Imágenes de páginas
PDF
EPUB

open session. As a general rule, the terms of the treaty become public property, and the views of senators in regard

"The Senate may and occasionally does amend a treaty, and return it amended to the President. There is nothing to prevent it from proposing a draft treaty to him, or asking him to prepare one, but this is not the practice. For ratification a vote of two-thirds of the senators present is required. This gives great power to a vexatious minority, and increases the danger, evidenced by several incidents in the history of the Union, that the Senate or a faction in it may deal with foreign policy in a narrow, sectional, electioneering spirit. When the interest of any group of States is, or is supposed to be, opposed to the making of a given treaty, that treaty may be defeated by the senators from those States. They tell the other senators of their own party that the prospects of the party in the district of the country whence they come will be improved if the treaty is rejected and a bold aggressive line is taken in further negotiations. Some of these senators, who care more for the party than for justice or the common interests of the country, rally to the cry, and all the more gladly if their party is opposed to the President in power, because in defeating the treaty they humiliate his administration. Supposing their party to command a majority, the treaty is probably rejected, and the settlement of the question at issue perhaps indefinitely postponed. It may be thought that the party acting so vexatiously will suffer in public esteem. This happens in extreme cases; but the public are usually so indifferent to foreign affairs, and so little skilled in judging of them, that offences of the kind I have described may be committed with practical impunity. It is harder to fix responsibility on a body of senators than on the executive; and whereas the executive has usually an interest in settling diplomatic troubles, whose continuance it finds annoying, the Senate has no such interest, but is willing to keep them open so long as there is a prospect of sucking some political advantage out of them. The habit of using foreign policy for electioneering purposes is not confined to America. We have seen it in England, we have seen it in France, we have seen it even in monarchical Germany. But in America the treaty-confirming power of the Senate opens a particularly easy and tempting door to such practices." Bryce's American Commonwealth, Vol. I, pp. 102–105.

4 The injunction of secrecy on messages transmitting treaties and papers relating thereto always remains until removed by formal resolution. In the case of the fisheries treaties with Great Britain, known as the Bayard-Chamberlain treaty of 1888, there was a long de. bate on the motion to remove the injunction. The treaty meanwhile was published in Canada where it

was debated in the Dominion Parliament. The treaty of Washington of 1871 was published while the debate was in progress in Executive Session and this caused an investigation to be ordered for the purpose of ascertaining how it was obtained by the paper publishing it. The treaty of 1898 with Spain was transmitted by the President to the Senate on January 4,

thereto become equally well known, within a very short time after its conclusion by the commissioners. On more than one occasion amendments have been suggested by the Senate and the treaty returned to the commissioners for new negotiations, or amendments have been prepared by the Senate and the ratification made subject to the acceptance of the treaty in its amended form by the other government. Even after a two-thirds majority has expressed its approval of the treaty, and before it is returned to the President with a resolution in favor of its ratification, the President still has another opportunity of considering whether or not he will sign the resolution of ratification and deliver the treaty to the State Department, for formal exchange of the ratification thereof with the other contracting power.

§ 466. Congressional power over operation of treaties.— After such ratification the treaty according to the Constitution becomes the supreme law of the land. It is still, however, within the power of a majority of the House of

1899. The injunction of secrecy was removed on January 11, 1899, and the papers printed it, but the debate on the ratification proceeded in Executive Session until the vote was taken.

The injunction of secrecy concerning all matters in Executive Session of the Senate, of which a record was kept in the Executive Journal, was removed by resolution of the Senate adopted June 28, 1886.

5 Scribner's Magazine for January, 1902, contains a very interesting article by Henry Cabot Lodge, U. S. Senator for Massachusetts, in which he refers to numerous occasions on which the Senate has advised the Executive as to the negotiations of treaties; and also to no less than sixty-eight specific instances in which the Senate has amended treaties before ratifying them; this list includes the Jay treaty of 1794 with Great Britain

and the treaty of 1848 with Mexico.

6 The treaty itself generally contains some provision for the exchange of ratifications, the place generally being the capital of one of the contracting powers, and the time from three to twelve months after the signature, depending upon the time required for the legislative and executive departments of the respective governments to ratify it, according to constitutional requirements. The treaties with the ratifications are generally exchanged by the accredited representatives of one part with the Secretary of State (or corresponding official of the Executive Department) of the other. Sometimes as in the case of the treaty of Washington, of 1871, when J. C. Bancroft Davis was sent to London for that purpose, a special representative is sent with the treaty and ratifications.

Representatives to render the treaty ineffectual by refraining from passing the necessary legislation to carry it into effect. Indeed, if by any revulsion in popular feeling the political complexion of the Senate should be changed, a majority of both houses of Congress (or of two-thirds of both houses in case of veto by the President) can absolutely abrogate the treaty by enacting hostile or conflicting legislation.1 Such course would, indeed, be inconsistent with good faith and with the long established, and honorable course pursued by the Congress of the United States. The power, however, exists to do so, and could be exercised if Congress saw fit. It can readily be seen, therefore, that while the treaty-making power is apparently absolute and unlimited, these checks and balances practically prevent it from being exercised in any manner detrimental to the best interest of the Government and of the people.

467. Diversity of opinions in regard to limitations on the treaty-making power.-If we continue the examination of the subject-matter of this chapter, we must acknowledge that it can only be in the nature of investigation, and collation, of opinions which have already been expressed by those who have given the matter their consideration, and that it will be impossible to reach any definite conclusion, on account of the many diverse opinions which have been expressed in regard to it, by men whose opinions are entitled to the highest respect, and which have undoubted weight, with legislatures and with courts.

Thomas Jefferson is credited with the statement that the United States could not exercise its treaty-making power in regard to matters wholly within State jurisdiction to any greater extent than Congress could exercise its legislative powers in this respect, however, he has certainly been over

§ 466.

1 This subject is so fully treated in Chapter XII, in this volume ante, that no further reference will be made to it at this point. The reader is referred to the headlines of that chapter.

$ 467.

vol. II, p. 16. For views of Jefferson and Hamilton as to the power of the Central Government to alienate territory see extracts from opinion of Justice WHITE in Downes vs. Bidwell (Insular Case), U. S. Sup. Ct. 1901, 182 U. S., 244, see p. 316, quoted at length in INSULAR CASES

'Wharton's Int. Law Digest, | APPENDIX, pp. 486, 487, volume I.

ruled by the Supreme Court, for that tribunal on numerous occasions has distinctly held that the treaty-making power could, and did, regulate the descent of property, as well as other matters under State jurisdiction, and that in doing so it can supersede all conflicting State laws, which Congress in the absence of treaty stipulations could not possibly do by ordinary legislation."

§ 468. Views expressed by the Supreme Court in the License Cases.In the preceding chapters on the effect of treaties on State legislation, cases were cited in which the Supreme Court of California expressed some doubt as to the extent of the treaty-making power,' referring to the deci sions of the Supreme Court of the United States in the License and Passengers Cases. Mr. Justice Daniel in his concurring opinion in the License cases refers to the extent of the treaty-making power as follows: "By the 6th article and 2d clause of the constitution it is thus declared:-'That this constitution and the laws of the United States made in pursuance thereof, and treaties made under the authority of the United States, shall be the supreme law of the land.'

"This provision of the constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the federal government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were, in intention or in fact, ceded to the general government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the constitution. Treaties, to be valid, must be made within the scope of the same powers;

2 Chapter XI of this volume ante, | Ct. 1847, 5 Howard, 504-633, TAis devoted to the relative effect of NEY, Ch. J., MCLEAN, CATRON, State laws and treaty stipulations. DANIEL WOODBURY, GRIER, JJ. § 468. The remarks quoted appear at

1§ 358, p. 59, ante.

p. 613.

2 The License Cases, U. S. Sup.

8 See note to § 469.

for there can be no 'authority of the United States,' save what is derived mediately or immediately, and regularly and legitimately, from the constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of the United States and the constitution, or between the law of a State and the constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the constitution; but whether the decision of the court in such cases be itself binding or otherwise must depend upon its conformity with, or its warrant from, the constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the constitution and the laws both of the States and of the United States."

§ 469. Views in the Passenger Cases of 1849.--In the Passenger Cases1 the opinion of Chief Justice Taney in respect to the treaty power is as follows: "The first inquiry is, whether, under the Constitution of the United States, the federal government has the power to compel the several States to receive, and suffer to remain in associa tion with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any

§ 469.

1 The Passenger Cases, U. S. Sup. Ct. 1849, 7 Howard, 283, TANEY, Ch. J., MCLEAN, WAYNE, CATRON, MCKINLEY, GRIER, DANIEL, WOODBURY, JJ. All of the

Justices wrote opinions. The court being equally divided there was no opinion of the court. See Syllabus. The extract quoted from the Chief Justices' opinion is on p. 465.

« AnteriorContinuar »