Senator Smith has taken a keen interest in matters before the Committee on Foreign Relations, and with his experience, industry, and capacity, he is bound to become a very useful member of the committee.
One of the last members to be appointed on the Committee on Foreign Relations was the Hon. Elihu Root, of New York. He is one of the greatest men and ablest Senators who have ever been members of the committee. When he became a member of it, he was not at all a stranger, for the reason that he, on my invitation, had, while Secretary of State, for two years previous to his retirement from that office, attended almost every meeting of the committee. Between Mr. Hay and the members of the Senate, there was not the close relationship which should have existed between that body and the State Department.
Secretary Hay was not disposed to cultivate friendly relations with Senators, and certain remarks he made concerning the Senate as a body were very distasteful to Senators; and although I had invited him, he seemed very averse to coming before the Committee on Foreign Relations. I did not press the point. The result was that important treaties and other matters were constantly sent in, with which the members of the committee were not familiar, and we had to grope in the dark, as it were, and inform ourselves concerning them as best we could.
But when Mr. Root became Secretary of State, I resolved to insist that the Secretary meet with us from time to time, and explain such treaties and measures as might need explanation, and upon which the Administration was anxious to secure favorable action. In other words, there should be closer relationship between the Committee on Foreign Relations and the State Department than had formerly existed. I first saw President Roosevelt and told him I hoped Mr. Root would come before the committee as occasion might require. The President seemed at once impressed with the propriety of the proposed plan, and remarked in his own characteristic fashion: "That is just the thing." I then saw Mr. Root, whom I knew very well as Secretary of War, and he was more than pleased with the suggestion, asserting that it was just what he wanted to do. It so happened that during his administration of the State Department he found it necessary to negotiate more treaties, and treaties of greater importance, than any of his more recent predecessors in that high office, and he became so constant and punctual in his attendance at the meetings of the committee that we grew almost to regard him as a regular member, even before he entered the Senate.
He has served on the committee but two sessions, but even in that short time he has proved his fitness to fill the gap left by the retirement of Senators Spooner and Foraker. As a lawyer he is as brilliant as either of those men, and probably, owing to his executive experience, a more efficient statesman. I regard him as the best qualified man in this country for any position in the public service which he would accept. He would make a strong President, and as a Senator he is equipped with extraordinary qualifications. If he remains in the Senate, by sheer force of ability alone he is bound to become its acknowledged leader. We have never had a stronger Secretary of State. Mr. Hay was a very great man in many respects, and could handle an international question, especially pertaining to the Far East, with more skill than any of his predecessors; but Mr. Root, while probably not as well versed in diplomacy as Mr. Hay, is one of the foremost lawyers in America, and has the faculty of going into the minutest details of every question, large or small, even to the extent of reorganizing all the multitude of details of the State Department. He was the real head of the department, and supervised every matter coming before it.
As Secretary of State he made it one of his policies to bring the republics of this hemisphere into closer relationship with one another. He visited South and Central America, and did much to bring about a friendly feeling with the republics of those regions.
He is one of those who insisted upon the absolute equality of nations, both great and small; and in this he was particularly pointed in his instructions to the delegates representing the United States at the Second Peace Conference at The Hague.
He did not retire from the State Department until he had adjusted almost, if not all, outstanding questions between the United States and other Nations. He closed up the work of the Joint High Commission, and by a series of treaties adjusted every factor of difference between the United States and Great Britain concerning Canada.
Bringing the consideration of the personnel of the committee up to the close of the Sixty-first Congress, there remain to be mentioned only William J. Stone, of Missouri, and Benjamin F. Shively, of Indiana, both Democrats. Mr. Stone and Mr. Shively are not only new men on the committee, but both of them are comparatively new to the Senate. They had, however, been sufficiently tried in other fields of effort to justify their States in sending them to this exalted body, and the records both have made here have well vindicated their selection. In a comparatively brief time they have attained to positions of leadership on the Democratic side of the chamber, and since they have become members of this committee they have manifested an unusual grasp of international subjects. They are from States which adjoin my own State of Illinois, and I am especially pleased to have them as members of the committee of which I am chairman.
When I became chairman of the Committee on Foreign Relations, in 1901, I found a large quantity of undisposed of matter on the dockets, both legislative and executive. I determined that I would at once proceed to clear the docket and endeavor to make the committee an active working one. I have since made it a policy, as best I could, to secure some action, favorable or unfavorable, on every matter referred to the committee by the Senate.
The first subject to which I turned my attention was the reciprocitytreaties between the United States and Barbados, Bermuda, BritishGuiana, Turk Islands and Caicos, Jamaica, Argentine Republic,France, Dominican Republic, Ecuador, and Denmark.
These treaties had been pending before the committee for two years, and I resolved as I expressed it to one Senator, who was opposed to them, that I would get them out of the committee "if I had to carry them out in a basket." These treaties were negotiated under the authority contained in the fourth section of the Dingley Act, which provided:
"Section 4. That whenever the President of the United States, by and with the advice and consent of the Senate, with a view to secure reciprocal trade with foreign countries, shall, within a period of two years from and after the passage of this act, enter into commercial treaty or treaties with any other country concerning the admission to such country of goods, wares, or merchandise of the United States . . . and in such treaty or treaties shall provide for reduction during a specified period of the duties imposed by this act, to the extent of twenty per centum thereof, upon such goods, wares, or merchandise as may be designated therein, . . . or shall provide for the transfer during such period from the dutiable list of this act to the free list thereof of such goods, wares, or merchandise the product of foreign countries; and when . . . any such treaty shall have been duly ratified by the Senate and approved by Congress, then and thereafter the duties which shall be collected by the United States upon any of the designated goods, wares, or merchandise from the foreign country with which such treaty has been made, shall, during the period provided for, be the duties specified and provided in such treaty, and none other."
There was a considerable opposition to the ratification of these treaties in the Senate, and very strong opposition to them in the committee. President McKinley was very much in favor of their ratification, and as one treaty after another expired, a new one would be made reviving it.
The first problem which confronted me was this: The fourth section of the Dingley Act provided that such treaties should be made only within two years after the passage of the act; the two years had long since expired—could the Senate ratify them at all?
I submitted to the Senate a report on the constitutional question.The single question covered was, whether the treaties not havingbeen ratified by the Senate within the two years specified in theDingley Act were still within its jurisdiction.
The committee determined that the President and the Senate are, under the Constitution, the treaty-making power. The initiative lies with the President. He can negotiate such treaties as may seem to him wise, and propose them to the Senate for the advice and consent of that body. The power of the President and the Senate is derived from the Constitution. There is under our Constitution no other source of treaty-making power. The Congress is without power to grant to the President or to the Senate any authority with respect to treaties; nor does the Congress possess any power to fetter or limit in any way the President or the Senate in the exercise of this constitutional function. It cannot in any way enlarge, limit, or attach conditions to the treaty-making power, and the subcommittee concluded their report on this branch of the subject with this statement:
"The committee is clearly of the opinion that nothing contained in section four of the Dingley Act constitutes any valid restriction upon the jurisdiction and power of the Senate to act upon the commercial treaties now pending."
That question being disposed of to my satisfaction, I proceeded to urge the consideration of the treaties at every meeting of the committee for many months, but it was not until June, 1902, that I secured the favorable report of all the treaties, excepting the treaty with the Argentine Republic and that with Jamaica.
There was another very serious question which I raised myself, and that was, whether legislation was necessary to carry them into effect, or whether the treaties were self-executing. None of the treaties contained any provision for legislation, and by their terms, they would go into effect without legislation. John A. Kasson, who negotiated them, told me that he purposely left out any reference to legislative action, because the executive department had serious doubts on the subject, and preferred to permit the Senate itself to pass upon it.
I have always contended that reciprocity treaties, like other treaties in general, are self-executing, if by their terms they do not provide for legislative action.
I made a very extended address in the Senate on January 29, 1902, because I wanted to get the attention of the Senate to this important constitutional subject. I said in opening:
"Has Congress any power or authority, under the Constitution, over treaties? This subject has been discussed at different times during our entire Constitutional history. It is a very complicated question, not only because the authority of the House on the subject of treaties has been disputed and argued almost from the very adoption of the Constitution, but the fourth section of the Dingley Act specifically provides how and when such treaties shall be made. . . . In my opinion the fourth section of the Dingley Act, so far as it attempts to confer, limit, or define the treaty-making power is not only an unwarranted interference with the powers of the President and Senate, but is unconstitutional, because it comes in conflict with that clause of the Constitution which says that the President shall have power, by and with the advice and consent of the Senate to make treaties. No law of Congress can in any way modify or limit those powers. The Dingley Law can not limit the time in which we shall be allowed to make a treaty; it can not give to Congress any power on the subject of treaties not given it by the Constitution, and under the Constitution Congress as a legislative body is not a part of the treaty-making power."
I contended that the fourth section of the Dingley Act, if considered by the Executive at all, should be merely as an expression of the views of Congress in the adjustment of the specific terms of each treaty.
But the particular question in which I was more interested and to which I devoted most of my remarks was, whether a reciprocity treaty, which by its terms provides that the duties to be collected after its ratification shall be those specified in the treaty, and none other (and which makes no reference to further Congressional action), would of its own force operate to repeal so much of the tariff act as may come in conflict with it, or whether it would be necessary for Congress to act on a treaty before those duties are reduced, and before the treaty shall become the supreme law of the land.
I then proceeded to a minute examination into the history of the treaty-making provision in the Constitution, tracing it through the Constitutional Convention, and giving the views of the framers of the Constitution as to its scope and effect. It was Alexander Hamilton who drafted the treaty-making clause of the Federal Constitution, and it was purposely so framed as to exclude the House from all consideration of treaties. Twice it was proposed in the Constitutional Convention to unite the House of Representatives with the Senate in the approval of treaties, but both times it was rejected almost unanimously, Pennsylvania alone voting in the affirmative. The treaty-making clause of the Federal Constitution was adopted in the Constitutional Convention only after a most vigorous fight against it by those who contended that the authority conferred was too great. Patrick Henry thought that, "If the clause were adopted as it was submitted to the State, two-thirds of a quorum of the Senate would be empowered to make treaties that might relinquish and alienate territorial rights and our most valuable commercial advantages. In short, should anything be left, it would be because the President and Senators would be pleased to admit it. The power of making treaties under the Constitution extends farther than in any country in the world. Treaties have more force here than in any part of Christendom." And he begged the convention to stop before it conceded this power unguarded and unaltered.
The power was conferred on the President and the Senate, unguarded and unaltered, when the Constitution was adopted.
The question came before the House of Representatives the first time just seven years after the Constitution was adopted, and has been before the House many times since then. The Jay Treaty called for an appropriation of eighty thousand dollars. It was a very unpopular treaty, and a very notable debate took place on the resolution requesting the President to lay before the House copies of the correspondence and other papers relating to the treaty. President Washington declined to furnish the papers, on the ground that the treaty needed no legislative action, and the House had nothing whatever to do with treaties, but was morally bound to make the appropriation, thereby carrying out the contract. The House responded by passing a long series of resolutions; but finally the appropriation was made.
The whole question has been discussed in the House, practically every time an appropriation has been called for to carry out a treaty; but the House, while always contending that it had a voice in the treaty-making power, never declined to make the appropriation, and only on one occasion do I now recall that the House declined to enact legislation to carry out a treaty where the treaty specifically itself provided for such legislation. This was in the case of the reciprocity treaty with Mexico, negotiated by General Grant.
I concluded my speech in the Senate with this statement:
"This question before us here has been before the Senate for a hundred years. The Executive and Senate have taken one position, and that is a treaty is the supreme law of the land. That position has been sustained by the Supreme Court. On the other hand, during all these hundred years, the House of Representatives has, as a rule, insisted that they should be considered in reference to certain treaties. That does not relieve the Senate from standing by its prerogatives and rights and insisting that the rights of the Executive be maintained. The point here is this: the Constitution gives to the Executive, with the advice and consent of the Senate, the right to negotiate treaties. We have been negotiating commercial treaties continuously prior and subsequent to the adoption of the Constitution, and those treaties have been sustained as the supreme law of the land.
"It is said that the Constitution has given to Congress the right to regulate commerce with foreign nations, to lay and collect taxes, duties, and imposts, and to the House of Representatives the right to originate bills for raising revenues, and to the President and Senate the right to make and ratify treaties. These are all co- equal and independent powers. One does not interfere with the other. One is not exclusive of the other. A law passed in any of the ways provided by the Constitution is the supreme law of the land until it is changed or repealed. A treaty made by the Executive and ratified by the Senate is the supreme law of the land as well as an act of Congress. If the Congress is not satisfied with the treaty, it has a perfect right to repeal it, as it has any other law; but until such action is taken, the treaty remains as a part of the supreme law of the land; and I cannot see any distinction between treaties which affect the tariff laws, and treaties affecting any other law."
The subject was very seriously and carefully considered, but it was thought expedient that the committee should not take any position either for or against the unlimited power of the Senate over reciprocity treaties. It was Senator Spooner who suggested that each of the treaties be amended by inserting therein a provision that "the treaty not take effect until the same shall have been approved by the Congress."
The merits of the question were not considered; but my position was, and still is, that amending the treaties in the manner suggested by Senator Spooner, by inference indicated that if such a provision had not been inserted, the treaties would go into effect immediately without any Congressional action.
Aside from the reciprocity treaty with France, none of the treaties was considered by the Senate itself. I pressed them as best I could, but Senator Aldrich, Senator Hanna, and other advocates of high protection, were so bitterly opposed to them—no one in the Senate aside from myself seeming to have much interest in them— that they were dropped and allowed to expire by their own terms. I particularly regretted that the Kasson treaties were not ratified.
Had the Senate ratified those treaties, a large number of other treaties probably would have been negotiated, and we would not have been compelled to go through the long struggle and agitation over the passage of the Aldrich-Payne Tariff Bill. There would have been no tariff revision necessary. At the same time, we could not possibly help vastly increasing our foreign commerce. It was a very short-sighted policy on the part of Senator Aldrich and others in the Senate when they insisted that those treaties should be killed. After it was determined, and it became so known to the country that it would be impossible to secure the ratification of reciprocity treaties, the agitation for tariff revision commenced, and finally culminated in the act of 1909, which resulted in the election of a Democratic House of Representatives.
The committee did favorably report, and the Senate ratify, a reciprocity treaty with Cuba. This was the treaty of December 11, 1902, and it was the third reciprocal agreement in all our history ratified, proclaimed, and placed in effect. The first one was the treaty of 1854, providing for reciprocity with Canada. The second was the treaty of 1875, with the Hawaiian Islands, and the third and the only one now in effect is the treaty with Cuba.
That treaty would never have been ratified, and would have suffered the same fate as the Kasson treaties, had it not been for the determined, vigorous fight made by President Roosevelt for its ratification, and had not Cuba stood in a relation to us entirely different from any other country. We bound her to us by insisting that the Platt amendments be made a part of her Constitution, and in addition that a treaty be made between the two countries embodying those amendments.
This treaty with Cuba and the law carrying it into effect were the occasion of a very bitter struggle in both Senate and House. The sugar and tobacco interests used all the power at their command to defeat, first the treaty, and then the law carrying the treaty into effect. The beet-sugar people asserted that it would ruin that industry, and that a reduction of twenty per cent on Cuban sugar would enable the Cubans to ship their sugar into the United States and undersell the beet sugar. I never could see that there was any force in their contention, because the United States does not produce more than half the sugar we consume, and it was absolutely necessary to import sugar from Cuba and other sugar-producing countries.
When the treaty was before the committee for consideration, it was amended by inserting the following proviso:
"Provided that while this convention is in force, no sugar exported from the Republic of Cuba and being the product of the soil or industry of the Republic of Cuba, shall be admitted to the United States at a reduction of duty greater than twenty per centum of the rates of duty thereon as provided by the tariff act of the United States, approved July 24, 1897; and no sugar, the product of any other foreign country, shall be admitted by treaty or convention into the United States, while this convention is in force, at a lower rate of duty than that provided by the tariff act of the United States, approved July 24, 1897."
The effect of this amendment was not only to prevent a greater reduction being made on Cuban sugar, but it had a more important effect that it made reciprocity treaties with the sugar-producing countries, including the West Indies, impossible so long as the Cuban treaty remains in force.
I had charge of this treaty in the Senate, and addressed the Senate at considerable length explaining its provisions.
There was a spirited contest in the Senate over the ratification of the treaty, but there was more of a contest both in the Senate and the House when the bill to carry the treaty into effect came up at the next session of Congress, it first having been considered at a special session called by President Roosevelt in November, 1903. A provision was inserted in the treaty (which I opposed, as I thought it was unnecessary), that it should not go into effect until it was approved by the Congress. The bill was passed in the House and came to the Committee on Foreign Relations, was considered there, and favorably reported to the Senate. The bill, of course, was considered in open session, and I again made some remarks, probably more in the nature of a report than a speech, trying to show where the treaty was not only absolutely necessary, if Cuba was to be prosperous at all, but that it would open a considerable market for American products.
The Cuban reciprocity treaty has increased very materially our trade with that Republic. Since that treaty went into effect our imports from Cuba have increased from $62,942,000 in value to $122,528,000 in value; and our exports to Cuba have increased from $21,000,000 in 1903, to nearly $53,000,000 in 1910, or more than doubled. But even with this considerable increase in our exports to Cuba, I had hoped that by this time we should have increased them to at least one hundred million dollars. Our own exporters and manufacturers are at fault, because they will not do business with the Cubans on the same credit basis as will the exporters of Spain, Germany, and England; and American exporters do not cater to the peculiar needs of the Cubans. They seem to go on the theory that if their goods are good enough for Americans they should be good enough for Cubans, too.
The Cuban treaty is a good illustration of the scare and the unwarranted opposition on the part of American industries when even the slightest reduction of the tariff is attempted. To listen to the beet-sugar and tobacco interests during the consideration of the Cuban treaty, one would think they would have been absolutely ruined if the treaty were ratified. The Cuban treaty has not in the slightest degree injuriously affected the American sugar or tobacco interests.
The principle of Reciprocity as heretofore applied in this country has been extended somewhat by the agreement of 1911 between the United States and Canada. This compact was negotiated by President Taft and Secretary Knox on the one side, and by Premier Laurier and Mr. Fielding on the other. Under this agreement a wide exchange of articles of every-day use is provided for, and it is hoped and believed that if the treaty becomes effective it will prove more satisfactory and enduring than the previous reciprocal agreement with the Dominion of Canada.
The pending agreement was entered into between representatives of the two Governments in January, 1911, but it was not until the latter part of July of that year that a law was enacted by Congress to provide for its enforcement. Much opposition was manifested, especially in the Senate, in both the Sixty-first and Sixty-second Congresses, on the ground that under its terms a great many agricultural products are admitted free from Canada; but this objection has been, I think, successfully met by the Administration and its friends in the argument that any injury that might be sustained by agriculture would be more than compensated for by the benefits derived by the manufacturing interests. For one I have never believed that agriculture would suffer in any degree through the operation of the agreement, and I do believe that the general industries of the country will experience much benefit. Too much is to be gained through the cultivation of proper trade relations with our great and growing neighbor on the North to abandon the general principle involved in the agreement on account of an apprehension which may not and probably will not be realized.
In many respects nations are like individuals, and in their relations with one another they should be controlled by the same rules of amity and equity as pertain to the associations of mankind generally. In the end no nation can lose any material thing through an act of generosity or fair-dealing.
Notwithstanding the United States has acted favorably upon the agreement, it is not yet in force. This circumstance is due to the fact that in the matter of ratification Canada has waited upon this country. There is opposition there as there was here, and at this writing (August, 1911) Sir Wilfred Laurier is engaged in a struggle for favorable endorsement such as that from which President Taft has just emerged.
Probably the most important work before the Committee on Foreign Relations since the treaty of peace with Spain, were the several treaties concerning the construction of the Isthmian Canal.
In 1850, the United States entered into what is known as the Clayton- Bulwer Treaty with Great Britain, the purpose of which was to facilitate the construction of a canal; but instead of operating to this end, it stood for fifty years or more as an effectual barrier against the construction by the United States of any canal across the Isthmus of Panama. Succeeding Administrations had endeavored to secure the consent of Great Britain to its abrogation, but it was not until Secretary Hay's time that Great Britain finally agreed to annul it and substitute in its place a new treaty. Secretary Hay had been Ambassador to Great Britain, and he enjoyed the confidence of the then existing British Ministry to a greater degree than almost any minister or ambassador we have ever sent to Great Britain. After entering the State Department, Mr. Hay at once directed his attention to the making of a new treaty with Great Britain and this resulted in the first Hay-Pauncefote Treaty. This convention was considered by the committee, but was not found satisfactory, and certain amendments were added to it. These amendments Great Britain would not accept, and the treaty died.
Secretary Hay was very much disappointed, but he at once set to work to negotiate such a treaty as would go through the Senate without amendment and such a one as Great Britain would consent to. He wrote to a number of Senators, members of the committee, I suppose, asking for suggestions as to just what the Senate would agree to. I was not at that time chairman of the Committee on Foreign Relations, but I was very deeply interested in the subject and had given it considerable study and thought. Secretary Hay wrote me, and I replied at length, giving my views both as to the Clayton-Bulwer Treaty and what I thought should be inserted in the new treaty.
Mr. Hay promptly renewed negotiations, which resulted in what is known as the second Hay-Pauncefote Treaty. After a good deal of effort this agreement was ratified without amendment. This act signalized the beginning of my service as chairman of the Committee on Foreign Relations.
The principal contention arose over the subject of fortifications, a question that is still a mooted one. It occurs to me that the proper reasoning is this—and I believe I took the same position when the treaty was under consideration:
The first and second Hay-Pauncefote treaties must be construed together; the first Hay-Pauncefote Treaty contained a prohibition against fortification; the second Hay-Pauncefote Treaty neither prohibited nor in terms agreed to fortifications, but was silent on the subject; therefore, the legal construction would be that Great Britain had receded from the position that the canal should not be fortified. In any event, we will go ahead and fortify the canal, and do with it whatever we please, regardless of any of the nations of the world.
That obstacle having been finally removed, the question which next arose was: What route should be selected? The selection of the route was not a subject over which the Foreign Relations Committee had jurisdiction; but after the Panama route was decided on, it became necessary to negotiate with Colombia, the owner of that route, for the right of way for the canal. Secretary Hay promptly proceeded with the negotiation, as it was his duty to do, under the Spooner Act, and on January 3, 1903, submitted the treaty to the Senate for its Constitutional action thereon. Senator Morgan and others led the fight against it; but a vote was taken, and the treaty was ordered favorably reported. On February 12, 1903, I called it up in the Senate and made quite an extended speech, explaining its provisions, and urging its ratification. The session was to close on March 4, and it finally became manifest that it would be hopeless to attempt to ratify it before that day, and the effort was abandoned. President Roosevelt called a special session of the Senate after the fourth of March, when there would be nothing for the Senate to consider except the Colombian treaty and other executive matters. According to the usual rule, the treaty was referred back to the committee, at the beginning of the special session, and the subject was again gone over in committee as if there had been no proceedings on it at all during the regular session. The proposed agreement was finally reported to the Senate, and ratified. There is no need for me to go over the story of its rejection by Colombia. The action of the Colombian Congress was a hold-up pure and simple, and the treaty was rejected in the hope that the United States would offer a greater amount for the right- of-way. Panama promptly seceded, which she had a perfect right to do. Many people have charged that the Roosevelt Administration actually incited the revolution. Whether this is true or not, I do not know. I contended at the time, and still believe, that it is not true. I hope it is not; but the correspondence did show that the State Department had pretty close knowledge of events which were occurring on the Isthmus, and had seen to it that there was a sufficient naval force in the vicinity "to protect American interests." It was a remarkable revolution—I think the most remarkable I have ever read of in history. It was practically bloodless. One or two shots were fired, a Chinaman was killed, and yet a new and independent republic entered the family of Nations.
We were able to make with Panama a much more satisfactory treaty than we had with Colombia. Senator Morgan this time was assisted by most of his Democratic colleagues; he denounced the treaty and made all sorts of charges against the Administration; but after numerous long sessions of the Committee on Foreign Relations, I was authorized to report it to the Senate with certain minor amendments, which, in my opening speech, I asked the Senate to reject, and to ratify the treaty without amendment. I did this at the earnest insistence of the State Department. And, in addition, I did not think that the amendments were of such importance as would justify resubmitting the treaty to Panama after that little country had once ratified it. The State Department was led to this action by the receipt of the following cable from Mr. Buchanan, the first Minister of the United States to Panama:
"Panama,January 22, 1904.
"Hay, Washington:
"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 nobody 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 passed 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 entitled 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 Constitutional 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 Constitutional 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 Canal —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 canals, where, during every session, matters of more or less importance connected with the canal 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.
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 assistance 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 assistance. . . .
"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 circumstances should become fully known, that Dillingham and Dawson were justifiable in assuming 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 assumed 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, assassination, 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 assumed. None of the principal 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 principal 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 pass 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 upde novo, and made a new treaty, in which the United States did not assume the broad obligations it assumed 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.
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 Constitution makes treaties a part of the supreme law of the land—that is, a part of our own municipal law. A treaty, if of later date, and in conflict with a law passed 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 Constitution. 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 ofmodus vivendiwithout 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, ormodus vivendi, is not found in the Constitution. The Constitution 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 Constitution 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.
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 circumstances 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 Constitutional 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 municipality 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 Constitutional 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 circumstances, it was almost the unanimous judgment of the Senate that the treaties should be amended by striking out the words "special agreement": and substituting the word "treaty," a Constitutional 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 Constitution, 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 assert 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 substituting 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 substituted 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 pronouncement 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 pass 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 assent 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, Japan, 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 embarrassment 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 Constitutional 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 participated 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.