CHAPTER XI

REPORT OF J. RANDOLPH TUCKER, CHAIRMAN OF THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES, 49TH CONGRESS, ON THE HAWAIIAN TREATY, HOLDING THAT A TREATY CANNOT CHANGE REVENUE LAWS WITHOUT THE SANCTION OF THE HOUSE OF REPRESENTATIVES

§ 298. The propriety of placing this report in full in these pages would seem justified by the following language of the late Sereno E. Payne, of New York, the leader of the Republican side of the House of Representatives in the Fifty-seventh Congress, who, when the question of the power of the President and Senate to make commercial treaties affecting tariff duties was under discussion, said:1

"I think, Mr. Speaker, that no Committee of this House would ever present a report on this question which did not embody substantially the report of Randolph Tucker made some years ago, from the reasoning of which, I think any lawyer who will fairly read it, will say there is no escape.'

Mr. Tucker, in the 49th Congress, 2nd Session, as Chairman of the Judiciary Committee, submitted to the House of Representatives March 3, 1887, a Report, Number 4177, on a resolution submitted to the Judiciary Committee on the 22nd of January, 1887, which resolution and report was as follows: "Mr. Wallace submitted the following; which was agreed to:

""Whereas it has been stated in the public prints, and is no doubt true, that the President and Senate have agreed to and 157th Congress, 1st Sess., Congressional Record, Vol. 35, part 2, page 1183.

ratified a convention, by which the terms of the treaty made between the United States and the Government of the Hawaiian Islands on the 30th day of January, 1875, have been extended for seven years longer, and beyond the period limited for its operation by the original treaty; and

"Whereas by the original treaty it was agreed that certain articles therein mentioned were to be admitted to the United States free of duty; and

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'Whereas the original treaty was by its terms subject to the confirmation of an act of Congress, which provision is not inserted in the convention said to have been ratified: Therefore,

"Resolved, That the Committee on the Judiciary be instructed to inquire into the facts hereinbefore recited, and to report to this House as soon as possible whether a treaty which involves the rate of duty to be imposed on any article or the admission of any article free of duty can be valid and binding without the concurrence of the House of Representatives, and how far the power conferred on the House by the Constitution of the United States to originate measures to lay and collect duties can be controlled by the treaty-making power under said Constitution.

"Resolved, That the President be requested to lay before the House, if consistent with the public welfare, a copy of the treaty, or convention, proposed to the Senate and ratified by that body, between the United States and the Government of the Hawaiian Islands.

"Resolved, That the Committee on the Judiciary may report at any time under the foregoing resolution.'

§ 299. "The question thus referred to the Committee is one of great importance in its relations to our foreign intercourse and our internal government. The treaty-making power is granted in these terms:

"He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur.' (Constitution United States, Art. II, § 2, cl. 2.)

"The President is the active instrument in the treaty-making power; he has the power to make a treaty which two-thirds of the Senators either advise or consent to.

"The power is delegated to the President by and with the advice and consent of the Senate, and is expressly prohibited to the States. (Constitution of the United States, Art. I, § 10.)

"The power is not only prohibited to the States and delegated to the President and Senate, but there is no part of the Constitution which expressly divides the power with any other Department or officer of the Federal Government.

"And it has been further claimed in behalf of this power, that 'treaties made under the authority of the United States shall be the supreme law of the land.' (Constitution of the United States, Art. VI, cl. 2.)

"These clauses constitute the full title of the treaty-making power. No other clause refers to it. On these therefore the extent and nature of the power must rest.

"It will not be denied that the power is exclusive; that is, that all which is involved in the power to make treaties is exclusively vested in the President and Senate.

§ 300. "But it is claimed that the power is not only exclusive, but is unlimited.

"This term may have two references:

"1. It may be unlimited as to the objects over which it may be exercised.

"2. Or it may be unlimited in the extent of its operation on the objects within its scope.

"The first question is as to what things the treaty-making power may contract: and the second as to what limits, if any, there are in the power to treat as to those things within its

scope.

"The first relates to the objects within the scope of the power; the second, to the extent of the power over such objects. The first may be limited and the second unlimited, or vice versa.

"It might be conceded that the power is absolute as to the objects within its grasp, and yet those objects be themselves limited in number. The degree of power is one thing, the number of objects subject to the power an entirely different thing.

§ 301. "The discussion may, therefore, be analyzed so as to present two inquiries:

"1st. Is the power itself absolute and unconditioned and unlimited? If not, what are its limitations?

"2d. Does it extend to and embrace all subjects? If not, to what subjects is the power restrained?

"Even as to those matters, which are clearly within the scope of the treaty power, there can be no question that it is, like all other powers, a trust power, delegated to the Government for the great objects named in the preamble to the Constitution, and implied in the other clauses of that instrument. It cannot be so exercised as to defeat the purposes of the Constitution.

"While it will be conceded that a treaty may make peace, yet it is equally true that it cannot make peace upon terms which would surrender a State of the Union to a foreign power, nor make invasion of a State by a foreign power lawful, in the face of the duty of the United States to protect every State against invasion (Constitution of the United States, Art. IV, § 4), nor to dissolve the Union, nor to change the Constitution itself, nor to divest the States of powers reserved to each by the tenth amendment to the Constitution, nor to deny the essential rights of liberty secured by its express terms to its people, as in respect of the habeas corpus, bills of attainder, and the like. (Constitution of the United States, Art. I, § 9.) It cannot be held with any show of reason that these limitations upon legislative power, these duties imposed on the United States as a governmental corporate being, can be set at naught by a treaty of peace. Such a construction of the Constitution, besides being a reductio ad absurdum, is contrary to the whole framework of the system, and to its plainly expressed purposes.

"So that it cannot be maintained that this power is absolute and unlimited, even as to the rightful subjects within its scope. As to such subjects the power is limited in its exercise by the plain and expressed, or clearly implied, trusts upon which the power was delegated.

§ 301a. "But the case becomes stronger when we consider

the second inquiry above presented. Can it be maintained that the essential rights of the States, of the people, or of the citizen, secured by the Constitution, are within the scope of the treatymaking power? Can the President and Senate make a treaty which touches these subjects? Are they not beyond its scope? Can a treaty be made which shall divest the citizen of his constitutional right to habeas corpus? Can a treaty reduce a State to a province, or so amend the Constitution as to deny its equal vote in the Senate, or subject it to a government not its own, or to a centralized government of the Union?

'It may be said that these are extreme cases. The answer is, they are the tests of the extent of this power. They only prove beyond dispute that if the power were unlimited over the rightful subjects for its exercise, which has been and is denied, yet the question still remains, are all subjects within its scope; and, if not, what are included and what excluded?

"The instant it is admitted that the power has limitations even as to what is rightfully subject to it, the question at issue is narrowed to determining all these limits on principles of justice and of fair interpretation of the Constitution.

§ 302. "Before proceeding with this inquiry two preliminary objections have been stated to any limitation upon the binding effect of a treaty.

"First. It is said that as a treaty is a compact between two nations it must abrogate all acts of either contrary to its terms. In other words, that a compact between two parties must be supreme over the separate acts of either.

"This may be conceded, although it will appear upon wellconsidered cases not to be so broadly adjudged. (Foster v. Neilson, 3 Peters, 314; Turner v. American Baptist Union, 5 McLean, C. C. R., 344; Taylor v. Morton, 2 Custis, C. C. R., 454; Cherokee Tobacco, 11 Wall. 616; Head-Money Cases, 112 U. S. Rep., 580.)

"But this proposition can only be true when the compact is complete and perfect. If it is ultra vires, or is inchoate, needing any other act to complete its binding efficacy, it is petitio prin