CHAPTER XXIV

WORK OF THE COMMITTEE ON FOREIGN RELATIONS

When I became chairman of the Committee on Foreign Relations, in

1901, I found a large quantity of undisposed of matter on the

dockets, both legislative and executive. I determined that I would

at once proceed to clear the docket and endeavor to make the

committee an active working one. I have since made it a policy,

as best I could, to secure some action, favorable or unfavorable,

on every matter referred to the committee by the Senate.

The first subject to which I turned my attention was the reciprocity

treaties between the United States and Barbados, Bermuda, British

Guiana, Turk Islands and Caicos, Jamaica, Argentine Republic,

France, Dominican Republic, Ecuador, and Denmark.

These treaties had been pending before the committee for two years,

and I resolved as I expressed it to one Senator, who was opposed

to them, that I would get them out of the committee "if I had to

carry them out in a basket." These treaties were negotiated under

the authority contained in the fourth section of the Dingley Act,

which provided:

"Section 4. That whenever the President of the United States, by

and with the advice and consent of the Senate, with a view to secure

reciprocal trade with foreign countries, shall, within a period of

two years from and after the passage of this act, enter into

commercial treaty or treaties with any other country concerning

the admission to such country of goods, wares, or merchandise of

the United States . . . and in such treaty or treaties shall provide

for reduction during a specified period of the duties imposed by

this act, to the extent of twenty per centum thereof, upon such

goods, wares, or merchandise as may be designated therein, . . .

or shall provide for the transfer during such period from the

dutiable list of this act to the free list thereof of such goods,

wares, or merchandise the product of foreign countries; and when

. . . any such treaty shall have been duly ratified by the Senate

and approved by Congress, then and thereafter the duties which

shall be collected by the United States upon any of the designated

goods, wares, or merchandise from the foreign country with which

such treaty has been made, shall, during the period provided for,

be the duties specified and provided in such treaty, and none

other."

There was a considerable opposition to the ratification of these

treaties in the Senate, and very strong opposition to them in the

committee. President McKinley was very much in favor of their

ratification, and as one treaty after another expired, a new one

would be made reviving it.

The first problem which confronted me was this: The fourth section

of the Dingley Act provided that such treaties should be made only

within two years after the passage of the act; the two years had

long since expired--could the Senate ratify them at all?

I submitted to the Senate a report on the constitutional 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 Constitution, 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 Constitution. There is under our Constitution

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 constitutional 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 constitutes 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.

Kasson, 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 pass 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

constitutional subject. I said in opening:

"Has Congress any power or authority, under the Constitution, over

treaties? This subject has been discussed at different times during

our entire Constitutional 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 Constitution, 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 unconstitutional, because it comes in

conflict with that clause of the Constitution 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 Constitution, and under the Constitution 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 Constitution, tracing it through

the Constitutional Convention, and giving the views of the framers

of the Constitution as to its scope and effect. It was Alexander

Hamilton who drafted the treaty-making clause of the Federal

Constitution, and it was purposely so framed as to exclude the

House from all consideration of treaties. Twice it was proposed

in the Constitutional 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 Constitution

was adopted in the Constitutional 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 Constitution 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 Constitution was adopted.

The question came before the House of Representatives the first

time just seven years after the Constitution 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 passing 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 Constitution

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

Constitution, and those treaties have been sustained as the supreme

law of the land.

"It is said that the Constitution 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 passed in any of

the ways provided by the Constitution 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 Kasson 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 passage 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 Kasson 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 Constitution, 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 asserted 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 passed 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 illustration 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 associations 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 circumstance 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 endorsement such as that from which President

Taft has just emerged.

Fifty Years of Public Service Personal Recollections of Shelby M. Cullom, Senior United States Senator from Illinois · 第 24 / 34 章