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Gotthard Railway line was built. The treaty was ratified by Parliament, but it conceded, in the estimation of many voters, a series of far too important privileges and was in derogation of Swiss national interests. It is beyond doubt that with the ceasing of the war pressure upon the country's political and economic life, these and other constitutional measures will be brought up for popular determination. Indeed it is proposed, as these lines are being written, somewhat to curtail though not wholly abolish the Federal Council's unlimited powers, while a distinct movement is on foot to revise the national constitution in the interest of those social, as contrasted with merely political, aims which post-war days seem urgently to demand. We need not fear, however, that either a too great centralization of governmental control or a weakening of government itself in the interest of purely socialistic views will abrogate or greatly diminish traditions of fortitude, independence and free government which the Swiss have preserved through centuries of trial, and which they will hand down to their descendants as a bright example in the far future, as in the present, to all countries seeking to develop the highest ideals in personal and national life.1
Gordon E. Sherman.
I Authorities: in La Suisse Pe'ndant La Guerre, Professor Max Thurman, of Fribourg, has given an excellent outline of Red Cross and economic features; La Suisse Neutre et Vigilante collects all official documents of permanent utility and will prove invaluable as a work of reference; the Federal Council's reports to Parliament (Rapports du Conseil Fidiral a I'AssembMe Fidirale sur les mesures prises par lui en vertu de I'arriti federal du 3 aodt 1914), of which eleven have been issued, are indispensable; some fifteen documents have been translated and published by the United States Naval War College in its International Law Topics for 1916 and its International Law Documents for 1917 under the care of Professor George Grafton Wilson of Harvard University.
THE CONSTITUTIONALITY OF TREATIES
The framers of the American Constitution did not anticipate or desire the conclusion of many treaties.1 For this reason they made the process of treaty conclusion difficult, requiring that the President act only with the advice and consent of two-thirds of the Senators present,2 some even wishing to require adhesion of the House of Representatives8 or a two-thirds majority of the entire Senate.4
This hope, however, has scarcely been realized. With a total of 595 treaties from its foundation to August, 1914, the United States has averaged more than four a year, and for the twentieth century fifteen a year, or a treaty ratified every three weeks.5 Along with the steady increase in the number of treaties concluded a year, there has been a change in their usual character. Jefferson's warning against "entangling alliances" might be interpreted as a warning against treaties, for at that time the faithful observance of treaties commonly amounted to passive if not active alliance." Aside from definite guarantees of offensive or defensive alliance, the pious hope of "perpetual peace and amity" between the contractuaries, special privileges in war and neutrality, reciprocal favors in commerce and navigation, the termination of war, transfer of territory, fixation of boundaries, and recognition of status were the common subjects of treaty stipulation. The provisions were of a character indicating the competitive nature of international society. By mutually enjoying special privileges, the contracting states hoped to improve their political position with respect to other states of the world.7 Thus the carrying out of treaty provisions was ordinarily a matter for the political organs of government8
1 In the Federal Convention, Gouverneur Morris "Was not solicitous to multiply and facilitate treaties," and Madison "observed that it had been too easy in the present Congress to make treaties, although nine States were required for that purpose." Farrand, Records of the Federal Convention, 2: 393, 548. See also Jefferson, Manual of Congressional Practice, sec. 52, and letter to Madison, March 23, 1815, Moore, International Law Digest, 5: 162, 310.
a Under the Articles of Confederation, the treaty-making power was vested in a majority of nine States in Congress (Art. IX), and in some of the early drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later in the Senate (ibid., 2: 169, 183), and the President was finally added on the argument that treaty-making was properly an executive function [ibid., 2: 297), and that a national agency was necessary as an offset to the especial State interest of the Senate. (Ibid., 2: 392.)
3 Pennsylvania especially desired this. G. Morris of that State wanted to add "but no treaty shall be binding on the United States which is not ratified by a law" (Farrand, 2:297, 392. Later, Wilson of Pennsylvania proposed to add "and House of Representatives," saying that "as treaties are to have the operation of laws they ought to have the sanction of laws also." On vote, Pennsylvania alone supported the motion. (Ibid., 2:538). This is the vote referred to by Washington in his celebrated message on the Jay Treaty where he refused to recognize the claim of the House of Representatives to participate in treatymaking. (Ibiil., 3: 371; Annals of Congress, 4th Cong., 1st sess. p. 761).
♦ Farrand, 2: 549.
O By 25 year periods, treaties have been concluded as follows: 1778-1799, 21; 1800-1824, 20; 1825-1849, 63; 1850-1874, 141; 1875-1899, 142; 1900-1914, 208. This is in accord with the official enumeration of treaties (excluding Indian treaties) begun by the Department of State on January 29, 1908, with Treaty Series, No. 489. (See Checklist of U. S. Public Documents, 1911, p. 978.) Including the protocols and modus vivendi printed in Malloy and Charles' Collections, the total for the period would be 633.
During the nineteenth century, however, treaties have tended to be regulative, rather than political in character.9 Thus recent bilateral conventions commonly define extraditable crimes, provide for consular establishments, define conditions of naturalization and the rights of aliens, or provide for the arbitration or settlement of claims of specified character. Even treaties concerning commerce and navigation have to a considerable extent lost their character of special favors, through the almost universal employment of most-favorednation clauses which render it difficult to grant a favor to one nation without thereby extending it to all, and are mainly regulative, defining the formalities of customs collection and sanitary inspection, the criteria for determining the nationality of vessels, the care of shipwrecks, etc., in addition to guarantees of most-favored-nation treatment and freedom of navigation.10
« "Perpetual peace and amity," if intended seriously, would amount to passive alliance, but frequently special favors by the "neutral," such as the use of ports for prizes, passage of troops, permission to recruit troops or even the guarantee of a fixed number of troops, rendered the passive alliance or condition of partiality more concrete. The association in Jefferson's mind is clear from the statement in his Manual of Parliamentary Practice, sec. 52. "The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe." (Moore, International Law Digest, 5: 162.
i Even where private interests, such as the rights of travel, residence, and property of aliens, rights of navigation, importation, etc., were considered, they were incorporated as subsidiary to a program of national commercial expansion, the ultimate aim of which was the augmentation of political strength. Mercantilist economics was at the basis of most treaty-making.
» Although the rules of maritime war and neutrality, frequently incorporated, could be applied by courts.
• The rise of Adam Smith's free trade economics tended at first to make equal treatment rather than special privilege the object of commercial treaties; though after the middle of the century intense trade rivalry again stimulated resort to exclusive arrangements. The geographic position of the United States, with its new idea of neutrality as complete impartiality rather than passive alliance, tended to give its treaties an especially non-political character. Finally, the extension of relations between individuals of different States due to improvements in means of transportation and intelligence has brought a wide range of non-political relations within the scope of treaty-making. See this Journal, 10: 717. The change in character is perhaps indicated by the tendency to substitute for "treaty" the word "convention." Whereas a treaty (tractatus) is properly a contract (for definition, see Myers, this Journal, 11: 538), a convention is rather an instrument regulating some specific subject. (Wilson and Tucker, International Law, 7th ed., p. 203.)
Even more remarkable is the development of general international agreements, either formulating principles of international law or establishing international unions for regulating agencies of communication, transportation and exchange; for exercising a rudimentary international police; for stimulating inventiveness, artistic production, science and trade; for amicably settling controversies, etc. The attempt to codify international law by general agreement may be said to have begun with the classification of diplomatic agents by the Congress of Vienna in 1815, but it did not become important until after the Declaration of Paris of 1856, followed by the Geneva, St. Petersburg and Hague Conventions. The Congress of Vienna also began the era of international administration by establishing a regime for regulating the navigation of the Rhine; but while this and the International Sanitary Council of Tangier, Morocco, established in 1818, alone appear in a recent comprehensive list1 1 of international administrative organizations, as established before 1850, the same list contains ten, from 1850 to 1875, twenty-one from 1875 to 1900, and twenty-one since 1900. In the half century between the American Civil War and the European War, more than seventy general international conventions were concluded. Agreements, either bilateral or general, for the amicable settlement of international controversies have been especially prominent in recent treaty making. Of 209 such agreements in force, 123 have been concluded since 1905.12
io The original purpose of most-favored-nation clauses was to protect merchants against discrimination, and Great Britain hoped to encourage a general adoption of the policy of free trade by their use. Other States, however, have attempted to employ them in commercial bargaining by the interpretation excluding reciprocal favors from their operation. This interpretation, in accord with the protective policy, has been traditional in the United States, and has been used by continental European countries, especially Germany since 1870 in her plan of general and conventional tariffs. See S. K. Hornbeck, this Journal, 3: 397, who remarks, "Militarism, an emphatic national self-consciousness, and the application of the historical method to economic questions, appear among the chief causes which checked the tide of free trade and once more turned Europe toward protection." (Ibid., 3: 420.)
Thus, while the number of treaties has increased, their predominant character has changed from that of political contracts to codes of law or administrative regulations providing for international cooperation in a smaller or wider circle. The bulk of recent treaty provisions are not capable of being carried out by political agencies exclusively, but require the continuous action of many administrative authorities within states, as well as the cooperation of courts in applying their provisions to cases between private individuals. A treaty of this character really establishes a legal order embracing all persons and governmental agencies within the contracting states." It thus becomes important to determine the extent of legal responsibility which private persons and public officers owe to this treatyestablished legal order, especially when the obligations it imposes appear to conflict with obligations imposed by the Constitution or laws of the state.
« D. P. Myers, World Peace Foundation, Pamphlet Series, Vol. VI, No. 6, p. 24.
i* Ibid., p. 8.
"See this Journal, 10: 717, and authorities there cited.