The preamble in all of the treaties is identical and states the contracting countries as "desirous to strengthen the bonds of amity that bind them together and also to advance the cause of general peace."

In the first article of the treaty with Salvador the high contracting Parties "agree that all disputes between them, of every nature whatsoever, which diplomacy shall fail to adjust, shall be submitted for investigation and report to an international commission, to be constituted in the manner prescribed in the next succeeding article." That is to say, all disputes, whether involving questions of fact, law or policy, are to be submitted for investigation and report, provided only that diplomacy shall have failed to adjust them. The treaty with the Netherlands is more cautious, and makes it clear that the new supplements but does not supplant an older treaty providing for arbitration. Thus: "The High Contracting Parties agree that all disputes between them, of every nature whatsoever, to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to a permanent international commission, to be constituted in the manner prescribed in the next succeeding article."

This limitation is just and proper from every point of view.

In the first place, an obligation to arbitrate is not satisfied by submitting a dispute covered by such a treaty, to the commission which only investigates and reports, whereas an arbitral tribunal decides the

questions laid before it and binds the conscience and the good faith of the parties to comply with and to execute the award.

In the second place, the membership of the arbitral tribunal may well differ from that of the commission, inasmuch as different qualifications may be required to pass upon questions of law and to apply them to the facts as stated or found, from those fitted to find facts or take into consideration questions of honor, or vital interest which inevitably involve politics and international policy and in which questions of law may play but a modest or subdued rôle.

In the third and final place, for only essential differences are to be pointed out, the Netherland Government wanted to have it distinctly appear that, as far as it was concerned, the treaty was primarily to bring to investigation and report questions ordinarily reserved from the obligation to arbitrate contained in the general treaties of arbitration, although if the agreement to arbitrate under the general treaty or agreement has not been complied with, the Bryan treaty may then be utilized to cause the particular matter to be submitted to the commission. Such action is, however, to be the exception, not the rule.

The two treaties are, however, alike in the final and vital clause of the first article, for the text of both is so similar as to be almost identical in language as in meaning. Thus the treaty with Salvador provides, as do all of the series, that the high contracting Parties "agree not to declare war or begin hostilities during such investigation and report."

In each treaty the commission of inquiry is to be composed of five members, one to be chosen by each from its citizens or subjects, a second from a third country, and in the treaty with Salvador "the fifth member shall be chosen by common agreement between the two Governments"; in the treaty with the Netherlands the proviso is added "that he shall not be a citizen of either country." Doubtless in practice the umpire would be a foreigner to each, but it was well to state it in order that three of the members, that is the majority, must be indifferent to the dispute. In each treaty the expenses of the commission are to be paid in equal proportions; in the treaty with Salvador the commission is to be appointed within four, in that with the Netherlands, within six months after exchange of ratifications and vacancies are to be filled in each as in the case of original appointments.

The third article of both is very similar, but not identical,. as Mr. Bryan did not attempt to secure absolute uniformity of detail, wisely

leaving something to the other side to suggest and to the United States to accept. By the first paragraph of each treaty the dispute is to be submitted to the commission immediately upon the collapse of diplomacy. In the Salvadorian treaty the commission may "act upon its own initiative," notifying and requesting the cooperation of the Governments; whereas in the Netherland draft the commission may "spontaneously" offer its services. The meaning seems, however, to be identical in each case, as where special formalities are to be required, they are stated in the treaties.

In the second sentence of the third article the treaty with Salvador presumes that the request of cooperation is tantamount to an obligation to cooperate. This is not, however, left to conjecture by the Netherlands, as by the third paragraph of the article, the high contracting Parties "agree to furnish" the commission "with all the means and facilities required for its investigation and report." In the next paragraph of the article the commission has a year in which to investigate and to report upon the dispute, which, in the case of Salvador, may be extended, and in the case of the Netherlands limited or extended by mutual agreement. In each the report is to be in triplicate, one copy for each of the parties and the third for the files of the commission.

The concluding paragraph is identical and as it is of the essence of Mr. Bryan's plan it is found in all of the treaties in similar if not in identical language. According to the text of the Salvadorian and Netherland treaty it reads: "The high contracting Parties retain the right to act independently on the subject-matter of the dispute after the report of the commission shall have been submitted."

Thus far there have only been slight differences in the two texts making for clearness in thought and expression, and precision in the nature and extent of the obligation assumed. There was, however, an important difference between the treaties with Salvador, Guatemala, Panama, Honduras, Nicaragua and Persia on the one hand, and all the others, including, of course, the Netherlands, which latter country was the first to strike out the fourth article of the five American treaties in which it was followed by all other countries with the exception of Persia.

This article is thus worded:

Pending the investigation and report of the International Commission, the high contracting parties agree not to increase their

military or naval programs, unless danger from a third power shall compel such increase, in which case the party feeling itself menaced shall confidentially communicate the fact in writing to the other contracting party, whereupon the latter shall also be released from its obligation to maintain its military and naval status quo.

The Senate in advising and consenting to the ratification of the treaties eliminated this article, thus removing this difference between them, reducing any variation in the various treaties to one of method rather than of obligation.

In taking this action the Senate was well advised as the provisions of the article were complicated, difficult to supervise or control, and sought to lay a burden upon the contracting Parties which they would find irksome to observe and which in addition was really out of place, as the relations of a contracting party with a third State was no concern of the contracting country.

The final and formal article regarding ratification provides in each of the two treaties under consideration that each is concluded for a period of five years and remains in effect thereafter until twelve months after notice given by either of an intention to terminate it.

Each article of the earliest American and of the European or later model has been passed in review in order to show how alike they are in all their essential parts, and a careful examination and comparison of all the treaties will disclose the fact that they differ from one another and from these two in what may be considered minor details, due to a desire for different provisions in some instances, to a preference for a more precise formulation of their terms and to a greater precision of expression.

The sense in which the various treaties ratified and proclaimed was understood by Mr. Bryan and the Senate can be seen from Secretary Bryan's letter of August 1, 1914, addressed to the Honorable William J. Stone, then chairman of the Committee on Foreign Relations of the United States Senate, and in an editorial comment written by the undersigned on the treaties in the American Journal of International Law for July, 1914, which Mr. Bryan sent to each member of the Senate at the time of and for the purpose of their ratification. The differences in each case arranged under appropriate headings are admirably stated, and classified in an editorial comment in the American Journal of International Law for October, 1916, written by George A. Finch, secretary of the Board of Editors of the Journal.

To avoid conscious repetition and an unconscious reproduction of their terms in language paraphrased when not directly quoted, these three documents are for the convenience of the reader appended to the present introduction.

The Treaties for the Advancement of Peace leave diplomacy to achieve its hundred silent victories to one announced defeat. Good offices and mediation may be offered and accepted. Friendly composition may be invoked and arbitration employed without interposition of the commission of inquiry. If diplomacy fails and no other means are resorted to, or if the dispute involves honor or vital interests, falling beyond the scope of any agreement, Mr. Bryan's permanent commission, composed of three indifferent persons and a member from each disputant, stands ready to accept jurisdiction at the behest of the parties, or of one of them, or to offer their services in order to investigate the case, and to report its findings to the Governments in controversy.

Imitation, they say, is the sincerest flattery, and it is a very striking tribute to the excellence of Mr. Bryan's treaties that the great and progressive States of Argentina, Brazil, and Chile have not only negotiated treaties for the advancement of peace with the United States, but have also negotiated a treaty of the same kind between and among themselves.1

This treaty, signed in the city of Buenos Aires on the 25th day of May, 1915, shows that in their opinion an agreement of this kind need not be confined to two countries, and it is therefore the first step, appropriately taken in the new world, towards the creation of an international commission of inquiry to which many nations, if not all, may be parties. What two can do, three have done; and what three can do, all may. It is no doubt easier for a small number of nations to conclude a treaty of this kind, inasmuch as each may have a permanent member without unduly enlarging the commission. In the present case, each of the contracting nations limited itself to a member, and the commission of three members was to meet and to function in case of need in the conveniently located city of Montevideo, in the Republic of Uruguay.

1 Appendix, post, p. 147.