T

HE refusal of the United States
Senate to ratify the Versailles
Treaty of Peace with Germany

and the failure of President Wilson to resubmit the treaty with modifications to the ratifying body developed a new phase of American diplomatic and legislative history on April 9, 1920, when the House of Representatives, by a vote of 242 to 150, passed a resolution declaring the state of war between the United States and Germany to be at an end. This action of the House, a body with no treaty-making powers, was the first step toward joint action of both branches of Congress, and was due to the fact that the deadlock between the President and the Senate majority apparently could not be broken. It was the result of conferences between the Republican leaders of the two houses.

With the introduction of this resolution the scenes that had attended the prolonged struggle over the treaty in the Senate were transferred to the House, and the alignment of the members was revealed. In the final vote only two Republicans-Fuller of Massachusetts and Kelley of Michigan-opposed the resolution, while twenty-two Democrats voted with the Republicans; otherwise the vote -242 to 150-followed party lines, and the passage of the resolution was a Republican act.

The resolution then went to the Senate and was referred to the Committee on Foreign Relations, of which Senator Lodge is Chairman. It had not been reported out when these pages went to press (April 20). It was confidently asserted, however, that it would pass the Senate, but that President Wilson would veto it; thus the real test would come with the effort to get the necessary twothirds vote of each house for the passage of the measure over the President's veto.

TEXT OF THE RESOLUTION

The resolution as passed by the House was formulated by Congressman Porter

Historic Debate

(Rep.) of Pennsylvania, Chairman of the House Foreign Relations Committee. The text was as follows:

Whereas the President of the United States, in the performance of his constitutional duty to give to the Congress information of the state of the Union, has advised the Congress that the war with the Imperial German Government has ended:

Resolved, &c., (Sec. 1.) That the state of war declared to exist between the Imperial German Government and the United States by the joint resolution of Congress approved April 6, 1917, is hereby declared at an end.

Sec. 2. That in the interpretation of any provision relating to the date of the termination of the present war or of the present or existing emergency in any acts of Congress, joint resolutions, or proclamations of the President containing provisions contingent upon the date of the termination of the war or of the present or existing emergency, the date when this resolution becomes effective shall be construed and treated as the date of the termination of the war or of the present or existing emergency, notwithstanding any provision in any act of Congress or joint resolution providing any other mode of determining the date of the termination of the war or of the present or existing emergency.

Sec. 3. That with a view to secure reciprocal trade with the German Government and its nationals, and for this purpose, it is hereby provided that unless within forty-five days from the date when this resolution becomes effective the German Government

shall duly notify the President of the United States that it has declared a termination of the war with the United States, and that it waives and renounces on behalf of itself and its nationals any claim, demand, right, or benefit against the United States ΟΙ its nationals that it or they would not have had the right to assert had the United States ratified the Treaty of Versailles, the President of the United States shall have the power, and it shall be his duty, to proclaim the fact that the German Government has not given the notification hereinbefore mentioned, and thereupon and until the President shall have proclaimed the receipt of such notification commercial intercourse between the United States and Germany and the making of loans or credits and the furnishing of financial assistance or supplies to the German Government or the inhabitants of Germany, directly or indirectly, by the Government or the inhabitants of the United States shall, except with the license of the President, be prohibited.

Sec. 4. That whoever shall willfully violate

the foregoing prohibition whenever the same shall be in force shall upon conviction be fined not more than $10,000, or, if a natural person, imprisoned for not more than two years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by a like fine, imprisonment, or both, and any property, funds, securities, papers, other articles or documents, or any vessel, together with her tackle, apparel, furniture and equipment, concerned in such violation shall be forfeited to the United States.

or

Sec. 5. That nothing herein contained shall be construed as a waiver by the United States of any rights, privileges, indemnities, reparations, or advantages to which the United States has become entitled under the terms of the armistice signed Nov. 11, 1918, or which were acquired by or are in the possession of the United States by reason of its participation in the war, or otherwise; and all fines, forfeitures, penalties and seizures imposed or made by the United States are hereby ratified, confirmed and maintained.

The passing of this resolution by the House was an act without precedent in American legislative history, hence the debate proved of deep interest and established two widely conflicting views of Congressional authority.

OPENING THE DEBATE

The debate was opened on April 6 by Congressman Venable of Mississippi, who spoke against the resolution. His initial argument was based on constitutional objections. He held that the resolution was in effect a treaty of peace, and that it contravened the Constitution in seeking to confer power on the House to participate in treaty making. In support of this position he quoted from the writings of Hamilton, Jay, Washington, and cited numerous constitutional authorities. In answer to the argument that the resolution is not a treaty he said:

This resolution requires that Germany agree to certain things; it provides that she relinquish and waive all rights which she now has as a country at war; she is to agree that certain rights of certain of her citizens now existing shall be extinguished; she is to grant, confirm, and acknowledge certain rights in the United States to certain of her property. In short, she is to write into the resolution all the stipulations of the Treaty of Versailles which could in any wise affect her or her citizens or the United States and their citizens in regard one to the other. She is to relinquish rights to property and bind herself to do and not to do many things.

Surely no sane man can or will deny that this resolution is the tender and offer of an agreement, binding in honor if accepted, on the parties and containing that character of stipulations which have been entered into heretofore exclusively by treaty.

But I have heard it said that this is simply a legislative recognition of a fact that the war is over, and that this is valid even though Germany does not accept. The answers are apparent. Admitting for the sake of argument that the mere declaration of a state of peace does not have to be done by treaty and is the exercise of a legislative and not a treaty power, it is impossible to separate this part of the resolution from the other. We surely could not presume that the Congress would pass the one without the other. The fact that we are declared to be at peace, even though Germany rejects the offer, does not help the situation, for the question is whether the House has the power to make the tender at all, and not what consequences would flow if it were accepted.

If the President, by and with the advice and consent of the Senate, should negotiate an agreement with Germany containing these identical terms, would any one contend that it was not a treaty? If, then, it would be a treaty under these circumstances, it must be likewise when parading through the House under the guise of a resolution, for else we would have the treaty-making power resident in separate agencies, which we have seen cannot be.

THE PRESIDENT'S POWERS

But it is being urged that Congress has the power to declare peace, since it has it to declare war, and while this is not strictly in issue, since we have seen that the resolution does more than this, yet it might be of some interest to consider this for a brief while. Wheaton's International Law, fourth edition, says:

By the forms of the Constitution the President has the exclusive power of making treaties of peace, which, when ratified, with advice and consent of the Senate, become the supreme law of the land and have effect of repealing the declaration of war

*

*

And so forth. I have already endeavored to point out that no such specific power was granted, and none was necessary and proper to be exercised by the Congress in its legislative capacity. * The framers of the Constitution did not intend to confer upon and did not understand that the House had any such authority. * Does it follow, where there is in existence an enemy sovereignty capable of continuing war, legally at least-one capable of choosing whether it will continue the status of war as far as itself and citizens are concerned-that a peace status can be restored simply by a declaration of one of the countries that it is It cannot if an agreement be necessary, for agreements between this and other coun

so?

It

It

The making of peace implies that old differences have been settled and are no longer a ground of war under international law. cannot be a state of peace when either of the countries, having never relinquished its attitude of war, may lawfully renew the actual fighting whenever it chooses. In a state of peace it is held to be unlawful under international law to seize the goods and imprison the citizens of a friendly country, but this is permitted when a country is at war; then the citizens of the other country are enemies. is not a state of peace when, though one country has declared that it is at peace, the other is at liberty to seize the goods and persons of the first. When countries are at war the citizens of each are the enemies of the citizens of the other and intercourse and trade are prohibited. It will be noted that these limitations flow from the fact that one country chooses to retain the war status as far as it is concerned. In short, there is a status of war even though one of the parties assumed to say that it is at peace.

These considerations and illustrations might be multiplied, show beyond dispute, I submit, that when the status of war has been assumed by warring Governments which continue to exist as sovereignties, with the powers of government and the exercise of governmental will unimpaired, with power to continue the war status, as far as itself and its nationals and concerned, the only way in which a peace status can be obtained is by mutual agreement and consent.

This being true, under our Government it can be attained only by the exercise of the peace power, since this only has jurisdiction of agreements with other nations with respect to national matters.

CONGRESSMAN LITTLE REPLIES

The opposite view was presented by Congressman Little (Rep.) of Kansas, who said:

If the gentleman from Mississippi [Mr. Venable] is correct, it requires these representatives of 100,000,000 people to involve this country in war; but once it is involved in war God Almighty Himself could not get us out of it if Woodrow Wilson did not want us to get out. The gentleman suggests that the idea that this House and the Senate can stop the fight which it and the Senate started would be humorous if it were not tragic, and it might be both. The idea that there is no way to get this country out of war unless the President lets us stop is tragic and is humorous, too. The gentleman bases his entire argument upon a very curious fallacy, which is that it takes a treaty to stop a fight. Under the ordinary laws of nature and of common sense anybody who can

start a fight can stop that fight if the other fellow is willing.

In this case Germany has sued for peace, and all that is necessary now is for somebody to tell her that she can quit, and under the Constitution all powers given, not otherwise specifically assigned, can be exercised by Congress, and the time necessary has arrived when the treaty makers failed to function. The gentleman speaks of this as if we were making a treaty. We are not. Germany sues for peace and we deliver an ultimatum and we say, Yes; you may quit under certain conditions.". If Germany accepts them, then the treaty-making power can go to work and make a treaty. We are not negotiating a treaty. We are announcing an ultimatum. The gentleman's argument flows gracefully on in eloquent and rounded periods just as soon as he leaves his first premise. If his premise were correct, it would be a logical and persuasive speech, but it is all bottomed on the singular and curious fallacy that wars can only be terminated by written treaties; that nations can live in peace only when their agreements to do so have been signed, sealed, registered, and recorded. That fallacy exploded, his brilliant argument hangs wavering in the air without foundation and ceases to be of force or effect.

If Germany accepts our ultimatum, then the treaty makers can begin again. Every man with horse sense knows that this war is over, and it is high time that the clock struck officially the hour of its end. We cannot afford to have a river of horrors and expenses of war engulfing our Republic till somebody is willing to take advice he does not like. The people have vested in the representatives all reserve powers necessary to preserve the Republic and its citizens. This is a Government of checks and balances, and if other departments fail Congress must do its duty. That is what Congress is for and that is why it wields the thunderbolt of the will of a hundred million Americans.

CONGRESSMAN PORTER'S REPORT

Stephen G. Porter, Chairman of the Foreign Relations Committee of the House, in his report on the resolution, recited various powers given to President Wilson so drastic in character and appreciation that the liberties of the individual were largely abridged." He argued that seventeen months after the armistice the treaty had been rejected and that the deadlock between the Senate and the President might continue indefinitely; meanwhile the country remains legally at war and subject to all the penalties of wartime legislation. He argued that, following precedents of President Madison at the close of the War of 1812, of President Polk at the close of the Mexi

can war, of President McKinley at the close of the Spanish-American war, and of President Johnson at the close of the civil war, President Wilson could exercise the powers vested in him by the act of Oct. 6, 1917. This act provided for termination of the Trading With the Enemy act "by ratification of a treaty of peace, unless the President, by proclamation, shall declare a prior date, in which case the date so proclaimed shall be deemed to be an end of the war." Mr. Porter argued that the war measures should have been annulled as soon as it became apparent that the contest over the treaty would be indefinitely prolonged. He continued:

It is true that the usual and normal method of terminating a war status is by a treaty made by the President, by and with the advice and consent of two-thirds of the Senate. If this were the only means by which the war could be ended, Congress would be powerless to grant relief, but the authorities on international law cited above

agree that there are two other ways of terminating war, one of which is the cessation of hostilities for a long period of time without any intention on the part of either of the belligerents to resume them, and the other by conquest and subjugation of one of the contending parties by the other. Mr. Seward said, in one of the cases cited:

What period of suspension of war is necessary to justify the presumption of the restoration of peace has never yet been settled, and it must in every case be determined with reference to the collateral facts and circumstances.

The power to determine this question of fact is undoubtedly in Congress. Now, what are the facts? The armistice was signed on Nov. 11, 1918, and neither of the belligerents has indicated the slightest intention of resuming hostilities; on the contrary, the armies of both sides have been demobilized, commercial relations between the peoples of the United States and Germany have been partially resumed, and all the nations associated with us in the war have formally ended the war by treaty with Germany, and the Imperial German Government has been supplanted by a republic.

DUTY OF CONGRESS

Germany has conceded our demands by the Treaty of Versailles, and the only controversy remaining is the one between the Chief Executive and the Senate over the ratification of the treaty. Under this state of facts no reasonable mind can escape the conclusion that the war is long since terminated. It therefore becomes the imperative duty of Congress to declare officially the fact that the war is ended. The Constitution does not

withhold from Congress the power to declare war at an end, as it has the power to repeal or amend any of its legislative acts.

Neither does the Constitution require that war declared by Congress must be ended by a treaty of peace negotiated by the President by and with the advice and consent of the Senate. This, no doubt, is the customary way of ending a war, but it is not the only way of doing so, and the peace by treaty having failed of accomplishment, such action on the part of Congress is not an infringement of the treaty-making power of the President. Congress, which alone has the power to declare war, to raise and support armies, to provide and maintain a navy and to marshal all the resources of the nation for the successful prosecution of war, surely has the power to vacate its official acts by declaring the war at an end, and thus fulfill its obligations to the country.

The Constitution contains no such absurd provision that a resolution declaring a state of war and the laws passed in the prosecution of that war are irrepealable, the power of annulment by Congress follows by necessary implication. If it were otherwise, and these great powers remain in some mysterious way in the hands of the President until a treaty of peace has been made and proclaimed, and there is no other way to end such a state of war, except by a treaty of peace, the President could maintain a dictatorship just so long as he is able to hold the Presidential office-a condition repugnant to every fundamental principle upon which this Government is founded.

It is an unprecedented situation in the history of our Government, the evil of which necessarily requires an unprecedented remedy. It therefore becomes the plain duty of Congress to exercise its constitutional powers and declare the state of war at an end, and fix a date whereby these laws will automatically terminate according to their own provisions. The passage of this resolution will not disturb in the slightest degree the status of the treaty negotiations.

The President will be as free and untrammeled in the negotiation of the treaty after its passage as before. It simply declares the war to be at an end, fixes a date for the termination of the war legislation, and upon certain conditions permits the resumption of trade with the German people.

RANCOR OVER OTHER TREATIES

Congressman Steele (Dem.) of Pennsylvania, in opposing the resolution, gave historical precedents in support of his objections and recalled the curious fact that "few public acts have provoked more bitterness and rancor among the people than the exercise of the treatymaking power." He recalled especially the abuse that followed the negotiating of the Jay treaty with England in 1794,

leading to such attacks on President Washington as to draw from him the protest that they were so exaggerated and indecent as could scarcely be applied to a Nero or even a common pickpocket." Mr. Steele quoted the piquant passage in the memoirs of John Quincy Adams telling how Washington went to the Senate with a draft of a treaty, and how

they debated it and proposed alterations, so that when Washington left the Senate Chamber he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate.

Congressman Steele also cited authorities to sustain his contention that the House had no treaty-making power, and continued:

In the pending resolution the war is specifically and unconditionally declared at an end. Prior to the war the United States had negotiated certain treaties with Germany. What effect, therefore, does the declaration of war and peace produce on these treaties, which bound the contracting parties at the moment of the rupture of their pacific relations? Are these treaties wholly annulled in strict law, or do some of their provisions fall while others remain in force? The solution of these questions depends naturally upon the character of the engagements contracted. Thus all are agreed in admitting the rupture of conventional ties concluded expressly with a view to a state of peace; of those whose special object is to promote relations of harmony between nation and nation, such as treaties of amity, of alliance, and other acts of the same nature having a political character.

The President is given no express power to make peace. Such authority as he has in making peace is implied from his constitutional warrant to negotiate treaties. He has no power to make peace except as an incident to a treaty. If a case should occur in which no treaty could be made, the President could exercise no function in connection with ending a war. For instance, if there were no responsible Government in Germany with which a treaty might be agreed on, the President could do no act to make peace. If the United States should fight a war of conquest and as a result should annex enemy country, there would be no Government for the President to make a treaty with. In such a case there could be no treaty, and unless Congress has power to terminate a state of war we would remain perpetually in a war status. Thus is reduced to an absurdity the argument that Congress cannot end the war status. Congress cannot make peace, for that involves negotiations with a foreign Government and the agreeing upon a treaty, which is the President's exclusive function; but there is no doubt in my mind that Congress may terminate a war status, leaving the President to negotiate the terms of peace. *k * *

and postal arrangements, conventions of navigation and commerce, and agreements relative o private interests, they are generally considered as suspended till the cessation of hostilities. By necessary consequence, it is a principle that everv stipulation written with reference to war, as well as all clauses described as perpetual, preserve, in spite of the outbreak of hostilities, their obligatory force so long as the belligerents have not by common accord annulled them or replaced them with others. (Moore's Digest Int. Law, vol. 5, p. 386; 8 Wheat., 464.)

Without any new or repugnant provisions in the shape of a new treaty, the old treaties with Germany will revive at the passage of this resolution. If, then, Germany refuses to yield these rights and submit to the embargo provided in the resolution, we will be in the position of being compelled to meet these claims, and in addition losing all prospects of future trade with that country. She

volves the shocking theory that, no matter how complete our victory nor how unanimous the minds of the people, we cannot end a state of war except by the exercise of the will of the Executive.