James Albert Woodburn.

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temporary enactment as distinguished from a permanent
statute. There is no difference between a bill and a joint
resolution so far as the purpose is concerned. It differs
in phraseology from the enacting clause of a bill and this
is the only difference that can be noted. It has to go
through all the processes and stages of legislation that a
bill does and then has the same force of law. It must
be read as many times and must have the signature of the
President. There is no reason for its existence, as all
bills and legislation should have the same enacting clause.'

' Hinsdale*s American Gaverttment^ p. 19a.

*See remarks of Senator Hamlin of Maine, and Senator Sumner of
Massachusetts, in Senate, Jan. 27, 1871. See Blaine's Twenty Years qJ
Congress ; McKee's Manual of Congressional PracHee^ pp. 124, X36.



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156 The American Republic

President Grant on August 15, 1876, vetoed a bill for
the sale of certain Indian lands. He sent his veto mes-
HMthe sage to the Senate, but before that body had
preiidenta acted upon it a message was received from the
Recall a President, saying that his veto was premature,
Veto ? and he requested that the bill be returned to

him that he might sign it. A discussion arose as to
whether the President could recall a veto message. It
was generally held that the President had no such power,
and the only effect of the second message was to induce the
passage of the bill over the veto.*

Though the Senate is co-ordinate in power with the
President in treaty-making, and though certain topics re-
The Treaty- ^^^^^S ^^ ^^^^ theme pertain to the Senate and
Making House, it seems best to explain here the vari-
Power. ^^g factors and functions of the treaty-making
power of our Government.

The Constitution says: The President "shall have
power, by and with the advice and consent of the Senate,
to make treaties, provided two-thirds of the Senators
present concur." " *' Two-thirds of the Senators present"
may be a minority of the whole Senate. This provision
does not mean, as practice has interpreted it in the case
of appointments, that the Senate can advise only by say-
ing Yes or No to a treaty. While the practice has usually
been for the Presidents to ask for the* 'advice" of the
Senate only when they ask its "consent " to a completed
treaty, yet it is perfectly proper and constitutional for a
Scope of President to ask the advice of the Senate before
the Senate's Opening or Completing negotiations, as Wash-
Advice. ington frequently did, and as Polk did in the
Oregon Treaty of 1846. The Senate may advise by
proposing amendments, or it may request the President
to open negotiations for certain treaty purposes, or ad-
vise him not to begin negotiations of a certain kind,

1 Mason, p. 118. * Art. II., Sec. 2, CL a.



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The Presidency 157

though the President would not be under obligations to
act on such requests. The initiative in making a treaty
is with the President, because he has power to appoint
and receive ambassadors, and he may complete negotia-
tions with a foreign power — always through his Secretary
of State — before communicating any of the proceedings
to the Senate. He is not bound to take the Senate into
his confidence in the process of his negotiations. But
since the Senate can block his negotiations after they are
communicated, or defeat his treaty after it is made, the
President will naturally desire the favor and co-

• ft •«•• « The Bxecu>

operation of the senatorial majority, and espe- ti^e seeks
cially of the Committee on Foreign Relations, senatorial
In 1870, Senator Sumner, Chairman of the **^^*"
Committee on Foreign Affairs in the Senate, opposed and
succeeded in defeating President Grant's treaty for the
annexation of San Domingo. In 1898, President McKin-
ley sent Senator Davis of Minnesota, Chairman of the
Senate Committee on Foreign Affairs, as one of our
Commissioners to Paris to negotiate the Peace Treaty
with Spain. Naturally, Senator Davis would defend the
completed treaty on the floor of the Senate, and his Re-
publican colleagues, who placed him in his responsible
position, would be inclined to sustain him. In 1890,
President Harrison did not take decisive steps during our
strained relations with Chile until he had sought the judg-
ment and co-operation of the Chairmen of the Foreign
Affairs Committees in both Senate and House. Mr.
Blount of Georgia, a Democrat, was Chairman of the
House Committee on Foreign Affairs, but he and Presi-
dent Harrison, a Republican, were acting in complete
harmony and with a mutual understanding.

The treaty-making power thus conferred upon the
President makes him a diplomatic officer. He directs
our diplomacy. Through his Secretary of State he rep-
resents the nation in its relations with foreign powers



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158 The American Republic

and controls our foreign policy. But, as we have indi-
cated, the President has not a "free hand" to do as he
will in our foreign relations. He cannot declare war, of
course, for that power belongs to Congress, but he may
by his negotiations or by his executive orders so entangle
us in a foreign complication that it may be very difficult
if not impossible for Congress to refuse adeclaration of war.
In 1846, preceding the Mexican War, President Polk
ordered our troops into disputed territory, where they
were attacked by the Mexicans ; Congress then
President merely declared that "war existed by the act
may Bring q{ the Republic of Mexico. ' ' A President also

on a War. , ^ , i. .

may prolong a war by refusing to negotiate, or
he may speedily end one by protocol if he be so inclined.
But in either policy the President finds a check against
him in Congress. If he negotiates too soon or adversely
to the national interest the Senate may refuse to confirm
the treaty ; and if he be disposed to prolong the war un-
necessarily and against the national desire, Congress may
refuse money for the conduct of the war. The President,
therefore, in any international struggle or negotiation
of moment will always seek the co-operation ot the con-
gressional branch of the Government.

Although the House may not participate in the con-
duct of foreign affairs, its power of withholding appro-
The Need of pHations would be effective in embarrassing, or
Unity and even in defeating, the Administration, if the
PoreTgn^ " party majority there chose to antagonize the
Relations. President. It is by all means desirable that
our Government in a controversy with a foreign power
should act unitedly. If the different departments of the
Government pull apart and come to loggerheads in a
foreign contention, it is not probable the Government
will be able to carry its point. It is for this reason that,
in any grave crisis, the President will not be apt to take
any decisive step until he knows that he will be sustained



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The Presidency 159

by the agreement and concurrence of those who are au-
thorized to speak for the two Houses.

It has been said that the House cannot participate in
the conduct of foreign affairs. That the House is not to
be considered as a part of the treaty-making to what
organ of the Government was settled by the Extent may
precedent established in the discussions over Repr«wnu-
Jay 's Treaty, — one of the most famous treaties **^«« ^^^
in our history. The points then brought into the Treaty
discussion are of great importance in the con- Power?
sideration of this subject. Jay's Treaty was negotiated in
November, 1794, but it was not received by WashingtoC
until after the adjournment of Congress in March, 1795.
Washington submitted the treaty to the Senate in a
special session of that body summoned for that purpose,
and the treaty was ratified, after a two-weeks secret de-
bate, on June 24, 1795. The vote stood twenty to ten,
exactly the two thirds necessary for ratification. When
the treaty became public it excited the fiercest popular
opposition. This opposition was represented in the lower
House of Congress, where the Jeffersonian Republicans,
who were hostile to the treaty, had a majority, and a
struggle there over the treaty was inevitable. DiscuMion on
On March 2, 1796, President Washington pro- J»y'»T»aty.
claimed the treaty the law of the land and communicated
it to the House in order that the necessary appropriation
might be made to carry it into effect. On the day of
this communication from the President, Edward Living-
ston, of New York, a Republican leader, offered a reso-
lution in the House calling on the President for Jay's
instructions and other papers relating to the treaty. A
notable debate occurred on this resolution, and Albert
Gallatin, the ablest Republican leader of the o^i^anon
House, made one of his two great speeches the Treaty
which Jefferson pronounced the best commen- p«^«'*
tary ever published on the treaty-making clauses of the



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i6o The American Republic

Constitution. Gallatin defended the right of -the House
to use its discretion in providing for the carrying out of
this treaty, — that the House could review the merits and
desirability of the treaty, and was not bound to carry it
out merely because it had been agreed to by the Presi-
dent and the Senate. The House was competent to look
into the papers, as it had a right to do, and see the public
reasons for the treaty and the methods of its negotiation.

" Gallatin did not claim on the part of the House an abso*
lute right of review in every instance of negotiation, but that
whenever the President and Senate include in a treaty matters
confided by the Constitution to the whole Congress of the
United States, an act of legislation will be necessary to con-
firm these articles; this act the House, as a co-ordinate branch
of Congress, is perfectly competent to pass or reject at discre-
tion, and that thus the absorption of legislative powers by the
treaty-making organ will be obviated." *

The Constitution, and treaties made in accordance with
it, are the supreme law of the land. In saying this, the
Constitution did not intend to place treaty law above
congressional law, or to compare these different kinds of
national law with one another; but the intention was to
declare whether "the constitutional laws and treaties of
the General Government, or the laws and constitutions
of the States are supreme, in case of clashing powers." "

It was understood that the Jay Treaty contained pro-
visions touching the regulation of commerce known to be
in opposition to the will of the House. These provisions
were inserted in the treaty on the recommendation of
Hamilton with the express design of making laws by the
more convenient combination of President and Senate
instead of President and the whole Congress. Gallatin
and the Republicans held that they had a right to pre«

I Schouler, History of the United States, vol. i., p. 309.
'GaUatiiu



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The Presidency i6i

vent this, and their position, especially since there was
no precedent in such a case, cannot be said to have been
unreasonable. The House passed the Livingston resolu-
tion by a large majority, calling upon the President for
the papers. But Washington refused to submit the
papers to the House because, as a matter of precedent,
he did not wish to acknowledge that the assent of the
House was necessary to the validity and execution of a
treaty. The House, after discussing the President's
reply, receded from its position in this particular case
and passed the laws and appropriation necessary for
carrying the treaty into effect. It, however, resolved
that while it claimed no agency in the making of treaties,
that power being exclusively with the President and
Senate, yet, as a part of Congress, it claimed the right
of deliberating upon the expediency or inexpediency of
carrying into effect a treaty which must depend for its
execution on laws to be passed by Congress, or
that deals with subjects, like the regulation of the House
commerce, which had been given by the Con- *"J^p^'
stitution to the control of Congress ; and that
the House might act in such cases as, in its judgment,
might seem most conducive to the public good. Jefferson
briefly summarized the Republican doctrine on this sub-
ject in a letter to Monroe :

"We conceive the Constitutional doctrine to be that the
President and Senate have the general power of making
treaties, yet when they include in a treaty matter confided by
the Constitution to the three branches of the Legislature, an
act of legislation will be necessary to confirm these articles, and
that the House as one branch are perfectly free to pass the act
or refuse it, governing themselves by their own judgment
whether it is for the good of their constituents to let the treaty
go into effect or not. On this depends whether the powers of
legislation shall be transferred from the President* Senate, and



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i62 The American Republic

House of Representatives to the President, Senate, and Fla-
mingo, or any other Indian, Algerine, or other chief/'

Jeflferson acted on this principle in the Louisiana Treaty
of 1803. He sought the judgment of the House before
Jefferson on the treaty was made, and he approved the
*!l*J*^T*" statement of Randolph that, in such a treaty,

of the House , ^ .5 , , ^ .

in Treaty- the Representatives are as free as the Presi-
Making. ^^^^ ^^^ Senate were to consider whether the
national interest requires or forbids their giving the forms
and force of law to the articles over which they have a
power " ; and there was, of course, no trouble about the
law necessary to carry the Louisiana Treaty into effect.
In 1868, in the contest between the two Houses over the
Alaskan Treaty, while the House receded from the larger
claim which it first put forth it still succeeded in securing
the assent of the Senate, substantially, to the treaty-
doctrine as announced by Jefferson. After the treaty
The Alaskan with Russia by which we purchased Alaska, in
Treaty, X867. jgg^^ ^hc Housc hesitated to make the appro-
priation necessary to fulfil the obligation. General Banks,
Chairman of the House Committee on Foreigfn Affairs,
urged the appropriation on the ground, inter a/ia, of the
obligation imposed by the treaty. Mr. C. C. Washburn,
in a speech answering Banks, July i, 1868, held that it
was the "right and duty of the House to inquire into the
treaty, and to vote or not vote the money, according to
its best judgment." The House appropriated the money,
but it prefaced its Appropriation Bill with the declaration
that "the subjects embraced in the treaty are among
those which by the Constitution are submitted to the
power of Congress and over which Congress has juris-
diction; and for these reasons it is necessary that the
consent of Congress should be given to the said stipula-
tions, before the same can have full force and effect."
The House made no mention of the Senate's ratifica-



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The Presidency 163

tion, but merely referred to the fact that the President
had entered into a treaty with the Emperor of Russia,
agreeing to certain terms. This was equivalent to claim-
ing that the consent of the House was as essential to a
treaty as that of the Senate, and that a treaty involving
appropriations was a subject for the consideration of
Congress. The Senate denied this pretension and re-
jected this declaration unanimously. A conference com-
mittee evolved a compromise declaration that

" Whereas, the President has entered into a treaty with the
Emperor of Russia, and the Senate thereafter gave its advice
and consent to said treaty . . . and whereas said stipu-
lations cannot be carried into full force and effect, except by
legislation to which the consent of both Houses of Congress is
necessary; therefore, be it enacted that there be appropriated
the sum of $7,200,000"

for the purchase of Alaska. This does not state that the
House is free to refuse an appropriation, or to withhold
legislation, necessary to carry out a treaty, but it must
be assumed that the "consent of both Houses" means
the free, not the forced, consent of those bodies.

It cannot be said that the law of the unwritten consti-
tution of precedent and custom is fully established upon
this point. The subject is still open to discussion and
to differences of opinion. It is still held by high authority
that while the House cannot be coerced to provide for
the execution of a treaty, it is clearly the duty of the
House so to do, and the necessary appropriation is dis-
cretionary with Congress only in the sense that the pay-
ment of public debts or the fulfilment of public obligations
is discretionary, — that is, it cannot be compelled by any
process of execution.' Yet what the House should do in
such cases is a political rather than a judicial question ;
'Cooley, CffnstituHonai Law, p. 103.



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1 64 The American Republic

and it is safe to say that political rather than judicial
opinions and motives will govern.'

The tendency is clearly in favor of the doctrine an-
nounced by Jefferson, that while there is a strong pre-
Poweroftha sumption in favor of a treaty already made, yet
House to the House has a right to defeat a treaty, by
oi^mtionof withholding necessary appropriations, if the
a Treaty stiu proposed treaty is too objectionable or vio-
*** " * lates too much the House's appreciation of the
public welfare." "The House would not now in any case
consider itself under a constitutional obligation to appro-
priate money in support of a treaty the provisions of
which it did not approve. It is therefore practically true
that all such treaties must pass under the judgment of the
House as well as under that of the Senate and the Presi-
dent.* Judge Cobley admits that, while the refusal of
the House to carry out a treaty would be an extreme
measure, yet "it is conceivable that a case might arise in
which a resort to it might be justified." *

This view is further supported by the opinion delivered
by Justice McLean of the Supreme Court :

"A treaty is the supreme law of the land only when the
treaty-making power can carry it into effect. A treaty which

' The Sapreme Court has recognized that legislation may be necessary
before a treaty can become law, and that the House as a political branch
of the Government may decide at its discretion whether it will complete a
treaty. "When the terms of the stipulations import a contract, when
either of the parties engage to perform a particular act, the treaty addresses
itself to the political, not to the judicial department, and the Legislature
must execute the contract before it can become the rule of the court." — See
Chief Justice Marshall in Foster vs. Neilson, 2 Peters, 253. The Court in
this case recognized a distinction between the provision of a treaty which
is so framed as to operate directly upon the citizens of a country and a pro-
vision which merely stipulates that certain things shall be done. It is in
the latter case only that legislation by Congress is necessary. — Boutwell,
TAf CcnstituHon at the End of the First Century^ p. 291.

•See Blaine, Twenty Years ^ vol. ii., pp. 333-339.

^Ihld., p. 338. * ConsHtuHonal Law, p. 167.



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The Presidency 165

stipulates for the payment of money undertakes to do that
which the treaty-making power cannot do; therefore the treaty
is not the supreme law of the land. To give it effect the action
of Congress is necessary, and in this action the Representatives
and Senators act on their own responsibility and judgment,
not on the judgment and responsibility of the treaty-making
power. No act of any part of the government can be held to
be a law which has not all the sanction to make it law.'' *

However much the President may cultivate the Senate
or individual Senators in seeking to provide smooth sail-
ing for his treaties, he cannot always avoid opposition
and antagonism in the open Senate. Misunderstandings
arise, and Senators who have been supposed to give
private assurances of support are afterwards found in
open opposition. Grant accused Sumner of giving a
private promise of support in the San Domingo Treaty,
an accusation which arose, no doubt, from a misunder-
standing. Occasionally Senators of the opposing party
will seek to defeat a President's treaty in order to dis-
parage or humiliate his administration ; the desire to win
a fraction of the foreign vote, the personal ambition of
Senators to win prominence by an amendment, the sup-
posed sectional interest of a group of States, all may con-
spire to carry Senators into opposition. Altogether the
President's treaty has a hard gauntlet to run.

It is claimed by some that within the last generation
the Executive initiative and independence in treaty-
making has been seriously impaired, — much to impairmflot
the detriment of our national diplomacy. A of Executive

lodependeoce

President, the critics of the Senate assert, in Treaty,
hardly ventures now upon a treaty of any im- Making.
portance unless he first obtains the assent of the Foreign
Affairs Committee of the Senate, or of its Chairman ; that
foreigners look upon this chairman as a sort of second
foreign secretary ; having negotiated with one Secretary
* Turner vs. The American Baptist Missionary Union.



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i66 The American Republic

of State they are not sure the treaty is made till our
Senate Chairman has assented to it, and not then unless
it is known that he speaks for the Senate ; that the Secre-
tary of State must now have the advice and consent of
the Senate in his pocket before he starts in on a negotia-
tion ; that treaties habitually fall through in the Senate,
or that body so amends them that the other party to the
agreement withdraws from the negotiation. The Bayard-
Chamberlain Treaty of 1888 on the Fisheries question,
the Olney-Pauncefote General Arbitration Treaty of
1897, and the Hay-Pauncefote Treaty of 1901, were all
defeated by senatorial amendment. The Senate insists
on playing a part of the diplomatic game **from the
shuffling of the cards to the taking of the last trick." It
treats a document sent to it by the President as a treaty
inchoate, as a rough draft, and then goes to work upon
it, on the theory that its task is not one of mere approval
or disapproval, but as if it were a part of the negotiating
powen As a negotiator the Senate is inherently weak.
It' is not in a position to ask for information, or to sug-
gest its proposals to the other party and, therefore, it
cannot come to terms with him either by surrendering its
point or by persuading him to yield, or by way of a compro-
mise. Having refused to be content to be an advisory
body, the Senate, through influential Senators, now insists
that it should be consulted in advance, or during the pro-
gress of the negotiations. **This assertion of joint power
with the Executive in negotiation is part and parcel of the
general assumption of power by the Senate. It dictates
appointments because it possesses the power of confinna-
tion ; why should it not dictate treaties, possessing also
the power of ratification? " Must the Secretary of State
now previously canvass the Senate to ascertain if a pro-
posed treaty will receive the requisite number of votes? '

• I have attempted here to summarize a recent criticism by Mr. Henxy
Loomis Nelson under the caption, *' A Mistake of the Fathers," Hoffer's



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The Presidency 167

To this criticism it is replied on behalf of the Senate
that no foreign power has a right to take umbrage be-
cause the Senate offers an amendment to a pro-

, ..... . The Senate

posed treaty; that it is altogether proper for Aeeerts
the Senate to look upon itself as one of the co-ordinate

, , t ' t Powers

negotiators and to regard a treaty submitted to with the
it, not as completed, but as only begun, as a !„ Treat**
mere project for a treaty. As either negotiator Making
while a treaty is in the making may propose a ^^*^'
new provision, which may be either accepted or
rejected by the other negotiator, so the Senate may pro-
pose new provisions which the President will be expected
to submit to the other party to the treaty. The Senate is
co-ordinate with the President in treaty-making. The
President begins a negotiation and continues it as far as
he cares to before submitting it to the Senate. The Senate
may then ask him to continue it farther by certain pro-



Online LibraryJames Albert WoodburnAmerican politics: the American republic and its government ; an analysis of ... → online text (page 14 of 34)