The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-05

refers to and removes difficulties that
have arisen out of the Clayton Buiwer
Treaty. To this extent 1t recognizes the
existence OF that treaty as an acknowl-
edged fact without expressly admitting
its present obligatory force upon Con-
gress either as a national or moral obli
cation. 1t does notythapge that treaty,
but supersedes with another agreement.
The proposed negotiation refers to and
admits certain facts and stipulations that
are stated in the Clayton -Buiwer Treaty,
which are undeniable. and 1t repeats some
of those stipulations: but the new treaty,
il it is ratified. stands alone, and is
separate and apart from the Clayton
Bulwer Treaty, to which i. refers, not as
means Of its Interpretation, but for the
purpose Of identifying and in some meas
ure describing the difficulties arising out
OF that treaty. which it proposes to re-
move. AS to all that relates to the canal
the -Pauncefote Treaty. if it is rati-
fed. terminates and abrogates the
Clayton Bulwer Treaty.
Mutual Assent of Two Powers.
'The assent of the two powers to this
plan of abrCgation is mutual, and estab-
fishes the willingness of both to set aside
the unexecuted parts of the Clayton
Bulwer Treaty. In this state of agree
ment in opinion as to the disposition
that should be made of the Clayton Bull
wer Treaty, it cannot be offensive to
Great Britain II the Senate. either in its
treaty making capacity or in its legisla-
tive capacity. should decline to accept
the treaty of Constantinople of 1855 as
the new basis of the neutrality of the
canal.
That is a new proposition. not yet dis
posed Of and is not a condition upon which
either party has agreed. that the Clayton
Bulwer Treaty should be terminated or alb
rogated. Yet it is assumed to be such by
those who insist upon the ratification of
the Hay-Pauncefote Treaty as condition
precedent to any action of Congress to pro-
vide for a canal.
IF the Senate should reject the Hay
PauncefOte Treaty the startling question
will be thus raised whether the Senate. in
the exercise of its treaty making power,
can abdicate or paralyze its legislative
power SO that it will lose all power to serve
the country. Can one-t third of the Senate.
by defeating the Hay-Pauncerote negotia-
tion, compel majority of the Senate to
abstain from ,narting the House bill. be-
cause the Clayton Bulwer Treaty would be
thereby put into full effect as a bar. to
such action?
The legislative powers Of the Senate
are higher and broader than its treaty
making power, and when these functions
are appe Aed to by different departments OF
the Government. on the same subject and
at the same time, and with opposing re-
quests. there can be no DOUBT that the
highest power should be exerted to settle
the question in controversy. thereby re-
lievins the country of all doubt and un-
certainty.
The House bill accomplishes this result.
without attempting to restrain or ooerce
the treaty-making power OF the President
and the Senate. II only provides for con-
dftious that are presented and demand the
attention OF Congress. by resorting TO the
supreme and paramount law-making power
and demanding its exercise in acts of Iegis-
lation. It il insisted, however, that when
Congress has declared the supreme will
OF the people, in a solemn enactment OF
law, the President and the Senate can not
lawfully obstruct or avoid such declara-
ton by my treaty they can conclude with
any foreign power.
Power of the Senate.
I'm the present peculiar situation Of this
subject the Senate has the power in the
use of its legislative functions to pass the
House bill and thereby establish the public
policy of the United States respecting a
ship canal in the Isthmus of Darien III
exercising this legislative function. a ma
tority vote of quorum Of the Senate will
be conclusive Of its action. Upon the col
lateral question, as to the present validity
Of the Clayton -Bulwer Treaty, the Senate
should act as a legislative body, in which
a majority prevails. This legislative func-
tion is invoked by the House bill. and also
by the resolution herewith submitted. II
this request Of the House of Representa-
tives is refused because the President has
made a request on the same subject which
can only be granted by vote Of two
thirds OF the Senate. 1t is manifest that the
aty-I1akhg power can. upon any oc-
casion, obstruct any measure in its pas
sage through Congress that relates TO or.
foreign affairs, by merely negotiating
treaty with foreign power.
such is not any part Of the purpose of
the ay-Pauncefote Treaty. which. on Is
own merits, deserves the respect OF the
country: but that treaty cannot be ratified
except by q two-thiris vote of the SENATE,
and If its ratification or rejection is a
necessary condition precedent to any legis-
lative ection, it follows that one-third of
the Senate can defeat all legislation on
this subject. The great result of remov-
ing the Clayton Bulwer Treaty, as real
or supposed incubus on the right OF Cou-
gress to institute the work provided for in
the House bill, can now be accomplished
through the adoption by majority vote of
the Senate of the resolution herewith re-
ported II this result can only be reached
through treaty with Great Britain, the
Senate, by insisting on that as the only
proper way TO get rid of the Clayton Bull
wer Treaty. demands a two-thirds vote Of
the body to pass a measure that a majos-
ity OF the House of Representatives can
pass through that body
"It is inexcusable that the Senate
should apply to any bill that is sent to
1t from the House rule SO foreign to the
law making power as that of the two
thirds vote imposed upon the treaty
making power by the Constitution. This
wise provision Of the Constitution was
intended as a restraint upon the Presi-
dent and the Senate in the use of the
power to create supreme law of the
land by concluding and ratifying a treaty
with foreign power. For the Senate
the House on any legislative measure is
a solecism.
Functions Only Legislative.
"If there is a question of law OF fact
as to the present binding force of the
Clayton -Bulwer Treaty, or as to its
moral obligation, that question can only
be settled By the action Of Congress, and
the Senate can act upon it only in its
legislative capacity. All the power of the |
Senate, of diplomatic sort. as to that |
treaty, ended with its ratification; and if |
the Senate. for any reason. should affirm |
or disafIirm the validity of that treaty, /,
in reaching a decision on the Hay Paunce- |
fote negotiation, in its diplomatic char i
acter, that determination would not. in |