Papers Relating to the Foreign Relations of the United States, The Lansing Papers, 1914–1920, Volume II
711.00/19½
The Secretary of State to President Wilson
My Dear Mr. President: In response to your letter of March 12th I herewith enclose a memorandum of objections to the public discussion of treaties in the Senate.
Faithfully yours,
Memorandum on Senate Resolution 178
Senate Resolution 178 was introduced in the Senate by Senator Borah on January 9, 1918, and reads as follows:
“Resolved, That the Committee on Rules be, and the same is hereby, directed to consider the advisability of preparing a revision of the rules of the Senate relating to the consideration of treaties, with a view to providing that all treaties hereafter shall be considered in the open executive sessions of the Senate, report to be made to the Senate at an early day.”
This resolution provides in substance for the consideration of treaties by the Senate in open session. The inadvisability of passing a resolution of this sort is shown by the following considerations:
1. The public discussion of treaties might and in certain cases certainly would wound the sensibilities of foreign governments, resulting in estrangement rather than friendship which it is presumed is always one of the purposes of international agreements. The feelings of foreign governments must be considered because subjects of discussion in international affairs do not, as a rule, concern ourselves alone, but concern other countries also. Confidential matters which are entrusted to us cannot properly be divulged to other countries without discourtesy and offence; for we have no right to insist that the secrets of one power be shared by all other powers. If foreign countries knew it was the fixed practice of this Government to discuss publicly all treaties before senatorial consent was given they would hesitate to enter into many agreements which they now negotiate with the United States in the confidence that the information disclosed in the course of the negotiation will not be published but will be held in confidence, a condition which they have a right to impose. There is no more reason why treaties should be discussed in open session than appointments made by the President by and with the [Page 114] advice and consent of the Senate should be debated there publicly The reason such appointments are approved or disapproved by the Senate in secret sessions is chiefly because of the sensibilities of the nominee and of the restraint publicity imposes upon debate.
2. If the feelings of foreign governments were to be regarded in the public discussion of treaties in the Senate, the views of individual senators would not be freely exchanged. This would [in]evitably lead to a curtailment of the frank discussion which now takes place in secret executive session. Treaties would, therefore, be given less consideration, resulting in an imperfect understanding of their provisions, and possibly in more frequent rejection than would be the case if the discussion was confidential.
3. The discussion of a Treaty should be distinguished from the discussion of a Bill. The one relates to intercourse with foreign nations, the other almost exclusively to relations between citizens of the United States; or of citizens and the Government of the United States. Citizens do not stand in the same relation to each other as do nations. Laws are imposed by the Legislature while treaties are compacts between equal parties. There is no breach of confidence in the discussion of a Bill. Moreover citizens may protect their interests through their representatives in the Senate, whereas a foreign nation has no such means of influencing that body, except by insidious propaganda—a practice to be discouraged.
4. The public discussion of treaties by the Senate would lead to the injection of local politics into international affairs with unfortunate results. An example of the effect of debating a treaty in open session is the result of the public discussion of the Bayard-Chamberlain Fisheries Treaty of 1888. That treaty, if it had been ratified, would have practically ended the North Atlantic Coast Fisheries controversy between the United States and Great Britain. As a result of open discussion in the Senate, the treaty became something of an issue in the Presidential campaign of that year and failed of ratification. That the treaty did not deserve to be killed by publicity is evidenced by the fact that the substance of some of its most important provisions were embodied twenty-two years later in the award by the permanent court at the Hague in the North Atlantic Coast Fisheries Arbitration. There may, of course, be exceptional cases in which it may be desirable to have public debate in the Senate upon treaties, but this should be left to the discretion of the Senate, and should not be made the rule. In 1912 the Taft arbitration treaties were debated in open session.
5. The introduction of politics into the approval of a treaty might, for obvious reasons, lead to the publication of all or some of the correspondence leading up to the treaty. The possible results of this method would be to destroy the usefulness of the American representative abroad, and confidence in him among the people at home. If an American diplomat reports to the Secretary of State that the foreign minister with whom he deals is attempting to barter and therefore the initial demands should be exaggerated, publication of this despatch would destroy the success of the negotiation and the usefulness of the diplomat in the country to which he is accredited. If, on the other hand, the diplomat reported that the foreign minister was fair and reasonable, and that it would be better to draft the [Page 115] demands as nearly as possible to meet his wishes, publication of such a despatch might destroy confidence in the United States as to the diplomat’s ability to represent his country. Publication of the one despatch would tend to create antagonism in a foreign country, and publication of the other, suspicion of disloyalty of the diplomat to the best interests of his country.
The practice of publishing despatches exchanged during negotiations would have an inevitable effect upon the negotiators of a treaty. Their discussion would be less frank; sources of information would be more guarded; the possibility of agreement less likely. There would also be the tendency to encourage the writing of despatches not for the person to whom they were addressed, but for the public by whom they will be read. It would close the door for confidential or even friendly exchange of views or ideas during the progress of the negotiations. In short the end most to be desired, namely, to reach an agreement, would be endangered.
6. Consideration of treaties by the Senate is really a part of the negotiations; for that body then functions as an adviser of the Executive. He may reject its advice or he may adopt it, continue negotiations accordingly, and resubmit the result to the Senate. In the latter case the whole negotiation might be nullified by public discussion in Executive session for the reasons already mentioned. There would, moreover, appear to be no sound reason why the Senate’s part in the negotiations should be public and the rest of the negotiation kept secret. For the grounds stated it seems clear that the entire course of negotiations should be confidential, including discussion in the Senate, until possibly after the treaty has been completed.
7. There is in fact no necessity for public discussion of treaties in the United States, for the reason that it is not and never has been the policy in this country to make secret treaties with foreign countries. This perhaps has been in a measure due to the fact that the United States has been moved by the general conception that the policy of fairness toward other states in the long run inures to the benefit of this country in its international relations. The finished treaty is always made public while the confidences exchanged in negotiation are protected. But in any event there could be no secret treaties in the United States since the treaty-making power does not rest wholly in the President, but is shared by the Senate. The history of the constitution shows that when the states gave up their right to enter into treaties they insisted that through the Senate they should have a voice in, and advise and consent as to any convention. If the Senate should approve of any treaty inimical to the interests of the United States or any State, the Senators who approved such a treaty can in due course be removed by the people. It is not possible, therefore, for the United States, even if it were not contrary to its principles, to bind itself for any length of time to a treaty which is secret, and hostile to the best interests of the country. Thus the secret article annexed to the treaty of Guadalupe Hidalgo of 1848 failed of approval by the United States.81a In certain other countries, particularly in European countries the practice of entering [Page 116] into secret treaties is fostered by the constitutional system giving the Executive or the Crown exclusive power to make and ratify treaties or at least certain classes of treaties without reference to the people. For this reason Bismarck stipulated in the preliminary articles of peace at the close of the Franco-Prussian war that the treaty of peace should have the sanction of a National Assembly of France.
Owing to the sensitiveness of foreign countries in respect to the divulgence of confidential information imparted to the United States during negotiations; in view of the curtailment of frank discussion if the sensibilities of foreign countries are not to be wounded; considering that the public discussion of a treaty is not on the same plane as the debate on an Act of Congress; considering also that the public debate of treaties in the Senate would lead to the injection of local politics into international affairs with the possible publication of the negotiations leading up to the treaties to the detriment of the diplomatic service abroad and at home; considering further that the “advice and consent” of the Senate to treaties is really a step in the confidential negotiations preceding the treaty; and finally in view of the fact that owing to the system of government of the United States whereby the President and Senate are responsible to the people no secret treaties are or can be entered into by the United States, it would seem clearly unwise for the Senate to consider in public executive session treaties submitted from time to time to that body by the President so long as the final result of the negotiations is not concealed from the people.
- For text of this treaty, see Miller, Treaties, vol. 5, p. 207.↩