New-York tribune., 1905-01-12
As TO ARBITRATION.

the way for the collection of lot OF foreign
claims against American States. Inc olher Is
that they will permit the President 10 settle Ior-
eign controversies without the cooperation or
consent of the Senate
The first of these is divided into two parts.
Some have hinted that under the treaties the old
confederate bonds might be resurrected and
payment of them exacted. Any one who could
believe that, in the face OF Section of the
Fourteenth Amendment 10 the Constitution,
could believe anything. Our government is not
going to do by treaty something which the Con-
sttution forbids. To state that objection Is to
dispose Of il. The other and less preposterous
part is that under the treaties claims might be
made for the payment of some of the "repudi-
ated" or "readjusted" debts OF some or the
States. Again. the scope of arbitration must be
limited by the Constitution We are not going,
by treaty or otherwise, to invest an alien tribu-
nal with authority TO overthrow the Constitu-
tion of the United States. Now. under the Elev-
enrh Amendment TO the Constitution, the jul
diciaI power of the United States is declared not
TO extend to any suit in law or equity brought
against any Of the States 10y citizens or another
State or OF any foreign State That provision
will stand and no treaty will alter ii. The
claims in question are We believe, held by cid-
Zens or subjects of foreign States. and not by
the governments Of those States or by the States
therefore be able TO bring suit against any of
our States. for If they cannot, under the Constt-
tuition do so at the Supreme Court at Washing
ton, our government assuredly is not going to
sanction their doing so at The Hague or else
where. Much as we esteem the tribunal AZ The
Hague, we are not exalting II above the Consti-
tuition Of the United States. But. it is said. the
private holders Of those defaulted bonds might
transfer them to their governments, and those
governments or States might bring suit. Yes.
SO might we catch larks If the skies should fall.
We should be interested TO know which Euro
pean States are going into that business. 1t
would not. We fancy, be as easy to mention them
Ii would be 10 tell how such plan could be
blocked I'm a most effective manner.
The second objection does not seem more for
midable and the amendment providing that
each special agreement under the treaties shall
also be ratified by the Senate. Is inadmissible.
Ii would be practically making them pretence
Of arbitration; a treaty merely agreeing to try
10 make another treaty. Under this proposed
stipulation two treaties would have to be in
voked 10 submit any TO arbitration, no
matter how simple, and both would have TO be
ratified by the Senate. This cumbrOus and un-
heard Of procedure would turn attempts at sim
pie businesslike methods i'll arbitration into
mockery. 1t would also be an encroachment
upon the duties OF the Executive There appears
10 be no valid or compelling reason for such an
amendment 10 these treaties They are simple,
uniform. lucid and straightforward 1t is not
conceivable. under institutions and condi-
tions, that abuse would grow out OF them.
The claim that general arbitration treaties
will permit the President to settle foreign con-
trOyersies without the cooperation or consent
Of the Senate is misleading. 1t assumes that
foreign controyersies' can only be settled by
treaty. Many important controversies are set
tied without a treaty, and we have many prece-
dents of claims being arbitrated under a proto-
col or exchange Of notes. On the other hand,
there many larger questions Of disputed ter
ritory and the Ike which need treaty TO be
submitted TO the Senate The conclusion Of such
a special treaty in any where Ii may be
expedient is not barred by the pending arbitra-
tion conventions. 1t would, IN fact be one OF
the resorts of diplomatic settlement which the
pending conventions provide shall be exhausted
before carrying a controversy to The Hague.
The special agreement" to be reached in each
case carried TO The Hague is not necessarily a
treaty-it is as described. a simple definition of
the matter in dispute and the scope Of the pow
ers OF the arbitratOrs The authority of the
Executive to make such an agreement, treaty or
no treaty, is as complete as in the cases of the
Santo Domingo and Venezuelan protocols (and
many others which did not go to the Senate.
But the President would naturally and neces-
sarily be governed in each case by the nature
Of the matter in dispute. In important or doubt
full questions IL is hardly conceivable that he
would not do as has been done by all the Presi-
dents for century-cOnsult the Senators as to
the more expeGient course TO pursue and act ac-
cordingly either concluding a special treaty TO
fit the case, or, II the controversy be sent TO
The Hague framing the special agreement
after consultation with them and probably sub
foaitt 10 4baO for odv md =
would be practically impossible that President
would refuse arbitration the ground that the
controversy involved the vital interests. the in
dependence or the honor Of the United States
without being backed by the advice and consent
Of the Senate. The arbitration conventions do
not bar consultation with the Senate at any
stage. That is the Presidents prerogative, and
IS domestic matter concerning which he does
not need the consent of the other party II con-
sutation with the Senate is 20 be prescribed, 1t
should be domestic regulation and not the re-
suit OF agreement by treaty, with foreign
power
After all, and above all, II must be borne In
mind that the sovereignty of the nation is the
indestructible saving clause in every treaty.
whether for arbitration anything else-that
is to say 1t is left TO the discretion OF the nation
ultimately TO decide whether any specific dis
pute is or is not arbitrable. No matter how
many arbitration treaties We have. II our gov
ernment decides and declares that q certain
issue Is not arbitrabe IL VIII not be arbitrated:
and that is all there is about It. There Is nrac-
tically universal agreement that no nation is 70
be called upon 10 submit 10 arbitration any mat
ter affecting Its own honor; and there can be no
question that every nation is the ultimate tudga
Of its own honor. Nor is it cynical TO say that
nor does the saying or the doing of il nuify the