken to include, and does without doubt 
 include, every phase and particular of the adjustment of every in- 
 
 I 
 
IO 
 
 ternationai dispute, each and every one of which may be dealt with 
 in any manner to which the treaty powers agree. All this has been 
 assumed without question, and is now historically settled. 
 
 The power of the Senate to decide for itself the question whether 
 a particular case is a proper subject of arbitration is only a part of the 
 same power that authorizes it to decide for itself any or every other 
 question, of fact or of law, involved in any case, before consenting to 
 a treaty. If it is an unconstitutional delegation of its power to leave 
 this question to a Commission, it is equally so to leave any other dis¬ 
 puted question to a Commission. If the Constitution requires that 
 this question be determined by the Senate, it requires equally that 
 every other disputed question be determined by the Senate, and all 
 arbitration is, and has always been, a delegation of the power of the 
 Senate and unconstitutional. 
 
 Nobody would believe this, nor is there any reason for believing it. 
 While the Constitution empowers the Senate to determine every ques¬ 
 tion for itself if it sees fit, nobody has ever supposed that the Con¬ 
 stitution requires the Senate to determine every question, or any 
 particular question, or any particular class of questions. The ref¬ 
 erence of this question is as plainly an exercise of the treaty-making 
 power, and as constitutional an exercise of it, as the reference of any 
 other question to arbitration or negotiation. 
 
 To delegate its constitutional power of consenting or refusing its 
 consent to a treaty, which the Senate cannot do if it would, is one 
 thing. To waive the exercise of a right or privilege possessed by 
 virtue of the treaty-making power, which it can do and does in every 
 treaty of arbitration, is quite a different thing. The government 
 properly waives its right to make war whenever it concludes a treaty 
 of peace, but it does not and cannot surrender or delegate its power 
 to make war. The majority of the committee appear to overlook this 
 distinction. 
 
 There is hardly need of resort to judicial authority upon so plain 
 a question, but this is nothing new or unfamiliar. It was long ago 
 judicially settled that it is not a delegation of legislative power for 
 a law to leave to a public board or officer a question upon which its 
 application or operation may depend. For a cogent example, the 
 Supreme Court of the United States has held that it is not uncon¬ 
 stitutional as an exercise of legislative or treaty-making powers for 
 the President to decide, as under treaties or Acts of Congress he 
 may, whether a foreign country is within the scope of a tariff act 
 
II 
 
 or reciprocity treaty. Similar illustrations might be multiplied 
 without limit. The question left by the pending treaties to the 
 Joint Commission, whether a particular case is within the scope of 
 the treaty, is precisely such a question. 
 
 The conclusion is unavoidable that the treaties involve no dele¬ 
 gation of the power of the Senate and no infringement of the Constitu¬ 
 tion. And we have already seen that they do not deprive the Senate 
 of its power over any arbitration, unconstitutionally or otherwise. 
 As each ground fails upon which the majority profess to stand (for 
 they protest much against official pride of position or privilege as 
 any part of their motive to opposition), it ought to be enough to stop 
 here. 
 
 But they nevertheless say, and urge the objection at great length, 
 that, even if not unconstitutional, it would be “most unwise and 
 most perilous” to so far deprive the Senate of its power, as they 
 call it, as to allow the question whether a difference is within the 
 scope of the treaty to be referred to and decided by a Commission. 
 We have seen that the Senate is not deprived of any part of its power, 
 but, if the treaties are for any reason unwise or perilous, this ought 
 to be known. 
 
 The majority assign some reasons why this reference would in 
 their view be unwise and perilous. They say that the description 
 of the questions embraced by the treaties is novel, and is very large, 
 general, and indeterminate; that nobody knows exactly what “jus¬ 
 ticiable” means, or what “equity” is, and “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.” This, 
 again, is important if true, and as it is calculated to excite opposition 
 to the treaties, it calls for examination. 
 
 The President and Secretary of State have answered for themselves, 
 politely but effectually, the intimation that they did not know what 
 they were about, and acted so unwisely as to put the national interests 
 in peril, in negotiating the treaties. It is indeed novel, as the report 
 says, to bring questions of the national honor class within the scope 
 of agreed arbitration. It is the greatest advance ever made at one 
 step in the history of international relations, and it has taken more 
 than a hundred years of arbitration to bring the system to this point 
 of development. But, so far from an objection to the treaties, this 
 
12 
 
 is generally and justly regarded as their highest claim to the favor of 
 the parties and of the world. 
 
 The treaties do not appear to be especially difficult or doubtful 
 of meaning. As treaties go, they are short and clear. They can 
 be made to appear doubtful, as any written instrument can be, or 
 they can be read plainly. It is inaccurate and misleading to say 
 that Article III leaves to the Commission “the power to say 
 finally what the treaty means,” or “the power to make for us an 
 entirely different treaty.” It leaves to the Commission the power to 
 find, upon judicial inquiry, whether a particular case is within the 
 treaty description of arbitrable cases, and nothing more. The word 
 “justiciable” which troubles the majority, so far from being left 
 doubtful is defined, in plain words. A case is justiciable if it can be 
 decided by the principles of law or equity. The “law” in question 
 is a reasonably well-established science, not unfamiliar to those 
 having to deal with it. “Equity” is a broader term, but it would 
 not seem to be embarrassing. The majority take it, and are 
 probably justified in taking it, to mean “that which is equally right 
 or just to all concerned; as the application of the dictates of good 
 conscience to the settlement of controversies.” Do they regard 
 equity, thus defined, as objectionable? It may appear to some 
 minds unfortunate that such principles as these should be applied 
 to the settlement of international disputes, but this is commonly 
 understood to be the very purpose of arbitration. 
 
 It is to be remembered that, whenever the powers are not agreed 
 that a case is arbitrable, either party may bring it before the Com¬ 
 mission for previous examination,—“for impartial and conscientious 
 investigation” are the words,—so that the question of arbitrability 
 may always be decided upon full knowledge of the case, in the light 
 of all facts and arguments that can be brought to bear upon it. Have 
 we anything to fear from this? Is there any reason why the United 
 States cannot afford to come into this agreement if Great Britain 
 and France or other foreign powers can afford to come into it? 
 
 By way of answer to this question the majority refer to territory, 
 immigration, and the Monroe Doctrine as subjects which ought 
 never to be submitted to arbitration,—subjects, indeed, which “no 
 nation could submit to an outside judgment without abdicating its 
 sovereignty and independence,” but which, they say, are liable to be 
 forced upon us under these treaties, if ratified. Perhaps we ought to 
 assume that the majority present this argument in good faith. Other¬ 
 wise, it would appear to be dragged in for the purpose of diverting 
 
13 
 
 attention from the real issue to one which may excite public appre¬ 
 hension and help to defeat the treaties. It really need not be dis¬ 
 cussed, for, as Senator Root points out, all such apprehensions can be 
 foreclosed by a stroke of the pen in the act of ratification, without 
 touching the text of the treaty. Even this ought not to be done. 
 The treaties are plain enough without it. It may have to be done, 
 as a concession to prejudice or misunderstanding, and, if done, it dis¬ 
 poses of this argument. 
 
 But passing this, and passing the questionable expediency of cast¬ 
 ing out in advance of the treaties the unnecessary invitation to do 
 what probably no foreign power would ever think of doing but for 
 the notice that it may be expected, what is to be apprehended 
 in this direction? The treaties do not extend to matters wholly of 
 governmental policy. This would seem to be plain enough on the 
 face of them. Secretary Knox, at Cincinnati, has added his demon¬ 
 stration to that of the dissenting senators, explaining that the treaties 
 were drawn with special care to exclude such questions, in defer¬ 
 ence to the supposed unwillingness of the Senate to allow them to be 
 brought within the scope of arbitration. We have seen that an 
 arbitrable case must be one in which each party has a legitimate con¬ 
 cern, that it must stand upon a claim of right based upon a treaty or 
 some other recognized international obligation, and must be capable 
 of decision by principles of law or equity. This description cannot 
 be applied to immigration, or to the Monroe Doctrine. As to this, 
 the case is so clear that the British Foreign Secretary has publicly 
 avowed his opinion that the treaty has nothing to do with the Monroe 
 Doctrine. 
 
 Take immigration. It lies at the foundation of international law 
 that no nation has or can claim a right to introduce its inhabitants 
 into another country against the will of the latter, and no nation is 
 bound to receive them. This is a policy which every nation may 
 determine for itself, unquestioned by any other. These treaties can 
 have no concern with it, unless such a question should arise under 
 some other treaty provision, in which event probably every one would 
 agree that it is a proper subject of arbitration. 
 
 Take the Monroe Doctrine. A good deal might be said, if the 
 occasion required, about this ancient fetich, but it is unnecessary. 
 This, too, has nothing to do with claims of right and is not adjudi- 
 cable by principles of law or equity. If anything, it is a political 
 policy of our government, resting solely in our own will and our power 
 
14 
 
 to enforce it. It is not a subject of international obligation, or of 
 claims of right by foreign powers, and the principles of law or equity 
 cannot be so applied to it as to make it justiciable under these 
 treaties. 
 
 There are men of enlightened judgment who think that even such 
 subjects as these should be and eventually may be brought within 
 the scope of international arbitration. The President himself has 
 openly avowed this opinion. The system will never be complete 
 until it has become as impossible for a strong nation to stand upon 
 its power, regardless of right, as for a strong man to bully and over¬ 
 reach his weaker neighbor. It is enough at present to say that the 
 treaties exclude such subjects. Claims of right, resting in recog¬ 
 nized international obligation and capable of decision by the prin¬ 
 ciples of law or equity, cannot arise out of them. 
 
 Something more may be said about territory. On this subject 
 the majority sound an alarm to the states, declaring that the very 
 soil under their feet may be involved. “The rights of each state 
 and of the United States to their territory,” it is said, “might be 
 forced to arbitration.” Do these gentlemen really believe, or do 
 they expect anybody else to believe, that any foreign power can or 
 ever will claim, as of right, the territory of any state, or, if claimed, 
 that any foreign power could prove title to it upon principles of law 
 or equity? Such an appeal to the galleries would seem out of place 
 here. Questions of territory are familiar subjects of arbitration. 
 Every question of boundary is a question of territory. We began 
 to arbitrate such questions almost as long ago as the Jay Treaty 
 of 1795. In the forties we surrendered to Great Britain a consid¬ 
 erable territory claimed by Maine and Massachusetts, and the settle¬ 
 ment was received with general approval even in the states directly 
 concerned. A few years later the country rang with the Oregon 
 boundary cry of “fifty-four forty or fight,” but there was no fifty- 
 four forty, and there was no fight. We peaceably and sensibly 
 accepted much less than we claimed. Great Britain, perhaps the 
 most confident and aggressive of all the powers, has repeatedly 
 done the same thing. It is little better than nonsense to say 
 that arbitration of a claim of right to disputed territory, capable 
 of decision by the principles of law or equity, involves “aban¬ 
 donment of our sovereignty and independence.” Have we any 
 territory to which any such claim can be asserted? If so, where is 
 it? We have the territory of the Filipinos, which, as many think, 
 belongs to them, but we are not now making a treaty with the Fili- 
 
I 5 
 
 pinos, nor can they come into the treaty-making family without 
 our consent. Is it the Panama Canal zone? It is possible that 
 our title to that could be impeached, and, if so, the sooner the better, 
 that it may be made good. What would be thought of a man in 
 possession of land claimed as of right by his neighbor, who defies 
 the law and insists on keeping possession by force, if he can? Do we 
 desire to take that lawless attitude toward the nations, or do we 
 need to? Are there any such claims, anywhere, and is it desired, 
 taking advantage of our strength, to suppress them by menace of 
 superior force, and is this the reason why we will not agree in advance 
 to arbitrate them? 
 
 It would seem, if the majority really feel the apprehensions they 
 express that the treaties may let in upon us any claims of the non- 
 jus ticiable classes, that they would have accepted the suggestion of 
 the dissenting senators to exclude them, once for all, by reserva¬ 
 tion in ratifying the treaty, without mutilating the text. They can 
 hardly complain if the turning of their backs upon this simple, 
 inoffensive, and effective method of quieting these fears, and insist¬ 
 ing, instead, on cutting out the heart of the treaties, is taken as 
 evidence of a purpose to destroy rather than to perfect them. 
 
 The majority assert that the Joint High Commission, which is to 
 decide whether a case is within the scope of the treaty, may be com¬ 
 posed of but one person, or may be composed wholly of foreigners. 
 This is contrary to the universal understanding outside of the com¬ 
 mittee, and is incorrect; and, while it may not be worth extended 
 discussion, it is addressed to the Senate for the purpose of influencing 
 its action and is calculated to prejudice the treaties, as the whole con¬ 
 troversy arises over the functions of this Commission. Article II 
 establishing the Joint High Commission of Inquiry provides that:— 
 
 “whenever a question or matter of difference is referred to the Joint 
 High Commission of Inquiry, each of the High Contracting Parties 
 shall designate three of its nationals to act as members of the Com¬ 
 mission of Inquiry for the purposes of such reference; or the Commis¬ 
 sion may be otherwise constituted in any particular case by the terms 
 of the reference.” 
 
 The only ground for the majority statement is in the last clause 
 of this paragraph. Passing the imputation upon any occupant of 
 the presidential office that, even if it be as they say, he would go out 
 of his way and out of the ordinary course of the treaty to agree to a 
 Commission so “otherwise constituted” as to imperil any national 
 interest, the statement cannot be reconciled either with the language 
 or the purpose of the treaty. 
 
i6 
 
 The final clause of Article III prescribes that:— 
 
 “in cases in which the Parties disagree as to whether or not a differ¬ 
 ence is subject to arbitration under Article I of this Treaty, that 
 question shall be submitted to the Joint High Commission of In¬ 
 quiry; and if all or all but one of the members of the Commission agree 
 and report that such difference is within the scope of Article I, it 
 shall be referred to arbitration in accordance with the provisions of 
 this Treaty.” 
 
 These words, “all or all but one of the members of the Commis¬ 
 sion,” cannot be applied to a Commission of one or even of two 
 persons. The word “all,” used by distinction from the word “one,” 
 necessarily implies more than one. And the Commission is the 
 “Joint High Commission.” A Commission of one is not a “Joint” 
 Commission. 
 
 Not only is the “otherwise constituted” clause of Article II inca¬ 
 pable of application to the special case dealt with in Article III, 
 but there can be no intention so to apply it. The case under Article 
 III is a case by itself. It is a familiar rule that special provisions 
 supersede general provisions, if there is inconsistency between them. 
 The purpose is clear that this particular question shall go to the Joint 
 High Commission constituted by the treaty, the only Commission 
 constituted by the treaty, and that a difference shall not be de¬ 
 clared arbitrable unless at least two representatives of the objecting 
 power concur with the three of the other power in the decision. This 
 is the only construction that can ensure the automatic and inde¬ 
 feasible operation of this most important clause. The treaty binds 
 each party to appoint members of this Joint Commission of six when¬ 
 ever either party calls for it. It does not bind either party to agree, 
 under any circumstances, to any Commission otherwise constituted. 
 
 The majority report invites some general criticism which other¬ 
 wise might well be spared. The argument is essentially a demonstra¬ 
 tion against any abridgment of the senatorial privileges. It is not 
 the Constitution, or the national safety, but the curule dignity that 
 is threatened. Equally apparent is an underlying jealousy of the 
 President or the presidential office. Secretary Knox, at Cincinnati, 
 broadly intimated that this senatorial attitude toward the Executive 
 compelled the limiting of the treaties to justiciable claims of right 
 instead of extending the benefits of arbitration to all international 
 disputes. We should hardly expect to find an official document of 
 this importance appearing under examination to be questionable 
 
i7 
 
 in motive, mistaken in law, inaccurate in statement, unwarranted 
 in assumption, sophistical in reasoning, and openly hypocritical in 
 its protests of friendship for arbitration while it stabs the treaties in 
 the back, as Joab stabbed his brother Amasa in the act of embracing 
 him. No one would lightly ascribe to these distinguished gentlemen 
 a purpose to deceive the Senate, or the people; but if they believe 
 what they say, they have deceived themselves, and the blunder of a 
 statesman may be as bad as a crime. There is in the report a per¬ 
 vading tone of uncandor, a sense of something covert and undis¬ 
 closed, of a purpose to eviscerate the treaties for a reason or reasons 
 which are not uncovered unless senatorial prerogative is the only 
 reason. It is a significant feature of the document that, while the 
 United States has led the movement for arbitration, as its foremost 
 advocate among the great nations, the majority of this committee 
 is contending for an unbridled privilege to prevent arbitration, and 
 not merely this, but to prevent it against the judgment of the Ex¬ 
 ecutive, the first branch of the treaty-making power, in cases to 
 which he would apply it. The whole drift of the argument is to 
 restrict arbitration, and turn the face of the United States against 
 it, on the evident assumption that the less we have of it, the better,— 
 an argument which the people will hardly accept, whatever the atti¬ 
 tude of the Senate may be. It does not seem to be thought of, that 
 some time we may be in a situation to invoke arbitration on our 
 own account. There is a plain implication, if the words mean any¬ 
 thing, that the United States is somehow or somewhere liable to 
 claims of right by a foreign power or powers which we cannot afford 
 to submit to impartial arbitration, so long as they can be kept in 
 suppression by other means. Partisan politics are supposed to be 
 foreign and unknown to diplomacy or international relations, but 
 there is even a lurking sense of the all-pervading tariff question. 
 Is it possible that the majority see the ghost of protection stalk¬ 
 ing behind the treaties? Is the open distrust of the President’s 
 power in making an agreement, or a Commission, occasioned by fear 
 that some day a president may not be “sound” upon this or other 
 political issues? 
 
 It is not an opportune time for the Senate to take its stand upon 
 prerogative to block a movement at which the world is looking on. 
 It cannot but add fuel to the flame of its consuming unpopularity, 
 and put a new and formidable weapon in the hands of those who 
 would reduce the Senate of the Constitution to a little House of Rep¬ 
 resentatives. The most ancient, illustrious, and powerful Senate in 
 
i8 
 
 the world died of prerogative two or three months ago. If our Con¬ 
 script Fathers consult the auspices, they will deal promptly with the 
 wrong-headed obstinacy, the cynical indifference to the moral senti¬ 
 ment of the country, that characterizes this report. As for the people, 
 there are one or two things for them to do. They are already put in 
 a false position before the world, but they can take care of this, and 
 the response to the President’s appeal indicates that they will take 
 care of it. Among our ninety-odd millions, but one voice accus¬ 
 tomed to speak with authority is heard in dissent, and upon this ques¬ 
 tion the people will hardly go for counsel to a temperamental fighting 
 man. They may conclude that it is now time to let in the light once 
 for all upon the oracular mysteries of “executive session.” If this 
 performance had taken place behind closed doors, and if the people 
 had not found out in time the character of the arguments by which it 
 is sought to control the Senate in an act of supreme consequence, 
 the cause of the world’s peace might have been set back for a genera¬ 
 tion and the interests of humanity been sacrificed to the personal 
 importance of half a dozen men. One-third plus one of the senators 
 present in secret session, playing the game of political power if noth¬ 
 ing worse, can defeat any treaty. It is ultimately for the people to 
 say whether the greatest cause that now appeals to the enlightened 
 sentiment of the world shall be struck down in the house of its friends, 
 that a jingo Senate may some day be in a position to juggle with the 
 issues of war. This is a crisis in the cause of international arbitra¬ 
 tion. No one expects that these treaties will bring in the millennium, 
 but, when three of the foremost nations have once actually sealed a 
 compact to arbitrate all justiciable disputes, which the ratification 
 of the treaties will accomplish and the amendment sought by the 
 majority of the committee will prevent and defeat, the final and com¬ 
 plete success of the movement is assured. The moral attraction of a 
 scheme that offers even a prospect of immunity from war will draw the 
 other nations into it with compelling force. The United States is 
 to-day, where it has always been and where it belongs, at the head 
 of the movement. To strike at these treaties in their vital part will 
 be notice to the world that the American nation has faced about and 
 stands in the way of any further advance toward a real league of 
 peace. Unless the people are content to be put in that attitude, it 
 is for them to see that the treaties come to no harm. 
 
If a thousandth part of what has been expended in war and pre¬ 
 paring its mighty engines had been devoted to the development of 
 reason and the diffusion of Christian principles , nothing would have 
 been known for centuries past of its terrors, its sufferings , its im¬ 
 poverishment, and its demoralization, but what was learned from 
 history .— Horace mann. 
 
 Were half the power that fills the world with terror, 
 
 Were half the wealth bestowed on camps and courts, 
 Given to redeem the human mind from error, 
 
 There were no need of arsenals or forts .— longfellow. 
 
 SYNDICATES FOR WAR. 
 
 The intolerable burdens of taxation imposed by the present 
 monstrous armaments of the nations are being everywhere real¬ 
 ized, and the naval budgets are being criticised as never before. 
 The people are being shown how much of the increased cost of 
 living is due to these frightful extravagances and wastes, which 
 make the existing armed peace hardly less serious than war 
 itself. They have not been adequately shown how much of 
 this expenditure is due to the systematic and persistent activity 
 of great interests which are selfishly profiting by it. The World 
 Peace Foundation in Boston has just published, under the title 
 of “ Syndicates for War/’ a special pamphlet devoted to the ex¬ 
 posure of this ruthless despoiling of the public treasury for pri¬ 
 vate and corporate gain. It is a reprint of some startling Lon¬ 
 don letters to the New York Evening Post, revealing a mass of 
 confessed and indisputable facts of the situation in England 
 almost incredible in their grossness. The situation is undoubtedly 
 almost as bad in Germany, France, and the United States; and 
 we know that it is much worse in Russia. It is to be hoped that 
 this pamphlet may be followed by another dealing with similar 
 evils nearer home. But the present pamphlet should prompt 
 our people to some solemn thinking as to the part taken by cer¬ 
 tain vested interests in keeping up the periodical war-scares that 
 ensure them regular business and immense gains at the public 
 cost. The pamphlet is an amazing revelation of the hidden 
 springs of political measures which saddle inordinate taxes upon 
 the people. 
 
INTERNATIONAL LIBRARY 
 
 Edited by EDWIN D. MEAD 
 
 PUBLISHED BY THE WORLD PEACE FOUNDATION 
 
 Hale — Mohonk Addresses. Mailing price, $x.oo 
 Ralston — International Arbitral Law and Procedure. 
 
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 Von SuTTNER — Memoirs. Mailing price, 2 volumes, $4.00 
 
 The World Peace Foundation has also the following 
 works in pamphlet form 
 
 BETHINK YOURSELVES! — By Leo Tolstoi. Postpaid, 10 cents 
 A LEAGUE OF PEACE : Rectorial Address before the University 
 of St. Andrews — By Andrew Carnegie. Postpaid, 10 cents 
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