New-York tribune., 1903-02-27
IGNORING THE HOUSE.

IF tbe Cuban reciprocity treaty, after belhS
ratified by the Senate is put in operation WIN
ont waiting for appropriate legislative chahs9
in the tariff law, there is little DOUBT tlla.
the validity of the proceedings VIII De oaiieu
in ouestiou A Washington dispatch says thaC
if the Senate should ratify the treaty at a spe-
ciaI session, it would undoubtedly be put lilo
Immediate effect" Possibly the Senate and Tue
executive department would like Supienl0
Court decision of this one open question III 'ne
long standing controversy between the oeid'o
and House. just to get the whole maui 'e'
tied but they might accomplish tner pun
by sacrificing Cuban reciprocity lheie "i1
chances tbat enforcement of the treaty without
legislation would be declared Illegal anu II 70
doubtful If the House would then be in mooo
TO grant what the other departments hau eo"s
10 take without leave
Tho only nojut which has not already been
determined hy the Supreme Court is that when
,o,,1d l,e raised if the executive department
nositiveIy put in force reciprocity treaty wllh-
our legislative authority. Would the court go
to the length of declaring this usurpaflon oi
authority? It has already refused to ORDER the
Executive to put such a treaty in force "heh
the revenue law did not conform to IT, noiolhs
that a treaty a bargain addressing nseli
solely 10 the political power 1t was QuesIioh
for Congress to fix the duty, whetner IL toh
formed to treaty or not II a forelgh hdtloi'
was dissatisfied il might take measures 10 pro-
,an+ 5tc own interests If the honor of the ma
tjon was not redeemed, that was not the COLI
Germ of the judiciary. but Of the pollucal power
When a treaty is self-exeeutlng 1t Is Oh tne
same footing as statute law. Ii law anu
treaty can be so construed as to carry out notn'
the courts will endeavor to do this, OTHERWISE
the latest will control, as expressing the most
recent will OF the political power, providing the
treaty is self-exeeuting. But where treaty is
not self-executing, then it is a mere promise OF
the nation which can be performed only oy tne
lawmaking body A treaty involving payment
Of money is unquestionably not selfexecuting
treaty. The Executive cannot take money from
the Treasury without an appropriation A
treatv changing the tariff has never, we be-
Ueve, been treated by the Executive as self-eAe-
cutting The reciprocity provisions OF the treaty
of 1871 with England were not put IN operation
by the President for two years after the ratlh-
cation of the treaty. when other parts mad De-
come the law of the land.
The Supreme Court has neter sduarely sad
that the President could not put such treaty
in operation without legislation, because no
President has ever done this, but it has re
peatedly upheld the President il refusing to
enforce treaties when they conficted with
revenue laws It has never said that reel
procity treaty was not self-executing because
it never was considered so and it might possi-
bly, now say 1t was self-executing If the Presi-
dent so treated it, and the issue was made be-
tween the executive and legislative power, and
it was called upon to set aside treaty which
one branch of the political authority was en-
forcing; but that does not seem probable Ill
view Of the practice Of the executive depart
ment itself, from the very beginning. Assertion
of such power on the part of the President now
might seem an innovation.