The Surrender of Lake Michigan
DANGEROUS TO OUR FUTURE
By WALTER C. PLOESER, Congressman from Missouri
Delivered on the floor of the House on the St. Lawrence Seaway Proposal, April 25, 1941
Vital Speeches of the Day, Vol. VII, pp. 535-538
MR. SPEAKER: In the very near future the St. Lawrence Seaway Proposal, a treaty, will be before this House in the form of a resolution. I am opposed to the project. My opposition is based upon my opinion that it is not in the public interest. It would be definitely harmful to labor, agriculture, rail transportation, motor transportation and industry in this country.
Its proponents argue that it is necessary for the national defense. They admit that it will require from five to eight years to complete and that it will cost hundreds of millions of dollars at a time when the backs of our taxpayers are breaking. If this world war lasts for so long a time as indicated by the proponents, the seaway will be too late to be of any use to us.
Senate Rejected 1933 Treaty
The Constitution and laws of this country require that a treaty between the United States and any foreign country shall be ratified by a two-thirds vote of the Senate. Approximately eight years ago, the President submitted to the Senate,for ratification, a treaty which had been agreed upon between the United States and Great Britain and Canada, providing for the building of a seaway from the Great Lakes down the St. Lawrence River through Canada to the Atlantic Ocean. This treaty was submitted to the Senate in January, 1933, by President Hoover, but was not ratified during that session of Congress. On January 10, 1934, President Roosevelt sent a message to the Senate in which he said in part,
To the Senate:
"I request the consideration of ratification by the Senate of the so-called 'St. Lawrence Treaty with Canada.' Broad National reasons lead me, without hesitation, to advocate the treaty. There are two main considerations, navigation and power."
This treaty of 1933 failed to get the necessary two-thirds vote in the Senate and hence failed of ratification.
From the view point of the Mississippi Valley States, the principal objection to that treaty was that it surrendered to Great Britain and Canada sovereignty over Lake Michigan. Lake Michigan is an all-American lake, entirely within the American water-shed and into which no drop of Canadian water has ever flowed.
Article VIII of the treaty of 1933 was especially objectionable to the Valley States and to the Mississippi Valley generally because it incorporated in Article VIII of said treaty a decree of the Supreme Court of the United States dealing with the Chicago River as a part of the Port of Chicago and limiting the diversion of water from Lake Michigan to the Illinois and Mississippi Rivers to an annual average flow of 1500 second feet.
Henry Clay—Treaty of Ghent
For more than a hundred-fifty years Lake Michigan has at all times been an American Lake. After the war of 1812, while the treaty of Ghent was being written, a controversy arose among the delegates regarding the status of Lake Michigan. The British representatives insisted that Lake Michigan be included in the boundary waters. Our representatives, among whom was Henry Clay, refused to agree to this contention, and after an extended controversy, Henry Clay served notice upon the British delegates that the United States would never yield to their contention, and that rather than do so, they would come home and continue the war for six years longer.
Elihu Root—Treaty of 1910
During the preparation of the treaty of 1910, Great Britain undertook to write into the treaty a provision limiting the diversion from Lake Michigan, for use in an all American Lakes-to-the-Gulf Waterway to 10,000 cubic feet per second. Elihu Root, then Secretary of State, refused to agree to this limitation. Secretary Root explained to the Senate that his reason for refusing to agree to this provision was that Lake Michigan was an All-American Lake, entirely within our country, and that he refused to have anything in the treaty about Lake Michigan. He said that he would not permit Lake Michigan to be mentioned in the treaty.
In the treaty of 1933, the sovereignty of Lake Michigan was involved by limiting the right of the United States to divert more than 1500 second feet annual average from this all-American Lake. The treaty now proposed by the President is much more explicit in dealing with the sovereignty of Lake Michigan. Paragraph (b) of the Preliminary; Article of the proposed treaty reads as follows:
(b) "'Great Lakes System' means Lake Superior, Michigan, Huron (including Georgian Bay), Erie and Ontario, and the connecting waters, including Lake St Clair."
Our government specifically prevented Lake Michigan from being mentioned in the treaty of 1910 and when they included Lake Michigan as a part of the "Great Lakes System," they clearly challenged the right of this country to complete sovereignty over Lake Michigan. The surrender of sovereignty over Lake Michigan is further indicated by part of Paragraph (c) of Article VIII of the proposed treaty of 1941, which reads as follows:
(c) "If any diversion of water from the Great Lakes System, other or greater in amount than diversions permitted in either of the countries on January 1, 1940 isauthorized, the government of such country agrees to give immediate consideration to any representations respecting the matter which the other government may make."
On January 1, 1940, the Supreme Court decree limiting the diversion from Lake Michigan into the Mississippi Valley waterway system to 1500 second feet, was in full force and effect, and the diversion in the treaty proposed by the President is therefore limited to 1500 second feet, just as effectively as if the Supreme Court decree had been incorporated in the new treaty as it was in Article VIII of the treaty of 1933.
It is well to compare the provisions of Article VIII of the proposed treaty with the similar provisions of Article VIII of the Treaty of 1933, largely because of the dangers to our sovereignty over Lake Michigan. Paragraph (A) 1 of Article VIII of the treaty of 1933 reads as follows:
(A) "1. That the diversion of water from the Great Lakes System, through the Chicago drainage canal shall be reduced by Dec. 31, 1938, to the quantity permitted as of that date by the decree of the Supreme Court of the United States of April 21, 1930."
The similarity between the provisions of Article VIII in the treaty of 1933 and those contained in Article VIII of the proposed treaty of 1941 are very, very striking. The principal difference is that one refers to the decree of the Supreme Court of the United States which limited the diversion from Lake Michigan to 1500 second feet annual average, while the other limits the diversion from Lake Michigan to the amount being taken on January 1, 1940, which was in fact 1500 second feet annual average, the amount which had been fixed as the limit by the decree of the Supreme Court. If the sovereignty of the United States over Lake Michigan was involved in the treaty of 1933, it is clearly involved in the treaty now proposed by the President.
The proposed treaty provides that if any diversion of water from the Great Lakes System, which under the new treaty would include Lake Michigan, other or greater in amount than the diversion permitted in either of the countries on January 1, 1941, "is authorized," then each country agrees to submit to arbitration the question of such increased diversion.
Before an arbitration over an increased diversion from Lake Michigan could be set in operation, it would be necessary for the United States to authorize an increased diversion from Lake Michigan, and the only power in the United States which could authorize such increased diversion would be either the Supreme Court or Congress.
If the treaty as proposed with Article VIII is ratified or approved by Congress containing a limit of 1500 secondfeet annual average from Lake Michigan, it is extremely doubtful whether the Supreme Court or the Congress could be induced to authorize a diversion in excess of the amount provided in the proposed treaty. Either the Supreme Court or the Congress would undoubtedly tell the proponents of such increased diversion that their remedy should be a new treaty authorizing such increase. It is very doubtful under the terms of the proposed treaty whether an arbitration for an increased diversion could ever be set in motion.
So long as our sovereignty over Lake Michigan continues, a decision of the Supreme Court or an Act of Congress authorizing an increase in the diversion from Lake Michigan will be final, but if the proposed treaty is ratified or approved by Congress, then Canada is authorized to appeal from a decree of the Supreme Court or an Act of Congress to an international arbitral tribunal set in motion by a foreign government. This seems a rather unusual power for this government to confer upon any foreign country. Furthermore, this might become a dangerous precedent.
As above stated, the treaty of 1933, largely because of the reasons mentioned, fell far short of the necessary two-thirds vote in the Senate. It is perfectly apparent that the document which the President has submitted to Congress and which he chooses to call an agreement to be approved by a bare majority of a quorum in each house of Congress is in reality a treaty between Great Britain and the United States. It deals with an international question which, under the Constitution of this country, should be submitted to the Senate of the United States for approval or rejection.
There is no more reason for calling this document an agreement that there was for calling that document of 1933 an agreement which was submitted to the Senate and which was rejected by the Senate in 1934. The only real difference is that to ratify a treaty requires a two-thirds vote of the Senate, while to approve an agreement requires only a majority vote of each house. In view of the fate in the Senate of the treaty of 1933, it is not surprising that the proponents of this treaty should seek to avoid the two-thirds vote required for a treaty on the new document now proposed.
A Treaty and Not an Agreement
The document which the President has presented to Congress and which he sees fit to call an agreement is nothing more nor less than a treaty between the United States and Great Britain, and under the Constitution requires a two-thirds vote of the Senate for ratification.
Article II, Section 2, of the Constitution of the United States provides that the President shall have power, by and with the advice and consent of the Senate, to make treaties; provided two-thirds of the Senators present concur.
Thus, the Constitution has prescribed the method by which treaties may be made.
A Treaty Defined
What is a treaty? Our courts and law writers have defined a treaty as follows:
"A treaty is a contract between nations." Goetge vs. United States 103 F. 72. Sontovinoenzo vs. Egan 280 U. S. 30.
At the time the Constitution was adopted, the great authority on international law was Vattel. He died before the Constitution was adopted, but his treatise was widely accepted as containing sound treatment of all international questions.
In Section 152 of Vattel's work appears the following: "A treaty in Latin foedus, is a pact entered into by sovereigns for the welfare of the state, either in perpetuity or for a considerable length of time."
Section 153 of Vattel's work provides:
"Compacts, agreements or conventions. Pacts which have for their object matters of temporary interest are called agreements, conventions, compacts."
In the case of Altman and Company vs. United States, 224, U.S. 583, Mr. Justice Day uses the following language: "Generally, a treaty is defined as 'a compact made between two or more independent nations with a view to the public welfare.' 2 Bouvier's Dictionary 1136."
This so-called agreement presents other serious problems. It changes the terms and provisions of a number of treaties which have heretofore been solemnly ratified by a two-thirds vote of the United States Senate. By what authority, under the Constitution and laws of this country, can a treaty, duly ratified and in full force and effect, be changed by a resolution approved by a bare majority of a quorum in each house of Congress? It would seem that the dangers of such a precedent would be worth the serious consideration of the Congress and the country.
Congress has no power except that delegated to it by the several states. The states retain all other rights and powers. They have not delegated to Congress, or the President, the right to cede sovereignty. It follows, therefore, that neither the President nor the Congress have any right to cede any territory or any sovereignty over any territory to any foreign country. Lake Michigan is sovereign territory and a part of the United States.
Treaty Proposed 1938
There is another historical fact which should be given serious consideration in connection with this proposed treaty.
On May 31, 1938, the State Department gave out a press release, No. 256, containing a report of that Department relative to proposals of the United States for a new treaty with Canada. This press release also included a letter from Secretary Cordell Hull, addressed to the Hon. Sir Herbert Marler, Minister of Canada, and a copy of the proposed treaty.
Article VII of that proposed treaty contained the following:
"Nothing in this Article, or in any other Article of this treaty, shall be construed as infringing or impairing, in any way, the sovereignty of the United States of America over Lake Michigan."
As above indicated the State Department in its attempt to get Canada to agree to a seaway treaty in 1938, and to approve certain objections in this country, made an effort to protect our sovereignty over Lake Michigan. Why did the proposed treaty of 1941 omit this safeguard? The presumption is that Canada objected and that our State Department yielded.
It is clear that our sovereignty over Lake Michigan is in far greater danger now than it was under the treaty of 1933.
Millions in Waterways
Congress has expended hundreds of millions of dollars for the improvement of a great inland waterway system in this country. This system comprises the Mississippi Riverfrom the Twin Cities to the Gulf, the Ohio River from Pittsburgh to the Mississippi, the Missouri River from Sioux City to the mouth, the intracoastal canal from Corpus Christi to a point connecting with the lower Mississippi River, and a great waterway from the Great Lakes System, down the Illinois and Mississippi Rivers to the Gulf and out to the sea. A commercially useful waterway from the Great Lakes to the Gulf through this great productive area of the United States cannot be made secure without an adequate diversion of water from Lake Michigan. Prior to the Supreme Court decree, more than 8000 cubic second feet of water from Lake Michigan, for a period of more than thirty years, flowed from Lake Michigan into this Lakes-to-the-Gulf waterway without any injury to the navigation upon the Great Lakes.
General Pillsbury, one of the greatest hydraulic engineers of the War Department, testified before the Senate Foreign Affairs Committee when the treaty of 1933 was under consideration, that a diversion from Lake Michigan of from 3500 to 4000 second feet could be taken from Lake Michigan without any injury to navigation upon the Lakes; that any lowering that might result to the Great Lakes System could be more than overcome by regulating works in the connecting channels between the lakes.
Dangerous to the Future
It is now proposed to limit for all time the diversion from this all-American Lake at 1500 second feet, and no one can now tell what the future needs of the United States for the use of water from Lake Michigan may become. Suppose for argument's sake that 1500 second feet would meet our present requirements, who can now tell what our future needs may become?
The success of this great inland waterway system is involved in this proposed limitation of diversion. In the Mississippi River at the chain of rocks near St. Louis is a bottleneck through which the navigation of the various sections this great waterway system must pass. I am advised that a dependable nine-foot channel through this bottleneck cannot be maintained during the low water season without an adequate diversion from Lake Michigan.
Through this bottleneck must pass all the navigation from the Missouri River Valley, from the Upper Mississippi River Valley, from the Great Lakes and Illinois River, before the commerce of these great interior sections can reach the lowerMississippi River and the Gulf of Mexico. On the other hand, the commerce from the Ohio River Valley and the great area tributary to the lower Mississippi must pass through this bottleneck in order to reach the Missouri, upper Mississippi and Illinois Rivers.
An unusual fall in the river in the vicinity of the chain of rocks creates this bottleneck. With an adequate diversion from Lake Michigan, the problem is solved. So serious is the problem that the Army engineers have already recommended a canal with a series of locks and dams to be constructed around the bottleneck. This, of course, would be a great handicap to navigation.
There is a point in the Mississippi River near Jefferson Barracks, St. Louis, where experienced navigators agree that a nine-foot channel cannot be maintained during the low water season without an adequate diversion from Lake Michigan, a much less diversion than has been flowing out of Lake Michigan for more than thirty years. Navigators advise that barges cannot carry adequate loads without scraping this rock bottom, and they further report that there are a number of reports such as this between the mouth of the Missouri River and the mouth of the Ohio River, which present the same problem and where a dependable nine-foot, commercially useful channel cannot be maintained without adequate diversion from Lake Michigan.
Eminent engineers, both American and Canadian, have agreed that a diversion of 5000 second feet annual average from Lake Michigan would mean a difference in lake levels of only two and one-fourth inches. Other hydraulic engineers have agreed that an annual average diversion of 5000 second feet from Lake Michigan would meet the problems of navigation as herein presented in this great inland waterway system of this country.
In the near future, the so-called St. Lawrence Seaway project will come before this House for consideration. Ordinarily, and in the regular course of constitutional procedure, this matter would be handled as a treaty and would come before the Senate only for ratification.
Now, the Congress is asked to set a precedent, a dangerous one I believe, by attempting to do by simple resolution, in both Houses, that which the Constitution provides should be done by executive action and Senate ratification.
Mr. Speaker, I am against both the project and the method of procedure. They are both dangerous to America.