The great majority of jurists and writers deny the right of a belligerent to compel persons of hostile nationality to work on the fortifications of the enemy.101 For the same reason the compulsory digging of trenches must be condemned, so must the driving of ammunition wagons, the cutting of stone for trench supports and the production of barbed wire for the erection of military defenses. For still stronger reasons forced work in arsenals for the production of arms and munitions to be used by the enemy against the countrymen of those who are thus constrained is not permissible. It may also be doubted whether forced labor in railway shops and in the operation of railway trains which are used by the enemy for the transportation of troops and military supplies is permissible. The line of demarcation between such services and work on fortifications is at best very shadowy, and there is no principle of logic or reason why a belligerent should be allowed to require the one and forbidden to exact the other. Indeed, under the conditions of modern warfare, work in wire and munition factories, in stone quarries and in the railway service may be of infinitely greater value to a belligerent than the services which are expressly forbidden by the Hague Convention. The services of Belgian railway employees, in particular, was of immense military value to the Germans, not only because it released large numbers of Germans and left them available for services in the army, but because, owing to the different construction of Belgian railway locomotives and railway machinery as compared with those in use in Germany, the operation of the Belgian lines by Germans was carried on with difficulty and resulted in numerous accidents. The services of Belgian engineers, machinists and trainmen were, therefore, as necessary to the Germans as soldiers in the field. If this be true, on what principle should a belligerent be allowed to requisition the services of the former and yet forbidden to impress the inhabitants to act as guides or to serve in his ranks?

101 Oppenheim is one of the few exceptions. He holds that a belligerent may not only requisition drivers, guides, farriers, etc., but he may require "the execution of public works necessary for military operations, such as the building of fortifications, roads, bridges, soldiers' quarters and the like." International Law, Vol. II, pp. 121-122. But, as Spaight (War Rights on Land) observes, he gives no authority for his statement.

Naturally, the German General Staff in the Kriegsbrauch im Landkriege defends the claim of belligerents to exact such services. In the list of the requisitionable services which it enumerates we find "the furnishing of conveyances" and "the performance of work on streets, bridges, trenches, railways, buildings, etc." The contention that the exaction of these and similar services is to compel the inhabitants to participate in military operations of the enemy it emphatically rejects. Kriegsraison must decide.102 But this extreme view cannot be admitted. The right of a belligerent to exact personal services of the peaceable inhabitants of an occupied district, as Nys justly remarks, constitutes the last application of the corvée, and it should be forbidden because it is no longer in conformity with the juridical rules of modern war nor even with the conditions under which it is conducted.103 It is repugnant to every notion of patriotism. and to the elemental principles of justice to require the civilian inhabitants of conquered territory to perform services for an enemy the direct effect of which is to contribute to the success of his military operations, and it is none the less so because the effect is only indirect.

Some of the measures and expedients resorted to by the Germans in Belgium to compel by force the inhabitants against their sentiments of patriotism and loyalty to render services which they objected to performing, and particularly the commercial isolation of their towns, the imposition of fines, the interdiction of relief to the unemployed and the deportation to Germany of those who refused to work for the enemy, were acts of extreme severity which cannot be justified except on the theory that the rights of a military occupant over the inhabitants who have fallen within his power are subject to no limitations other than his own arbitrary will.

JAMES W. GARNER

102 Morgan, War Book of the German General Staff, p. 152. Stein, an Austrian writer, (Rev. de Droit Int., Vol. XVII, p. 349), defends the right of a belligerent to compel the employees not only of state railways but also those of private lines to operate the roads by which they are employed. Moynier, however, adopts a contrary view (ibid., Vol. XX, p. 365), and so does Buzzati (ibid., Vol. XX, p. 402). 103 Réquisitions et Contributions, Rev. de Droit Int. et de Lég. Comp., Vol. 38 (1906), p. 284.

THE ORIGIN OF THE UNITED STATES SENATE

COMMITTEE ON FOREIGN RELATIONS

BETWEEN December, 1805, and February, 1815, no treaty was laid before the United States Senate for its constitutional action. Yet there are few periods in the history of this country during which its relations with the governments of Europe played a greater part in the political, social, and economic life of the people, or exercised a more potent influence on the destiny of the nation. For ten years preceding the Treaty of Ghent, at every session of Congress a large proportion of the most important business transacted had to do with French decrees and British orders in council, with impressment, with Spanish aggressions on the southern border, with the Barbary corsairs, with embargoes, with enforcement acts, with the privileges of foreign ministers, with the maintenance of neutrality, with wars and rumors of wars. Domestic politics turned on foreign issues; the greatest men in both parties gave to foreign affairs their first thought and their gravest attention. It was during this decade, as crowded with diplomatic strivings and international activity as it was devoid of international agreements, that the Committee on Foreign Relations of the United States Senate came into being.

The antecedents of the committee, however, must be sought in the records of the earliest years of government under the Constitution. The practice of referring the business of treaty-making to select committees began with the reception of the first Presidential message on the subject. During Washington's administrations, however, there was no standing rule providing for such reference, and committees were used when and as the Senate saw fit as the convenience of the moment dictated. But even in these circumstances there appears to have been a strong tendency to concentrate responsibility in treaty affairs in the hands of a few men. During the first eight years of the government eighteen treaties with Indian tribes

1

and foreign nations were submitted to the Senate for its advice and consent to ratification. Its advice was sought in the interpretation of one other treaty. In the consideration of these nineteen treaties the Senate employed nineteen committees, to which were referred questions connected with the negotiation, ratification, or interpretation of eleven different treaties. The total membership of these nineteen committees was sixty-eight, while sixty-six individuals served in the Senate during these years. Yet these sixty-eight committee places were filled by just twenty-four Senators; that is, two more than a third of the Senate membership did all of the committee work on foreign and Indian treaties.

Nor do these figures tell the whole story of specialization and concentration of power in this field. Of the twenty-four Senators who served on these committees, five held more than half of the sixtyeight places. These five were the most powerful Federalist members of the upper house. Caleb Strong served on nine committees, Robert Morris on eight, Rufus King and Oliver Ellsworth on seven each, and George Cabot on four. Nor is the situation altered when only those committees which acted upon treaties with foreign nations are considered. There were ten such committees, whose membership totaled forty-two, and upon which sixteen different individuals served. The five Federalist friends whose names have been mentioned held twenty-six of these forty-two places. In addition they were primarily responsible for the Jay Treaty from the conception of the idea to the ratification of the completed instrument and this despite the fact that the Senate appointed no committee on this matter.

These facts would seem to lead to the conclusion that during Washington's administrations there was a comparatively small group of members to whom the Senate regularly intrusted a large part of the work which devolved upon it in the performance of its treatymaking functions, and to whom it habitually looked for guidance in this field. It is evident, however, that it did so not in accordance with any rule or fixed precedent, perhaps not even consciously, but simply because this was the easiest method of transacting this sort of business. It was only through succeeding years that the Senate

1 This includes additional articles upon which the Senate took separate action.

established a standing committee which assisted it in the consideration of all problems of foreign affairs in accordance with a regular procedure.

In further tracing the development of this committee, attention must be given not so much to the activities of the Senate in the negotiation and ratification of treaties, as in the manner in which the upper house performed its more genuinely legislative functions. During the first twenty-five years of its existence it considered measures having to do with foreign affairs more frequently in legislative than in executive session. And it is an interesting fact that the Foreign Relations Committee, which today usually is thought of as a committee primarily for the consideration of treaties, really grew directly out of the legislative rather than the executive activities of the Senate.2 As has been indicated in the case of treaties, in no sense was there a standing committee to which all business involving foreign relations was regularly referred. In many instances important matters of this sort were acted upon by the Senate without the assistance of any committee, and lengthy and weighty communications from the Executive explaining the labors of our diplomatic representatives abroad frequently were read and discussed on the floor without any suggestion that they be referred to any smaller body of Senators. Frequently select committees were raised to consider particular problems, and with rare exceptions they went out of existence with the solution of those problems. In a few instances, however, such a committee might be continued throughout a session, either because the business referred to it was not more quickly concluded, or because new references of matters more or less germane to the original subject were made to it from time to time. It is in these exceptional instances that are to be found the earliest steps in the evolution from the temporary, select committee on some specific question, to the standing

? It should be noted that during the whole of the period under consideration Senate committees were chosen by ballot, a plurality of votes electing. In December, 1805, John Quincy Adams observed, in his diary: "As our committees are all chosen by ballot the influence and weight of a member can very well be measured by the number and importance of those of which he is a member." He added, "In this respect I have no excitements of vanity." Diary of John Quincy Adams, Memoirs, 1, 329.