ments drawn, on the one hand, from the opponents of their ratification in the form as submitted to the Senate, and, on the other hand, from the partisans of their ratification in that form, leaving to signed articles expressions of individual assent to, or of dissent from, some of the terms of the treaties. For this purpose notice will be taken of the majority report of the Foreign Relations Committee of the Senate objecting to certain provisions of the treaties, of the minority report of the same body advocating their approval with or without an interpretation of their terms, and of the authoritative interpretation of the treaties made by Secretary of State Knox, in an elaborate and carefully prepared address before the American Society for Judicial Settlement of International Disputes. A few words may properly be said about the genesis of the treaties before quoting their terms and passing to the arguments of opponent or partisan.

At a meeting of the American Society for the Judicial Settlement of International Disputes, held at Washington on December 17, 1910, President Taft said:

What teaches nations and peoples the possibility of permanent peace is the actual settlement of controversies by courts of arbitration. The settlement of the Alabama controversy by the Geneva arbitration, the settlement of the seals controversy by the Paris Tribunal, and the settlement of the Newfoundland Fisheries controversy by the Hague Tribunal are three great substantial steps toward permanent peace, three facts accomplished that have done more for the cause than anything else in history.

With reference to the submission of controversies to courts of arbitration, in order that disputes between nations might be settled by judicial means, he said:

if now we can negotiate and put through a positive agreement with some great nation to abide the adjudication of an international arbitral court in every issue which can not be settled by negotiation, no matter what it involves, whether honor, territory or money, we shall have made a long step forward by demonstrating that it is possible for two nations at least to establish as between them the same system of due process of law that exists between individuals under a government.

Great Britain thereupon proposed that a general treaty of arbitration calculated to give effect to this very important announcement of the President, be negotiated between the United States and Great Britain, and as a consequence of prolonged consideration and mature reflection, the pending treaty was concluded.

Arbitration treaties were concluded in 1908 between the United States, Great Britain and France, but they reserved from the scope of arbitration questions of independence, vital interests and honor, and the preamble to to the present treaty was negotiated in order to extend the scope and obligations of those treaties "so as to exclude certain expressions tained therein. The high contracting parties therefore agree in the first article of the pending treaty that

all differences hereafter arising between the high contracting parties, which it has not been possible to adjust by diplomacy, relating 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 which 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 Permanent Court of Arbitration, established at The Hague by the Convention of October 18, 1907, or to some other arbitral tribunal, as shall be decided in each case by special agreement, which special agreement shall provide for the organization of such tribunal if necessary, to define the scope of the powers of the arbitrators, the question or questions at issue, and settle the terms of reference and the procedure thereunder.

The concluding paragraph of this article contemplated a special agreement in each case "to be made on the part of the United States by the President of the United States, by and with the advice and consent of the Senate thereof," and that "such agreement shall be binding when confirmed by the two governments by an exchange of notes." The treaty further provided for

a joint high commission of inquiry to which, upon the request of either party, shall be referred for impartial and conscientious investigation, any controversy between the parties within the scope of Article I, before such controversy has been submitted to arbitration, and also any other controversy hereafter arising between them even if they are not agreed that it falls within the scope of Article I; provided, however, that such reference may be postponed until the expiration of one year after the date of the formal request therefor, in order to afford an opportunity for diplomatic discussion and adjustment of the questions in controversy, if either party desires such postponement.

The commission thus referred to is to be constituted in the following

manner:

Each of the high contracting parties shall designate three of its nationals to act as members of the commission of inquiry for the purposes of such reference; or the commission may be otherwise constituted in any particular case by the terms of reference, the membership of the commission, and the terms of reference to be determined in each case by an exchange of notes.

Article III, which has given rise to serious controversy, is as follows: The joint high commission of inquiry, instituted in each case as provided for in Article II, is authorized to examine into and report upon the particular questions or matters referred to it, for the purpose of facilitating the solution of disputes by elucidating the facts, and to define the issues presented by such questions, and also to include in its report such recommendations and conclusions as may be appropriate.

The reports of the commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or on the law and shall in no way have the character of an arbitral award.

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.

An examination of the essential terms of these three articles discloses the fact that all questions "justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity," shall be arbitrated, and that if a dispute of a justiciable nature arises between the countries it shall be referred to the commission of inquiry" for an impartial and conscientious investigation," before it shall be submitted to arbitration, in the hope that such impartial and conscientious investigation may settle the question without a resort to arbitration, which is, at present, a costly and time-consuming procedure. In like manner, any other controversy, although it be not justiciable and therefore falls outside the scope of Article I, shall be submitted to the commission in the belief that an impartial and conscientious investigation will suggest a peaceful settlement of the controversy. It is, however, expressly stipulated, as appears from Article III, which has been. quoted, that "the reports of the commission shall not be regarded as decisions of the questions or matters submitted, either on the facts or on the law, and shall in no way have the character of an arbitral award.” The negotiators were evidently of the opinion "that an impartial and conscientious investigation" of justiciable and other questions might, in many cases, avoid the resort to arbitration. It may, however, happen that one country may maintain that a question falls within the obligation of Article I, that is to say, that it is justiciable, whereas the other country may insist that it is not justiciable. To break the deadlock the concluding paragraph of Article III vests the commission with the power

of deciding whether or not the question is arbitrable under the treaty, and provides that if 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. If, therefore, the six commissioners agree, or five of them agree, that the difference is within the scope of Article I, it is justiciable and shall be referred to arbitration, but the arbitration in this case requires, by express terms of Article I, a special agreement, and the special agreement can only be concluded by "the President of the United States, by and with the advice and consent of the Senate," and the special agreement shall only become binding after the approval by the Senate, which approval is to be confirmed by an exchange of notes between the two governments.

The majority report of the Senate committee accepts apparently the principle of arbitration, and the committee is equally desirous, with the President, to enlarge its scope. Thus:

The Senate of the United States is as earnestly and heartily in favor of peace and of the promotion of universal peace by arbitration as any body of men, official or unofficial, anywhere in the world, or as anyone concerned in the negotiation of arbitration treaties. The Senate today is heartily in favor, in the opinion of the committee, of enlarging to the utmost practicable limit the scope of general arbitration treaties. The committee itself, and in the opinion of the committee, the Senate also, has no desire to contract the ample boundaries set to arbitration in the first article.

After this general statement, the majority report, recommending the treaties with the omission of the last paragraph of the third article, and the softening of the obligation of the first article by the use of the word "may" for "shall," objects to the use in the first article of the expression "law or equity," as a test of the justiciable nature of the controversy:

In England and the United States, and wherever the principles of the common law obtain, the words "law or equity" have an exact and technical significance, but that legal system exists nowhere else and does not exist in France, with which country one of these treaties is made. We are obliged, therefore, to construe the word "equity" in its broad and universal acceptance as that which is "equally right or just to all concerned; as the application of the dictates of good conscience to the settlement of controversies." It will be seen, therefore, that there is little or no limit to the questions which might be brought within this article, provided the two contracting parties consider them justiciable.

The chief objection of the Senate, however, is the power vested in the commission to decide whether or not the question is justiciable, and it

declares that the acceptance of the treaty with this clause would constitute a delegation of its treaty-making power:

The last clause of Article III, therefore, the Committee on Foreign Relations advises the Senate to strike from the treaty and recommends an amendment to that effect. This recommendation is made because there can be no question that through the machinery of the joint commission, as provided in Articles II and III, and with the last clause of Article III included, the Senate is deprived of its constitutional power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission powers which, under the Constitution, devolve upon the Senate. It seems to the committee that the Senate has no more right to delegate its share of the treaty-making power than Congress has to delegate the legislative power. The Constitution provides that before a treaty can be ratified and become the supreme law of the land it shall receive the consent of two-thirds of the Senators present. This necessarily means that each and every part of the treaty must receive the consent of two-thirds of the Senate. It can not possibly mean that only a part of the provisions shall receive the consent of the Senate. To take away from the Senate the determination of the most important question in a proposed treaty of arbitration is necessarily in violation of the treaty provisions of the Constitution. The most vital question in every proposed arbitration is whether the difference is arbitrable. For instance, if another nation should do something to which we object under the Monroe Doctrine and the validity of our objection should be challenged and an arbitration should be demanded by that other nation, the vital point would be whether our right to insist upon the Monroe Doctrine was subject to arbitration, and if the third clause of Article III remains in the treaty the Senate could be debarred from passing upon that question.

One of the first sovereign rights is the power to determine who shall come into the country and under what conditions. No nation which is not either tributary or subject, would permit any other nation to compel it to receive the citizens or subjects of that other nation. If our right to exclude certain classes of immigrants were challenged, the question could be forced before a joint commission, and if that commission decided that the question was arbitrable the Senate would have no power to reject the special agreement for the arbitration of that subject on the ground that it was not a question for arbitration within the contemplation of Article I. In the same way our territorial integrity, the rights of each State, and of the United States to their territory might be forced before a joint commission, and under Article III, in certain contingencies, we should have no power to prevent our title to the land we inhabit from being tried before a court of arbitration. To-day no nation on earth would think of raising these questions with the United States, and the same is true of other questions, which will readily occur to everybody. But if we accept this treaty with the third clause of Article III included we invite other nations to raise these very questions and to endeavor to enforce them before an arbitral tribunal. Such an invitation would be a breeder of war and not of peace, and would