Fifty Years of Public Service Part 31

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 Washington 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.

This treaty with Cuba and the law carrying it into effect were the occasion of a very bitter struggle in both Senate and House. The sugar and tobacco interests used all the power at their command to defeat, first the treaty, and then the law carrying the treaty into effect. The beet-sugar people a.s.serted that it would ruin that industry, and that a reduction of twenty per cent on Cuban sugar would enable the Cubans to ship their sugar into the United States and undersell the beet sugar. I never could see that there was any force in their contention, because the United States does not produce more than half the sugar we consume, and it was absolutely necessary to import sugar from Cuba and other sugar-producing countries.

When the treaty was before the committee for consideration, it was amended by inserting the following proviso:

"Provided that while this convention is in force, no sugar exported from the Republic of Cuba and being the product of the soil or industry of the Republic of Cuba, shall be admitted to the United States at a reduction of duty greater than twenty per centum of the rates of duty thereon as provided by the tariff act of the United States, approved July 24, 1897; and no sugar, the product of any other foreign country, shall be admitted by treaty or convention into the United States, while this convention is in force, at a lower rate of duty than that provided by the tariff act of the United States, approved July 24, 1897."

The effect of this amendment was not only to prevent a greater reduction being made on Cuban sugar, but it had a more important effect that it made reciprocity treaties with the sugar-producing countries, including the West Indies, impossible so long as the Cuban treaty remains in force.

I had charge of this treaty in the Senate, and addressed the Senate at considerable length explaining its provisions.

There was a spirited contest in the Senate over the ratification of the treaty, but there was more of a contest both in the Senate and the House when the bill to carry the treaty into effect came up at the next session of Congress, it first having been considered at a special session called by President Roosevelt in November, 1903. A provision was inserted in the treaty (which I opposed, as I thought it was unnecessary), that it should not go into effect until it was approved by the Congress. The bill was pa.s.sed in the House and came to the Committee on Foreign Relations, was considered there, and favorably reported to the Senate. The bill, of course, was considered in open session, and I again made some remarks, probably more in the nature of a report than a speech, trying to show where the treaty was not only absolutely necessary, if Cuba was to be prosperous at all, but that it would open a considerable market for American products.

The Cuban reciprocity treaty has increased very materially our trade with that Republic. Since that treaty went into effect our imports from Cuba have increased from $62,942,000 in value to $122,528,000 in value; and our exports to Cuba have increased from $21,000,000 in 1903, to nearly $53,000,000 in 1910, or more than doubled. But even with this considerable increase in our exports to Cuba, I had hoped that by this time we should have increased them to at least one hundred million dollars. Our own exporters and manufacturers are at fault, because they will not do business with the Cubans on the same credit basis as will the exporters of Spain, Germany, and England; and American exporters do not cater to the peculiar needs of the Cubans. They seem to go on the theory that if their goods are good enough for Americans they should be good enough for Cubans, too.

The Cuban treaty is a good ill.u.s.tration of the scare and the unwarranted opposition on the part of American industries when even the slightest reduction of the tariff is attempted. To listen to the beet-sugar and tobacco interests during the consideration of the Cuban treaty, one would think they would have been absolutely ruined if the treaty were ratified. The Cuban treaty has not in the slightest degree injuriously affected the American sugar or tobacco interests.

The principle of Reciprocity as heretofore applied in this country has been extended somewhat by the agreement of 1911 between the United States and Canada. This compact was negotiated by President Taft and Secretary Knox on the one side, and by Premier Laurier and Mr. Fielding on the other. Under this agreement a wide exchange of articles of every-day use is provided for, and it is hoped and believed that if the treaty becomes effective it will prove more satisfactory and enduring than the previous reciprocal agreement with the Dominion of Canada.

The pending agreement was entered into between representatives of the two Governments in January, 1911, but it was not until the latter part of July of that year that a law was enacted by Congress to provide for its enforcement. Much opposition was manifested, especially in the Senate, in both the Sixty-first and Sixty-second Congresses, on the ground that under its terms a great many agricultural products are admitted free from Canada; but this objection has been, I think, successfully met by the Administration and its friends in the argument that any injury that might be sustained by agriculture would be more than compensated for by the benefits derived by the manufacturing interests. For one I have never believed that agriculture would suffer in any degree through the operation of the agreement, and I do believe that the general industries of the country will experience much benefit. Too much is to be gained through the cultivation of proper trade relations with our great and growing neighbor on the North to abandon the general principle involved in the agreement on account of an apprehension which may not and probably will not be realized.

In many respects nations are like individuals, and in their relations with one another they should be controlled by the same rules of amity and equity as pertain to the a.s.sociations of mankind generally.

In the end no nation can lose any material thing through an act of generosity or fair-dealing.

Notwithstanding the United States has acted favorably upon the agreement, it is not yet in force. This circ.u.mstance is due to the fact that in the matter of ratification Canada has waited upon this country. There is opposition there as there was here, and at this writing (August, 1911) Sir Wilfred Laurier is engaged in a struggle for favorable endors.e.m.e.nt such as that from which President Taft has just emerged.

CHAPTER XXV THE INTEROCEANIC Ca.n.a.l

Probably the most important work before the Committee on Foreign Relations since the treaty of peace with Spain, were the several treaties concerning the construction of the Isthmian Ca.n.a.l.

In 1850, the United States entered into what is known as the Clayton- Bulwer Treaty with Great Britain, the purpose of which was to facilitate the construction of a ca.n.a.l; but instead of operating to this end, it stood for fifty years or more as an effectual barrier against the construction by the United States of any ca.n.a.l across the Isthmus of Panama. Succeeding Administrations had endeavored to secure the consent of Great Britain to its abrogation, but it was not until Secretary Hay's time that Great Britain finally agreed to annul it and subst.i.tute in its place a new treaty.

Secretary Hay had been Amba.s.sador to Great Britain, and he enjoyed the confidence of the then existing British Ministry to a greater degree than almost any minister or amba.s.sador we have ever sent to Great Britain. After entering the State Department, Mr. Hay at once directed his attention to the making of a new treaty with Great Britain and this resulted in the first Hay-Pauncefote Treaty.

This convention was considered by the committee, but was not found satisfactory, and certain amendments were added to it. These amendments Great Britain would not accept, and the treaty died.

Secretary Hay was very much disappointed, but he at once set to work to negotiate such a treaty as would go through the Senate without amendment and such a one as Great Britain would consent to. He wrote to a number of Senators, members of the committee, I suppose, asking for suggestions as to just what the Senate would agree to. I was not at that time chairman of the Committee on Foreign Relations, but I was very deeply interested in the subject and had given it considerable study and thought. Secretary Hay wrote me, and I replied at length, giving my views both as to the Clayton-Bulwer Treaty and what I thought should be inserted in the new treaty.

Mr. Hay promptly renewed negotiations, which resulted in what is known as the second Hay-Pauncefote Treaty. After a good deal of effort this agreement was ratified without amendment. This act signalized the beginning of my service as chairman of the Committee on Foreign Relations.

The princ.i.p.al contention arose over the subject of fortifications, a question that is still a mooted one. It occurs to me that the proper reasoning is this--and I believe I took the same position when the treaty was under consideration:

The first and second Hay-Pauncefote treaties must be construed together; the first Hay-Pauncefote Treaty contained a prohibition against fortification; the second Hay-Pauncefote Treaty neither prohibited nor in terms agreed to fortifications, but was silent on the subject; therefore, the legal construction would be that Great Britain had receded from the position that the ca.n.a.l should not be fortified. In any event, we will go ahead and fortify the ca.n.a.l, and do with it whatever we please, regardless of any of the nations of the world.

That obstacle having been finally removed, the question which next arose was: What route should be selected? The selection of the route was not a subject over which the Foreign Relations Committee had jurisdiction; but after the Panama route was decided on, it became necessary to negotiate with Colombia, the owner of that route, for the right of way for the ca.n.a.l. Secretary Hay promptly proceeded with the negotiation, as it was his duty to do, under the Spooner Act, and on January 3, 1903, submitted the treaty to the Senate for its Const.i.tutional action thereon. Senator Morgan and others led the fight against it; but a vote was taken, and the treaty was ordered favorably reported. On February 12, 1903, I called it up in the Senate and made quite an extended speech, explaining its provisions, and urging its ratification. The session was to close on March 4, and it finally became manifest that it would be hopeless to attempt to ratify it before that day, and the effort was abandoned. President Roosevelt called a special session of the Senate after the fourth of March, when there would be nothing for the Senate to consider except the Colombian treaty and other executive matters. According to the usual rule, the treaty was referred back to the committee, at the beginning of the special session, and the subject was again gone over in committee as if there had been no proceedings on it at all during the regular session. The proposed agreement was finally reported to the Senate, and ratified. There is no need for me to go over the story of its rejection by Colombia. The action of the Colombian Congress was a hold-up pure and simple, and the treaty was rejected in the hope that the United States would offer a greater amount for the right- of-way. Panama promptly seceded, which she had a perfect right to do. Many people have charged that the Roosevelt Administration actually incited the revolution. Whether this is true or not, I do not know. I contended at the time, and still believe, that it is not true. I hope it is not; but the correspondence did show that the State Department had pretty close knowledge of events which were occurring on the Isthmus, and had seen to it that there was a sufficient naval force in the vicinity "to protect American interests." It was a remarkable revolution--I think the most remarkable I have ever read of in history. It was practically bloodless. One or two shots were fired, a Chinaman was killed, and yet a new and independent republic entered the family of Nations.

We were able to make with Panama a much more satisfactory treaty than we had with Colombia. Senator Morgan this time was a.s.sisted by most of his Democratic colleagues; he denounced the treaty and made all sorts of charges against the Administration; but after numerous long sessions of the Committee on Foreign Relations, I was authorized to report it to the Senate with certain minor amendments, which, in my opening speech, I asked the Senate to reject, and to ratify the treaty without amendment. I did this at the earnest insistence of the State Department. And, in addition, I did not think that the amendments were of such importance as would justify resubmitting the treaty to Panama after that little country had once ratified it. The State Department was led to this action by the receipt of the following cable from Mr. Buchanan, the first Minister of the United States to Panama:

"Panama, _January 22, 1904_.

"Hay, Washington: