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.