18 FEBRUARY 1905, Page 6

P RESIDENT ROOSEVELT'S action with regard to the Santo Domingo Protocol

has scared the Senate into asserting in a somewhat violent form the right of decision in questions of foreign policy which the Constitu- tion gives them. The conclusion of Arbitration Treaties with the chief foreign Powers has been one of the main features of the policy of the President and Mr. Hay. Such Treaties were designed to affirm the principle of arbitration in the event of disputes, and when the occasion arose, to enable a case to be framed and the preliminaries of discussion settled with as much despatch as if they were left to the decision of an Executive officer. Article 2 of each Treaty, therefore, provided that before appealing to the Arbitration Court the high contracting parties should conclude a special Agreement defining "the matters in dispute, the scope of the powers of the arbitrators, the periods to be fixed for the formation of an arbitral tribunal, and the several stages of procedure." The article is what lawyers know as "common form," and means simply that the nation, having announced its desire to arbitrate, leaves it to its Executive to settle the details. But by a majority which included the whole Opposition and almost all the Republicans, the Senate have passed an amendment changing the word " Agreement " to " Treaty." This means that when a dispute arises the whole question has to be threshed out again and a special Treaty prepared, just as if there had been no general Arbitration Treaty in existence. President Roosevelt rightly regards the amendment as a. death-blow to the whole system. The Treaties as now ratified simply give the Government permission, when the need arises, to try to get the Senate to consent to an Arbitration Treaty. They are a pious pronouncement in favour of a principle, and nothing more. If a difficulty arises and public feeling is stirred, the Government will have to submit to all the delays which would have existed if there had been no Treaties. At a time when speed is vital and debate inopportune they will have to put up with all the procrastination and friction of public discussion. The Senate by their amendment have asserted their power with a vengeance, and at one stroke nullified the diplomacy of years.

• We have no intention of taking sides in the controversy. In a matter of domestic concern such action would be unbecoming and indefensible. The Senate have acted wholly within their legal rights. The American Constitu- tion gives them the treaty-making power and the general charge of foreign policy. The majority of fifty to nine shows that they are really convinced that this right is in danger, and jealous to protect it against the encroachments of the Executive. Many of President Roosevelt's most loyal supporters, such as Senator Lodge, find themselves in opposition to him. Nor do the Senate in any way attack the principle of arbitration. They declare their adherence to it, but they say, in effect, that the integrity of the Constitution is of greater importance than foreign policy, and that they must defend their rights even at the cost of a temporary inconvenience. We have no criticism to make on the bona fides of their action, or its probable results. They have a strong man against them, who is equally confident that he is in the right, and the verdict lies with the American people. But it is worth while to consider whether the direction of foreign policy can be left with any safety in the hands of a representative body. It seems to us that a broad distinction must be made between questions of principle and questions of detailed administration. A departure involving great national interests should obviously be decided by the representatives of the people. War or peace, commercial agreements, adjustments of territory,—these are matters which, even if they are provisionally settled by the Execu- tive, should receive ratification by the popular Assembly. But once the principle is fixed, it is surely absurd to ask that the details involved in it should be submitted to the same ratification. If so, the Executive ceases to have any meaning, and becomes merely a collection of clerks. The absurdity is intensified when we remember that however good a judge of a principle a popular body may be, it is often a very bad judge of the means of enforcing it, which generally demand expert knowledge. The true democratic doctrine is that the people appoints its agents, and entrusts to them the execution of its desires. It does not ask that each step be referred back to it for its approval. Popular control over a Depart-, ment of State, more especially the Foreign Department, if exercised otherwise than in the last resort, must mean disorganisation and inefficiency. This truth has been recognised by countries as democratic as the United States. In France the treaty-making Power is vested, not in the Senate, but in the Executive. Under the Constitution of 1875 the President has a general power of negotiating and ratifying agreements with other nations. It was long a moot point whether President Carnot had ever concluded an agreement with the Czar, and the text of the present Franco-Russian Convention has never been given to the Senate. At the same time, treaties of peace and commerce, and those which affect the State finances—treaties, that is, which involve a charge on the people or a change of great national importance—must be voted by both Chambers. In our own country the treaty-making power resides constitutionally in the Executive. The Crown has the right of making peace or ceding territory at its will, and of concluding every possible form of treaty ; but it is an established constitutional convention that treaties involving a charge on the people or a change in the law require the sanction of Parliament. A respon- sible Ministry will make sure of Parliamentary support by getting Parliament to ratify the principle of a treaty; but there is no suggestion that Parliament has a right to pronounce on the merits of each step in carrying it out. Such a doctrine seems to us constitn.. tionally unthinkable, and practically unworkable. And yet it is precisely the claim which the American Senate are making to-day. They have the unchallenged right to decide whether or not a policy of arbitration is desirable, but they demand the further right to settle the details of each appeal to the tribunal which they have generally approved. In such circumstances treaties become a farce, and arbitration a pious fiction. There is a special reason why the action of the Senate in insisting upon their full legal status is unfortunate. At the present moment there is nothing which the United States needs more than a strong Executive, and nothing which they could do so well without as a Senate on the old constitutional plan. The men who framed the Constitution at Philadelphia did not anticipate the kind of development in store for their country. They could not guess that it would become a world-Power, con- trolling territory beyond the shores of their continent, and playing an important part in the diplomatic game. They could not know, and therefore they did not provide for the contingency. They considered that the Senate, on whose creation they had expended so much thought, would continue to be an admirable bureau for the trans- action of America's scanty foreign business. They did not foresee that their Senate would become the home of the great financial interests, or they would have admitted that, just as a head of an international Trust might be a dangerous Foreign Minister, so a body which represented world-wide commercial interests might not be thh best and safest arbiter on foreign affairs. If America is to be an Imperial Power, she must have a trusted. Executive empowered to transact her foreign business with the despatch and expert know- ledge which foreign administration requires, receiving its mandate from the people, but not compelled to hark back continually for a fresh authority. Our recent experi- ence of the Senate as a bureau of foreign affairs has not been reassuring. We cannot forget the performance in December, 1900, when in one brilliant sitting the Senate passed the Nicaraguan Canal Convention in an impossible form, and abrogated the Clayton-Bulwer Treaty in a style which would have been called high-handed if it had. not been comic. Certainly their adventures in foreign affairs have not impressed the world with their competence in this direction. The real truth is that this branch of politics cannot be conducted through a representative body, even though that body is as able and. distinguished as the American Senate. Details must be left to experts to settle quickly and correctly ; otherwise the new Imperial policy of the States will fail through sheer want of machinery. The usual answer to this argument is that if the people are with the Executive, they will break down all obstruction. But this is precisely what the people cannot do. The Senate are not a popular body, either in the nature of their election or in their personnel. They represent money interests, class interests, academic interests even, but rarely popular interests. The Execu- tive, as represented. by the President, is far more in touch with the nation, and its control of foreign affairs appears to us a far more democratic procedure. This, then, is the impasse to which America at the moment has come. In her advance she has surmounted most of the barriers of the Constitution, but this one, being supported by powerful interests, seems likely to stay her for a while. We are confident, nevertheless, that some solution will ulti- mately be found, for we cannot believe that this anomaly in constitutional doctrine will be long tolerated, now that it is in a way to become a clear practical grievance.