The preceding sections have considered the power of the President to enter into international agreements, and to take action with reference to matters of an international character, by virtue of powers inherent in him either as the Chief Executive of the Nation or as constitutional Commander-in-Chief of the army and navy. "We turn now to a consideration of treaty-making powers which may constitutionally be exercised by him, without in each instance obtaining the advice and consent of the Senate, by virtue of general authority given to him in treaties previously entered into and approved by the Senate.

This question, which is one of both political expediency and of constitutional law, received thorough discussion both in Congress and the press in connection with the general treaties of arbitration which were agreed upon in 1904 and 1905 between Secretary of State Hay in behalf of the United States, and the foreign ministers of various other countries.

At The Hague Conference in 1899 an attempt was made to provide for obligatory arbitration in certain cases. This failed, but by Article XVI it was declared that: "In questions of a judicial character, and especially in questions regarding the interpretation and application of international treaties or conventions, arbitration is recognized by the Signatory Powers as the most efficacious and at the same time the most equitable method of deciding controversies which nave not been settled by diplomatic methods;" and article XX provided for the establishment of "a permanent Court of Arbitration, accessible at all times, and acting, unless otherwise stipulated by the parties, in accordance with rules of procedure included in the present convention," to which resort might be had for the settlement of disputes which diplomatic methods had failed to adjust In addition to these provisions, by Article XIX of The Hague Convention the Signa-tory Powers reserved the right to enter into general or particular treaties providing for obligatory arbitration with reference to such subjects as they might think advisable.

In 1903. by a treaty signed at London, October 14th, France and England agreed in the future to submit to The Hague Tribunal certain specified classes of questions. Article II provided that "Dans chaque cas particalier, leg Hauies Parlies Con-tractantes, avant de s addresser a la Cour permanante d'arbitrage, signeront un compromivs special, determinant l'objet du litige, Ventcaduc des pouvoirs des arbitres." This Anglo-French treaty became the model for a number of treaties between other European nations, as well as for ten arbitration treaties negotiated by Mr. Hay in 1904 - 1905, and submitted to the Senate for its approval.

The first two articles of these treaty projects read as follows:

"Article I. Differences which may arise of legal nature, or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the permanent court of arbitration established at The Hague by the convention of the 29th of July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence or the honor of the two contracting States, and do not concern the interests of third parties."

"Article II. In each individual case the high contracting parties, before appealing to the permanent court of arbitration, shall conclude a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators, and fixing the periods for the formation of the arbitral tribunal and the several stages of the procedure."

In the Senate objection developed to the provision that the definition of the matter in dispute and the fixing of the powers of the arbitrators should be "by special agreements," which, the terminology would imply, might be entered into, in each case, by the President without consulting the Senate. That body, therefore, amended the treaty projects by substituting the word "Treaty" for the word "Agreement." The effect of this change was, of course, to make it necessary to obtain the approval and consent of the Senate to each and every proposition that might thereafter arise for submitting a dispute to arbitration, even when such propositions were clearly within the scope of Article I of the treaties which Secretary Hay had negotiated. President Roosevelt holding that thus, in any event, a special treaty would have to be negotiated and approved by the Senate before a matter could be submitted to arbitration, declared that the ratification of the so-called general arbitration treaties which the Senate had amended, would achieve nothing, and declined to submit them, as thus amended, to the foreign countries concerned, for their approval, and the whole project was, for the time being at least, abandoned.

With the policy or impolicy of the Senate's refusal explicitly to endow the Executive with the authority by "special agreements" to submit to arbitration before The Hague tribunal of matters coming within the terms of the ten arbitration treaties negotiated by .Secretary Hay, a treatise on Constitutional Law is not concerned. As regards, however, the point made by some of the Senators that the delegation of such authority to the President would not be constitutional, it may be said that both judicial precedents and previous practice of the Senate itself support in principle the treaties in question.

There have been numerous instances in which the Senate has approved treaties providing for the submission of specific matters to arbitration, leaving it to the President to determine exactly the form and scope of the matter to be arbitrated and to appoint the arbitrators. Professor J. B. Moore, in the article to which reference has already been made, enumerates thirty-nine instances in which provision has thus been made for the settlement of pecuniary claims. Twenty of these were claims against foreign governments; fourteen were claims against both governments, and five against the United States alone.11

Notwithstanding the defeat of the Hay treaties in 1905, the President still has, by virtue of The Hague Convention itself, a considerable power upon his own initiative of referring many matters of international dispute to the Permanent Court of Arbitration at The Hague or to arbitral commissions specially created, as provided for in that instrument. As we have already seen, the President, by reason of his control of all diplomatic relations, has considerable power to refer to arbitration matters of dispute which he is unable to settle through the ordinary diplomatic channels. And, in the exercise of this discretion, he can, of course, refer claims, especially those of a pecuniary nature, and questions of treaty interpretation to the tribunals established or provided for by The Hague Convention. Thus, without consulting with the Senate, he referred the Pious Fund controversy with Mexico to The Hague Tribunal.12

Aside from any other treaty agreements, there seems to be some question as to the extent of the President's powers under

11 Political Science Quarterly, XX, 403.

12 It is to be observed, however, that at the time the Pious Fund matter was, by the President, with the consent of Mexico, referred to The Hague Tribunal there was a subsisting treaty between this country and Mexico - a treaty which, of course, had had the approval of the Senate - providing for arbitration of disputes of the character of the Pious Fund.

The Hague Convention. Ex-Secretary of State John W. Poster has said: "I apprehend that should our government decide to refer any dispute with a foreign government to The Hague Tribunal, "President Roosevelt, or whoever should succeed him, would enter into a convention with the foreign government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States and The Hague Convention aright, such would be the only course permissible by those instruments." 13

To much the same effect is the declaration of Mr. F. W. Holls, who was the Secretary to The Hague Conference. He says: "The appointment of a Commission of Inquiry having no further necessary consequences than the providing for each party's share of necessary expenses, would seem to be within the ordinary diplomatic functions of the President and the Department of State by memorandum or protocol, whereas an agreement to submit any question to a court of arbitration, the decision to be binding upon the parties, must necessarily take the form of a treaty requiring the constitutional co-operation of the Senate." 14

Upon the other hand. Judge Simeon E. Baldwin gives as his opinion that: " The Hague Convention, when ratified by the Senate, became thus a standing warrant, or, so to speak, a power of attorney, from the United States to the President, to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration." 15