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the ordeal of an examination by the Committee on Foreign Relations; this Committee has always been composed of representatives of both of the leading political parties, the dominant one having the majority in the Committee as well as in the Senate. The legal questions involved in our relations with foreign powers are of such importance that proficiency in constitutional and international law has become a sine qua non for membership in that Committee, the list of whose members during the past century would include the names of many of the ablest jurists of the United States, whose reputations are not confined to this side of the Atlantic.2
If the majority of the Committee on Foreign Relations
The views of Mr. Holls as to the already referred to (note 9, § 444 necessity for the consent of the p. 312, ante) is a compilation of reSenate to submit matters to this ports from this committee since tribunal for arbitration, as ex- 1789. Amongst some of the mempressed on p. 216 of his Pe:ice Conbers whose names are mentioned as ference at Ths Hague, after refer- the authors of reports, are Charles ring to Art. X of the treaty which Sumner, John W. Clayton, Fredeprovides for appointments of Com- rick T. Frelinghuysen, John T. missions of Inquiry are as follows: Morgan, William Windom, George
“ This point is of essential im- H. Pendleton, George F. Edmunds, portance in the United States of Cushman K. Davis, Henry Cabot America on account of the power Lodge, George Gray, William H. of the Senate. The appointment Seward, William M. Evarts, James of a Commismission of Inquiry Buchanan, Henry Clay, Edward having no further necessary conse- Everett, John Sherman, Daniel quences than the providing for each | Webster, Lewis Cass, and many party's share of necessary expenses, others. Some of the reports have would seem to be within the ordi- become famous as containing exnary diplomatic functions of the positions of principles of internaPresident and Department of State, tional law recognized by the United by memorandum protocol States. Amongst these is the rewhereas an agreement to submit port of Senator Sumner on the duty any question to a court of arbitra- of Congress to pay our citizens for tion, the decision to be binding their claims known as the French upon the parties, must necessarily spoliation claims, which were sattake the form of a treaty requiring isfied as against France by the the constitutional coöperation of treaties of 1800 and 1803. (See the Senate."
p. 274, Part I, Sen. Doc. 231, cited The Hague treaties were ratified supra.) Feb. 7th, 1900; have not been offi- In the Letters of Historicus in cially reported but will probably The London Times, originally pubappear in 32 U. S. Stat. at Large. lished under an assumed name, but 2 The Senate Document No. 231, now credited to Sir William Vernon
reports the treaty favorably, it is still necessary for its advocates to obtain a two-thirds majority of the Senate in order to ratify it, and all questions relating to it are fully open for discussion. The consideration of treaties is sometimes con
Harcourt, a striking tribute is paid to the archives of American diploto the authority which should be matic statesmanship at the close given to American decisions on the of the last and the beginning of subject of international law. On the present century. The pubpage xii of the preface,after a beau- lished volumes of American State tiful tribute to Washington and a Papers during the early years of reference to the closing chapters of the French Revolutionary War preMarshall's Biography, he says: “I sent a noble monument of dignity, have spoken with the respect they moderation, and good faith. They deserve of the judicial records of are repertories of statesmanlike American decisions. But an equal principles and juridical knowlif not higher reputation belongs | edge.”
8 JAMES BRYCE ON THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY.
“The Senate is not only a legislative but also an executive Chamber; in fact in its early days the executive functions seem to have been thought the more important; and Hamilton went so far as to speak of the national executive authority as divided between two branches, the President and the Senate. These executive functions are two, the power of approving treaties, and that of confirming nominations to office submitted by the President.
"To what has already been said regarding the functions of the President and Senate as regards treaties (see above, [Bryce, vol. I] chap. VI) I need only add that the Senate, through its right of confirming or rejecting engagements with foreign powers, secures a general control over foreign policy. It is in the discretion of the President whether he will communicate current negotiations to it and take its advice upon them, or will say nothing till he lays a completed treaty before it. other course is from time to time followed, according to the nature of the case, or the degree of friendliness existing between the President and the majority of the Senate. But in general, the President's best policy is to keep the leaders of the senatorial majority, and in particular the committee on Foreign Relations, informed of the progress of any pending negotiation. He thus feels the pulse of the Senate, and foresees what kind of arrangement he can induce it to sanction, while at the same time a good understanding between himself and his coadjutors is promoted. It is well worth his while to keep the Senate in good humor, for, like other assemblies, it has a collective self-esteem which makes it seek to gain all the information and power it can draw in. The right of going into secret session enables the whole Senate to consider despatches communicated by the President; and the more important ones, having been first submitted to the Foreign Relations committee, are thus occasionally discussed without the disadvantage fined to Executive session, but more frequently the injunction of secrecy has been removed and the debate carried on in
of publicity. Of course no momentous secret can be long kept, even by the committee, according to the proverb in the Elder Edda—“Tell one man thy secret, but not two; if three know, the world knows.'
“This control of foreign policy by the Senate goes far to meet that terrible difficulty which a democracy, or indeed any free government, finds in dealing with foreign Power's. If every step to be taken must be previously submitted to the governing assembly, the nation is forced to show its whole hand, and precious opportunities of winning an ally or striking a bargain may be lost. If on the other hand the executive is permitted to conduct negotiations in secret, there is always the risk, either that the governing assembly may disavow what has been done, a risk which makes foreign states legitimately suspicious and unwilling to negotiate, or that the nation may have to ratify, because it feels bound in honor by the act of its executive agents, arrangements which its judgment condemns. The frequent participation of the Senate in negotiations diminishes these difficulties, because it apprises the executive of what the judgment of the ratifying body is likely to be, and it commits that body by advance. The necessity of ratification by the Senate in order to give effect to a treaty, enables the country to retire from a doubtful bargain, though in a way which other Powers find disagreeable, as England did when the Senate rejected the Reverdy Johnson treaty of 1869. European statesmen may ask what becomes under such a system of the boldness and promptitude so often needed to effect a successful coup in foreign policy, or how a consistent attitude can be maintained if there is in the chairman of the Foreign Relations committee a sort of second foreign secretary. The answer is that America is not Europe. The problems which the Foreign Office of the United States has to deal with are far fewer and usually far simpler than those of the Old World. The republic keeps consistently to her own side of the Atlantic; nor is it the least of the merits of the system of senatorial control that it has tended, by discouraging the executive from schemes which may prove resultless, to diminish the taste for foreign enterprises, and to save the country from being entangled with alliances, protectorates, responsibilities of all sorts beyond its own frontiers. It is the easier for the Americans to practice this reserve because they need no alliances, standing unassailable in their own hemisphere. The circumstances of England, with her powerful European neighbors, her Indian Empire, and her colonies scattered over the world, are widely different. Yet different as the circumstances of England are, the day may come when in England the question of limiting the at present all but unlimited discretion of the executive in foreign affairs will have to be dealt with; and the example of the American Senate will then deserve and receive careful study. Yet it must be remembered that many of the most important acts done in the sphere of foreign relations are purely executive acts (as for instance, the movemeni of troops and ships,) which the Senate cannot control.
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 was debated in the Dominion Parliamessages transmitting treaties and ment. The treaty of Washington papers relating thereto always re- of 1871 was published while the mains until removed by formal res- debate was in progress in Execuolution. In the case of the fish-tive Session and this caused an eries treaties with Great Britain, investigation to be ordered for the known as the Bayard-Chamberlain purpose of ascertaining how it treaty of 1888, there was a long de was obtained by the paper publishbate on the motion to remove the in- ing it. The treaty of 1898 with junction. The treaty meanwhile Spain was transmitted by the Presiwas published in Canada where it Ident 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 6 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 and the treaty of 1848 with Mexwas removed on January 11, 1899, ico. and the papers printed it, but the 6 The treaty itself generally condebate on the ratification pro- tains some provision for the exceeded in Executive Session until change of ratifications, the place the vote was taken.
generally being the capital of one The injunction of secrecy con- of the contracting powers, and the cerning all matters in Executive time from three to twelve months Session of the Senate, of which a after the signature, depending upon record was kept in the Executive the time required for the legislative Journal, was removed by resolu- and executive departments of the tion of the Senate adopted June 28, respective governments to ratify it, 1886.
according to constitutional require5 Scribner's Magazine for Janu- ments. The treaties with the ratary, 1902, contains a very interesting ifications are generally exchanged article by Henry Cabot Lodge, U. by the accredited representatives S. Senator for Massachusetts, in of one part with the Secretary of which he refers to numerous occa- State (or corresponding official of sions on which the Senate has ad- the Executive Department) of the vised the Executive as to the nego- other. Sometimes as in the case tiations of treaties; and also to no of the treaty of Washington, of less than sixty-eight specific in- 1871, when J. C. Bancroft Davis stances in which the Senate has was sent to London for that puramended treaties before ratifying pose, a special representative is them; this list includes the Jay sent with the treaty and ratificatreaty of 1794 with Great Britain' tions.