Part 31 (1/2)
I submitted to the Senate a report on the const.i.tutional question.
The single question covered was, whether the treaties not having been ratified by the Senate within the two years specified in the Dingley Act were still within its jurisdiction.
The committee determined that the President and the Senate are, under the Const.i.tution, the treaty-making power. The initiative lies with the President. He can negotiate such treaties as may seem to him wise, and propose them to the Senate for the advice and consent of that body. The power of the President and the Senate is derived from the Const.i.tution. There is under our Const.i.tution no other source of treaty-making power. The Congress is without power to grant to the President or to the Senate any authority with respect to treaties; nor does the Congress possess any power to fetter or limit in any way the President or the Senate in the exercise of this const.i.tutional function. It cannot in any way enlarge, limit, or attach conditions to the treaty-making power, and the subcommittee concluded their report on this branch of the subject with this statement:
”The committee is clearly of the opinion that nothing contained in section four of the Dingley Act const.i.tutes any valid restriction upon the jurisdiction and power of the Senate to act upon the commercial treaties now pending.”
That question being disposed of to my satisfaction, I proceeded to urge the consideration of the treaties at every meeting of the committee for many months, but it was not until June, 1902, that I secured the favorable report of all the treaties, excepting the treaty with the Argentine Republic and that with Jamaica.
There was another very serious question which I raised myself, and that was, whether legislation was necessary to carry them into effect, or whether the treaties were self-executing. None of the treaties contained any provision for legislation, and by their terms, they would go into effect without legislation. John A.
Ka.s.son, who negotiated them, told me that he purposely left out any reference to legislative action, because the executive department had serious doubts on the subject, and preferred to permit the Senate itself to pa.s.s upon it.
I have always contended that reciprocity treaties, like other treaties in general, are self-executing, if by their terms they do not provide for legislative action.
I made a very extended address in the Senate on January 29, 1902, because I wanted to get the attention of the Senate to this important const.i.tutional subject. I said in opening:
”Has Congress any power or authority, under the Const.i.tution, over treaties? This subject has been discussed at different times during our entire Const.i.tutional history. It is a very complicated question, not only because the authority of the House on the subject of treaties has been disputed and argued almost from the very adoption of the Const.i.tution, but the fourth section of the Dingley Act specifically provides how and when such treaties shall be made.
. . . In my opinion the fourth section of the Dingley Act, so far as it attempts to confer, limit, or define the treaty-making power is not only an unwarranted interference with the powers of the President and Senate, but is unconst.i.tutional, because it comes in conflict with that clause of the Const.i.tution which says that the President shall have power, by and with the advice and consent of the Senate to make treaties. No law of Congress can in any way modify or limit those powers. The Dingley Law can not limit the time in which we shall be allowed to make a treaty; it can not give to Congress any power on the subject of treaties not given it by the Const.i.tution, and under the Const.i.tution Congress as a legislative body is not a part of the treaty-making power.”
I contended that the fourth section of the Dingley Act, if considered by the Executive at all, should be merely as an expression of the views of Congress in the adjustment of the specific terms of each treaty.
But the particular question in which I was more interested and to which I devoted most of my remarks was, whether a reciprocity treaty, which by its terms provides that the duties to be collected after its ratification shall be those specified in the treaty, and none other (and which makes no reference to further Congressional action), would of its own force operate to repeal so much of the tariff act as may come in conflict with it, or whether it would be necessary for Congress to act on a treaty before those duties are reduced, and before the treaty shall become the supreme law of the land.
I then proceeded to a minute examination into the history of the treaty-making provision in the Const.i.tution, tracing it through the Const.i.tutional Convention, and giving the views of the framers of the Const.i.tution as to its scope and effect. It was Alexander Hamilton who drafted the treaty-making clause of the Federal Const.i.tution, and it was purposely so framed as to exclude the House from all consideration of treaties. Twice it was proposed in the Const.i.tutional Convention to unite the House of Representatives with the Senate in the approval of treaties, but both times it was rejected almost unanimously, Pennsylvania alone voting in the affirmative. The treaty-making clause of the Federal Const.i.tution was adopted in the Const.i.tutional Convention only after a most vigorous fight against it by those who contended that the authority conferred was too great. Patrick Henry thought that, ”If the clause were adopted as it was submitted to the State, two-thirds of a quorum of the Senate would be empowered to make treaties that might relinquish and alienate territorial rights and our most valuable commercial advantages. In short, should anything be left, it would be because the President and Senators would be pleased to admit it. The power of making treaties under the Const.i.tution extends farther than in any country in the world. Treaties have more force here than in any part of Christendom.” And he begged the convention to stop before it conceded this power unguarded and unaltered.
The power was conferred on the President and the Senate, unguarded and unaltered, when the Const.i.tution was adopted.
The question came before the House of Representatives the first time just seven years after the Const.i.tution was adopted, and has been before the House many times since then. The Jay Treaty called for an appropriation of eighty thousand dollars. It was a very unpopular treaty, and a very notable debate took place on the resolution requesting the President to lay before the House copies of the correspondence and other papers relating to the treaty.
President Was.h.i.+ngton declined to furnish the papers, on the ground that the treaty needed no legislative action, and the House had nothing whatever to do with treaties, but was morally bound to make the appropriation, thereby carrying out the contract. The House responded by pa.s.sing a long series of resolutions; but finally the appropriation was made.
The whole question has been discussed in the House, practically every time an appropriation has been called for to carry out a treaty; but the House, while always contending that it had a voice in the treaty-making power, never declined to make the appropriation, and only on one occasion do I now recall that the House declined to enact legislation to carry out a treaty where the treaty specifically itself provided for such legislation. This was in the case of the reciprocity treaty with Mexico, negotiated by General Grant.
I concluded my speech in the Senate with this statement:
”This question before us here has been before the Senate for a hundred years. The Executive and Senate have taken one position, and that is a treaty is the supreme law of the land. That position has been sustained by the Supreme Court. On the other hand, during all these hundred years, the House of Representatives has, as a rule, insisted that they should be considered in reference to certain treaties. That does not relieve the Senate from standing by its prerogatives and rights and insisting that the rights of the Executive be maintained. The point here is this: the Const.i.tution gives to the Executive, with the advice and consent of the Senate, the right to negotiate treaties. We have been negotiating commercial treaties continuously prior and subsequent to the adoption of the Const.i.tution, and those treaties have been sustained as the supreme law of the land.
”It is said that the Const.i.tution has given to Congress the right to regulate commerce with foreign nations, to lay and collect taxes, duties, and imposts, and to the House of Representatives the right to originate bills for raising revenues, and to the President and Senate the right to make and ratify treaties. These are all co- equal and independent powers. One does not interfere with the other. One is not exclusive of the other. A law pa.s.sed in any of the ways provided by the Const.i.tution is the supreme law of the land until it is changed or repealed. A treaty made by the Executive and ratified by the Senate is the supreme law of the land as well as an act of Congress. If the Congress is not satisfied with the treaty, it has a perfect right to repeal it, as it has any other law; but until such action is taken, the treaty remains as a part of the supreme law of the land; and I cannot see any distinction between treaties which affect the tariff laws, and treaties affecting any other law.”
The subject was very seriously and carefully considered, but it was thought expedient that the committee should not take any position either for or against the unlimited power of the Senate over reciprocity treaties. It was Senator Spooner who suggested that each of the treaties be amended by inserting therein a provision that ”the treaty not take effect until the same shall have been approved by the Congress.”
The merits of the question were not considered; but my position was, and still is, that amending the treaties in the manner suggested by Senator Spooner, by inference indicated that if such a provision had not been inserted, the treaties would go into effect immediately without any Congressional action.
Aside from the reciprocity treaty with France, none of the treaties was considered by the Senate itself. I pressed them as best I could, but Senator Aldrich, Senator Hanna, and other advocates of high protection, were so bitterly opposed to them--no one in the Senate aside from myself seeming to have much interest in them-- that they were dropped and allowed to expire by their own terms.
I particularly regretted that the Ka.s.son treaties were not ratified.
Had the Senate ratified those treaties, a large number of other treaties probably would have been negotiated, and we would not have been compelled to go through the long struggle and agitation over the pa.s.sage of the Aldrich-Payne Tariff Bill. There would have been no tariff revision necessary. At the same time, we could not possibly help vastly increasing our foreign commerce. It was a very short-sighted policy on the part of Senator Aldrich and others in the Senate when they insisted that those treaties should be killed. After it was determined, and it became so known to the country that it would be impossible to secure the ratification of reciprocity treaties, the agitation for tariff revision commenced, and finally culminated in the act of 1909, which resulted in the election of a Democratic House of Representatives.
The committee did favorably report, and the Senate ratify, a reciprocity treaty with Cuba. This was the treaty of December 11, 1902, and it was the third reciprocal agreement in all our history ratified, proclaimed, and placed in effect. The first one was the treaty of 1854, providing for reciprocity with Canada. The second was the treaty of 1875, with the Hawaiian Islands, and the third and the only one now in effect is the treaty with Cuba.
That treaty would never have been ratified, and would have suffered the same fate as the Ka.s.son treaties, had it not been for the determined, vigorous fight made by President Roosevelt for its ratification, and had not Cuba stood in a relation to us entirely different from any other country. We bound her to us by insisting that the Platt amendments be made a part of her Const.i.tution, and in addition that a treaty be made between the two countries embodying those amendments.