matter of surplusage,
and that it is very undesirable, when the form of these treaties
has already been agreed to by the several Powers concerned, needlessly
to add certain definitions which affect our own internal policy
only; which deal with the matter of the relation of the Federal
Government to the States which it is of course out of the question
ever to submit to the arbitration of any outside tribunal; and
which it is certainly absurd and probably mischievous to treat as
possible to be raised by the President or by any foreign power.
No one would even think of such a matter as being one for arbitration
or for any diplomatic negotiation whatever. Moreover, these treaties
run only for a term of five years; until the end of that period
they will certainly be interpreted in accordance with the view
above expressed.

"Very truly yours,
"(Signed) Theodore Roosevelt.

"Hon S. M. Cullom, U. S. Senate."

But a more serious question was met when we came to consider the
second article of the treaty, which provided that in each case a
special agreement should be made defining clearly the matter in
dispute, the scope and powers of the arbitrators, and the periods
to be fixed for the formation of the arbitral tribunal. The
difficulty confronting us was whether it was the intention to submit
the special agreements referred to in article two for the ratification
of the Senate. It was the unanimous opinion that these special
agreements should be submitted to the Senate.

I believe that as the treaties were drafted it would be the
Constitutional duty of the President to have each special agreement
submitted for ratification, because the article provided that "the
high contracting parties shall conclude such special agreement."
The Senate is a part of the treaty-making power, and would be
included in the term "high contracting parties." But the wording
of article two left some doubt as to the intention of those
negotiating the treaty; and then, again, it might have been claimed
that article one, agreeing to arbitrate the questions therein
enumerated, might be construed as an agreement in advance on the
part of the Senate, to give to the Executive the general power to
make arbitration agreements without reference to the Senate. Of
course, the Senate, even if it so desired, could not thus delegate
the treaty-making power to the Executive alone.

There was so much difference of opinion that I took occasion to
submit