Fifty Years of Public Service / Personal Recollections of Shelby M. Cullom, Senior United States Senator from Illinois

by Shelby M. Cullom

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.