« PrejšnjaNaprej »
executive department. So, even more strongly, does our entry into world politics. It is a change of position, which, as has been pointed out by Professor Reinsch of the University of Wisconsin,' necessarily endangers one of the unwritten and yet one of the strongest safeguards of the Constitution.
This is the existence of an organized and effective opposition in both houses of Congress.
The Constitution provided explicitly, in one instance, for the support of such a minority, by requiring the yeas and nays to be taken and recorded upon any vote, at the request of a fifth of those present. This protection to them has in part been taken away in the House of Representatives, of late years, by the closure rule. Their continued existence, or at least their healthy vitality, will be henceforth threatened by the opportunity which the party in power will always have, when maintaining a policy of foreign war or conquest, of appealing to patriotic feeling and raising the cry of “our country, right or wrong.” The political press, during the recent Presidential campaign, did not hesitate to denounce those who went by the name of "anti-imperialists” as the main supporters of Aguinaldo, and to assert that the speeches in Congress of those who denounced the military measures directed against him were prolonging his resistance to our lawful authority, and that they were responsible for bringing hundreds of our soldiers in the Philippines to untimely graves.
There is an absorbing interest in great national events of worldwide interest, in wars and rumors of wars, in conquests of new lands, in the framing of governments for subject races, in joining with other powers in imposing fundamental political changes on distant empires, that dwarfs all the ordinary questions of home concern. As to those, men who differ can speak out with little fear of misconstruction or misrepresentation. On questions of foreign policy, when what is said in Congress is forthwith telegraphed to every quarter of the globe, public men are under a certain compulsion to speak with reserve and hesitancy.
A cessation of hostilities in the Philippines, should we continue to retain our sovereignty there, would lessen but not remove the difficulties in the way of maintaining a parliamentary opposition.
World Politics at the End of the Nineteenth Century, 335.
Foreign questions must still, for years, largely overshadow domestic ones. Yet, for their proper treatment, the freest discussion is a necessity. We are accused by the Germans of a contempt for international law and treaty obligations, when they stand in the way of national aggrandizement, for which they have even coined a word, "Americanismus." The tone of many of our newspapers, and the language attributed to some of our senators during the discussion of the Hay-Pauncefote treaty, give some color to the charge. It certainly, however, has not yet fastened on the American people. It never can, if political discussion in Congress is kept free and earnest on party lines.
The House of Representatives in Missouri surprised the country last month by adopting this resolution:
"Whereas, the sympathies of the American people go out to all nations and all peoples struggling for liberty; therefore, be it
Resolved, That the House of Representatives of the Fortyfirst General Assembly of Missouri extend sympathy to the people of the Philippine archipelago in their heroic struggle for freedom."
The vote by which this action was passed (of 75 to 47) indicates that it received the support of one party, and was opposed by the other. Such an expression of opinion on the part of the legislative authorities of a State was, of course, beyond their proper province, irrespective of the grave objections to its form and nature; but the incident tends to illustrate one saving characteristic of American politics. There will always be some States in which the party represented by the national administration will be in the minority, and there the fullest discussion and the freest action is assured.
It is fortunate that the traditions of the Senate have thus far preserved in that branch of Congress the right of speech without limitation of time. Its character as an assembly of the representatives of sovereign States demands this. The minority in the Senate can therefore always be more outspoken than that in the House, independently of the effect of their longer tenure in office.
The check upon the foreign policy of the administration furnished by the power of the Senate to amend or reject treaties,
which, now that we are one of the Great Powers, the President will often find inconvenient in matters where concerted action is to be taken, is not supported by any right of abrogation. A treaty, under our Constitution, is a law, and can only be set aside by another treaty, or by Act of Congress. No other treaty can be proposed, save by the President. No repealing statute can be passed without his consent, unless it secures the votes of twothirds of each of the two houses. This gives him a far greater assurance than the heads of most republics have possessed, in dealing with foreign courts.
Nor has the Senate, in its capacity as a treaty-ratifying body, been always unwilling to assent to an extension of the President's authority in new directions.
A marked instance of this was the ratification, last year, of the Hague Convention as to International Arbitration.
This document was the work of a Conference of sovereigns and individual representatives of sovereignty, acting through their respective plenipotentiaries. It pledges the signatory powers to certain lines of conduct and clothes them with certain functions.
In most of our treaties and conventions with foreign nations, "the United States of America" have been named as the contracting party, though the term is often treated as equivalent to "the President of the United States." The Hague Convention names only the President. He is the contracting and signatory power.
It provides for mediation, and the authority to offer or accept it in behalf of the United States is necessarily in the President. It provides for international commissions of inquiry to be constituted "par convention spéciale entre les parties en litige.” Who is to make such an agreement on the part of the United States? Obviously the President. It provides for an International Court of Arbitration, and that "Chaque Puissance Signataire désignera, dans les trois mois qui suivront la ratification par elle du présent Acte, quatre personnes au plus," as members of this court. How has this appointment been made in behalf of the United States? In his message at the opening of the present session of Congress, we find these words: "In accordance with Article XXIII of the convention, providing for the appointment by each signatory power of persons of known competency in questions of international law as arbitrators, I have appointed as members of this court, the Hon. Benjamin Harrison of Indiana, ex-President of the United States; the Hon. Melville W. Fuller of Illinois, Chief Justice of the United States; the Hon. John W. Griggs of New Jersey, Attorney-General of the United States, and the Hon. George Gray of Delaware, a Judge of the Circuit Court of the United States.” This is communicated simply as a piece of information. He has done the act. He has not asked the consent of the Senate. Why should he? He must seek it, under our Constitution, when he appoints ambassadors, public ministers, and consuls, judges of Supreme Court, and most other officers of the United States. But the members of this International Court are not officers of the United States. They are officers of a world-court.
Similar action had been often taken by our Presidents in appointing arbitrators under previous treaties made for the purpose of settling some particular controversy.
The day must soon come when the United States will have occasion to invoke the action of this court. What will be our procedure? Article XXIV of the Convention provides thus for it: “Lorsque les Puissances Signataires veulent s'adresser à la Cour Permanente pour the règlement d'un différend survenu entre elles, le choix des arbitres appelés à former le tribunal compétent pour statuer sur ce différend, doit être fait dans la liste générale des membres de la Cour.
A défaut de constitution du tribunal arbitral par l'accord immédiat des parties, il est procédé de la manière suivante :
Chaque partie nomme deux arbitres et ceux-ci choisissent ensemble un surarbitre.
En cas de partage des voix, le choix du surarbitre est confié à une Puissance tierce, désignee de commun accord par les parties.
Si l'accord ne s'établit pas à ce sujet, chaque partie désigne une Puissance différente, et le choix du surarbitre est fait de concert par les Puissances ainsi désignées.
Le tribunal étant ainsi composé, les parties notifient au bureau leur décision de s'adresser à la Cour et les noms des arbitres."
The successive acts thus contemplated on the part of a moving party are of an administrative character, and it must fall to the President to perform them.
But what is to be submitted to the arbitrators for determination? By Art. XXXI, “Les Puissances qui recourent à l'arbitrage signent un acte spécial (Compromis) dans lequel sont nettement déterminés l'objet du litige ainsi que l'étendue des pouvoirs des arbitres. Cet acte implique l'engagement des parties de se soumettre de bonne foi à la sentence arbitrale.” Following the line of reasoning heretofore pursued, it is difficult to escape the conclusion that the President is to settle the terms of the subject in controversy and the extent of jurisdiction conferred, and by his sole agreement to pledge the faith of the United States for the fulfillment of the award.
This is a tremendous power for a republic to lodge in one man's hands; but in matters less important not dissimilar functions had been entrusted to him, or to his executive agents, in previous instances.
Thus in 1871 a convention was made with Spain to refer to arbitration certain claims of citizens of the United States against her for injuries received at the hands of the Cuban authorities. One arbitrator was to be appointed by the Secretary of State of the United States, and one by the Spanish minister at Washington; these two to agree on an umpire. “Each government” was to name an advocate, and the "Government of the United States" was to present the claims in controversy; the awards to be final and conclusive. The Attorney-General advised that the President was the government for the purpose of naming our advocate, such an official being considered as “of a peculiar nature created by the agreement between the two powers.'
The President, or the State Department, would, of course, in any case of this kind, be compelled, in presenting a claim, to define it; that is, to define the subject to be determined by the joint commission.
Our convention of 1828 with Great Britain, for the adjustment of the Northeastern boundary by arbitration, provided that each party should prepare and submit such a statement of its case as
1 United States Revised Statutes, ii, 720. '13 Opinions of the Attorneys General, 415.