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 GENERAL ARBITRATION TREATIES

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THE CONSTITUTIONALITY OF GENERAL ARBITRATION TREATIES BY EVERETT P. WHEELER THE general arbitration treaties with Great Britain, France, and other coun tries, which at the last meeting of the associa tion we recommended for ratification, were rejected by the Senate in the form in which they were submitted. The change pro posed by the Senate was in one word only. As negotiated by the President, these trea ties provided that the President could and would make an agreement with the other signatory power to submit to arbitration any matters within the scope of the treaty, according to the provisions of The Hague Convention. This word "agreement" un doubtedly referred to "the special submis sion" provided for in Article XXXI of The Hague Convention. For this word the Senate substituted "treaty." The effect of this change, if approved by the President, would have been to require the ratification by the- Senate of every subsequent arbi tration. Inasmuch as the power to make a special treaty of arbitration is conferred by the Constitution of the United States, and has always existed since the foundation of the government, the advantage is not perceived of declaring by a treaty that this power exists. Its only effect, if adopted, would be to restrict the power conferred by The Hague Convention upon the Presi dent and exercised by him in the matter of the Pious Fund Arbitration. The exer cise of that power does not require the con sent of the Senate. The President natur ally objected to limit his future action by any such restriction. The argument that the President and Senate cannot constitutionally make a gen eral treaty of arbitration seems to your com mittee untenable for the following reasons : i. It ignores the difference between a treaty and an agreement. Every treaty is an agreement, but every agreement is not

a treaty. Every deed is a contract, but every contract is not a deed. The contract to be a deed must be under seal. The agreement to be a treaty must be made "by and with the advice and consent of the Senate." Just as a deed may autho rize the person named in it to make a con tract not under seal, so may a treaty autho rize the President to make an agreement to submit to arbitration a matter in difference between the United States and a foreign power, without requiring any further ad vice and consent of the Senate than that involved in the original ratification. 2. It ignores the well-settled rule of con struction that when the Constitution itself makes no exception, the court should not make one by construction. To use the language of Chief-justice Marshall in Gib bons v. Ogden.1 "The subject is transferred to Congress, and no exception to the grant can be admitted, which is not proved by words, or the nature of the thing." The% Constitution of the United States, Article II, Section 2, contains the following grant of power to the President. : "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." This is a general grant of power. It has no limitation expressed. And how can it be said that any limitation is necessarily to be implied? It follows that the Presi dent, by and with the advice and consent of the Senate, can make a general treaty. In fact he has been doing this ever since the foundation of the government. Not only have general treaties been made, dealing with a variety of subjects, but gen eral arbitration treaties have been made and ratified by the Senate. The most notable 1 9 Wheaton i, 215.