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This bill would amend section 1 of the act approved May 15, 1930 (Public No. 228, 71st Cong.), which authorizes the President to appoint three commissione 8 to cooperate with representatives of the Dominion of Canada in an investigation of the feasibility of a highway to connect the northwestern part of the United States with British Columbia, Yukon Territory, and Alaska. The amendment proposed by the bill would direct the commissioners to report on the feasibility of a highway from Fairbanks to Point Barrow on the Arctic coast or some other point at which the midnight sun is visible. The department can see no objectica to the proposed amendment. Sincerely,
R. W. DUNLAP, Acting Secretary.
JUNE 18 (calendar day, JUNE 23), 1930.-Ordered to be printed
Mr. SHIPSTEAD, from the Committee on Foreign Relations, submitted
[To accompany Executive I)
TREATY-MAKING POWERS OF THE SENATE
On June 12, 1930, the Senate Committee on Foreign Relations adopted the following resolution:
Whereas this committee has requested the Secretary of State to send to it the letters, minutes, memoranda, instructions, and dispatches which were made use of in the negotiations prior to and during the sessions of the recent conference of London; and
Whereas the committee has received only a part of such documents; and
Whereas the Secretary of State, by direction of the President, has denied a second request from this committee for the papers above described, and in his letter to the chairman of this committee has apparently attempted to establish the doctrime that the treaty of London must be considered by the Senate "from the language of the document itself and not from extraneous matter”; Therefore be it
Resolved, That this committee dissents from such doctrine and regards all facts which enter into the antecedent or attendant negotiations of any treaty as relevant and pertinent when the Senate is considering a treaty for the purpose of ratification, and that this committee hereby asserts its right, as the designated agent of the Senate, to have full and free access to all records, files, and other information touching the negotiations of the treaty, this right being based on the constitutional prerogative of the Senate in the treaty-making process; and be it further
Resolved, That the chairman of this committee transmit a copy of these resolutions to the President and the Secretary of State.
On June 12 the Secretary of State transmitted the following reply to Senator Borah, chairman of the Committee on Foreign Relations:
THE SECRETARY OF STATE,
Washington, June 12, 1930. DEAR SENATOR Borah: I have received your favor of to-day transmitting a copy of a resolution of the Committee on Foreign Relations in respect to letters and documents in the recent negotiations of the naval treaty.
I did not, in my letter to you of June 6, attempt to define the duties of the Senate or the scope of its powers in passing upon treaties. My statement in
that letter that “the question whether this treaty is or is not in the interest of the United States and should or should not be ratified by the Senate must in the last event be determined from the language of the document itself and not from extraneous matter" was intended to call attention to the fact that the obligations and rights arising from the treaty, as in the case of any other contract, must be measured by the language of the document itself. Very respectfully,
HENRY L. Stimson. Accordingly, as a member of the Foreign Relations Committee, and in connection with the committee's action in reporting the treaty of London, I beg to call attention to certain clauses and implications in the letters of the Secretary of State declining to grant the request of the Committee on Foreign Relations for subject matter embraced in papers prior to and during negotiation of the proposed treaty of London, including "letters, minutes, memoranda, instructions, and dispatches” relevant and pertinent to the Senate's consideration of the proposed treaty for the purposes of ratification.
The Secretary of State takes the position that the needs of the Senate are satisfied by perusal of “the language of the document itself”; and he reaches the gratuitous conclusion that pertinent and relevant subject matter entering into or leading up to the negotiation is “extraneous matter” not necessary to the Senate's consideration.
The Secretary further implies, in his words, “scope of its powers in passing upon treaties” that the Senate is not a component part of the coordinate treaty-making power, but is limited to “passing upon treaties.”
His position, therefore, would seem to be that a proposed treaty, or treaty form, is per se a treaty, before the Senate, as coordinate and
, coequal treaty maker in conjunction with the Executive, and that the Senate has considered the document and given its "advice and consent" by two-thirds vote, as provided in the Constitution.
The Secretary of State rightly speaks of a treaty as a "contract”. But, in his well-recognized position as an attorney at law, has he forgotten that well-known rule of law, that “suppressio veri”, or concealment of material facts from the knowledge of one of the contracting parties, vitiates a contract?
The Supreme Court of the United States classifies a treaty as part of “The law of the land”. Under the Constitution no "law of the land” is enacted solely by Executive action. “Advice and consent" of two-thirds of the Senate is required to make a treaty the “law of the land”; whereas, only a bare majority of the Senate suffices for the passage of an ordinary statute.
Treaty-making is a sovereign power. It is one of the highest sovereign powers which a nation can possess. No people having serious regard for the public safety, for national perpetuity, for the protection of their boundaries, or for the lives of their sons, can afford to misunderstand, forget, or regard lightly their treaty-making powers.
The present public need of a clear understanding of the treatymaking powers of the 120,000,000 people of the 48 States, especially with relation to powers entrusted to the Senators of the respective States, is well illustrated by an editorial leader of the Washington Post of June 18, 1930, which I beg herewith to reprint-the italics being mine:
THE TREATY MAKING POWER
Addressing the graduating class of Juniata College during the commencement exercises, at that institution recently Henry P. Fletcher, former Ambassador to Italy, took occasion to suggest to his hearers that they consider whether or not it would be advisable to amend the rules and regulations of Congress so as to provide for the participation of Members of the Cabinet in the debates. No amendment to the Constitution would be necessary to assure the participation of these officials in the deliberations of either the House or Senate.
Mr. Fletcher sees in the growing custom of appointing Senators on diplomatic commissions, such as that which recently negotiated the naval treaty, a recognition of the necessity for something like participation on the part of the President's official family in the consideration of such measures in the Senate. Like other men who have held diplomatic positions, the former ambassador appears to think that a treaty is more or less sacred and should not be subject to emasculation or amendment in the Senate without giving the Secretary of State, who is the medium of negotiation between foreign governments and their representatives on the one hand, and the United States on the other, full opportunity to appear on the floor of the Senate to defend the action of his department the framing of the agreement.
“You might profitably stop to consider in this connection the treaty-making or rather treaty-marring power of the Senate," said Mr. Fletcher. Then he spoke of the interest which the States had in treaty making, when most of such conventions had to do with the relationship between the Federal Government and the Indian tribes. “State interests were more individualistic then, but in the course of 150 years these individual interests of States, as States, in our foreign affairs have almost entirely disappeared.”
Mr. Fletcher called attention to the fact that instead of inviting the Secretary of State to explain a treaty on the floor of the Senate he is admitted only to the committee on foreign relations, and not always is he invited even thus far. The treaty-making power, said Mr. Fletcher, is given in effect to 33 “supermen who happen to be Senators, "but who are not, in any single case, elected because of their special knowledge of or interest in foreign affairs."
This arrangement strikes Mr. Fletcher as a negation of democracy. But it may be argued that the makers of the Constitution were not trying to set up a democracy. Perhaps they thought that democracy had been allowed all that was safe to grant in other parts of the Constitution.
The above editorial signifies that public misapprehension of the treaty-making powers as provided in the Constitution may extend even to editors and ambassadors. It is common to find such misapprehension of the American treaty-making power in press columns and diplomatic utterances abroad. It is more serious when we find this misapprehension at home.
EXCHANGE OF NOTES AS VITAL SUBJECT MATTER
Before entering into a discussion of constitutional provisions and an historical outline of the practice of our Presidents and Senates, I wish, first of all, to call attention to the vital import of note exchanges and related collateral evidence regarding the meaning and purpose of a treaty.
The necessity of the Senate to have before it, in performance of its constitutional function as coordinate treaty maker, the exchange of notes leading up to and entering into the negotiations, as well as have full and free access to all relevant subject matter, is plain when we take into consideration:
1. That international agreements may be negotiated without any treaty, simply by exchange of notes—a fact demonstrated by scores of instances both in our history and in that of every nation.
2. The first naval armament negotiation of the United States, that between this country and Great Britain in 1818, regarding the navy on the Great Lakes, during the Monroe administration, was by exchange of notes, without treaty, and President Monroe set up the first American precedent of negotiation on naval armament, when he transmitted all exchanges of notes and all other papers relevant to the case with his message to the Senate. And Monroe's ultimate proclamation of the treaty was based on the Senate's "advice and consent" after study of the papers.
3. A treaty may be general in form, the concrete application being defined in notes in which particular exceptions are specified.
4. The controlling purpose of a treaty may not be clear, unless it is read in the light of the antecedent and attendant notes and diplomatic understandings.
5. Exchanges of notes, "confidential" and "secret" understandings, are among the most fruitful causes of war—as was the case in the recent World War. Also, they are fruitful causes of boundary disputes, misunderstandings over shipping and fishery rights-and are the productive cause of what is known as “paper treaties.”
6. In short, it is American law and international law, that the contracting treaty parties-of which under the Constitution the Senate by its required two-thirds vote is a coequal in making all American treaties-shall have complete power over the subject matter We shall find that to be the holding of our leading American authorities, when we come to consult, as I do later such authorities as, Moore's Digest of International Law, by the international jurist, John Bassett Moore; Treaties, Their Making and Enforcement, a leading textbook by Judge Crandall; The Treaty Making Powers of the Senate, by Henry Cabot Lodge, for many years a member of the Senate Foreign Relations Committee.
7. Withholding of material subject matter, such as exchanges of notes, instructions and dispatches, protocols of the proceedings of the negotiators, indeed, the existence in itself of "confidential” and "secret" documents not communicated to a contracting party, such as the Constitution has made the Senate, constitutes what in contract making is termed "suppressio veri,” which legally vitiates a contract and morally invalidates a treaty.
We shall see, as we go over the history of American treaty casesthe precedents set by the early Presidents: Washington, Adams, Jefferson, Madison, and Monroe, and followed by Jackson, Polk, Lincoln, Grant, Cleveland, and other successors-that it is a wellestablished American custom, dating from the time of the framers of the Constitution, for the Executive who shares the coordinate treaty-making power with the Senate to acquaint the Senate with the complete diplomatic record. Indeed, it was the uniform practice of the early Presidents to lay all available subject matter before the Senate prior to negotiation in order to secure the Senate's “advice"
' in advance. Later practice was to transmit the papers with the treaty message, or sometimes in advance of the message. But there appears to be no American precedent of a refusal on the part of the Executive to transmit to the Senate, his partner and coequal in treaty making, any subject matter deemed by the Senate essential to consideration in rendering its required "advice and consent.”