The language about the " special agreement." the " scope of the powers." and the " question or questions at issue " is of yet more importance when you come to read the language. which I have also italicized. in Article 1I. reading: A joint high commission of inquiry to which. upon the request of either party. shall be referred for impartial and conscientious investigation any controversy between the parties within the scope of Article I. And when both are taken in connection with the subsequent language in the last clause of Article III. which is the gravamen of the objection of the Senator from Massachusetts . to wit: It is further agreed. however. that in cases in which the parties disagree as to whether or not a difference is subject to arbitration under Article I of this treaty that questionThat is. to wit. a question of the interpretation of the treaty. a question of whether or not the particular question is subject to arbitration. whether it is justiciableThat questlon shall be submitted to the joint high commission of inquiry. and if all. or all but one. of the members of the commission agree and report that such difference is within the scope of Article I. it shall be referred to arbitration" Referred to arbitration." how?- Mark the language immediately following: In accordance with the provisions of this treaty. By referring back to the language underscored in article 1 you will find that the expression "iii accordance with the provisions of this treaty " means that it is to be arbitrated "either by the permanent court at The Hague or by some other arbitral tribunal. as may be decided in each -case by special agreement." and that that special agreement shall " define the scope of the powers of the arbitrators " and " the question or questions at issue". and from another clause which I have underscored in Article I it is expressly provided that "the special agreement in each case shall be made on the part of the United States by the President of the United States. by and with the advice and consent of the Senate thereof." In other words. even if all three of the American members of the joint high commission. or two of them. decide that a question is justiciableand it Is not to be conceived that they would arrive at such a concluslon with regard to any phase of the Monroe doctrine. or with regard to our undoubted right to .fix the conditions for the admission of immigrants. or with regard to public schools in a State. or with regard to the payment of debts repudiated by a State--but even if all three of them. or all but one of the American members of the commission appointed by our President. who had previously come to the conclusion that this question was not arbitrable. and confirmed by our Senatebecause all appointees of the President must be so confirmed and liinted in the scope of their authority by us--should decide that the question was "justiciable." what would it amount to more than this: That the question would be referred to arbitration in accordance with the provisions of the treaty ". that Is. by "a special agreement made by the President. by and with the advice and consent of the Senate." just as if the question or difference about justiciableness had never arisen at all. and just as if the President in the beginning had held that the question was justiciable. The prerogatives of the Senate are saved. and the Senate has the last word. If the Senate surrender anything by leaving the commission to determine justiciableness in one case. it surrenders just as much by leaving the President to determine justiciableness in the other case.
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immigrants