Fifty Years of Public Service / Personal Recollections of Shelby M. Cullom, Senior United States Senator from Illinois

by Shelby M. Cullom

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.