$196. Foreign States Held to a Knowledge of the Location of Treaty-Making Powers.

Generally speaking, according to rules of international law, one State is not concerned with, and, therefore, not required to be cognizant of, the constitutional law of another State with which it has dealings. With respect, however, to the constitutional treatymaking powers of the governmental organs of that State, other States are required to be informed;— qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus — and, therefore, it is no great ground of complaint on the part of a State, as, for example, England, in whose Executive is exclusively vested the treaty-making power, when a treaty project which has been mutually agreed upon between the Executive of that country and the Executive of the United States, fails of approval, or is amended in the Senate.20

It would seem, however, that when the American Senate amends a treaty, and then formally ratifies it as amended, and returns it to the President for him to submit to the other nation concerned, there is some ground for complaint that thereby such nation is improperly placed in a position where it is called upon to pass upon a project which has not been based upon negotiations between the two States in which opportunity has been given to state and argue the merits upon both sides of the project. In other words, that the onus of accepting or rejecting a completed project is thereby improperly placed upon the treaty-making organ of the foreign State. This would appear to have been the objection made by Lord Lansdowne in his note of February 22, 1901, to Lord Pauncefote, with reference to the Hay-Pauncefote treaty which in December, 1900, had been amended and then approved by the Senate. This treaty, it will be remembered, had for its aim the definite determination of certain matters which had been covered by the Clayton-Bulwer treaty, the subsisting force of

29 In order, however, to avoid the possibility of a misunderstanding and consequent irritation, it has been a common, though not uniform, practice to state explicitly in the powers granted those who are to negotiate a treaty, that their action, in order to become binding on the United States, requires the approval of the President and the Senate.

which had been in dispute. The Senate's amendment to the new arrangement agreed upon between Secretary of State Hay and Lord Lansdowne, was amended by the Senate by the insertion of the statement that the Clayton-Bulwer treaty was "hereby superseded." Referring to this provision, Lord Lansdowne said: "The Clayton-Bulwer treaty is an international contract of unquestioned validity; a contract, which, according to well-established international usage, ought not to be abrogated or modified save with the consent of both the parties to the contract. His Majesty's Government find themselves confronted with a proposal communicated to them by the United States Government, without any previous attempt to ascertain their views, for the abrogation of the Clayton-Bulwer treaty."

§ 197. Plenary Powers of Ratification.

Whether or not this necessity for senatorial approval to all treaty projects renders it constitutionally impossible for the United States to give to diplomatic agents full powers to ratify treaties negotiated by them and thus render them immediately effective without subsequent submission to the Senate, is doubtful. The point has never been passed upon by our courts; but it is quite possible that should a judicial pronouncement upon this point be required, it would be held that for the Senate to commit itself in advance to whatever conditions the treaty negotiators might agree upon, would be the delegation of a power prohibited by that principle of our constitutional law, which declares that a power the exercise of which is delegated by the Constitution to a particular governmental organ may not be delegated by that organ to another department.

However this may be, the Senate and the President may, of course, give to their agents such powers and instructions as will hold them the President and the Senate-morally bound to ratify what their plenipotentiaries have agreed to.

In earlier times writers upon International Law, Grotius, Puffendorf and Vattel, for instance, held that a State was absolutely bound by the treaties entered into by its agents when acting

within the limits of their instructions. Later writers, however, generally hold that this ratification may, for strong and substantial reasons, be refused.21

Up to 1815 the general practice of the President was to obtain the approval of the Senate to the appointment of, and to the instructions given to, commissioners for the negotiation of contemplated treaties. Since that time, however, this practice has been seldom followed. This change has, however, not escaped occasional formal protest from the Senate.

After a treaty has been signed by the commissioners appointed to negotiate it, or agreed upon between the departments of State of the countries concerned, there is no constitutional obligation upon the President to submit it to the Senate, and, even after submission to that body, he may withdraw it, as for instance was done by President Cleveland with reference to a reciprocity treaty with Spain which had been sent to the Senate in 1884 by President Arthur. In a like manner the Hawaiian annexation treaty of 1893 and the Nicaraguan Canal Convention of 1884 were withdrawn "for re-examination," after having been sent to the Senate.

Even after being favorably acted upon by the Senate, it would appear that, under certain circumstances, the President may refuse his ratification. Thus, in 1888, when China proposed certain changes in an agreement with this country which had already been approved by the Senate, the President abandoned the entire project.

21 Crandall, pp. 12 et seq.

CHAPTER XXXIII.

INTERNATIONAL AGREEMENTS WHICH DO NOT REQUIRE THE AP. PROVAL OF THE SENATE.1

§ 198. International Agreements not Requiring Approval by Senate.

As has been seen, all treaties to which the United States is a party, in order to become legally binding upon the United States and enforceable in its courts, require, in some stage of their negotiation, the approval of the Senate as manifested by a vote of twothirds of its members present when the approval is given.2 Not all agreements entered into by the United States with foreign powers are held to be treaties in the sense in which that term is used in the treaty clause of the Constitution. Such agreements as are held not to be treaties in this sense, it has been the practice of the President, acting in pursuance of his general powers as Chief Executive or as authorized by congressional statute, to enter into and promulgate without submission to the Senate. Furthermore, in not a few instances the Senate has itself expressly conferred upon the President the power to contract with foreign powers with reference to specified matters.

This power, then, of the President to enter into international arrangements free from the necessity of obtaining the subsequent approval of the Senate may be treated under the following heads: 1. His power inherent in him as the Chief Executive and commander-in-chief of the army and navy,

1 Upon this subject see the pamphlet entitled "International Agreements Without the Advice and Consent of the Senate," by Mr. James F. Barnett, reprinted, with additions, from the Yale Review; the article by Hon. J. B. Moore in the Political Science Quarterly for September, 1905, entitled "Treaties and Executive Agreements;" and the article by Mr. C. C. Hyde in the Greenbag for April, 1905, entitled “Agreements of the United States other than Treaties."

2 Only the final vote of approval or to postpone indefinitely requires the two-thirds vote. For all other parliamentary motions with reference to a treaty, a simple majority is sufficient.

2. His power as granted him by statute,

3. His power as delegated to him by the Senate, the co-possessor with him of the treaty-making power.

§ 199. International Powers of the President as Chief Executive: International Correspondence.

3

International correspondence is exclusively in the hands of the President, or his agent, the Secretary of State. Hence it is improper for any international documents to be addressed to, or sent directly to the Senate, or for any attempt to be made, in any way, by an agent of a foreign power to influence directly the action of the Senate upon a treaty that is pending before it or is later to be sent to it for its action thereupon. Upon the other hand, it is, of course, improper for the Senate or any other organ of the Federal Government, by resolution or otherwise, to attempt to communicate with a foreign power except through the President. Thus, when in 1877 Congress passed two joint resolutions congratulating the Argentine Republic and the Republic of Pretoria upon their having established a republican form of government, and directing, in the one case, the Secretary of State to acknowledge the receipt of a despatch from Argentine, and in the other to communicate with Pretoria, the President vetoed both resolutions.4

By virtue of the power exclusively vested in him to conduct diplomatic negotiations between this and foreign countries, the President has, since early years, entered into numerous agreements with foreign chancellaries for the settlement of claims made by private American citizens against foreign governments. In a considerable number of cases, these claims have been settled by

3 Communications between the States of the Union and the Federal Government are made through the Secretary of State and not through the President. This rule was, however, several times disregarded by President Roosevelt.

For an

4 Richardson's Messages and Papers of the President, VII, 430. 5 An especially interesting case was that of the Mora claim. account of this by Professor J. B. Moore, see the Political Science Quarterly, XX, pp. 403 et seq.