Page images
PDF
EPUB

1. That the appeal of Chile in so far as it concerns said Article 159 (renumbered as Article 123), having been withdrawn, be and it is hereby dismissed of record.

2. That the finding and decision of the Plebiscitary Commission as to all other matters involved in the pending appeal by Chile, that is to say with respect to the classes of government officials and civil employees enumerated in items numbered 11, 12, 13, 16, 20, 21, 22 and 23 of paragraph A and with respect to the officials and employees of the telegraph and postal service which the Plebiscitary Commission refused to include among the classes enumerated in paragraph B of said Article 5 of the registration and election regulations adopted on January 27, 1926, be and the same are hereby affirmed.

3. That the finding and decision of the Plebiscitary Commission as to all matters involved in the appeal by Peru, that is to say with respect to the classes of government officials and civil employees enumerated in items 1, 2 and 3 of paragraph B of said Article 5 of the regulations be and the same are hereby affirmed.

[blocks in formation]

The Plebiscitary Commission, Tacna Arica Arbitration, in the exercise of its duties and functions under the award, hereby formulates and declares its findings and conclusions as follows:

One. Pursuant to the terms of the Treaty of Ancon the plebiscitary territory has remained and still remains subject to Chilean laws and authority. In these circumstances the creation and maintenance of conditions proper and necessary for the holding of a free and fair plebiscite as required by the Treaty and the Award constituted an obligation resting upon Chile. This obligation has not been discharged, and the Commission finds as a fact that the failure of Chile in this regard has frustrated the efforts of the Commission to hold the plebiscite as contemplated by the Award and has rendered its task impracticable of accomplishment.

Two. As the result of its experience and observations throughout the course of the plebiscitary proceedings the Commission has the settled conviction that the further prosecution of the plebiscitary proceedings in an effort to hold the plebiscite as contemplated by the award would be futile.

The Commission can not ignore its paramount duty under the award to hold only a free and fair plebiscite as contemplated by the treaty and the award and not to hold a plebiscite which would not be in accord with the intent of the Treaty and the Award.

The Plebiscitary Commission accordingly decides, upon the grounds above stated;

First, That a free and fair plebiscite as required by the Award is impracticable of accomplishment;

Second, That the plebiscitary proceedings be and they are hereby terminated, subject however to the formulation and execution of such measures as may be required for the proper liquidation of the affairs of the Commission and the transmission of its records and final report to the Arbitrator.

BOOK REVIEWS AND NOTES*

Progress and the Constitution. By Newton D. Baker. New York: Charles Scribner's Sons, 1925. pp. 94. $1.25.

This little book is composed of three lectures delivered on the William H. White Foundation at the University of Virginia.

After a brief sketch of the distinctive characteristics of the Constitution and a definition of Progress, Mr. Baker considers their relations in the three fields of Institutions, Industry, and Foreign Relations.

Progress, as defined in this book, is identified with "change," "whether for better or for worse." There are, the author recognizes, "just a few ultimate moralities" which do not change. "But the atmosphere in which these moralities must function does change"; and so, without setting up any goal or standard, Progress is considered as a condition of change too rapid and too fundamental for old modes of thinking and acting to keep up with it.

Among institutions the popular conception of the office of the President, the relations between the Senate and the President, the status of the Vice Presidency with reference to succession, the contact between the Cabinet and the Congress, and the development of an Administrative Department of Government present phases of "Progress," in the sense that the original intentions and interpretations of the Constitution either do not at present apply or furnish a basis of general agreement.

In the lecture on "The Constitution and Industry," the effect of the introduction of the factory system and the application of steam to transportation are traced with clearness, felicity and effectiveness, occasionally lighted up with a flash of humor. The social and economic necessity for the extension of control over commerce and industry by the Federal Government is well illustrated in the wider interpretation of the so-called Commerce Clause of the Constitution and the decisions of the Supreme Court here cited with regard to subjects of which the founders of our Government could have formed no conception. "The police power," Mr. Baker concludes, "is a great and wholesome, indeed, a necessary power, but it has definite limits and we must not permit it to be used to change our whole political theory, by tolerating gradual and piecemeal attacks upon the constitutional guaranties."

In his discussion of "The Constitution and Foreign Relations," President Wilson's Secretary of War may be expected to have some personal views. It is only just to record the fact that he expresses them with a reserve and an effort to be considerate that are creditable to his sense of fairness and his courtesy.

*The JOURNAL assumes no responsibility for the views expressed in signed or unsigned book reviews or notes.-ED.

Mr. Baker appears to believe that our constitutional limitations in respect to the conduct of international business occasion many embarrassments. He does not, however, point out how these might be avoided, unless it might be by limiting the advice and consent of the Senate to the decision of a majority rather than to the decision of two-thirds of the Senators. To support this view he cites a passage written by Secretary Hay to his friend Henry Adams in a private letter, in which the Secretary, in a somewhat irritated mood as the context shows, considers it a "mistake of the Constitution," that his treaty could not have been ratified "in twenty-four hours" by a majority of the Senators. Secretary Hay felt the same way about the first Hay-Pauncefote Treaty and hesitated to propose to the British negotiator the changes advised by the Senate: Nevertheless, he became reconciled to this and produced a much improved treaty which was adopted by the necessary two-thirds vote.

Referring to the Treaty of Versailles, of which Mr. Baker says, "The major part of the discussion of the treaty in the Senate had no relation whatever to any American interest," he concludes: "A majority of the Senate could have been gotten at almost any time to ratify the treaty, but twothirds could not be gotten, so that literally half a dozen Senators blocked the reorganization of the world."

Adhering closely to the record, what the Senate did with the Treaty of Versailles, which in its Covenant of the League of Nations was meant to force the United States to accept certain obligations in "the reorganization of the world" which were held to exceed the powers which the Constitution accords to the Government it creates, was to reduce those obligations by reservations as a condition of ratification.

Mr. Baker overlooks the fact that, so far as the Senate was concerned, the Treaty of Versailles failed of ratification because a majority of the President's party voted against it. That majority would, no doubt, have voted for ratification without reservations of any kind; that is, a party majority "could have been gotten at almost any time" to give its consent to unqualified adoption of the President's policy! But what is the object of Senatorial "advice and consent"? Is it not to give the political opposition a chance for expression? It is frequently the case that a majority of the Senators belong to the President's party and are politically controlled by him. Is not this a sufficient reason why a mere majority should not express the voice of the Senate in matters of such vital interest-and sometimes interests which differently affect the different States-as those involved in treaties? And, to submit the question to a practical test, does the country as a whole at present really regret that it was a two-thirds vote that was necessary to ratify the Treaty of Versailles, or would it prefer that the "majority of the Senate which could have been gotten at almost any time" should have been able to ratify that treaty "without the dotting of an i or the crossing of a t"? DAVID JAYNE HILL.

The Doctrine of Continuous Voyage. By Herbert Whittaker Briggs. Baltimore: The Johns Hopkins Press, 1926. pp. x, 226. Index. $2.00. The first half of this book contains a detailed review of the origin and history of the doctrine of continuous voyage down to the late war. The relation of the doctrine to the Rule of the War of 1756 is shown and a large number of the early prize cases on the question from 1762 to about 1806 are reviewed. Next follows a discussion of the early cases in which the doctrine was applied to blockade and contraband, from which it appears that the first English cases arose as early as 1805 and 1761 respectively. The review of these cases carries the reader down to about 1805. The few cases arising out of the War of 1812, the Mexican War, and the Crimean War are covered, which brings the reader to the famous decisions of the United States Supreme Court in cases arising out of the Civil War. Certain of these decisions gave rise to diplomatic correspondence between the United States and Great Britain and the controversy was finally arbitrated under the Treaty of Washington of 1871. Practically all the claims of Great Britain, on account of the seizure of British vessels, were unanimously disallowed by the Arbitral Commission. The views of publicists on the famous Springbok decision are reviewed. From this point the writer proceeds to discuss the doctrine as applied during the Chino-Japanese War, the Italo-Abyssinian War, the Boer War and the Russo-Japanese War. The author next takes up the discussion of the doctrine at the Second Hague Conference of 1907 and the London Naval Conference of 1909. The memoranda presented by the various governments preparatory to the last conference on the doctrine of continuous voyages in respect of contraband and blockade, and the debate on the subject at this conference, are reviewed. The Declaration proposed by the London Conference, however, was never ratified by the Powers on account of the refusal of Great Britain to accept the Declaration, although Italy, Turkey, France and the United States showed a disposition to adopt it.

The latter half of the book deals with the extension of the doctrine of continuous voyage during the World War. The author has made a critical examination of the diplomatic correspondence between the United States and the Allied Powers, particularly Great Britain, in relation to the blockade policy of those Powers, and of the decisions of the prize courts under British Orders in Council, and Italian and French decrees. This review appears to be a thorough and excellent piece of work covering the state papers, the decisions of the prize courts, and the contemporaneous essays on the subject. 1 The author has misconstrued a statement of mine at page 38 where he indicates that I have referred to the Eagle (1803) "as a case in which the doctrine of continuous voyage was applied to contraband," and also at page 39 where he says: "Thus the statement of Woolsey that, 'The earliest case mentioned [by Justice Elliott] in which the doctrine was applied to contraband is that of the Eagle decided in May, 1803' . . . seem to be based on a misapprehension." The context of my article shows that I was merely reviewing Justice Elliott's article on "The Doctrine of Continuous Voyages,” and not stating my own views.

« PreviousContinue »