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 THE CONTROL OF 
 AMERICAN FOREIGN RELATIONS
 
 THE MACMILLAN COMPANY 
 
 KKW YORK • BOSTON • CHICAGO • DALLAS 
 ATLANTA • SAN FRANCISCO 
 
 MACMILLAN & CO.. Limited 
 
 LONDON • BOMBAY • CALCUTTA 
 MELBOURNE 
 
 THE MACMILLAN CO. OP CANADA. Ltd. 
 
 TORONTO 
 
 i 
 
 /M
 
 THE CONTROL OF 
 AMERICAN FOREIGN RELATIONS 
 
 BY 
 
 QUINCY WRIGHT, Ph.D. 
 
 PROFESSOR OF INTHRMATfONAL LAW 
 IN THB UNIVERSITY OP MINNESOTA 
 
 "The qualities indispensable in the management of foreign negotia- 
 tions point out the Executive as the most fit agent in those 
 transactions ; while the vast importance of the trust, and the operation 
 of treaties as laws, plead strongly for the participation of the whole 
 era portion of the legislative body in the office of making them." 
 
 — The Federalist 
 
 NEW YORK 
 
 THE MACMILLAN COMPANY 
 1923
 
 PRINTED IN THE UNITED STATES OF AMERICA 
 
 Copyright 1922 
 By The American Philosophical Society 
 
 Copyright 1922 
 By The Macmillan Company 
 
 Set up and electrotyped. Published August, 1922 
 
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 oiibkv olbv re <xvvTe\(adr\vai. — Polybius.
 
 The Crowned Essay 
 for which the Henry M. Phillips Prize of 
 two thousand dollars was awarded on April 23, 1921, 
 by the American Philosophical Society.
 
 r ■ r- 
 
 r.
 
 PREFACE. ^ 
 
 For some years a small group of the writer's colleagues at the 
 University of Minnesota have dined together periodically in order to 
 listen to discussions or papers in the widely different fields of scholar- 
 ship which the group represents. In the winter of 1920, with the 
 Treaty of Versailles still unratified and unrejected by the Senate, the 
 writer discussed before this group a subject then in the front of every- 
 one's mind — the American system or lack of system for controlling 
 foreign relations. The same material presented in a paper read be- 
 fore the American Political Science Association, December, 1920, was 
 published in the American Political Science Review of February, 
 1921, and reprinted in Spanish in Inter-America, November, 1921. 
 
 The writer utilized his investigations in connection with this brief 
 article to prepare an essay in accordance with the regulations govern- 
 ing the award of the Henry M. Phillips Prize offered by the American 
 Philosophical Society in 1921 for an essay on "The Control of the 
 Foreign Relations of the United States : The Relative Rights, Duties 
 and Responsibilities of the President, of the Senate and the House, 
 and of the Judiciary, in Theory and in Practice." This essay has 
 been expanded and revised up to January, 1922, for the present 
 publication. 
 
 The essay seeks to draw particular attention to a difficulty in the 
 control of foreign relations found in every government, but especially 
 in a government with powers defined in a judicially enforced written 
 constitution. This is the difficulty which arises from the fact that the 
 organs conducting foreign relations have their responsibilities defined 
 by international law, while their powers are defined by constitutional 
 law. Since the sources of these two bodies of law are different, a 
 lack of coordination between the powers and the responsibilities of 
 these organs is to be expected. To avoid confusion the writer has 
 considered the subject from the international point of view and from 
 the constitutional point of view in separate parts of the book, even at 
 
 ix
 
 X PREFACE. 
 
 the risk of some repetition. Part II is devoted to the former — parts 
 III and IV to the latter. 
 
 Throughout the book the writer has tried to indicate his reasons 
 for thinking that the difficulty referred to can be solved only by the 
 development of and adherence to constitutional understandings, sup- 
 plementing the law of the constitution and indicating how the organs 
 entrusted with the control of foreign relations ought to exercise their 
 discretionary powers to avoid friction. Part V seeks to develop this 
 thought systematically. 
 
 Primary use has been made of the sources : court reports ; acts of 
 Congress ; Treaties ; Presidential messages ; diplomatic correspendence 
 and Congressional debates, reports and documents, particularly the 
 reports of the Senate Foreign Relations Committee. The classified 
 extracts from this material in Moore's Digest of International Law 
 have been of great assistance. The unofficial writings of American 
 statesmen have been utilized, particularly Cleveland's Presidential 
 Problems, Roosevelt's Autobiography, Taft's Our Chief Magistrate 
 and His Powers, Wilson's Constitutional Government in the United 
 States and Sutherland's Constitutional Powers and World Affairs. 
 Of special studies in the field, the writer feels especially indebted to 
 Corwin's The President's Control of Foreign Relations, Crandall's 
 Treaties, Their Making and Enforcement, and Hayden's The Senate 
 and Treaties. Numerous secondary works have been examined, ref- 
 erence to which is made in the footnotes. The writer has made use 
 of his own articles published in the American Journal of International 
 Law, the American Political Science Review. The Columbia Law Re- 
 view, and the Minnesota Law Review. He thanks the publishers of 
 these periodicals for their courteous consent to such use. Finally he 
 wishes to thank his colleague and friend, Robert E. Cushman, for 
 many helpful suggestions made during the progress of the work. 
 For the plan of the work, for the conclusions, for the errors and 
 omissions, no one but the writer is responsible. 
 
 QuiNCY Wright. 
 
 Minneapolis, Minnesota 
 May, 1922.
 
 ANALYTICAL TABLE OF CONTENTS. 
 
 PART I. 
 
 Chapter I. The Nature of the Foreign Relations Power 
 
 1. Difficulty in Developing a Legal Theory of the Subject 3 
 
 2. Dual Position of the Foreign Relations Power 4 
 
 3. The International Point of View 4 
 
 4. The Constitutional Point of View 6 
 
 5. Methods of Reconciling These Points of View 7 
 
 6. Relation of Law and Understandings 7 
 
 7. Constitutional Understandings 8 
 
 8. International Understandings 8 
 
 PART II. 
 
 THE POSITION OF THE FOREIGN RELATIONS POWER UNDER 
 
 INTERNATIONAL LAW. 
 
 Chapter II. The Representative Organ of Government. 
 
 9. The Nature of International Law 13 
 
 10. Independence of States 14 
 
 11. The Representative Authority under International Law 15 
 
 12. The President is the Representative Authority in the United States. 21 
 
 Chapter III. Attributes of the National Representative 
 Organ Under International Law. 
 
 A. Sole Agency for Foreign Communication. 
 
 13. Foreign Representatives May Officially Communicate with the Na- 
 
 tion Only Through the President or His Representatives 28 
 
 14. National Organs of Government other than the President or His 
 
 Representatives May Not Communicate 30 
 
 15. National and State Laws Subject to International Cognizance 30 
 
 16. Legislative Expressions of Opinion, not of International Cognizance. 33 
 
 17. Self-constituted Missions, Forbidden 34 
 
 18. Missions of de facto Governments, Unofficially Received 35 
 
 B. All Acts of the President Subject to International Cognisance. 
 
 19. Communications of the President to Congress 35 
 
 20. President Presumed tQ Speak for the Nation 36 
 
 xl
 
 xii ANALYTICAL TABLE OF CONTENTS. 
 
 Chapter IV. Conclusiveness of the Acts and Utterances of 
 National Organs Under International Law. 
 
 A. With Reference to the Making of National Decisions. 
 
 21. Acts of the President 38 
 
 22. National and State Statutes 40 
 
 23. Acts of Subordinates to the President 40 
 
 B. With Reference to the Making of International Agreements. 
 
 24. Foreign Nations Presumed to Know the Constitution 41 
 
 25. Signature under Authority of the Treaty Power 41 
 
 26. Signature under Authority of the President 44 
 
 27. Reservations Expressly Consented to 45 
 
 28. Reservations Tacitly Consented to 48 
 
 29. Exchange of Ratifications under Authority of the President 52 
 
 30. Treaty Provisions ultra vires from Lack of Original Authority 53 
 
 31. Treaty Provisions ultra vires from Operation of Constitutional 
 
 Limitations 55 
 
 32. Treaty Made Under Necessity 57 
 
 C. With Reference to the Meeting of International Responsibilities. 
 
 33. United States Bound by International Law and Treaties 58 
 
 34. Decisions by the President 59 
 
 35. Decisions by Subordinates to the President 60 
 
 36. Decisions of International Organs Authorized by the President 61 
 
 37. Meeting Responsibilities Distinguished from Making Agreements 62 
 
 38. Interpretation of Treaties 63 
 
 39. Understandings do not Require Forbearance in Pressing Inter- 
 
 national Claims 66 
 
 PART III 
 
 CONSTITUTIONAL LIMITATIONS UPON THE FOREIGN 
 RELATIONS POWER. 
 
 Chapter V. Limitations upon State Powers. 
 
 40. Position of the Foreign Relations Power under Constitutional Law. 71 
 
 41. Relation Between State and National Powers 72 
 
 42. Constitutional Prohibitions of State Power 73 
 
 43. Action of National Organs Limiting State Powers 74
 
 ANALYTICAL TABLE OF CONTENTS. xiii 
 
 Chapter VI. Limitations upon National Powers: Private 
 Rights and States' Rights. 
 
 A. Private Rights. 
 
 44. Nature of Prohibitions 76 
 
 45. Effect upon Power to Meet International Responsibilities 78 
 
 46. Effect upon Power to Make International Agreements 80 
 
 47. Effect upon Power to Make Decisions on National Policy 82 
 
 B. States' Rights. 
 
 48. Nature of Prohibition 86 
 
 49. Effect upon Power to Meet International Responsibilities 87 
 
 50. Effect upon Power to Make International Agreements 88 
 
 51. Effect upon Power to Make Decisions on National Policy 93 
 
 Chapter VII. Limitations upon National Powers : The Sep- 
 aration OF Powers. 
 
 52. Nature of the Theory 95 
 
 53. Protection of Independence of Departments 96 
 
 54. Protection of Delegated Powers of Departments 97 
 
 55. Prohibition upon Exercise of Uncharacteristic Powers by any De- 
 
 partment 98 
 
 A. Effect on the Power to Meet International Responsibilities. 
 
 56. Government as a Whole Competent to Meet Responsibilities 99 
 
 57. Power of President and Courts to Meet Responsibilities 100 
 
 B. Effect on the Power to Make International Agreements. 
 
 58. Limitations upon the Government as a Whole loi 
 
 59. Limitations Derived from Powers of Congress loi 
 
 60. The Delegation of Legislative Power 103 
 
 61. Congressional Delegation of Power to Make International Agree- 
 
 ments 105 
 
 62. Treaty Delegation of Power to National Organs 106 
 
 63. Treaty Delegation of Power to International Organs no 
 
 64. Limitations Derived from Powers of the Judiciary 115 
 
 65. Limitations Derived from Powers of the President 119 
 
 C. Effect on the Power to Make National Decisions. 
 
 66. Alleged Encroachments 120 
 
 Chapter VIII. Conclusion on Constitutional Limitations. 
 
 67. Traditional Statements of Limitations upon the Treaty-power 121 
 
 68. Most Limitations Unimportant in Practice 124 
 
 69. Important Limitations from Separation of Powers 125
 
 xiv ANALYTICAL TABLE OF CONTENTS. 
 
 PART IV. 
 
 THE POWER TO CONDUCT FOREIGN RELATIONS UNDER THE 
 
 CONSTITUTION. 
 
 Chapter IX. The Position of the Foreign Relations Power in 
 THE Constitutional System. 
 
 A. Source of National Powers. 
 
 70. Distribution of Powers between States and National Government... 129 
 
 71. Theory of Sovereign Powers 130 
 
 72. Theory of National Sovereignty in Foreign Relations 131 
 
 7^. Theory of Resultant Powers 132 
 
 B. Essential Nature of the Foreign Relations Power. 
 
 74. Controversy as to Nature of Foreign Relations Power 134 
 
 75. Foreign Relations Power not Essentially Judicial 135 
 
 76. Theory of Essentially Executive Nature: Early Opinion 135 
 
 77. Essentially Executive Nature : Practice 136 
 
 78. Essentially Executive Nature : Recent Opinion 136 
 
 79. Theory of Essentially Legislative Nature: Early Opinion 137 
 
 80. Essentially Legislative Nature : Practice 139 
 
 81. Essentially Legislative Nature : Recent Opinion 139 
 
 82. Theory of a Fourth Department Different from Either Executive 
 
 or Legislative 140 
 
 83. A Fourth Department : Opinion of Theoretical Writers 141 
 
 84. A Fourth Department: British and Colonial Precedent's 143 
 
 85. A Fourth Department: Opinion of the Constitutional Fathers 145 
 
 86. A Fourth Department : Functional Classification 148 
 
 87. A Fourth Department : Practice 148 
 
 88. The Foreign Relations Department 150 
 
 Chapter X. The Power to Meet International Responsi- 
 bilities. 
 
 89. The Law of International Responsibility 151 
 
 90. State Power to Meet International Responsibilities 153 
 
 91. National Power to Meet International Responsibilities 154 
 
 92. Theory of Inherent Executive Power to Meet International Re- 
 
 sponsibilities 155 
 
 93. President's Duty to Execute the Laws 157 
 
 94. Power of the Courts to Meet International Responsibilities 158 
 
 95. Power of Congress to Meet International Responsibilities 159 
 
 96. Power to Meet International Responsibilities by Treaty 160
 
 ANALYTICAL TABLE OF CONTENTS. xv 
 
 Chapter XL The Power to Meet International Responsibili- 
 ties Through the Observance of International Law, 
 
 97. Conditions Favoring the Observance of International Law 161 
 
 98. Observance of International Law by the States 161 
 
 99. Observance of International Law by the Constitution 162 
 
 100. Observance of International Law by Congress 162 
 
 loi. Checks upon Congressional Disregard of International Law 164 _, 
 
 102. Observance of International Law by the Treaty-making Power.... 166 
 
 103. Observance of International Law by the President' 166 — 
 
 104. Observance of International Law by Military and Civil Services.... 167 / 
 
 105. Observance of International Law by the Courts 170 
 
 106. Courts Apply International Law and Treaties as Part of the Law 
 
 of the Land 171 
 
 107. This Principle not Applicable to Political Questions 172 
 
 108. This Principle not Applicable to Cases Covered by Written Law... 174 
 
 Chapter XII. The Power to Meet International Responsibili- 
 ties Through the Enforcement of International Law. 
 
 109. Due Diligence 1 76 
 
 1 10. Enforcement by the States 177 
 
 111. Enforcement under the National Constitution 179 
 
 
 A. Enforcement by Legislative Action. 
 
 112. Congressional Resolutions Before the Constitution 179 
 
 113. Offenses, Against Persons Protected by International Law 180 
 
 114. Offenses Committed on the High Seas 180 
 
 115. Offenses Against Neutrality 181 
 
 116. Offenses Against Foreign Governments 182 
 
 117. Offenses Relating to International Boundaries 183 
 
 118. Offenses Against Treaties 1 84 
 
 119. General Empowering Statutes 186 
 
 120. Sufficiency of Existing Legislation to Protect Resident Aliens 186 
 
 121. Sufficiency of Existing Legislation for Punishing Offenses Against 
 
 Foreign Governments 187 
 
 122. Sufficiency of Existing Legislation in Aid of Foreign Criminal 
 
 Justice 189 
 
 B. Enforcement hy Action of the Treaty Power. 
 
 123. Treaties as a Basis for Executive and Judicial Action 190 
 
 124. Treaties as a Basis for Congressional Action 191 
 
 C. Enforcement hy the President. 
 
 125. Enforcement by the President 192 
 
 126. President's Use of Military Forces 193 
 
 127. President's Direction of Administrative Action 194
 
 xvi ANALYTICAL TABLE OF CONTENTS. 
 
 Z>i. Enforcement by the Courts. 
 
 128. Early Assumptions of Common Law Criminal Jurisdiction by Fed- 
 
 eral Courts 196 
 
 129. Federal Courts have no Common Law Jurisdiction 197 
 
 130. Federal Courts have no Criminal Jurisdiction from Treaties Alone. 198 
 
 131. Statutory Criminal Jurisdiction of Federal Courts I99 
 
 132. Admiralty Jurisdiction of Federal Courts 200 
 
 133. Civil Jurisdiction of Federal Courts in Cases Afifecting Aliens 201 
 
 134. Conclusion 203 
 
 Chapter XIII. The Power to Meet International Responsi- 
 bilities Through Performance of National Obligations. 
 
 135. Nature of This Responsibility 205 
 
 136. Performance of Obligations by the States 205 
 
 A. The Nature of National Obligations. 
 
 137. Obligations Founded on International Agreement 206 
 
 138. Obligations Founded on General International Law 208 
 
 139. The Determination of Obligations 209 
 
 140. Justiciable and Non-justiciable Questions 211 
 
 141. The Obligation of Treaties and International Law 212 
 
 142. Practice in Submitting Disputes to Arbitration 214 
 
 B. Power to Interpret National Obligations. 
 
 143. By National Political Organs : Congress 215 
 
 144. By National Political Organs : The Senate .* 216 
 
 145. By National Political Organs : The President 2i7^ 
 
 146. By International Political Organs 218 
 
 147. By National Courts 220 
 
 148. By International Courts 222 
 
 C. Power to Perform National Obligations. 
 
 149. Appropriations 225 
 
 150. Cession of Territory 226 
 
 151. Guarantees and Use of Military Force 227 
 
 152. Conclusion of Subsequent Treaties 227 
 
 153. Participation in International Organization 228 
 
 154. Commerce and Revenue Laws 228 
 
 155. Formal Amends in Reparation 229 
 
 Chapter XIV. The Power to Make International Agree- 
 ments. 
 
 156. Power of the States to Make Agreements with Consent of Congress. ?30 
 
 157. Power of the States to Make Agreements Independently 231 
 
 158. Power of the National Government to Make Agreements 233 
 
 159. Congress cannot make International Agreements 233 
 
 160. The Courts cannot make International Agreements 234
 
 ANALYTICAL TABLE OF CONTENTS. xvii 
 
 A. The Power to Make Executive Agreements. 
 
 i6i. The Obligation of Executive Agreements 234 
 
 162. Administrative Agreements under Authority of Act of Congress 235 
 
 163. Administrative Agreements under Authority of Treaty 236 
 
 164. Independent Administrative Agreements 237 
 
 165. Recent Practice 237 
 
 166. The Validity of Administrative Agreements 239 
 
 167. The Power to Make Military Agreements 240 
 
 168. Armistices and Preliminaries of Peace 241 
 
 169. Validity of Military Agreements 242 
 
 /170. Power to Make Diplomatic Agreements 243 
 
 ^ 171. Diplomatic Agreements Settling Controversies 244 
 
 172. Validity of Diplomatic Agreements 245 
 
 B. The Power to Make Treaties. 
 
 173- The Subject Matter of Treaties 246 
 
 174. The Initiation of Treaties 248 
 
 175. The Appointment of Negotiators 249 
 
 176. The Negotiation and Signature of Treaties 249 
 
 177. Consent to the Ratification of Treaties 252 
 
 178. The Ratification of Treaties 254 
 
 179. The Exchange of Ratifications 254 
 
 180. The Proclamation of Treaties 255 
 
 C. The Power to Terminate Treaties. 
 
 181. Change in Conditions 256 
 
 182. Violation of Treaty by One Party 256 
 
 183. Conclusion of New Treaty 257 
 
 184. Denunciation by Congress 258 
 
 185. Denunciation by the Treaty-making Power 259 
 
 186. Denunciation by the President 259 
 
 187. Legislative Abrogation 260 
 
 188. Conclusion 261 
 
 Chapter XV. The Power to Make Political Decisions in For- 
 eign Affairs : Recognition, Annexation, Citizen- 
 ship AND the Determination of Policy. 
 
 189. Distinction Between Domestic and Foreign Affairs 263 
 
 190. State Power to Make Political Decisions in Foreign Affairs 264 
 
 191. National Power to Make Political Decisions in Foreign Affairs 265 
 
 1 I 
 
 A. The Power to Recognize Foreign States, Governments and 
 
 Belligerency. 
 
 192. The Power of Recognition 268 
 
 193. Limits of Recognition Power 269 
 
 194. Exclusiveness of President's Recognition Power 270 
 
 195. Claim of Congress to Recognition Power 271
 
 xviii ANALYTICAL TABLE OF CONTENTS. 
 
 B. The Power to Determine National Territory and Citizenship. / 
 
 196. Judicial Recognition of Territorial Limits 273 ^ 
 
 197. Recognition of Territorial Limits by the President 274 
 
 198. Power to Annex Territory by Treaty and Executive Agreement... 274 
 
 199. Power of Congress to Annex Territory 275 
 
 200. Power of Congress to Naturalize Aliens and Establish Criteria 
 
 of Citizenship 276 
 
 201. Power of Executive to Recognize Citizenship 277 
 
 C. Power to Determine Foreign Policy. 
 
 202. Congressional Resolutions on Incidents in Foreign Affairs 278 
 
 203. President not Bound by Congressional Resolutions on Foreign 
 
 Affairs 279 
 
 204. Congressional Declarations of General Policy 281 
 
 205. Power of the President to Determine Foreign Policy 282 
 
 Chapter XVI. The Power to Make Political Decisions in 
 Foreign Affairs : War and the Use of Force. 
 
 A. The Power to Make War. 
 
 206. The Power to Make War 284 
 
 207. The Causation of War 284 
 
 208. The Recognition of War by Congress 286 
 
 209. The Recognition of War by the President 286 
 
 210. The Power to Recognize War 289 
 
 211. The Power to Declare War 290 
 
 212. The Power to Terminate War 290 
 
 213. The Power to Recognize the Termination of War 291 
 
 B. The Power to Use Force in Foreign Affairs. 
 
 214. Diplomatic Pressure 293 
 
 215. Display of Force 294 
 
 216. Occupation and Administration of Territory 296 
 
 217. Capture and Destruction of Foreign Military Forces 297 
 
 218. Seizure and Destruction of Private Property 298 
 
 219. Commercial Pressure and Retaliation 301 
 
 220. Exclusion, Expulsion and Internment of Aliens 303 
 
 221. Power to Employ Various Methods of Coercion 304 
 
 222. Purposes for Which the President May Employ Force under the .^ ^ • , 
 
 Constitution 305 
 
 223. Purposes for Which the President May Employ Force under Statute. 308 
 
 224. Conclusion 309
 
 ANALYTICAL TABLE OF CONTENTS. xix 
 
 Chapter XVII. The Power to Establish Instrumentalities 
 FOR Conducting Foreign Relations. 
 
 A. Constitutional Principles. 
 
 225. The Power of Congress to Create Offices and Agencies 311 
 
 226. The Power to Create Offices and Agencies by Treaty 312 
 
 227. The Power of the President to Create Offices and Agencies 313 
 
 228. The Appointment of Officers and Agents 314 
 
 229. Limitations upon the Appointing Power 315 
 
 230. Powers of Removing and Directing Officers and Agents 316 
 
 B. Application of Principles to Foreign Affairs. 
 
 231. The Types of Agencies Conducting Foreign Relations 317 
 
 232. National Military, Naval and Administrative Offices 320 
 
 233. Appointment of Military and Naval Officers 321 
 
 234. Organization of the Department of State 322 
 
 235. National and International Political Officers and Agents 323 
 
 236. Power to Determine Grades in the Foreign Service 324 
 
 237. Power to Determine Occasion for Appointments in Foreign Service. 326 
 
 238. Power of President to Appoint Diplomatic Agents 328 
 
 239. Practice of Sending Presidential Agents 329 
 
 240. Controversies with Respect to Presidential Agents 330 
 
 241. Presidential Agent not an Officer 333 
 
 242. International Administrative and Judicial Agencies 334 
 
 243. Conclusion on Power to Conduct Foreign Relations 335 
 
 PART V. 
 
 THE UNDERSTANDINGS OF THE CONSTITUTION. 
 
 Chapter XVIII. Understandings Concerning the Relations 
 
 OF THE Independent Organs. 
 
 244. Reason for Constitutional Understandings 339 
 
 A. The Overlapping of Powers of Independent Departments. 
 
 245. Constitutional Understanding Respecting the Overlapping of Powers. 340 
 
 246. Concurrent Powers of President and Congress 340 
 
 247. Concurrent Powers of President and Courts 342 
 
 248. Concurrent Powers of Treaty Power and Congress 344 
 
 B. Cooperation of Independent Organs. 
 
 249. Constitutional Understanding Respecting the Cooperation of Inde- 
 
 pendent Organs 346 
 
 250. Decisions by the Courts 346 
 
 251. Acts of the President 348 
 
 252. Acts of Congress 350
 
 XX ANALYTICAL TABLE OF CONTENTS. 
 
 253. Acts of the Treaty-making Power: Obligation of the Courts 351 
 
 254. Acts of the Treaty-making Power: Obligation of the President.... 352 
 
 255. Obligation of the Treaty-making Power Itself as to Future Action 352 
 
 256. Acts of the Treaty-making Power: Obligation of Congress 353 
 
 C. Duty of the Departments to Act. 
 
 257. Constitutional Understanding respecting the Establishment of Neces- 
 
 sary Instrumentalities 357 
 
 258. Duty of all Organs to Aid in Meeting International Responsibilities. 357 
 
 Chapter XIX. The Control of Foreign Relations in Practice. 
 
 259. The Position of the President 360 
 
 260. Friction in the American System 360 
 
 261. Criticisms of the American System 361 
 
 262. Need of Popular Control in Foreign Relations 362 
 
 263. Need of Centralization of Authority 363 
 
 264. Practice in American History 3^4 
 
 265. Constitutional Changes not Necessary 3^8 
 
 266. Need of Constitutional Understandings 368 
 
 Appendix A. Congressional Delegation of Power to Make In- 
 ternational Agreements 375 
 
 Appendix B. Constitutional Understandings 376 
 
 Index -• • 377
 
 TABLE OF CASES. 
 
 Abrams v. U. S., 250 U. S. 616, 
 
 (1919) 
 
 Ah Fong, In re, 3 Sawyer 144.. 
 Alleganean, The, Alabama Claims 
 
 Commission, 1885, Moore, Int. 
 
 Arb., 4333, 467s, 32 Albana L. 
 
 J. 484 
 
 American Banana Co. v. United 
 Fruit Co., 219 U. S. 347, (1909) 
 
 American Insurance Co. v. Canter, 
 I Pet. 511 116, 130, 275, 
 
 Amiable Isabella, The, 6 Wheat. 
 I, (1821) 218, 
 
 Anderson v. Dunn, 6 Wheat. 204.. 
 
 Anna, The, 5 C. Rob. 2,72,^ (1805) . 
 
 Antelope, The, 10 Wheat. 66, 
 (1825) 
 
 Appam, The, 243 U. S. 124, 
 (1916) 48, 172, 
 
 Applicants for License, In re, 143 
 N. C. I 
 
 Appollon, The, 9 Wheat. 362 
 
 Argun, The, Takahashi, Russo- 
 Japanese War, 761 
 
 Baiz, In re, 135 U. S. 403 172, 
 
 Baldwin v. Franks, 120 U. S. 
 
 678 79, 88, 
 
 Baker v. Portland, 5 Sawyer 566, 
 
 (1879) 
 
 Bartram v. Robertson, 122 U. S. 
 116 
 
 Belgenland, The, 114 U. S. 
 
 355 201, 
 
 Bermuda, The, 3 Wall. 514 
 
 Betsey, The, (U. S.) v. Great 
 
 Britain, Moore, Int Arb. 3208.. 
 Blythe v. Hinckley, 180 U. S. 
 
 2Z3 
 
 Bolcher v. Darrell, Fed. Cas. 
 
 1607, (1795) • 
 
 Bollman, Ex parte, 4 Cranch 75.. 
 Brig Aurora, 7 Cr. 382 
 
 British Prisoners, Case of the, I 
 
 188 Wood and Min. 66, (1845), 
 
 90 78, 191, 194, 198 
 
 Brown v. Turner, 70 N. C. 93... 340 
 
 Brown v. U. S., 8 Cranch no, 
 
 (1814) 85, 86, 169, 300 
 
 274 Buttfield V. Stranahan, 192 U. S. 
 
 470, (1904) 303 
 
 165 
 
 Carneal v. Banks, 10 Wheat. 259, 
 
 312 (1825) 90 
 
 Carter v. Virginia, 96 Va. 971.. 96 
 234 Cary v. South Dakota, 250 U. S. 
 
 96 118 88 
 
 274 Chapman, In re, 166 U. S. 661 . . 96 
 
 Charkieh, The, L. R. 4 A. and E. 
 
 169 59, (1873) 173 
 
 Charlton v. Kelly, 229 U. S. 
 
 200 447 257 
 
 Charming Betsey, The. (See 
 gy Murray v. The Charming Bet- 
 
 172 sey.) 
 
 Cherokee Nation v. Georgia, 5 
 
 290 Pet. I, (1831) 173,206 
 
 Cherokee Tobacco Case, ir Wall. 
 
 242 616, ( 1870) 82, 260 
 
 Chile V. United States. (See 
 187 Trumbull Case.) 
 
 Chinese Exclusion Cases, 130 U. 
 90 S. 581, (1889).... 17, 130, 133 
 
 159, 163, 260, 26^, 304, 307, 344 
 228 Chirac v. Chirac, 2 W^heat. 259, 
 
 (1817) yz, 88, 90, 91, 26s, 277 
 
 203 City of London v. Wood, 12 Mod. 
 
 295 669, (1701) 210 
 
 Cohens v. Virginia, 6 Wheat. 
 
 18 264 133 
 
 Collector v. Day, 11 Wall. 113.. 86 
 88 Comancho, Case of Venezuelan 
 Minister, Moore, Int. Law Di- 
 
 166 gest, 4 : 644 79, 162 
 
 197 Comegys v. Vasse, i Pet. 193, 
 302 (1828), 82, 116, 224, 235 
 
 xxi
 
 xxii THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Commonwealth v. Kosloff, 5 Serg. 
 and Rawle 545 198 
 
 Compagnie Francaise v. State 
 Board of Health, 186 U. S. 380, 
 (1902) 91 
 
 Cooley V. Board of Port War- 
 dens, 13 How. 294 1Z, 153,265 
 
 Cooper, In re, 138 U. S. 404,. 172 
 
 Cooper, In re, 143 U. S. 472, 
 (1892), 173, 174. 343 
 
 Cooper, Matter of, 22 N. Y. dT . . 97 
 
 Cotesworth and Powell, (Great 
 Britain) v. Colombia, Moore, 
 Int. Arb., 2081 I9 
 
 Cross V. Harrison, 16 How. 
 164 116, 297, 314 
 
 Cuba V. North Carolina, 242 U. 
 S. 665, (1917) 206 
 
 Gushing-, Adm., v. U. S., 22 Ct. 
 of CI. I, (1886) 19, 82 
 
 Davisson v. Sealskins, 2 Paine 
 
 324 169 
 
 Day, In re, 181 III. T2> 97 
 
 Day V. Savadge, Hob. 85 (1610) . 210 
 
 Debs, In re, 158 U. S. 564 96, 193 
 
 Dillon, In re, 7 Sawyer 561, Fed. 
 
 Gas. No. 3914. (1854) 124 
 
 Dillon Case, Moore, Int. Law 
 
 Digest, 5: 80, 167 40,116 
 
 Divina Pastora, The, 4 Wheat. 
 
 52 83, 172, 272 
 
 Dobbins v. Erie County, 16 Pet. 
 
 435 IZ 
 
 107a, 114a, (1600) 210 
 
 Doe V. Bradon, 16 How. 635, 
 
 (1853) 49, 173. 257 
 
 Dalby v. Wolf, 14 Iowa 228, 
 (1862) 104 
 
 Dorr V. U. S., 195 U. S. 138.. 80, 84 
 
 Downes v. Bidwell, 182 U. S. 
 244, (1901) 80, 89 
 
 Dr. Bonham's Case, 8 Co. Rep. 
 
 Duskin Case, Cleveland, Presiden- 
 tial Problems, 56 341 
 
 Dubois, Case of Dutch Minister, 
 1856, Moore, Int. Law Digest, 
 4: 643 79, 162 
 
 Durand v. Hollins, 4 Blatch. 
 451 21, 306 
 
 Durousseau v. U. S., 6 Cranch 
 
 307 340 
 
 Dynes v. Hoover, 26 How. 65 . . 85 
 
 Ekaterinoslav, The, Takahashi, 
 Russo-Japanese War, 573 290 
 
 Elkinson v. Deliesseline, Leg. 
 Doc. Mass. 1845, (Sen. No. 31), 
 p. 39, (1823) 90, 91 
 
 Epstein v. State, 128 N. F. 353, 
 (Ind. 1920) 97 
 
 Estrella, The, 4 Wheat. 298 
 
 191, 200, 201 
 
 Exchange, The, Schooner, v. Mc- 
 Faddon, 7 Cr. 116, 
 
 159, 172, 208, 242 
 
 Fairfax v. Hunter, 7 Cr. 603, 
 
 (1813) 90, 91 
 
 Field v. Clark, 143 U. S. 649, 
 
 (1892) 30, 99, 103, 104, 
 
 106, no, 233, 236, 302 
 Fleming v. Page, 9 How. 
 
 603 130, 169, 276, 297 
 
 Fong Yue Ting v. U. S., 149 U. S. 
 
 698, (1893), 
 
 83, 130, 133. 195, 266, 304 
 
 Ford v. Surget, 97 U. S. 594 85 
 
 Fort Leavenworth Railroad v. 
 
 Lowe, 114 U. S. 525 89, 232 
 
 Foster v. Neilson, 2 Pet. 253, 
 
 (1829) 124, 172, 207, 274,353 
 
 Fourteen Diamond Rings v. U. S., 
 
 183 U. S. 176, (1901), 
 
 34, 46, 253, 254 
 Fox v. Ohio, 5 How. 416, 
 
 (1847) ;• 178 
 
 Fredericksen v. Louisiana, 23 
 How. 443, ( i860) 91 
 
 Geofroy v. Riggs, 133 U. S. 258, 
 
 (1890) ....82, 88, 89, 92, 121, 248 
 Glass v. The Betsey, 3 Dall. 6.. 200 
 Gordon v. U. S., 2 Wall. 561, 
 117 U. S. 697, (1864), 
 
 98, 117, 118, 312 
 Grange, The, Att. Gen. Randolph, 
 
 I Op. Z2 274 
 
 Grapeshot, The, 9 Wall. 129 3M 
 
 Gray v. U. S., 21 Ct. CI. 340.... 82
 
 TABLE OF CASES. 
 
 XXUl 
 
 Great Britain v. Colombia. (See 
 Cotesworth and Powell Case.) 
 Green v. Biddle, 8 Wheat, i 231 
 
 Hamilton v. Kentucky Distilleries 
 and Warehouse Co., 251 U. S. 
 146 84 
 
 Hauenstcin v. Lynham, 100 U. S. 
 
 483, (1879) 88, 91, 92, 207 
 
 Haver v. Yaker, 9 Wall. 32, 
 
 31, 52, 253, 255 
 Hawaii v. Mankichi, igo U. S. 
 
 197 8a 
 
 Hayburn's Case, 2 Dall. 409 98 
 
 Head Money Cases, 112 U. S. 
 
 580 260, 344, 384 
 
 Heim v. McCall, 239 U. S. 175, 
 
 (19T5) 90, 91 
 
 Henderson v. New York, 92 U. S. 
 
 259. (1875) 90 
 
 Henfield, In re, Fed. Cas., No. 
 
 6360 197 
 
 Hennen, Ex parte, 13 Pet. 230, 
 
 (1839) 2'^7 
 
 Hilton V. Guyot, 159 U. S. 113, 
 
 (1895) 189 
 
 Ho Ah Kow V. Nunan, 5 Sawyer 
 
 532, (1879) 90 
 
 Holmes v. Jennison, 14 Pet. 540, 
 
 (1840) 91. 134. 153. 178, 230 
 
 Hopkirk v. Bell, 3 Cranch 
 
 454 88, 91 
 
 Houston V. Moore, 5 Wheat. 
 
 I 2'^2 
 
 Hudson V. Guestier, 6 Cranch 
 281, (1810) 169 
 
 Indiana v. Kentucky, 136 U. S. 
 
 479, (1880) 274 
 
 Insular Cases. (See Downes v. 
 
 Bidwell.) 
 
 Jane, The, ^7 Ct. CI. 24 295 
 
 Jecker v. Montgomery, 13 How. 
 
 498 116, 221, 314 
 
 Jones V. U. S., 137 U. S. 202, 
 
 (1890) ....83, 130, 133, 172, 
 
 173. 274, 343 
 Jones V. Walker, 2 Paine 688 . . 257 
 
 Kansas v. Colorado, 306 U. S. 
 46 96, 131 
 
 Kaine, In re, 14 How. 103, 
 
 (1852) 195 
 
 Kawananako v. Polyblank, 205 
 
 U. S. 349, (1907) 210 
 
 Kennett v. Chambers, 14 How. 
 
 38 172 
 
 Kentucky v. Dennison, 24 How. 
 
 66 3'i^2 
 
 Kilbourne v. Thompson, 103 U. 
 
 S. 168 95. 96, 98 
 
 Killock, Ex parte, 165 U. S. 
 
 526 104 
 
 King of Prussia v. Kupper, 22 
 
 Mo. 550, (1856) 23 
 
 King of Spain v. Oliver, i Pet. 
 
 C. C. 217, (1810) 23 
 
 Kneedler v. Lane, 45 Pa. 238, 
 
 (1863) 94 
 
 Konigin Luise, 184 Fed. 170, 
 
 (1910) 104, 116 
 
 La Abra Silver Mining Co. v. U. 
 
 S., 175 U. S. 423, (i899)..-- 223 
 La Jeune Eugenie, 2 Mason 409, 
 
 (1822) 80, 169 
 
 La Ninfa, 49 Fed. 575, (1891) • • • • I74 
 La Ninfa, 75 Fed. 513, (1896), 
 
 no, 116, 164, 169, 
 
 174, 207, 224. 227, 345 
 Lattimer v. Poteet, 14 Pet. 14, 
 
 (1840) 89 
 
 Legal Tender Cases, 12 Wall. 
 
 457 ^2^ 
 
 License Cases, 5 How. 504 91 
 
 Lindo v. Rodney, 2 Doug. 613, 
 
 (1781) 15 
 
 Little v. Barreme, 2 Cranch 170, 
 
 169, 299 
 Little v. Watson, 32 Maine 214, 
 
 (1850) 227 
 
 Lottawana, The, 21 Wall. 558 181 
 
 McCardle, Ex parte, 7 Wall. 
 
 506 99, 202. 312, 340 
 
 McCulloch v. Maryland, 4 Wheat. 
 
 316 7i, 80, 103, 311 
 
 McVeigh v. U. S., 11 Wall. 
 
 259, (1870) 169, 172 
 
 Manchester v. Massachusetts, 139 
 
 U. S. 240 274
 
 xxiv THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Marbury v. Madison, i Cranch New York Indians v. U. S., 170 
 
 137 314 U. S. I, (1898) 34, 46, 254 
 
 Marianna Flora, The, 11 Wheat. Ocean City Association v. Shriver, 
 
 I, ( 1826) 169 46, Atl. 690, (N. J., 1900) 274 
 
 Marie Glaeser, The, L. R. (1914), Oetjen v. Central Leather Co., 
 
 P. 218 48 246 U. S. 207, (1917) 172 
 
 Martin v. Hunter, i Wheat. 304, Opinions of Attorney General of 
 
 (1816) 357 United States 327 
 
 Martin v. Mott, 12 Wheat. 19, Berrien, 20 Op. 431, (1831).. 90 
 
 104, 193, 216, 309 Gushing, 6 Op. 148, 209, 291, 
 
 Matthews v. McStea, 91 U. S. 7, (1854) 5, 18, 63, 195, 257 
 
 ( T875) 288 Gushing, 7 Op. 186, 214, 453. 
 
 Mighell V. Sultan of Johore, (1855) M, 3i7. 324, 34i 
 
 (1894), I Q- B. 149 173 Gushing, 8 Op. 175, 390, 
 
 Montalet v. Murray, 4 Cranch ( 1856) , 1 16, 274 
 
 46 203 Griggs, 22 Op. 214, (1898), 
 
 Morrill v. Jones, 106 U. S. 466.. 104 90, 123 
 
 Murray v. The Charming Betsey, Knox, 23 Op. 533. (1901) .... 334 
 
 2 Cranch 64 165, 175 Lee, I Op. 74, (i797) 22 
 
 Meade v. U. S., 9 Wall. 691, Randolph, i Op. 32 274 
 
 8' 116 2'^'^ Randolph, Fed. Gas. No. 6360, 
 
 Merryman, Ex parte, Taney Re- p. 11 16..... _ 197 
 
 ports, 246 131 Richards, Acting, 22 Op. 13, 
 
 Metzge'r, (U. S.) v. Haiti, U. S. „,. , , ^ ^°^' ^^l 
 
 For. Rel., 1899, p. 262 ....27, 41 Wickersham, 29, Op. 322, 
 
 Metzger, In re, 5 How. 176, ^J-T u 'A 
 
 Tnn TH^ Wickersham, 32 Op. 322.... 94 
 
 ,., T T, u '^T' ^94 Wirt, 10 Op. 661, (1824).... 90 
 
 Metzger, In re, i Barb. 248, f < \ ^/ ^ 
 
 A/r*'^' ^" ^f^^^ "■ u""' ^^^ Paquette Habana, 175 U. S. 677, 
 
 Mexico V. Arrangoiz, 11 How. ^ o 
 
 T> /-NT \r o \ 169, 171, 208, 221 
 
 Prac. I, (N. Y., 1855) 202 persons v U S 167 U S ^24 
 
 Miller V. U. S., 11 Wall. 268, ^^''°"' ^^ ^^ ^■' '^^ ^•^- f^l^' ,,, 
 
 ,,.,,. ^ .,r \,' ^^ Passenger Gases, The, 7 How. 
 
 S V"T' \ f -"• '' ^83. ( 1849) 90. 91, 265 
 
 ( i»66) . . . .8^., 98, 124, 30> 307, Patsone v. Pennsylvania, 232 U. S. 
 
 311,317,322 8 90, 91 
 
 Minor V. Happersett, 21 Wall. p.^.^y ^ Stranahan, 205 U. S. 
 
 ,,..•:■•. ;•• :•••• ^^ 257,(1907) 173,343 
 
 Mississippi V. Johnson, 4 Wall. Pensacola Telegraph Co. v. West- 
 
 ^75 97 crn Union Telegraph Co., 96 U. 
 
 Missouri V. Holland, 252 U. S. s. i, (1878) 302 
 
 416, (1920) ....57, 87, 90, 91, 186 People' V. Gerke, 5 Gal. 381, 
 
 Mitchell V. Harmony, 13 How. (1855) 91, 92 
 
 1^5, (1851) 85, 169,299 People V. Noglee, i Gal. 232^ 
 
 (i8so) 90 
 
 Neagle, In re, 13S U. S. i, Pcggy, The, i Cranch 103 ..344, 345 
 
 157, 193. 30s, 307, 313 Phoebe Ann, The, 3 Dall. 319, 
 
 Neelcy v. Hcnkel, 180 U. S. 109, 166, 207 
 
 (1901) ....78,84,85,116,173,185 Pious Fund, The, (U. S. v.' 
 
 Nereide, The, 9 Cranch 388, Mexico), Wilson, Hague Arbi- 
 
 (1815) 169, 171, 173, 221 tration Gases, i 65
 
 TABLE OF CASES. 
 
 XXV 
 
 Prevost V. Greenaux, lo How. i, 
 (1856) 91 
 
 Prize Cases, The, 2 Black 635, 
 39, 83. 124, 17-2, 284. 288, 348, 350 
 
 Protector, The, 12 Wall. 700, 
 (1871) 173, 291, 293 
 
 Res Publica v. De Longchamps, 
 I Dall. Ill 177 
 
 Rhode Island v. Massachusetts, 4 
 How. 591, (1846) 274 
 
 Ricaud v. American Metal Co., 
 
 246 u. s. 304. (1917) 172 
 
 Robertson v. Baldwin, 165 U. S. 
 
 275, (1897) 84 
 
 Rocca V. Thompson, 232 U. S. 
 
 318 91 
 
 Rose, The, 37 Ct. CI. 240 295 
 
 Rose V. Himeley, 4 Cranch 241 . . 169 
 Ross, In re, 140 U. S. 453, (1890), 
 
 84, 88, 104, 116, 124, 312, 313 
 Ruppert V. Caffey, 251 U. S. 264. 84 
 
 Sanborn, In re, 148 U. S. 226 .. 221 
 Sandberg v. McDonald, 248 U. S. 
 
 185 165 
 
 Santiago v. Nogueras, 214 U. S. 
 
 260 297, 314, 320, 341 
 
 Santissima Trinidad, The, 7 
 
 Wheat. 283 172 
 
 Sapphire, The, 11 Wall. 164, 
 
 (1870) 24, 172 
 
 Schooner Exchange, The. (See 
 
 Exchange v. McFaddon.) 
 Scotia, The, 14 Wall. 170, (1871) 181 
 Sea Lion, The, 5 Wall. 630, 
 
 (1866) 240 
 
 Selective Draft Cases, 245 U. S. 
 
 366 85, 94 
 
 Shepherd v. Insurance Co., 40 
 
 Fed. 341 52, 254 
 
 Ship Richmond v. U. S., 9 Cranch 
 
 102, (1815) 169 
 
 Shurtleff v. U. S., 189 U. S. 311 • • 317 
 Slaughter House Cases, 16 Wall. 
 
 36 306 
 
 Society for the Propagation of 
 
 the Gospel v. New Haven, 8 
 
 Wheat. 464, (1823) 90,256 
 
 South Dakota v. North Carolina, 
 
 192 U. S. 286, ( 1904) 233 
 
 Southern Pacific v. Jensen, 244 
 
 U. S. 205, (1917) 64 
 
 Splane, In re, 123 Pa. 527 97 
 
 Spooner v. McConnell, i McLean 
 
 347 72 
 
 State V. Noyes, 30 N. H. 279.. 104 
 
 Talbot V. Jensen, 3 Dall. 133 200 
 
 Tennessee v. Davis, 100 U. S. 
 
 257 198 
 
 Ter linden v. Ames, 184 U. S. 270, 
 
 (1902) 78, 173, 190, 257 
 
 Texas v. White, 7 Wall. 700, 
 
 (i860) 73, 89, 124 
 
 Thomas. In re, 12 Blatch. 370... 257 
 Three Friends, The, 166 U. S. 
 
 I. (1897) ^72, 173, 182, 
 
 200, 269, 284 
 Tiburcio Parrott, In re, 6 Sawyer 
 
 349, (1880) 90, 91 
 
 Toscano, Ex parte, 208 Fed. 938, 
 
 (1913) 182, 190, 196,207 
 
 Trade Mark Cases, 100 U. S. 82. . 105 
 Truax v. Raich, 239 U. S. 33, 
 
 (1915) 90, 91 
 
 Trumbull, (Chile) v. U. S., 
 
 Moore, Int. Arb. 3569, (1892), 
 
 27, 41 
 Tucker v. Alexandroff, 183 U. S. 
 
 424. (1902) 78, 242 
 
 Turner v. American Baptist Mis- 
 sionary Union, 5 McLean 347, 
 (1852) 9, 66, 339 
 
 Underbill v. Hernandez, 168 U. 
 S. 250 172 
 
 U. S. v. Arjona, 120 U. S. 479, 
 
 15, 87, 154, 182 
 U. S. V. Coolidge, Fed. Cas. No. 
 
 14, 857 198 
 
 U. S. V. Coolidge, i Wheat. 415, 
 
 (1816) 198 
 
 U. S. V. Gettysburg Electric Ry. 
 
 Co., 160 U. S. 668 133 
 
 U. S. V. Great Britain. (See The 
 
 Betsey.) 
 U. S. V. Haiti. (See Metzger 
 
 Case.) 
 U. S. V. Holmes, 5 Wheat. 412 . . 165 
 U. S. V. Hudson, 7 Cranch 32 . . 197
 
 xxvi THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 U. S. V. Ju Toy, 198 U. S. 253, U. S. v. Wong Kim Ark, 169 U. 
 
 (1905) 83, 99, 278, 304 S. 649 277 
 
 U. S. V. Klintock, 5 Wheat. 144, U. S. v. Worrall, 2 Dall. 384 .. I97 
 
 16s, 180 
 
 U. S. V. La Jeune Eugenie. (See Villas v. City of Manilla, 220 U. 
 
 La Jeune Eugenie.) S. 345, (191O I7^ 
 
 U. S. V. La Ninfa. (See La Virginia v. Tennessee, 148 U. S. 
 
 Ninfa.) 503, (1893) 227,232,274 
 
 U. S. V. McCullagh, 227 Fed. 288 87 
 
 U. S. V. Moore, 3 Cranch 159.. 340 Ware v. Hylton, 3 Dall. 199, 
 
 U. S. V. New York, 160 U. S. (1796) ....18, 58, 88, 91. 162, 
 
 615 221 175, 256, 257 
 
 U. S. V. Palmer, 5 Wheat. 610, Watts v. Unione Austriaca de 
 
 ( 1818) 165, 172, 180 Navigazione, 248 U. S. 9, 
 
 U. S. V. The Peggy. (See The (1918) 172 
 
 Peggy-) Watts V. U. S., i Wash. Terr. 
 
 U. S. V. Percheman, 7 Pet. 51, 288, ( 1870) 239 
 
 ( 1833) 172, 353 Weber v. Freed, 239 U. S, 325 • • 303 
 
 U. S. V. Perkins, 116 U. S. 143.. 317 Whitney v. Robertson, 124 U. S. 
 
 U. S. V. Pirates, 5 Wheat. 184, 190 228 
 
 (1820) 165 Wildenhus Case, 120 U. S. i . . . . 88 
 
 U. S. V. Ravara, 2 Dall. 297, Fed. Williams v. Sufifolk Ins. Co., 13 
 
 Cas. No. 6122 197, 198 Pet. 415 83, 172, 268 
 
 U. S. V. Rauscher, 119 U. S. 407, Williams v. U. S., 23 Ct. CI. 46.. 325 
 
 178, 230 Wilson V. Shaw, 204 U. S. 24 
 
 U. S. V. Reynes, 9 How. 127 172 (1907) 83 
 
 U. S. V. Repentigny, 5 Wall. 211, Wilson v. Wall, 73 U. S. 83, 
 
 (1866) 222 (1867) 210 
 
 U. S. V. Robbins, Fed. Cas. No. Worcester v. Georgia, 6 Pet. 515, 
 
 16, 17s, Bees. Adm. 266, (1832) 89 
 
 78, 190, 194 Wynan's Petitioner, 191 Mass. 
 
 U. S. V. Shauves, 214 Fed. 154.. 87 276 91 
 
 U. S. V. Smith, 5 Wheat. 153, 
 
 (1820) 181, 201 Yick Wo V. Hopkins, 118 U. S. 
 
 U. S. V. Trumbull, 48 Fed. 99, 356, (1886) 91 
 
 (1891) 182 
 
 U. S. V. The William, 28 Fed. Zamora, The, L. R. (1916) 2 A. 
 
 Cas. 614, ( 1808) 302 C. 77 170
 
 PART I. 
 
 The Nature of the Foreign Relations Power.
 
 ^? 
 
 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 CHAPTER I. 
 
 The Nature of the Foreign Relations Power. 
 I. Difficulty in Developing Legal Theory of Subject. 
 
 There is no phase of American constitutional law on which 
 commentators have found it more difficult to procure a logical and 
 consistent theory than the control of foreign relations. Not only 
 have opinions differed as to the relative powers of President, 
 Senate and House of Representatives, but also as to the limitations 
 imposed upon the national foreign relations power as a whole by the 
 guaranteed rights of individuals, " reserved powers " of the states 
 and the doctrine of separation of powers. Discussion has dealt 
 particularly with the treaty-making power but similar dififerences 
 have developed in considering the power to make national decisions 
 such as the recognition of foreign states and governments, and 
 the declaration of war, and the power to meet international re- 
 sponsibilities, all of which are here included under the general 
 term, the foreign relations power. 
 
 For this difficulty several reasons may be assigned, as for 
 instance, vagueness in the terms of the constitution on this subject, 
 inconsistency in the interpretations acted upon by the political 
 organs of government at different periods of history, and the 
 comparative lack of judicial interpretation, due to the tendency of 
 the courts to regard questions involving foreign relations as political 
 and so beyond their consideration.^ There is, however, a more 
 fundamental reason for this difficulty, a reason which lies back 
 of those mentioned and which explains the existence of a similar 
 difficulty in all other constitutional states. This reason is the 
 
 1 Infra, sees. 107, 247.
 
 4 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 dual position necessarily occupied by the authority controlling 
 foreign relations. 
 
 2. Dual Position of Foreign Relations Power. 
 
 This authority is on the one hand an agency of the national 
 constitution. It is created by that instrument and subject to all 
 the limitations of powir and procedure therein expressed or im- 
 plied. But on the other hand it is the representative of the nation 
 before other nations and is expected by them to meet international 
 responsibilities according to the standard of international law and 
 treaty. Thus its activity is governed at the same time by constitu- 
 tional law and international law, its powers by one, its responsibili- 
 ties by the other. Conflicts may occur in the application of these 
 two laws. For example, international law requires that all validly 
 concluded treaties be executed, but constitutional law may make 
 it difficult if not impossible to execute particular treaty provisions 
 because of certain constitutional limitations. This problem has 
 arisen in the United States in connection with the police power of 
 the states and the exclusive power of Congress to appropriate 
 money. It has been alleged that under constitutional law the 
 states and congress are entitled to an unlimited discretion in exer- 
 cising these powers irrespective of treaty provisions.^ Commentators 
 have dififered in their views as to the scope of the powers belonging 
 to the various organs controlling foreign relations, according as 
 they have approached the subject from the constitutional or from 
 the international point of view. 
 
 3. The International Point of View. 
 
 If the international point of view were adopted in full it would 
 result that an international commitment made by the proper con- 
 stitutional authority would bind all organs of the government. 
 Thus Secretary of State Livingston wrote the French government 
 in 1833: 
 
 '^ Infra, sees. 50, 59.
 
 NATURE OF THE FOREIGN RELATIONS POWER. 5 
 
 " The government of the United States presumes that whenever a treaty 
 has been concluded and ratified by the acknowledged authorities competent 
 for that purpose, an obligation is thereby imposed upon each and every de- 
 partment of the government to carry it into complete effect, according to its 
 terms, and that on the performance of this obligation consists the due ob- 
 servance of good faith among nations." ^ 
 
 But constitutions, acting by tradition and convenience, if indeed 
 not practical necessity, have ordinarily vested the power of inter- 
 national negotiation in a single individual, the chief executive, 
 acting with or without the advice of a council.* Now the inter- 
 national commitments of this individual might radically alter the 
 constitution. They might impair national independence. They 
 might establish autocracy. Were these commitments fundamental 
 law, obligatory upon all organs of the government, the achievements 
 of centuries of battling for constitutionalism and popular sover- 
 eignty might be sacrificed by the stroke of a pen."^ 
 
 3 Wharton, Int. Law Digest, 2: 67. See also Gushing, At. Gen. 1854, 6 Op. 
 291; Duer, Outlines of Gonst'itutional Jurisprudence, 138; Wheaton, Ele- 
 ments of Int. Law, Dana ed. Sec. 543; Moore, Int. Law Digest, 5: 230, 370; 
 Willoughby, Constitutional Law, i : 515, infra, sec. 37. This doctrine seems 
 to be an implication of Art. VI, sec. 2 of the Constitution of the United 
 States — " all treaties made, or which shall be made, under the authority of 
 the United States, shall be the supreme Law of the Land " — but it must be 
 admitted that the United States has been more insistent upon applying it to 
 other nations than to itself. (Infra, sec. 39.) Nations usually adopt the 
 international point of view in discussing the powers and responsibilities of 
 other nations, the constitutional point of view in discussing their own powers 
 and responsibilities. 
 
 * " The necessity of such caution and secrecy was one cogent reason for 
 vesting the power of making treaties in the President', with the advice and 
 consent of the Senate, the principle on which that body was formed con- 
 fining it to a small number of members." Washington, Message to House 
 of Representatives, March 30, 1796, Richardson, Messages and Papers of the 
 President, i : 195. " The reason why we trust one man, rather than many, is 
 because one man can negotiate and many men can't. Two masses of people 
 have no way of dealing directly with each other. . . . The very qualities 
 which are needed for negotiation — quickness of mind, direct contact, adap- 
 tiveness, invention, the right proportion of give and take — are the very 
 qualities which masses of people do not possess." Lippmann, The Stakes 
 of Diplomacy. N. Y., 1915. pp. 26. 29. 
 
 5 " Applying the principle broadly, the contention that one department of 
 the Government may in any way coerce another is a repudiation of the very
 
 6 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 4, The Constitutional Point of View. 
 
 If, on the other hand, the constitutional point of view is adopted 
 in full, the situation seems even less promising. Yet illustrations 
 are not wanting. The House of Representatives resolved in 1796 
 and again in 1871 that: 
 
 "When a treaty stipulates regulations on any of the subjects submitted 
 by the Constitution to the power of Congress, it must depend for its execu- 
 tion as to such stipulations on a law or laws to be passed by Congress; and 
 it is in the constitutional right and duty of the House of Representatives in 
 all such cases to deliberate on the expediency or inexpediency of carrying 
 such treaty into effect and to determine and act thereon, as in their judg- 
 ment may be most conducive to the public good." ^ 
 
 Should a general opinion develop that national commitments 
 made by the proper constitutional authority and solemnized with 
 due formality might be ignored or repudiated by other organs of 
 the government because of some obscure constitutional limitation, 
 unknown to a foreign nation, the authority conducting foreign 
 relations could no longer command a hearing as the representative 
 of the nation, international negotiation would be unfruitful and 
 international anarchy would prevail.' 
 
 purpose of the division of power, and would result in the destruction of 
 that freedom under law which the Constitution aims to establish. If such 
 an attempt were for any reason successful, it would result in the establishing 
 of an autocratic form of government. Absolutism, which the Constitution 
 was intended to prevent, might thus creep in through the usurpation of 
 power by a single department, or even by a single officer of the Government. 
 There could be no greater offense against the Constitution than this, and 
 public opinion should unite in condemning even the suggestion of it." D. J. 
 Hill, Present Problems in Foreign Policy, N. Y., 1919, p. 163. 
 
 6 Annals, 4th Cong., ist Sess., p. 771; Cong. Globe, 426. Cong., I5t 
 Sess., p. 835; Wharton, Int. Law Digest, 2: 19. 
 
 ■^ " Others, though consenting that treaties should be made in the mode pro- 
 posed, are averse to their being the supreme law of the land. They insist 
 and profess to believe that treaties, like acts of assembly, should be repealable 
 at pleasure. This idea seems to be new and peculiar to this country, but 
 new errors as well as new truths often appear. These gentlemen would do 
 well to reflect that a treaty is only another name for a bargain, and that 
 it would be impossible to find a nation who would make any bargain with 
 us which should be binding on them absolutely, but on us only so long and 
 so far as we may think proper to be bound by it." Jay, Federalist No. 64, 
 Ford ed., p. 431. See also Washington, message cited supra, note 4.
 
 NATURE OF THE FOREIGN RELATIONS POWER. 7 
 
 5. Methods of Reconciling these Points of View. 
 
 In practice modern states have avoided both alternatives by 
 compromises, partly of a legal and partly of a conventional char- 
 acter.' There has been a tendency for constitutions to multiply the 
 organs whose concurrence is necessary to bring foreign negotiations 
 to a valid conclusion. Thus many constitutions novv^ vest power 
 to make the most important decision in foreign aflFairs, such as 
 declarations of war and the ratification of treaties, in the legislative 
 body." So far as this is done, there is no difficulty in giving inter- 
 national commitments the force of law. However, a practical 
 difficulty is here met. The legislative body is usually large, slow 
 moving and ill informed on foreign relations. Many international 
 situations must, under present conditions, be met by personal nego- 
 tiation and immediate decision for which such a body is ill 
 adapted.^" Consequently many types of international commitment 
 are still made by executive authority. In these cases, and in fact 
 they are still the majority, the difficulty is solved either by con- 
 stitutional understandings, whereby the executive power is in fact 
 if not in law expected to act in such a way that the other organs 
 of government will approve its action ; or by international under- 
 standings whereby the other states of the world consider commit- 
 ments formally concluded by the executive authority merely pro- 
 visional until they have been endorsed by other organs of the 
 government, whose cooperation is necessary for their execution.^^ 
 
 6. Relation of Law and Understandings. 
 
 The writer believes that a comprehensive legal theory of the 
 control of foreign relations must give equal weight to the powers 
 and responsibilities derived from both constitutional law and inter- 
 national law. But in constructing such a theory, he has found 
 
 8 See Dicey, The Law of the Constitution, 8th ed., p. 23, for this dis- 
 tinction. 
 
 ^Wright, The Legal Nature of Treaties, Am. Jl. of Int. Law, 10: 711 
 et seq. 
 
 10 Supra, note 4. 
 
 11 Wright, Am, Jl. of Int. Lazv, 10: 710; and infra, sec. 39.
 
 8 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 himself forced to take account of understandings of the kind 
 mentioned. He believes these understandings furnish the true 
 explanation of the functioning of all systems for controlling foreign 
 relations and especially of that in the United States. Without 
 them a constitutional deadlock or an international breach of faith 
 would be probable at every important international transaction. 
 
 7. Constitutional Understandings. 
 
 The constitutional understandings are based on the distinction 
 between the possession of a power and discretion in the exercise of 
 that power. The law of the constitution decides what organs of 
 the government possess the power to perform acts of international 
 significance and to make valid international commitments, but 
 the understandings of the constitution decide how the discretion or 
 judgment, implied from the possession of power, ought to be ex- 
 ercised in given circumstances.^^ The powers given by law to 
 various organs often overlap. Even more often, two or more 
 organs must exercise their powers in cooperation in order to achieve 
 a desired end. In such circumstances, were it not for understand- 
 ings, deadlocks would be chronic. The law is the mechanism, the 
 understandings the oil that permit it to run smoothly. 
 
 8. International Understandings. 
 
 International understandings are based on the same distinction 
 as constitutional understandings and are often referred to as 
 comity or imperfect rights under international law. " Our obliga- 
 tions to others," says Vattel, " are always imperfect when the 
 decision as to how we are to act rests with us."^' They are 
 observed on the principle of reciprocity and are of two kinds. 
 Thus states are accustomed to exchange certain courtesies and 
 favors, not required by strict law. They also sometimes withhold 
 
 12 Dicey, op. cit., p. 418. 
 
 ^3 Vattel, The Law of Nations, Introduction, sec. 17; see also Pliillimore, 
 Commentaries on Int. Law, i: 161, sec. 163; Hall, Int. Law, 7th ed. (Hig- 
 gins), pp. 14, 56; Woolsey, Int. Law, sec. 24; Davis, Elements of Int. Law, 
 4t'h ed. (Sherman), pp. 92, 116; Wright, The Understandings of Int. Law, 
 Am. Jl. of Int. Law, 14: 568 (Oct., 1920).
 
 NATURE OF THE FOREIGN RELATIONS POWER. 9 
 
 pressure when others fail to meet the responsibiUties imposed by 
 strict law. It is with the latter kind that we are especially con- 
 cerned here. As an example, international law requires that com- 
 mitments to be valid be made by the proper constitutional authority, 
 and therefore assumes that all governments are informed of the 
 authority in foreign states with which they deal, competent to make 
 various sorts of international commitments. International law, 
 however, considers that commitments once made must be carried 
 out.^* It knows nothing of constitutional restrictions making ex- 
 ecution difficult or impossible, consequently governments are not 
 required to know the agencies in foreign states for executing inter- 
 national commitments and are entitled to protest if execution 
 fails, whatever the cause. If such protests are withheld it is by 
 virtue of an international understanding.^' 
 
 Constitutional understandings suggest modes of exercising con- 
 stitutional powers out of respect for international responsibilities. 
 International understandings suggest a tolerant attitude toward 
 certain deficiencies in the meeting of international responsibilities 
 out of respect for constitutional limitations. 
 
 14 Wright, Columbia Law Rev., 20: 121-122; and infra, sec. 39. 
 
 15 Turner v. Am. Baptist Union, 5 McLean 347 (1852). See also Wright, 
 Am. Jl. of Int. Law, 10: 709, 716, and infra, sec. 39.
 
 PART 11. 
 
 The Position of the Foreign Relations Power 
 Under International Law.
 
 CHAPTER II. 
 The Representative Organ of Government. 
 
 9. The Nature of International Law. 
 
 International law has developed in a society based upon the 
 assumption of the complete independence of territorial states.^ 
 This independence is commonly said to imply that the state has 
 power to form a constitution and organize a government as it 
 sees fit; to formulate law and administer justice within its ter- 
 ritory according to its own notions; to formulate and pursue 
 foreign policies and to be the sole judge of its international respon- 
 sibilities.^ However, the contemporary and contiguous existence 
 of many states, each with an equal independence, practically re- 
 quires limitations in the exercise of these powers and the practice 
 and usage defining these limitations constitute international law. 
 The formulation, however, of a body of practice as law implies 
 responsibility for its observance. Thus we may define interna- 
 tional law as the body of rules and principles of conduct, observed 
 within the society of independent states, for the violation of which 
 states are habitually held responsible, by diplomatic protest, inter- 
 vention, reprisals, war or other means.' 
 
 1 " In the fifteenth century international life was fast resolving itself into 
 a struggle for existence in its barest form. In such condition of things no 
 law could be established which was unable to recognize absolute independence 
 as a fact prior to itself." W. E. Hall, Inf. Law, 7th ed. (Higgins), 1917, p. 
 18. 
 
 2 Wilson, Handbook of Int. Law, 1910, p. 56; Hershey, The Essentials 
 of Int. Pub. Law, 1912, p. 147; Bonfils, Manuel de droit international public, 
 6th ed. (Fauchille), 1912, sec. 58, p. 119; Borchard, The Diplomatic Pro- 
 tection of Citizens Abroad, 1915, p. 177; Wright, Am. Pol. Set. Rev., 13: 563; 
 Columbia Lazv Ret:, 20: 146. 
 
 3 For justification of this definition and comparison with other defini- 
 tions see Wright, Enforcement of Int. Law through Municipal Law in U. S., 
 U. of 111., Studies in the Social Sciences, 5 : 12-13 and Borchard, op. cit., p. 
 177 et seq. 
 
 13
 
 14 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 10. The Independence of States. 
 
 Of the various fields to which the independence of a state 
 extends, it is clear that other states would be less affected by a 
 state's constitution and form of organization than by the legislation 
 and administration of justice in its territory. Furthermore, each 
 of these would afifect other states less than the course of its foreign 
 policy and the interpretation of its international responsibilities. 
 However, history has shown that the constitution and form of or- 
 ganization of states is not a matter of total indifference to their 
 neighbors * and international law does limit the exercise of in- 
 dependence even in this field, but as a corollary to limitations upon 
 the state's external and internal activity. Acts and omissions, not 
 institutions are the primary concern of international law, but the 
 interrelation of the two cannot be ignored. 
 
 For example, international law requires that states, desiring to 
 enter into relations with other states, do so through diplomatic 
 oflficers exercising powers and enjoying rights and privileges fixed 
 by international law or treaty.^ So also states admitting foreigners 
 to their territory are required by international law to maintain 
 courts acting under a procedure calculated to assure substantial 
 justice." Where they have not been able to do this, foreign states 
 
 * Note for example the sympathy of the Holy Alliance for absolute gov- 
 ernments and of the United States for popular governments since its founda- 
 tion. (See Greene, Am. Interest in Popular Government, War Information 
 Series, Sept., 1917, No. 8.) " A steadfast concert for peace can never be 
 maintained except by a partnership of democratic nations. No autocratic 
 government could be trusted to keep faith within it or observe its covenants. 
 . . . We are accepting the challenge of hostile purpose because we know that 
 in such a government following such methods, we can never have a friend, 
 and that in the presence of its organized power, always lying in wait to ac- 
 complish we know not what purpose, there can be no assured security for 
 the democratic governments of the world. . . . The world must be made 
 safe for democracy." President Wilson, War Message, April 2, 1917. 
 
 5 The classification of these officers as fixed by the treaty of Vienna 1815 
 has been generally accepted. Wilson and Tucker, Int. Law, 7th ed., p. 162. 
 It is recognized that Article IT, sec. 2, cl. 2 of the Constitution of the U. S., 
 relating to the appointment of ambassadors and other public ministers, is to 
 be interpreted according to international law. Gushing, Attorney General, 
 7 Op. 190, 192. Infra, sec. 236. 
 
 ^ " Nations are bound to maintain respectable tribunals to which the sub- 
 jects of states at peace may have recourse for the redress of injuries and
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 15 
 
 have habitually exercised diplomatic protection of their nationals 
 or have insisted that permission be given them to establish extra- 
 territorial courts for deciding cases in which their nationals are 
 defendant.'^ 
 
 II. The Representative Authority Under International Law. 
 
 More important for our purposes, however, is the requirement 
 of international law that states maintain a definite authority to 
 which foreign states may complain of violations of international law 
 and from which they may expect satisfaction on the basis of that law 
 alone. This requirement appears to be a necessary deduction from 
 the accepted principle that under international law states are re- 
 sponsible as units^ and that this responsibility is unaffected by 
 
 the maintenance of their rights." Mr. Webster, Secretary of State, to 
 Chevalier d'Argaiz, Spanish Minister, June 2, 1842, Moore, Digest, 2: 5. 
 See also Borchard, Diplomatic Protection of Citizens Abroad, 1915, p. 
 213, 335 ; Moore, Digest, 6 : 695. The obligation to establish courts punish- 
 ing offenses against international law was recognized by Congress before the 
 Constitution (See Wright, Enforcement of Int. Law, p. 221) and is recog- 
 nized in the Constitution (Art. i, sec. 2, cl. 10). The obligation of a bel- 
 ligerent to establish prize courts is especially well recognized. " Neutral 
 states have a right to demand ex debito judiiicc that there be courts for the 
 administration of international law sitting in the belligerent countries." 
 (Phillimore, Int. Law, i : 55.) See also report of British Commission on 
 Silesian Loan controversy, 1753, American State Papers, For. Rel., i: 494; 
 Moore, Digest, 7 : 603 ; Lord Mansfield in Lindo v. Rodney 2 Doug. 613, 
 616 (1781) ; Lord Stowell in the Recovery, Rob. 348 (1807). Diplomatic 
 discussion, however, is not necessarily excluded until such judicial remedies 
 are exhausted (infra, note 13). 
 
 7 Borchard, op. cit., p. 346. 
 
 8 Borchard, ot>. cit., pp. 199-201. Hall, Int. Law, 7th ed., p. 54. Wilson 
 and Tucker, op. cit., p. 45, defines a state for purposes of international law as 
 "a sovereign political unity." The Supreme Court has said: "the National 
 Government is . . . responsible to foreign nations for all violations by the 
 United States of their international obligations," U. S. v. Arizona, 120 U. S. 
 479. 483. Apparent exceptions to this unity of responsibility such as federal 
 states whose constitutions permit a limited diplomatic power to the member 
 states (Germany and Switzerland) and imperial commonwealths which in 
 practice permit their self-governing colonies to exercise considerable diplo- 
 matic power (British Empire) (See Moore, Digest, i : 25 ; Wright, Am. JI. 
 of Int. Law, 13: 265) prove not to be on inspection. In these cases the 
 power of making commitments is to some extent distributed but responsi- 
 bility for their execution continues unified. Thus the German Constitution
 
 16 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 domestic law.^ States have uniformly refused to accept con- 
 
 of 1871 made it the duty of " the Emperor to represent the Empire among 
 nations " and foreign nations have held the imperial government responsible 
 for the execution of treaties made by the member states. " Unquestionably," 
 wrote Secretary of State Bryan to Ambassador Gerard on April 28, 1915, 
 "the destruction of this vessel (William P. Frye) v^^as a violation of the 
 obligations imposed upon the Imperial German Government under existing 
 treaty stipulations between the United States and Prussia, and the United 
 States government, by virtue of its treaty rights, has presented to the Im- 
 perial German Government a claim for indemnity on account of the result- 
 ing damages suffered by American citizens." (U. S. White Book, European 
 War No. i, p. 88.) Germany had admitted its responsibility under the 
 treaty in an earlier note. (Ibid.) Under the German Constitution of 1919 
 " The Commonwealth has exclusive jurisdiction over foreign relations " 
 (Art. 6) and though " the states may conclude treaties with foreign countries 
 in matters subject to their jurisdiction, such treaties require the assent of the 
 commonwealth." (Art. 78.) 
 
 The responsibility of the British government for acts of the self-governing 
 dominions has never been questioned and apparently remains even though 
 these dominions are given independent representation in the League of Na- 
 tions. " Disputes," said President Wilson before the Senate Foreign Rela- 
 tions Committee, " can rise only through the Governments which have 
 international representation. In other words, diplomatically speaking, there 
 is only one ' British Empire.' The parts of it are but pieces of the whole. 
 The dispute, therefore, in the case you have supposed (dispute between the 
 United States and the United Kingdom) would be between the United States 
 as a diplomatic vmit and the British Empire as a diplomatic unit." David 
 Hunter Miller, technical expert at the Peace Conference, testified to the 
 same effect: 
 
 "Senator Hitchcock: 'So that any dispute that could arise between the 
 United States and the Dominion of Canada involves the whole British Em- 
 pire?' 
 
 "Mr. Miller: 'It seems so to me, Senator.'" (66th Cong., ist Sess., 
 Senate Doc. No. 106, pp. 540, 422.) 
 
 8 Moore, Digest, 6: 309-324, especially pp. 317, 321. This ineffectiveness 
 of municipal law extends both to the right and the remedy. Thus municipal 
 law cannot alter the international law principles of responsibility. (Supra, 
 sec. 89.) In a few matters, as for instance, the protection of resident aliens, 
 international law has to a limited extent adopted the municipal responsibility 
 of a state as the measure of its international responsibility. In such cases 
 the principles of municipal responsibility become indirectly subject to inter- 
 national discussion. This, however, does not vitiate the principle stated. 
 (Borchard, op. cit., 116, 178, 179.) Nor can municipal law deprive foreign 
 states of remedies such as diplomatic intervention or the use of force recog- 
 nized by international law, though South American States have frequently as- 
 serted the contrary. (Ibid., p. 836.)
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 17 
 
 stitutional limitations/" legislative acts^^ or omissions/^ or judicial 
 
 ^^ " The contention of Mr. Marcy in the case of M. Dillon, French consul 
 at San Francisco, that the sixth amendment to the Constitution of the 
 United States, which provides that an accused party shall have compulsory 
 process for obtaining witnesses in his favor, should be considered as quali- 
 fying the general and absolute terms of the consular convention with France, 
 ' was not acquiesced in by the French government, which required their flag, 
 when raised to the mastheads of certain of their men-of-war at San Fran- 
 cisco, to be saluted as a reparation for the alleged indignity to their consul.' " 
 Mr. Fish, Secretary of State, to Mr. Bassett, Oct. i8, 1872, Moore, Digest, 
 5: 81. See also Borchard, op. cit., p. 201, 226, 839, 845. Infra, sec. 31. 
 
 11 Borchard, op. cit., pp. 181, 838 ct seq., Moore, Digest, 6: 309-324. There 
 have been numerous cases in which the legislative abrogation of a treaty or 
 the passage of laws in conflict with international law or treaty, though valid 
 in municipal law, have proved no defense to international protests. See 
 Moore, Digest, 5 : 357, 365. For principles of municipal law governing 
 the application of constitutions, statutes and ordinances in violation of in- 
 ternational law, see Wright, Am. Jl. Int. Lazv, 11: i, 566. China refused to 
 accept the exclusion acts as an excuse for violations of her treaties (For 
 references to her protests, see Moore, Digest, 4: 198, 202, 213, 235) and the 
 U. S. Supreme Court recognized that these laws though valid in municipal 
 law were no defense in international law. " It must be conceded that the 
 act of 1888 is in contravention of express stipulations of the treaty of 1868 
 and of the supplementary treaty of 1880, but it is not on that account in- 
 valid or to be restricted in its enforcement (in municipal law). . . . The 
 question whether our government' was justified in disregarding its engage- 
 ments with another nation is not one for the determination of this court. 
 . . . This court is not a censor of the morals of the other department's of the 
 government." (Chinese Exclusion Cases, 130 U. S. 589, 600.) President 
 Hayes by vetoing an earlier act (1879) had recognized the impossibility of 
 avoiding international responsibility by legislation. " Were such delay fraught 
 with more inconveniences than have ever been suggested by the interests 
 most earnest in promoting this legislation, I cannot but regard the sum- 
 mary disturbance of our existing treaties with China as greatly more in- 
 convenient to much wider and more permanent interests of the country. I 
 have no occasion to insist upon the more general considerations of interest 
 and duty which sacredly guard the faith of the nation, in whatever form 
 of obligation it may have been given." (Message. March i, 1879, Richard- 
 son, Messages and Papers of the Presidents, 7: 519.) The matter was suc- 
 cinctly explained by Secretary of State Fish in 1876. " Of course, in speak- 
 ing of the efl'ect of subsequent legislation upon the provisions of a prior 
 treaty, I refer only to the effect in the country where the legislation is 
 enacted, and upon the officers and people of that country. The foreign nation, 
 whose rights are invaded thereby, has no less cause of complaint and no 
 less right to decline to recognize any internal legislation which presumes to 
 limit or curtail rights accorded by treaty." Moore, Digest, 5 : 365. Wharton, 
 Digest, i: 35.
 
 18 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 decisions^^ as mitigations of international responsibility. It fol- 
 
 ^2 Borchard, op. cit., p. 214. The lack of legislation to give efifect to 
 international law was not thought by Great Britain to absolve the United 
 States from responsibihty for its failure to secure the release of Alexander 
 McLeod from state jurisdiction in 1841. (Lord Ashburton, British Minister, 
 to Secretary of State Webster, July 28, 1842, Moore, Digest, 2: 28.) Italy 
 was not deterred from pressing her claims on account of the Louisiana 
 lynchings during the nineties by the plea that the United States had not 
 passed legislation necessary to give effect to treaties. (Moore, Digest, 6: 
 848, United States Foreign Relations, 1901, 283-299.) The United States 
 saw no merit in the British contention that lack of legislation excused it's 
 failure to prevent departure of the Alabama in 1862 and the Geneva Arbitra- 
 tion of 1871 upheld the American position saying, " The government of Her 
 Britannic Majesty cannot justify itself for failure in due diligence on the 
 plea of insufficiency of the legal means of action which it possessed." 
 (Moore, Digest, 6: 1061 ; Malloy, Treaties of the United States, i: 719; 
 Moore, International Arbitrations, 4: 4101-4109; Digest, 7: 878.) The 
 American Continental Congress recognized this need of legislation in order to 
 meet many international responsibilities and urged the passage of suitable laws 
 by the states (Journ. Congress, 7: 181; Ford ed., 21: 1137). The Constitu- 
 tion authorizes such legislation (Art. i, sec. 8, cl. 10) and Congress has 
 enacted many statutes for this purpose. (Wright, Enforcement of Int. Law 
 through Municipal Law, pp. 221-223; infra, sees. 1 12-122.) Presidents have 
 repeatedly urged further legislation of this character, especially legislation 
 giving federal courts jurisdiction adequate to protect the treaty rights of 
 aliens. (Pres. Harrison, Message, Dec. 9, 1891 ; Pres. McKinley, Messages, 
 Dec. 5, 1899, Dec. 3, 1900; Pres. Roosevelt', Message, Dec, 1906; Pres. 
 Taft, The United States and Peace, N. Y., 1914, pp. 64-68.) The courts, 
 attorneys general and text writers have insisted that the passage of such 
 legislation is a constitutional duty of Congress. (Iredall, J., in Ware 
 V. Hylton (1796), i Dall, 199; Gushing, Att. Gen. 6 Op. 291 (1854), Moore, 
 5: 370; Willoughby, Constitutional Law, i: 487; Wheaton, Elements of In- 
 ternational Law, sec. 266, Dana's note, pp. 339, 715.) We may agree with 
 Mr. Root : " It is to be hoped that our government will never again attempt 
 to shelter itself from responsibility for the enforcement of its treaty obli- 
 gations to protect foreigners, by alleging its own failure to enact the laws 
 necessary to the discharge of those obligations." (Proc. American Society 
 of Int. Lazv, 4: 25.) See also excellent article by C. C. Hyde, Proc. Acad, 
 of Pol. Sci., 7 : 558. 
 
 13 " This department has contested and denied the doctrine that a gov- 
 ernment may set up the judgment of one of its own courts as a bar to an 
 international claim, when such judgment is sliown to have been unjust or 
 in violation of the principles of international law." (Report of Mr. Bayard, 
 Sec. of State, to the President, Feb. 26, 1887. Sen. Ex. Doc. 109, 49th Cong., 
 2d Sess., Moore, Digest, 6: 667.) See also The Betsey, U. S. v. Great 
 Britain, adjudicated by the mixed commission formed under Article 7 of 
 the Jay treaty of 1794, Moore, Int. Arb., .3: 3208, especially Commissioner
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 19 
 
 lows that discussions of international responsibility can hardly be 
 fruitful unless the organ for discussing is itself free of municipal 
 restrictions. Thus, in a protest to Great Britain against alleged 
 violations of neutral rights at sea. Secretary of State Lansing 
 answered the British contention, that American citizens deeming 
 themselves aggrieved could get relief in the prize courts, by calling 
 attention to the restrictions placed upon these courts by orders in 
 Council: 
 
 " The United States government feels," he wrote, " that it cannot rea- 
 sonably be expected to advise its citizens to seek redress before tribunals 
 which are, in its opinion, unauthorized by the unrestricted appHcat'ion of 
 international law to grant reparation, nor to refrain from presenting their 
 claims directly to the British government through diplomatic channels." i* 
 
 This requirement that states maintain a definite representative 
 authority is, however, specifically evidenced by the authority of text 
 
 Pinckney's opinion (Ibid., 3: 3182); Wheaton's argument in the Danish 
 claims arbitration, Moore, Int. Arb., 5: 4555; Hale's Report of Commission 
 formed under Article 12 of the Treaty of Washington, 6: 88, Moore, Int. 
 Arb. 3: 3209; Wharton, Digest, 2: 672; Moore, Digest, 6: 695-697; Cotes- 
 worth and Powell Case, Great Britain v. Colombia, Moore, Int. Arb., 2: 
 2081; Justice Davis in Gushing, Administrator, v. U. S., 22 Ct. cl. i, 1886; 
 Ralston, International Arbitral Law and Procedure, pp. 29, 310; Borchard, 
 op. cit., pp. 197, 342; Dana's Wheaton, sec. 391 et seq., note, p. 483; Bluntschli, 
 Le Droit International Codifie, 4th ed., Paris, 1886, sec. 851 ; Oppenheim, 
 Int. Law, 2d ed., London, 1912, 2: 557; Lawrence, Principles of Int. Law, 
 4th ed., p. 479; Earl Grey to IMr. Page, Ambassador to Great Britain, July 
 31, 1915, United States White Book, European War, No. 2, p. 182, par. 9. 
 See also supra, note 30. 
 
 1* U. S. White Book, European War No. 3, p. ZJ. The force of Secre- 
 tary Lansing's argument was evidently felt by the British prize courts, for a 
 few months later the Judicial Committee of the Privy Council handed down 
 the decision of the Zamora which held prize courts competent to apply inter- 
 national law irrespective of conflicting orders in council. " It is obvious, how- 
 ever, that the reason for this rule of diplomacy (that an aggrieved neutral 
 should exhaust his remedies in belligerent prize courts before appealing to 
 the diplomatic intervention of his own government) would entirely vanish if a 
 Court of Prize, while nominally administering a law of international obli- 
 gation, were in reality acting under the direction of the Executive of 
 the belligerent Power." (L. R. 1916, 2 A. C. yj.) The difficulty arising from 
 the fact that even the representative organ is necessarily restricted by the 
 Constitution has been referred to (sec. 4), but this organ must be free of 
 other municipal law restrictions.
 
 20 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 writers^^ and by practice. Thus where no such representative 
 authority exists, or where it exists but its control is so ineffective 
 that it cannot in fact represent the state recognition has usually been 
 withheld or regular diplomatic relations have been broken. " No 
 power," says Westlake, " would willingly try to weave ties with 
 a rope of sand." ^* 
 
 15 " As a state is an abstraction from the fact that a multitude of in- 
 dividuals live in a country under a sovereign Government, every State must 
 have a head as its highest organ, which represents it, within and without 
 it's borders, in the totality of its relations. . . . The Law of Nations pre- 
 scribes no rules as regards the kind of head a State may have. . . . Some 
 kind or other of a head of the State is, however, necessary according to 
 International Law, as without a head there is no State in existence, but 
 anarchy." (Oppenheim, International Law, vol. i, sec. 341.) " Sovereigns 
 as the universal representatives of states can be considered as having inde- 
 pendently a personality under the law of nations." (Rivier, Principes du 
 droit des gens, i: 51, Moore, Digest, i: 17.) See also Phillimore, Int. 
 Law, 3d ed., i : 81 ; Sec. of State Fish, Feb. 21, 1877, Moore, Digest, i : 250, 
 
 1^ Recognition and the maintenance of diplomatic intercourse are dis- 
 cretionary with each state, but by examining the conditions under which 
 recognition has been accorded or relations broken we can discover what 
 perfection of organization modern states actually regard as prerequisite to 
 entry into international intercourse. 
 
 In recognizing new states, the primary consideration has been the actual 
 state of independence of a community of people occupying a definite terri- 
 tory, but as Westlake points out, " The recognizing powers must respectively 
 be satisfied that the new state gives sufficient promise of stability in its 
 government'. No power would willingly try to weave ties with a rope of 
 sand." (Int. Law, i : 50.) (For practice in recognizing new states 
 see Moore, Digest, i: 74-119.) 
 
 Thus the possession of a stable government is a prerequisite to recog- 
 nition of a state. Does it follow that if the government of a recognized 
 state dissolves or undergoes convulsions the state departs from the family 
 of nations? Publicists say not — but in practice its membership is in abeyance 
 until a new government is recognized. The nature of the recognition of a 
 new government has been much discussed, some asserting that it has no 
 place in international relations (Hall, ofy. cit., p. 20; Woolsey, Int. Law, p. 
 39; Twiss, Int. Law, i : 21) or is a mere formality (Goebel, Recognition 
 Policy of the U. S., Columbia University Studies in History, Economics 
 and Public Law, 66: 67) but in practice the recognition or non-recognition 
 of a government may have important results, as witness the American 
 policy toward the governments of Huerta in Mexico (1914), Tinoca in 
 Costa Rica (1916) and Lenin in Russia (1917). Practice shows that a 
 radical change in a state's constitution is a matter of international consid- 
 eration and that the new government must present prospects of reasonable
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 21 
 
 12. The President is the Representative Authority in the United 
 States. 
 
 In the United States, the President, acting through the De- 
 partment of State, is this representative authority. 
 
 "The president," said John Marshall while in Congress, "is the sole 
 organ of the nation in its external relations, and its sole representative with 
 foreign nations. Of consequence, the demand of a foreign nation can only 
 be made of him." i^ 
 
 " The Executive," reported the Senate Foreign Relations Committee in 
 1897, " is the sole mouthpiece of the nation in communication with foreign 
 sovereignties." ^^ 
 
 The same has been reiterated by courts," by commentators,^" 
 
 stability and responsibility before the state can again enter into official inter- 
 national relations. The various criteria which have been followed at 
 different times for judging of such stability and responsibility such as (i) 
 defacto control, (2) legal continuity or legitimacy, or (3) consent of the 
 members of the state need not detain us here. (For American practice 
 in recognition of new governments see Moore, i: 119-164.) 
 
 Finally even when a recognized state has a recognized government it 
 may still be unable to maintain international relations if that government 
 presents no definite authority able to meet international responsibilities. 
 Because of this lack the United States under the Articles of Confederation 
 had difficulty in exchanging diplomatic officers with other states. Thus 
 Hamilton said of the Confederation, " The treaties of the United States, 
 under the present constitution, are liable to the infractions of thirteen dif- 
 ferent legislatures, and as many different courts of final jurisdiction, acting 
 under the authority of those legislatures. ... Is it possible that foreign na- 
 tions can either respect or confide in such a government?" (Federalist, 
 No. 22, Ford ed., p. 141.) See also remarks of James Wilson and Madison 
 in the Federal Convention of 1787, Farrand, Records of the Federal Con- 
 vention of 1787, 1 : 426, 513. Even after the Constitution was in effect the 
 apparent irresponsibility of the President for acts committed within the 
 states violative of international rights of foreigners caused Italy to with- 
 draw its minister. (Moore, Digest, 6: 837-841.) Practice seems to show 
 that states must maintain a stable government with a single definite repre- 
 sentative organ under penalty of international ostracism. 
 
 1'' Benton, Abridgment of Debates of Congress, 2 : 466. 
 
 ^s 54th Cong., 2d Sess., Sen. Doc, No. 56, p. 21. 
 
 19 " As the Executive head of the nation, the President is made the only 
 legitimate organ of the General Government, to open and carry on cor- 
 respondence or negotiations with foreign nations, in matters concerning the 
 interests of the country or of its citizens." Nelson, J., in Durand v. Hollins, 
 4 Blatch, 451, 454. 
 
 20 " Official communications involving international relations and general 
 international negotiations are within the exclusive province of the Depart-
 
 22 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 by Congress^^ and by the President himself in official communica- 
 tions to Congress^^ and to foreign nations.^^ The President's posi- 
 tion as the exclusive organ for communication with foreign nations 
 
 ment of State, at the head of which stands the Secretary of State." (Wil- 
 son and Tucker, op. cit., p. 187.) "A foreign minister here is to correspond 
 with the Secretary of State on matters which interest his nation, and 
 ought not to be permitted to resort to the press. He has no authority to 
 communicate his sentiments to the people by publications, either in manu- 
 script or in print, and any attempt to do so is contempt of this Government. 
 His intercourse is to be with the executive of the United States only, upon 
 matters that concern his mission or trust'." (Lee, Attorney General, i Op. 
 74, 1797, Moore, Digest, 4: 682.) See also supra, notes 17, 18. 
 
 -1 " In 1874, Congress declared that claims of aliens cannot properly be 
 examined by a committee of Congress, there being a Department of this 
 Government in which most questions of an international character may be 
 considered — that which has charge of foreign affairs: that Congress cannot 
 safely and by piecemeal surrender the advantage which may result from 
 diplomatic arrangements; that this has been the general policy of the 
 Government, and Congress has not generally entertained the claims of 
 aliens and certainly should not imless on the request of the Secretary of 
 State (See Report No. 498, Committee on War Claims, ist Sess., 43d Cong., 
 May 2, 1874)," Moore, Digest, 6: 60S; Senate Report, supra, note 18. 
 Apparently attempts to negotiate with foreign governments except under 
 authority of the President is a criminal offense under the Logan Act, Jan. 
 30. 1799, Rev. Stat., sec. 5335, Criminal Code of 1909, Art. 5, Moore, Digest, 
 4: 449. See also infra, sec. 17. 
 
 22 " The Constitution of the United States, following the established 
 usage of nations, has indicated the President as the agent to represent 
 the national sovereignty in it's intercourse with foreign powers, and to 
 receive all official communications from them, . . . making him, in the 
 language of one of the most eminent writers on constitutional law, ' the 
 constitutional organ of communication with foreign states.'" (President 
 Grant, Message vetoing two joint resolutions in response to congratulations 
 of foreign states on the occasion of the Centennial exposition, Richardson, 
 op. cit., 7: 431.) 
 
 23 " ' But,' said he (Citizen Genet), 'at least, Congress are bound to see 
 that the treaties are observed.' I told him no ; there were very few cases 
 indeed arising out of treaties, which they could take notice of; that' the 
 President is to see that treaties are observed. ' If he decides against the 
 treaty, to whom is a nation to appeal?' I fold him the Constitution had 
 made the President the last appeal. He made me a bow, and said, that 
 indeed he would not make me his compliments on such a Constitution, ex- 
 pressed the utmost astonishment at it, and seemed never before to have had 
 such an idea." (Sec. of State Jefferson, Moore, Digest, 4: 680.) "I do 
 not refer to this for the purpose of calling the attention of the Imperial
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 23 
 
 is a well-established implication from the powers expressly delegated 
 to him by the constitution to receive and to commission diplomatic 
 officers.^* But this position is not founded merely on the con- 
 stitution. It has apparently acquired a certain foundation in in- 
 ternational law through recognition by foreign nations. Thus 
 foreign nations have habitually presented their claims to the Pres- 
 ident through the Department of State. 
 
 "All foreign powers recognize it (the Department of State)," wrote 
 Secretary of State Seward, " and transmit their communications to it, 
 through the dispatches of our ministers abroaa, or their own diplomatic 
 representatives residing near this Government. These communications are 
 submitted to the President, and, when proper, are replied to under his direc- 
 tion by the Secretary of State. This mutual correspondence is recorded and 
 preserved in the archives of this Department. This is, I believe, the same 
 system which prevails in the governments of civilized states everywhere." ^s 
 
 The only exception to this rule appears to be in matters of a 
 private law nature litigated before the courts.^" In matters of in- 
 ternational law foreign nations have sometimes been willing to 
 
 German Government at this time to the surprising irregularity of a com- 
 munication from the Imperial German Embassy at Washington addressed 
 to the people of the United States through the newspapers, but only, etc." 
 (Secretary of State Bryan to Mr. Gerard, American Ambassador at Berlin, 
 May 13, 1915, White Book, European War No. i, p. 76.) See also infra, 
 sec. 13. 
 
 2* " The President is the organ of diplomatic intercourse of the Gov- 
 ernment of the United States, first, because of his powers in connection with 
 the reception and dispatch of diplomatic agents and with treaty making; 
 secondly, because of the tradition of executive power adherent to his office." 
 (Corwin, The President's Control of Foreign Relations, p. 33.) See also 
 Wright, Columbia Lazv Rev., 20: 131. 
 
 25 Mr. Sew-ard, Secretary of State, to Mr. Dayton, Minister to France, 
 June 27, 1862, Moore, Digest, 4: 781. See also Borchard, op. cit., p. 355. 
 Congressional Committees may not hear such claims, supra, note 22. " The 
 Department of State has explained that claims against the Government can 
 be presented only in one of two ways: (1) Either by the claimant's availing 
 himself directly of such judicial or administrative remedy as the domestic 
 law might prescribe; or (2) in the absence of such remedy, if the claimant 
 was an alien, by his government ' formally presenting the claim as an 
 international demand to be adjusted through the diplomatic channel.' " 
 (Acting Secretary of State Davis to Baron de Fava, Italian Minister, July 
 9, 1884, Moore, 6: 608.) 
 
 26 Foreign states are entitled to bring suit in United States courts, state 
 or federal (Mexico v. Arrangoiz, tt How. Prac. i, N. Y. 1855; King of 
 Prussia v. Kupper, 22 Mo. 550, 1856; King of Spain v. Oliver, i Peter's
 
 24 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 permit trial of the issue in the courts first," but they have always 
 reserved the right to carry the case before the President (through 
 the Department of State) later, if they think the decision unjust.^* 
 In important matters foreign governments have refused to follow 
 a suggestion for settlement in the courts.^' They have been equally 
 
 C. C. 217, 276, 1810; The Sapphire, 11 Wall. 164, 1870), and the United States 
 Court of Claims has a limited jurisdiction of claims against the government. 
 (Borchard, op. cit., 164.) See also Wesflake, op. cit., i: 250. 
 2^^ Supra, note 6. 
 
 28 Supra, note 13. 
 
 29 See suggestions for judicial settlement of the California-Japanese 
 School and Land Ownership questions. (Corwin, op. cit., p. 108; H. M. 
 Dilla, Mich. L. R., 12: 583.) In a note of March 16, 1916, with reference 
 to the Appam, a British vessel captured by Germany and brought to a 
 United States port, the German government said : "The opinion of the De- 
 partment of State that the American courts must decide about the claims 
 of the British Shipping Company is incompatible with the treaty stipulations. 
 It is, therefore, respectfully requested that the legal steps before an American 
 court should be suspended." The American answer of April 7, 1916, " holding 
 the view that Article 19 is not applicable to the case of the Appam, this 
 Government does not consider it necessary to discuss the contention of the 
 Imperial Government that under Article 19 American courts are without 
 jurisdiction to interfere with the prize," appears satisfactory. It is, there- 
 fore, unfortunate that the note added the following inadmissible argument. 
 " Moreover, inasmuch as the Appam has been libeled in the United States 
 District Court by the alleged owners, this Government, under the American 
 system of government, in which the judicial and executive branches are 
 entirely separate and independent, could not vouch for a continuance of the 
 status quo of the prize during the progress of the arbitration proposed by the 
 Imperial Government. The United States Court, having taken jurisdiction 
 of the vessel, that jurisdiction can only be dissolved by judicial proceedings 
 leading to a decision of the court discharging the case — a procedure which 
 the executive cannot summarily terminate." However correct this may be 
 from the standpoint of constitutional law it could not justify a failure to 
 meet internafional responsibilities. (Supra, note 13. White Book, European 
 War, No. 3, PP- 340. 343-) 
 
 The United States has been similarly reluctant to leave important 
 matters of international law to foreign courts. In a note of June 24, 1915, 
 with reference to indemnity for destruction of the United States vessel Wil- 
 liam P. Frye, by Germany, Secretary Lansing wrote, " The Government 
 of the United States, therefore, suggests that the Imperial German Govern- 
 ment reconsider the subject in the light of these considerations, and because 
 of the objections against resorting to the Prize Court the government of 
 the United States renews its former suggestion that an effort be made to 
 settle this claim by direct diplomatic negotiations." (Op. cit.. No. 2, p. 187; 
 see also note of April 28, 1915, op. cit., No. i, p. 88.)
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 25 
 
 unresponsive to suggestions for a discussion of international claims 
 with the state governments within the United States. ^° They have 
 insisted upon discussion with the President, through the Depart- 
 ment of State," have accepted the President's interpretation of 
 the responsibilities as the voice of the nation^^ ^nd the United 
 States has acquiesced.'' 
 
 Thus, though the Presidency is primarily an office under the 
 constitution, it is also an office with distinctive functions and, it 
 may be added, enjoying privileges'* under international law. Does 
 
 30 See Louisiana Lynching Cases, U. S. For. Rel., 1891, pp. 665-667, 
 671-672, 674-686, 712-713, Ibid., 1901, p. 253; Moore, Digest, 6: 837. "We 
 should not be obliged to refer those who complain of a breach of such 
 an obligation to governors of states and county prosecutors to take up the 
 procedure of vindicating the rights of aliens which have been violated on 
 American soil." (Taff, Proc. Am. Soc. of Int. Law, 4: 44.) The United 
 States has taken a similar attitude as to claims against foreign states. 
 "This government cannot with propriety apply to the authorities of Yucatan 
 for redress, that province constituting only a part of the Republic of 
 Mexico, which is responsible in the last' resort for all injuries which the 
 judicial tribunals may have neglected or may have been incompetent to 
 redress." (Mr. Calhoun, Secretary of State to Mr. Holmes, Nov. 20, 1844, 
 Moore, Digest, 4: 682.) 
 
 31 Sut>ra, note 26. If some international organ of settlement is utilized 
 it must of course be on the basis of express agreement. In the absence of 
 treaty, arbitration is voluntarj^. See Wright, Columbia Law Rev., 20: 146. 
 
 32 Foreign states have insisted that executive interpretations of treaties 
 are binding even though not submitted to the Senate (See controversies with 
 reference to notes explaining Mexican Peace Treaty of 1848 and Clayton- 
 Bulwer treaty with England, 1850, Moore, Digest, 3: 138; 5: 205; Wright, 
 Minn. Law Rev., 4: 22; Crandall, Treaties, their Making and Enforce- 
 ment, 1916, pp. 85, 381) and that the President's messages to Congress are 
 subject to mternational cognizance. (See President Jackson's threat of 
 reprisals against France, Dec, 1834, and President Taylor's comments on the 
 Hungarian revolt of 1848, Message, March 18, 1850, and protest's thereat, 
 Moore, Digest, 7 : 125 ; i : 222. See also infra, sees. 19, 20. 
 
 33 In the various lynchings of aliens, especially Italians, the govern- 
 ment has paid the indemnities demanded. Though expressly stated to be 
 gratuities, the uniform practice seems to indicate a sense of responsibility. 
 (Moore, Digest, 6: 837.) The United States has sometimes refused to ac- 
 cept' presidential interpretations of responsibility. Infra, sees. 34-38. 
 
 3* The President apparently enjoys sovereign's immunities under inter- 
 national law. See Satow, Diplomatic Practice, 1917, i: 6; Willoughby, 
 Constitutional Law, 2: 1300, et seq.; Oppenheim, op. cit., sec. 356.
 
 26 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 it follow that an attempt to alter the international functions of the 
 ofifice by constitutional amendment would involve a violation of 
 international law? We believe not. Such an amendment would 
 be a matter for international cognizance but no complaint would be 
 justified if a new organ capable of performing the international 
 functions of the president were substituted. International law is 
 concerned only with the existence of a definite organ capable of 
 giving satisfaction to demands based on international law or treaty, 
 not with its precise form.^^ Doubtless the authority might be a 
 council or a congress though there is an unquestionable tendency 
 for international law to favor organs for international communica- 
 tion of the traditional form, that is the Chief Executive acting 
 through a foreign minister.^^ However, until the constitution has 
 been amended to this effect, and the change has been recognized 
 by foreign nations, they will be entitled to look to the President as 
 the authority to whom they may present their claims and from 
 whom they may expect satisfaction according to the standard of 
 international law and treaty. 
 
 Now there is danger of misunderstanding. This does not mean 
 that foreign nations are entitled to consider the President com- 
 petent to commit the United States to all sorts of international re- 
 sponsibilities. A treaty or any other international obligation is 
 valid only when the consent of the state is tacitly or expressly 
 given," and to determine the reality of consent the constitutional 
 law of the state must be appealed to. Only the organs there 
 designated, each within its constitutional competence,^^ can bind 
 
 35 Hall, op. cit., p. 20, supra, note 15, 
 
 86 Supra, notes 22, 25. 
 
 37 Wilson and Tucker, op. cit., p. 213; Hall, op. cit., sec. 108; Wright, 
 Minn. Laiu Rev., 4: 17. 
 
 38Crandall, op. cit., sec. i, 2: Wheaton, Dana ed., sec. 265; Borchard, op. 
 cit., pp. 183-184, says, " The power of officers of the government, superior 
 and inferior, to bind the government is limited by their legal authority to 
 enter into such obligations. This authority is generally strictly construed. 
 The President of a country cannot legally grant or alter the terms of con- 
 cessions to foreigners, if the constitutional law of the country requires the 
 approval of Congress for such act's. Those dealing with agents of the
 
 REPRESENTATIVE ORGAN OF GOVERNMENT. 27 
 
 the nation. But once the treaty or other commitment is made 
 by the proper constitutional authority, the President is, in the 
 absence of express treaty provision to the contrary ,^^ the authority 
 to whom they may look for its execution. 
 
 state are ordinarily bound by their actual authority, and not, as in private 
 law, by their ostensible authority. But in the Trumbull case (Chile v. 
 U. S., Aug. 7, 1892, Moore, Int. Arb. 3569) the apparent authority of a 
 diplomatic officer to contract was held sufficient to bind his government, and in 
 the Metzger case (U. S. v. Haiti, Oct. 18, 1899, For. Rel. 262) Judge Day 
 expressed the opinion that the ' limitations upon official authority, undisclosed 
 at the time to the other government,' do not ' prevent the enforcement of a 
 diplomatic agreement.'" See also Wright, Columbia Law Rev., 20: 121-122. 
 Infra, sec. 24. 
 
 30 For treaty provisions designating other organs of government as 
 responsible, see Wright, Columbia Law Rev., 20: 123-124.
 
 CHAPTER III. 
 
 Attributes of the National Representative Organ under 
 
 International Law, 
 
 A. Sole Agency for Foreign Communication. 
 
 13. Foreign Representatives may officially communicate with the 
 nation only through the President or his Representatives. 
 
 The position of the President as the representative organ impHes 
 that foreign nations are entitled to present their claims to him but 
 it also implies: (a) that they can communicate with the nation 
 through him alone and {h) that they may take cognizance of all his 
 official acts. Efforts of foreign governments to communicate with 
 organs of the United States other than the President or his re- 
 presentatives, with private American citizens or with the American 
 people directly have been protested by the President, while efforts 
 of American organs of government or self-constituted missions to 
 communicate with foreign nations have been vetoed or prohibited 
 by law. Thus in 1793 when Citizen Genet sought to obtain an 
 exequatur for a consul whose commission was addressed to the 
 " Congress of the United States," Secretary of State Jefferson told 
 him that " the President was the only channel of communication 
 between the United States and foreign nations " and refused to 
 issue an exequatur until the commission was correctly addressed.^ 
 In 1833 Secretary of State Livingston sent letters to the 
 Charges of the United States in various capitals instructing them to 
 notify the foreign minister that " all communication made directly 
 to the head of our Executive Government should be addressed ' to 
 the President of the United States of America' without any other 
 addition." lie referred to the fact that the style of address "to 
 the President and Congress of the United States " which had 
 
 1 Moore, Digest, 4 : 680. 
 
 28
 
 NATIONAL REPRESENTATIVE ORGAN. 29 
 
 been continued since the old Confederation was no longer proper,^ 
 In 1874 Congress itself passed a resolution refusing to consider 
 foreign claims, " there being a department of the government in 
 which most questions of an international character may be con- 
 sidered." ^ Political correspondence with American citizens by the 
 resident diplomatic representative of a foreign nation has usually 
 resulted in a demand for the recall or in the dismissal of the rep- 
 resentative as in the case of the British Minister Lord Sackville who 
 was led to communicate his views of the impending presidential 
 election to an American correspondent.* Foreign ministers who 
 have tried to talk over the head of the government directly to the 
 people have been sharply rebuked. The government requested the 
 recall of Citizen Genet whose misconduct in that direction became 
 notorious^ and in the later case of the Spanish minister Yrujo, 
 Attorney General Lee said:" 
 
 " A foreign minister here is to correspond with the Secretary of State 
 on matters which interest his nation and ought not to be permitted to resort 
 to the press. He has no authority to communicate his sentiments to the 
 people by pubHcations, either in manuscript or in print, and any attempt to 
 do so is contempt of this government. His intercourse is to be with the 
 executive of the United States only upon matters that concern his mission 
 or trust." 
 
 More recently Ambassador BernstorfT's newspaper warning to 
 American citizens to keep off of the Lusitania was referred to by 
 Secretary of State Lansing as " the surprising irregularity of a 
 communication from the Imperial German Embassy at Washington 
 addressed to the people of the United States through the news- 
 papers." ^ 
 
 2 Corwin, op. cit., p. 48, citing 54th Cong., 2d Sess., Sen. Doc. No. 56, 
 p. 9, footnote, and J. Q. Adams, Memoirs, 4 : 17-18. 
 
 3Magoon, Reports, 1902, p. 340, Moore, Digest, 6: 608. See also supra, 
 Chap. II, note 21. 
 
 4 Pres. Cleveland, Annual Message, Dec. 3, 1888, Richardson, Messages 
 of the Presidents, 8: 780, Moore, Digest, 4: 537-548. 
 
 s Moore, Digest, 4 : 487. 
 
 « Lee, Att. Gen., i Op. 74 (1797), Moore, Digest, 4: 682. 
 
 "^ Mr. Bryan, Sec. of State, to Mr. Gerard, Ambassador to Germany, 
 May 13, 1915, U. S. White Book, European War, No. i, p. 76.
 
 30 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 14. National Organs of Government other than the President or 
 
 his Representatives may not communicate. 
 The United States has hkewise taken steps to prevent its organs 
 of government other than the President, from communicating with 
 foreign governments. President Grant's veto of two resolutions 
 passed by Congress in response to congratulations on the Centennial 
 Exposition of 1876 is typical of the fate of such resolutions of 
 Congress. " The Constitution of the United States," wrote Pres- 
 ident Grant, " following the established usage of nations, has in- 
 dicated the President as the agent to represent the national sover- 
 eignty in its intercourse with foreign powers." ^ 
 
 15. National and State Laws subject to International Cognizance. 
 There appears, however, to be an exception to this rule in the 
 
 cognizance which foreign nations take of state or national laws. 
 In the states, statutes usually become effective upon signature by 
 the governor, or if passed over his veto, upon signature by the 
 Clerk of the last House of the Legislature to act. Sometimes there 
 is provision for official publication, sometimes not, but there is never 
 requirement for formal communication to foreign nations through 
 the President of the United States.*^ Yet foreign nations have 
 taken cognizance of such statutes deemed to be in violation of 
 their rights under international law or treaty, as illustrated by 
 Japanese protests at anti-alien legislation in California and other 
 states.^" The United States has itself recognized that state laws 
 are subject to international cognizance by occasionally concluding 
 treaties, the operation of certain clauses of which is made de- 
 pendent upon state law. Thus article VII of the treaty of 1853 
 with France allowed French citizens to possess land on an equality 
 
 8 Richardson, op. cit., 7: 431; supra, sec. 12, infra, sec. 202. 
 
 "Field V. Clark, 143 U. S. 649 (1892), appended note. Finley and 
 Sanderson, The Am. Executive and Executive Methods, N. Y., 1908, p. 81 ; 
 Reinsch, Am. Legislatures and Legislative Methods, N. Y., 1913, p. 142. 
 
 '^'On controversy as to the rights of Japanese School Children in Cali- 
 fornia, 1906, see E. Root, Am. Jl. of Int. Latv, i: 273 and editorials, i: 150, 
 449; Corwin, Nation.nl Supremacy, 1913, p. 217. On controversy as to 
 Japanese right to hold land, 1913, and since, see Editorial, Am. Jl. Int. Law, 
 8: 571, Moore, Principles of Am. Dip., p. 191, and Corwin, op. cit., p. 232, 
 Am. Year Book, 1917, p. 48,
 
 NATIONAL REPRESENTATIVE ORGAN, 31 
 
 with citizens " in all states of the Union where existing laws permit 
 it, so long and to the same extent as the said laws shall remain in 
 force." " 
 
 'Acts or resolutions of Congress become effective upon signature 
 by the President, or if passed over his veto, upon signature by the 
 Clerk of the last House of Congress to act.^^ Amendments to 
 the Federal Constitution become effective upon proclamation by 
 the Secretary of State.^^ Treaties become effective as domestic 
 law upon proclamation by the President, but as between nations 
 they are effective from signature if ratifications are subsequently 
 exchanged.^* Only in the case of treaties is there any official proc- 
 
 ^1 See also Art. IV of the treaty of 1854 with Great Britain by which " the 
 Government of the United States further engages to urge upon the state 
 governments to secure to the subjects of Her Britannic Majesty the use of 
 the several state canals on terms of equality with the inhabitants of the 
 United States." By Art. V of the treaty of peace with Great Britain of 1783 
 it is agreed that " Congress shall earnestly recommend it to the legislatures 
 of the respective states, to provide for the restitution of the estates," etc., 
 of the Loyalists. 
 
 12 Rev. Stat., sec. 204, amended Dec. 28, 1874, 18 Stat., 294, sec. 2, 
 Comp. Stat., sec. 302, and supra, note 9. The Secretary of State is required 
 to furnish copies of valid resolutions and acts of Congress and treaties to 
 the Congressional Printer " as soon as possible " after they have become 
 "law." Rev. Stat., sec. 308. 
 
 13 Rev. Stat'., sec. 205, Comp. Stat., sec. 303. 
 
 1* Rev. Stat., sec. 210, Comp. Stat., sec. 308. Treaties must be published 
 in one newspaper in the District of Columbia to be designated by the 
 Secretary of State, Act July 31, 1876, 19 Staf., 105, Comp. Stat., sec. 7184. 
 " It is undoubtedly true as a principle of international law, that, as re- 
 spects the rights of either government under it, a treaty is considered as 
 concluded and binding from the date of its signature. In this regard the ex- 
 change of ratifications has a retroactive effect, confirming the treaty from 
 its date. (Wheat, Int. Law, by Dana, 336.) But a different rule prevails 
 where the treaty operates on individual rights. ... In so far as it affect's 
 them it is not considered as concluded until there is an exchange of ratifica- 
 tions. ... In this country a treaty is something more than a contract, for 
 the federal constitution declares it to be the law of the land. If so, before 
 it can become a law, the Senate, in whom rests the authority to ratify it, 
 must agree to it. But the Senate are not required to adopt or reject' it as a 
 whole, but may modify or amend it, as was done with the Treaty under 
 consideration. As the individual citizen, on whose rights of property it op- 
 erates, has no means of knowing anything of it while before the Senate, 
 it would be wrong in principle to hold him bound by it, as the law of the 
 land, until it was ratified and proclaimed." Haver v. Yaker, 9 Wall., 2)2.
 
 32 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 lamation by the President, yet all of these instruments, declared 
 supreme law by article VI of the Constitution, are subject to inter- 
 national cognizance immediately upon becoming effective.^^ For- 
 eign nations, in fact, always taken cognizance of acts of Congress 
 deemed to be in violation of their rights under international law 
 or treaty as did China of the exclusion acts^® and Great Britain 
 of the Panama Canal tolls act of 1911.^'^ In the latter case Secre- 
 tary of State Knox maintained that such protest was not proper 
 until action under the statute had actually impaired British rights 
 or as least until executive proclamation to give effect to the statute 
 had issued but his view does not seem to have been accepted. The 
 British ambassador replied : ^^ 
 
 " His Majesty's government feel bound to express their dissent. They 
 conceive that international law^ or usage does not support the doctrine that 
 the passing of a statute in contravention of a treaty right affords no ground 
 of complaint for the infraction of that right, and that the nation which holds 
 that its treaty rights have been so infringed or brought into question by a 
 denial that they exist, must, before protesting and seeking a mean-s of de- 
 termining the point at issue, w^ait until some further action violating those 
 rights in a concrete instance has been taken." 
 
 So also foreign nations enjoying most favored nation com- 
 mercial privileges by treaty with the United States, have always 
 applied for the advantages assured by such treaties upon the taking 
 effect of any act or treaty which gives a favor to other nations. 
 Thus Germany and other countries applied under most favored 
 nation clauses for a reduction of the tonnage dues on their vessels 
 upon passage of the act of 1884 which reduced tonnage dues upon 
 vessels from specified ports in the western hemisphere," and 
 
 ^5 Infra, sec. 22. 
 
 10 Chinese Protests against Act of Oct. i, 1888, see U. S. For. Rel., 1889, 
 1 15-150, Ibid., 1890, 177, 206, 210-219, 228-230; against Act of May 5, 1892, 
 see Ibid., 1892, 106, 118, 119, 123, 126, 134-138, 145, 147-155, 158, cited Moore, 
 Digest, 4: 198, 202. 
 
 17 Mr. Innes, Charge d'Affaires of Great Britain, to Secretary of State 
 Knox. July 8 and Aug. 27, 1912, Diplomatic History of the Panama Canal, 
 63d Cong., 2d Sess., Sen. Doc, No. 474, pp. 82-83. 
 
 18 Ibid., p. loi. 
 
 i« Report of Mr. Bayard, Sec. of State, to the President, Jan. 14, 1889, 
 SO Ccng., 2d Sess., H. Ex. Doc, No. 74, Moore, Digest, 5: 289.
 
 NATIONAL REPRESENTATIVE ORGAN. 33 
 
 Switzerland gained recognition of her claim for an application of 
 the most favored nation clause in her treaty of 1855 upon the 
 conclusion of a treaty in 1898 by which the United States had 
 given commercial favors to France.^" 
 
 16. Legislative Expressions of Opinion, not of International Cog- 
 nizance. 
 
 Though all acts, prima facie law, are subject to international 
 cognizance without transmission through the President, whether 
 they originate in state constitutional or legislative provisions or in 
 national constitutional, legislative or treaty provisions, this is not 
 true of legislative resolutions not law. Thus resolutions of a single 
 house of congress or concurrent resolutions not submitted to the 
 President are not law according to the Constitution and have not 
 been noticed by foreign nations.^^ This has been expressly held 
 by the courts with reference to such resolutions purporting to 
 interpret treaties. ^^ Thus the houses of Congress have been able 
 
 20 Moore, Digest, 5: 283-285. 
 
 21 Secretary of State Seward wrote Mr. Dayton, the minister to France, 
 with reference to a House Resolution declaring " that it does not accord 
 with the policy of the United States to acknowledge a monarchical govern- 
 ment erected on the ruins of any Republican government in America, under 
 the auspices of any European power," reference being to the Maximilian 
 government in Mexico : " This is a practical and purely Executive question, 
 and the decision of it constitutionally belongs not to the House of Repre- 
 sentatives, nor even to Congress, but to the President of the United States. 
 . . . While the President receives the declaration of the House of Repre- 
 sentatives with the profound respect to which it is entitled, as an exposition 
 of its sentiments upon a grave and important subject, he directs that you 
 inform the government of France that he does not at present contemplate 
 any departure from the policy which this government has hitherto pursued in 
 regard to the war which exists between France and Mexico. It is hardly 
 necessary to say that the proceeding of the House of Representatives was 
 adopted upon suggestions arising within itself, and not upon any com- 
 munication of the Executive department; and that the French Government 
 would be seasonably appraised of any change of policy upon this subject 
 which the President might at any future time think it proper to adopt." 
 Corwin, op. cit., p. 42, citing McPherson's History of the Rebellion, pp. 
 349-350. 
 
 22 " There is," said the Supreme Court in refusing to apply an amend- 
 ment to which the Indians had not consented, " something which shocks 
 the conscience in the idea that a treaty can be put forth as embodying the
 
 34 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 to pass resolutions on such questions as Irish independence without 
 arousing international controversy.^^ So also a concurrent resolu- 
 tion could not be made effective to denounce a treaty. The effort 
 of the Senate to incorporate a reservation in the Peace treaty of 
 1919 giving a concurrent resolution, this effect would have proved 
 futile. The treaty, not being able to amend the Constitution, 
 could not make a concurrent resolution a law of either international 
 or domestic effect.^* 
 
 17. Self-Constituted Missions Forbidden. 
 
 To prevent private negotiations with foreign nations, the Logan 
 
 Act of 1799 was passed, after the attempt to make peace with 
 
 France of the self-constituted mission of Dr. George Logan, a 
 
 Philadelphia Quaker, had annoyed the government. The statute 
 
 provides a fine of up to $5,000 and imprisonment up to six months 
 
 for every citizen of the United States : ^^ 
 
 "Who without the permission or authority of the government, directly 
 or indirectly, commences or carries on any verbal or written correspondence 
 or intercourse with any foreign government, or an officer or agent thereof, 
 with an intent to influence the measures or conduct of any foreign gov- 
 ernment, or of any officer or agent thereof, in relation to any disputes or 
 controversies with the United States, or to defeat the measures of the gov- 
 ernment of the United States; and every person, being a citizen of, or 
 resident within the United States, and not duly authorized, who counsels, 
 advises or assists in any such correspondence with such intent." 
 
 terms of an arrangement with a foreign power or an Indian tribe, a material 
 provision of which is unknown to one of the contracting parties, and is kept 
 in the background to be used by the other only when the exigency of a 
 particular case may demand it." N. Y. Indians v. U. S., 170 U. S. i (1898). 
 The Supreme Court said in reference to a joint resolution passed by a 
 majority of the Senate stating the purpose of the Senate in ratifying the 
 treaty annexing the Philippines: "We need not consider the force and effect 
 of a resolution of this sort. . . . Tlie meaning of the treaty cannot be con- 
 trolled by subsequent explanations of some of those who may have voted 
 to ratify it." Justice Brown concurring said : " It cannot be regarded as 
 part of the treaty since it received neither the approval of the President nor 
 the consent of the other contracting power." Fourteen Diamond Rings v. 
 U. S.. 183 U. S. 176 (1901), Moore, Digest, 5: 210. 
 
 23 See House Resolution on Ireland, March 4, 1919, Senate Resolution, 
 June 6, 1919, and proposed isth reservation to the Treaty of Versailles, 
 passed by a majority of the Senate March 18, 1920. Infra, sec. 190. 
 
 2* Infra, sec. 62. 
 
 25 Rev. Stat., sec. 5335, Moore, Digest, 4: 449.
 
 NATIONAL REPRESENTATIVE ORGAN. 35 
 
 This act expressly excepts application by American citizens to 
 foreign government for redress of injuries, and in general presen- 
 tation of claims by an individual is not considered a violation of 
 the principle that the representative organs of government com- 
 municate officially only with the representative organs of other 
 governments. However, in practice the department of state in 
 the United States and the foreign office in other states generally 
 refuse to consider claims not officially presented by the claimant's 
 government.^® 
 
 i8. Missions of De Facto Governments, Unofficially Received. 
 
 One other exception is recognized in the unofficial reception of 
 agents of belligerent communities. Thus the British foreign 
 Secretary communicated unofficially with Mason and Slidell, the 
 Confederate emissaries in England,-' and the President of the 
 United States communicated unofficially with representatives from 
 South Africa after the proclamation of annexation by Great Britain 
 had made the status of that country one of rebellion.^^ Such 
 unofficial communication with representatives of de facto govern- 
 ments is justified by the right of foreign states to take measures 
 for protecting their citizens in a region outside the actual control 
 of the de jure government, and is not a real exception to the rule.^* 
 
 B. All Acts of the President Subject to International 
 
 Cognizance. 
 
 19. Communications of the President to Congress. 
 
 The President's representative character also implies that for- 
 eign nations are entitled to take cognizance of all his official utter- 
 
 2G Moore, Digest, 6: 607-610, supra, note 3. 
 
 27 Moore, Digest, i : 209. 
 
 2* The proclamation of annexation was issued July i, 1900. On May 21 
 and 22, 1900, the South African delegates were received by the Department 
 of State and President McKinley, and they were received by President 
 Roosevelt on March 14, 1902. The war ended with the treaty of Vereeniging, 
 May 31, 1902. Moore, Digest, i : 213. 
 
 29 See Earl Russell, British Foreign Secretary, to Mr. Adams, U. S. 
 Minister, Nov. 26, Moore, Digest, i : 209.
 
 36 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ances whether communicated by diplomatic note, pubhc proclama- 
 tion or public communication to Congress. Presidents have always 
 maintained that communications of the latter character are not 
 subject to the cognizance of foreign states, but in fact they have 
 often been noticed, as when France protested against the threatening 
 language of President Jackson's message of December, 1834, 
 suggesting reprisals^" and Austria protested against President 
 Taylor's comments on Kossuth's revolution of 1848.^^ In the 
 former case President Jackson seems to have admitted the French 
 demand for retraction by explanations in a later message.^^ In 
 the last year of the World War Executive messages to the legisla- 
 ture became the regular medium of communication between Ger- 
 many and the United States. ^^ 
 
 20. President Presumed to Speak for the Nation. 
 
 Finally, from the President's representative character, foreign 
 nations are entitled to presume that his voice is the voice of the 
 nation. Secretary of State Jefiferson told French minister Genet 
 that whatever the President communicated as such, foreign nations 
 had a right and were bound to consider " as the expression of the 
 nation's will " and that no foreign agent could be " allowed to 
 question it." ^* As we shall see, this presumption becomes absolute 
 with reference to the fact of action taken by national organs in 
 the United States and practically so with reference to decisions of 
 fact and policy by the nation,^^ but with reference to the constitu- 
 
 30 Moore, Digest, 7 : 124-125. 
 
 31 " The publicity which has been given to that document has placed the 
 Imperial Government under the necessity of entering a formal protest, 
 througli its official representatives, against the proceedings of the American 
 Government, lest that Government should construe our silence into approba- 
 tion, or toleration even, of the principles which appear to have guided its 
 action and the means it has adopted." Moore, Digest, i : 222. 
 
 32 Message, Dec. 7, 1835, Moore, Digest, 7: 125. 
 
 33 See speeches of President Wilson, Premier Lloyd George of Great 
 Britain, Count Czernin of Austria and Count Hertling of Germany before 
 their respective legislative bodies in 1918, printed in Dickinson, ed., Docu- 
 ments and Statements relating to Peace Proposals and War Aims, London, 
 1919, 
 
 3* Moore. Digest, 4: 680; Corwin, of), cit, p. 47. 
 35 lufra, sec. 21.
 
 NATIONAL REPRESENTATIVE ORGAN. 37 
 
 tional law governing the treaty-making power, the foreign nation 
 may in certain cases have to go back of the President's assertions." 
 We thus find that, aside from their cognizance of state and 
 national laws, foreign nations can officially communicate with the 
 United States only through the President. Communication of gov- 
 ernments with private individuals on claims and with representatives 
 of de facto or belligerent governments are of an unofficial character* 
 Furthermore, all official utterances of the President are of interna- 
 tional cognizance and are presumed to be authoritative. 
 
 3c Infra, sec. 24 et sec^
 
 CHAPTER IV. 
 
 Conclusiveness of the Acts and Utterances of National 
 Organs Under International Law. 
 
 To how great an extent are foreign governments expected to 
 know American constitutional law defining the competence of 
 governmental organs? The answer varies according as the issue 
 relates to (a) the making of a national decision on fact or policy, 
 (b) the making of a treaty or agreement, (c) the meeting of an 
 international responsibility. 
 
 A. With Reference to the Making of National Decisions. 
 
 21. Acts of the President. 
 
 Foreign nations need not know and they are not entitled to dis- 
 cuss the constitutional competence of organs of the United States 
 making national decisions on fact or policy. They must accept 
 the assertion of the President as final. Thus in a conversation 
 with Citizen Genet in 1793, Secretary of State Jefferson refused to 
 discuss the question of whether it belonged to the President under 
 the constitution to admit or exclude foreign agents. " I inform 
 you of the fact," he said, " by authority of the President." ^ This 
 principle was also illustrated by the prompt acceptance by foreign 
 nations of President Lincoln's proclamation of blockade on April 
 19, 1861, as a proclamation that war existed.^ The power of the 
 President to thus proclaim war without authority of Congress was 
 questioned in the United States and in the decision finally given 
 by the Supreme Court sustaining the President's act, three justices 
 
 1 Moore, Digest, 4 : 680. 
 
 2 " It was, on the contrary, your own government which, in assuming the 
 belligerent right of blockade, recognized the Southern States as Belligerents. 
 Had they not been belligerents the armed ships of the United States would 
 have had no right to stop a single British ship upon the high seas." Earl 
 Russell, British Foreign Minister, note, May 4, 1865. Moore, Digest, i : 190. 
 
 38
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 39 
 
 out of seven vigorously dissented.' However, since the fact of war 
 was a matter subject to foreign cognizance, foreign nations would 
 doubtless have been justified in issuing neutrality proclamations, 
 even had they not been obliged to consider the President's act 
 conclusive.* 
 
 Aside from declarations of war and recognitions of new states, 
 governments and neutrality,^ the President's assertions may be con- 
 sidered authoritative by foreign nations when they relate to the 
 termination of war, the termination of a treaty, or the existence of 
 a national sentiment or policy.^ Thus Great Britain officially rec- 
 ognized the President's proclamation of the termination of the Civil 
 War,^ and Mr. C. F. Adams, the American Minister to Great Britain, 
 insisted that the British government was incompetent to inquire 
 into the competence of the Secretary of State to give notice of the 
 denunciation of the Great Lakes disarmament treaty of 1817 or to 
 withdraw that notice.^ 
 
 " It could," he said, " only accept and respect the withdrawal as a fact." 
 The question of competency, " being a matter of domestic administration af- 
 fecting the internal relations of the executive and legislative powers," in 
 no wise concerned Great Britain. The raising by her of a question as to 
 "the authority of the executive power" in the matter, would have consti- 
 tuted " an unprecedented and inadmissible step in the international relations 
 of governments." 
 
 8 The Prize Cases, 2 Black 635; Moore, Digest, i: 190, 7: 172; Wil- 
 loughby. Constitutional Law, 2: 1210. 
 
 * Dana, note to Wheaton, pp. 37-38; Willoughby, op. cit., p. 1212; Moore, 
 Digest, I : 189. 
 
 5 The recognition power is vested in the President. See Moore, Digest, 
 1 : 243-248, and " Memorandum on the method of recognition of foreign 
 governments and foreign states by the government of the United States, 
 1789-1892. 54th Cong., 2 Sess., Sen. Docs. 40, 56; The Divina Pastora, 
 4 Wheat, 52; Corwin, op. cit., p. 71. See also infra, sec. 192. 
 
 ^ Lord Salisbury considered the interpretation of the Monroe Doctrine 
 given by President Cleveland and Secretary of State Olney as subject to 
 international cognizance as an official expression of American opinion. See 
 Moore, Digest, 6: 560. See also supra, sec. 20. 
 
 ■^ U. S. Dip. Correspondence, 1865. i: 409; Moore, Digest, i: 187. 
 
 s Report of Mr Foster. Sec. of State, to the President. Dec. 7, 1892, H. 
 Doc. 471, 56th Cong., 1st Sess., pp. 4, 36; Moore, Digest, 5: 169-170.
 
 40 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 22. National and State Statutes. 
 
 Thus statements of a decision on fact or policy, authorized by 
 the President, must be accepted by foreign nations as the will of the 
 United States. We have noticed that acts prima facie law are 
 subject to international cognizance whether issuing from state or 
 national organs.'* They may not be accepted as definitive however, 
 if their validity is denied by the President. Thus state constitu- 
 tional or legislative provisions are not really law if in conflict with 
 the national constitution, laws, or treaties ; and acts of congress 
 or treaty provisions are not law if in conflict with the Constitution. 
 If the President discovers such a conflict and denies the validity 
 of the purported law his interpretation is conclusive for foreign 
 nations, even though it differs from the view of the court.^° 
 
 23. Acts of Subordinates to the President. 
 
 An act by a subordinate, purporting to be under authority of the 
 President, may not be accepted by foreign nations as the will of 
 the United States if promptly repudiated. Thus the salute to the 
 insurgent Brazilian navy in the harbor of Rio Janeiro, authorized 
 by Commodore Stanton in 1893, could not be considered a recog- 
 nition of that party as the government of Brazil in view of the 
 President's prompt repudiation of this act.^^ 
 
 With reference to the making of national decisions, foreign na- 
 tions may accept the voice of the President as authoritative. Pur- 
 ported national or state laws and the acts or utterances of sub- 
 ordinates to the President, presumably subject to his instructions, 
 are the only other pronouncements on this subject which may be 
 considered authoritative, and they cannot, if their validity is 
 promptly denied by the President. On this subject foreign na- 
 tions are not expected to know the constitutional provisions defin- 
 ing the competence of national organs. 
 
 » Supra, sec. 15. 
 
 10 See discussion of the Dillon Case, Moore, 5: 80, 167, and infra, sec. 46. 
 
 11 Moore, Digest, i : 24.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 41 
 
 B. With Reference to the Making of International Agreements. 
 
 24. Foreign Nations Presumed to know the Constitution. 
 
 In making international agreements, however, foreign nations 
 must look back of the President's assertions to the constitution it- 
 self.^^ They are presumed to know, and if they do not, are entitled 
 to demand proof of the constitutional competence of all organs or 
 agents assuming to make agreements for the United States, before 
 exchanging ratifications. " Qui cum alio contrahit, vel est vel debet 
 esse non ignarus condicienis eius," said Ulpian.^^ Furthermore, the 
 authority of agents of the state is usually strictly construed. 
 " Those dealing with them are ordinarily bound by their actual 
 authority and not as in private law by their ostensible authority." ^* 
 This, however, is subject to certain exceptions. The international 
 court of arbitration in the Aletzger case held that " limitations upon 
 official authority, undisclosed at the time to the other govern- 
 ment," do not "prevent the enforcement of a diplomatic agree- 
 ment." ^5 
 
 25. Signature under Authority of the Treaty Power. 
 
 The first step^*' in the making of international agreements, if of a 
 
 12 "The Constitution of the United States, like the Constitution of 
 Brazil, points out the way in which treaties may be made and the faith of 
 the nation duly pledged. ... Of such provisions in each other's constitutions 
 governments are assumed to take notice." Mr. Gresham, Secretary of State, 
 to Mr. Mendonga, Brazilian Minister, October 26, 1894, Moore, Digest, 
 
 S: 361. 
 
 13 Digest of Justinian, Lib. L, Tit. xvii, cited by Crandall, Treaties, 
 Their Making and Enforcement, p. 2, who adds : " To know the power of 
 him with whom negotiations are conducted requires a knowledge not only 
 of his special mandate and powers, the exhibition of which may always be 
 demanded before the opening of negotiations, but also of the fundamental 
 law or constitution of the state which he professes to represent, and of 
 any limitations which may result from an incomplete sovereignty." Geffcken, 
 in a note to Hefffer, Das Europaische Volkerrecht der gegenwart, p. 2or, 
 says : " Without doubt a government should know the various phases that 
 the project must follow at the hands of the other contractant; it is not 
 able to raise reclamations if the treaty fails in one of these phases." 
 
 1^ Borchard, Diplomatic Protection of Citizens Abroad, p. 184. 
 
 15 Metzger (U. S.) v. Haiti, Oct. 18, 1899, U. S. For. Rel., p. 262, cited 
 iBorchard, loc. cit. See also Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore, 
 International Arbitrations, p. 3569.
 
 42 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 formal and permanent character, is exchange of " full powers " by 
 the negotiators. Although these, if satisfactory, originally signified 
 an actual full power of the negotiators to bind the state within the 
 limits of their instructions, at present they are understood to mean 
 that the negotiator is vested merely with the powers of the organ 
 under whose authority he acts, usually in practice the representa- 
 tive organ. ^'^ Suppose the organ giving " full powers " to the 
 negotiator is the full treaty-making power of the state. It was 
 held by early publicists that in such cases the document when 
 signed bound the state and ratification became a mere form which 
 could not be refused except for the most cogent reasons. ^^ Though 
 recent opinion is less definite, yet it holds that a strong obligation to 
 ratify exists^® and this has been the view of the United States. Thus 
 in 1804 and in 181 9 the Secretary of State insisted that the Spanish 
 crown was under an absolute obligation to ratify the treaties which 
 had been made within the instructions of the negotiators acting 
 
 ^^The conclusion of a treaty involves three steps: (i) exchange of 
 full powers, negotiation and signature, (2) consent to ratification with or 
 without reservations and ratification, (3) exchange of ratifications. Often 
 legislation must be passed before the treaty becomes executable and " putting 
 into effect" may be considered a fourth step in the conclusion of a treaty. 
 In the United States legislation is not needed for self-executing treaties 
 which are executable after proclamation by the President. However, under 
 international law, the treaty is complete and binding after exchange of rati- 
 fications and the parties are responsible for a failure to take measures neces- 
 sary to put them into effect. See Wright, Am. fl. of Int. Laiu, 10: 710 (Oct., 
 1916), Crandall, op. cit., p. 345; Anson, The Law and Custom of the Con- 
 stitution, 3d cd., Oxford, 1907, vol. 2, pt. i, p. 54. 
 
 " Wheaton, International Law (Dana, ed.), pp. ;iT,7, 33S; Crandall, op. 
 cit., p. 2; Moore, Digest, 5: 184, 362; Satow, Diplomatic Practice, London, 
 1917, 2: 273; Harley, Am. Jl. Int. Law, 13: 389 (July, 1919), Wright, Minn. 
 Law Rev., 4: 18. 
 
 ^^Grotius, De Jure Belli ac Pads, c. ir, sec. 12; Vattel, Le Droit des 
 Gens, 2, c. 12, sec. 156; Martens, Precis des Droit de Gens, c. i, sec. 36. 
 
 ^"^ After citing five authorities supporting an absolute obligation to 
 ratify, thirteen for a moral obligation, eight for no obligation at all, and 
 the circumstances of ten causes celcbrcs in which ratification was refused, 
 Harley, loc. cit., concludes, " It would seem that the weight of opinion holds 
 that a moral obligation to ratify exists." See also Moore, Digest, 5: 187; 
 Scott, The Reports of the Hague Conferences of 1899 and 1907, London, 
 1917, introduction, p. xxvii ; Hall, International Law (Higgins, ed.), p. 341.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 43 
 
 under full powers of the Crown.^" The United States has also 
 admitted the same principle with reference to its own ratification 
 when instructions have been given by the full treaty power. Thus in 
 1790 two-thirds of the Senate joined with the President in instruct- 
 ing the negotiation of a treaty with the Cherokees. When the treaty 
 was submitted for ratification, the Senate committee found that it con- 
 formed to these instructions and consequently ratification became 
 obligatory. ^^ The same was true of the consular convention with 
 France signed in 1788 according to instructions of Congress whicli 
 had power to make treaties under the Articles of Confederatioa. 
 The treaty was submitted to the Senate for ratification after or- 
 ganization of the new government under the Constitution. On his 
 advice being asked, John Jay, who continued in charge of foreign 
 affairs, replied that " while he apprehended that the new conven- 
 tion would prove more inconvenient than beneficial to the United 
 States, the circumstances under which it had been negotiated made. 
 
 20 A claims convention signed with Spain in 1802 was rejected by the 
 Senate but on new evidence being presented, the Senate changed its mind. 
 Now, however, Spain refused to ratify. " Were if necessary," replied Sec- 
 retary Madison, "to enforce these observations by an inquiry into the 
 right of His Catholic Majesty to withhold his ratification in this case, it 
 would not be difficult to show that it is neither supported by the principles of 
 public law, nor countenanced by the examples which have been cited." Mad- 
 ison to Yrujo, Oct. 15, 1804, Am. St. Pap., For. Rel., 2: 625. The con- 
 vention was finally ratified by Spain in 1818 Almost immediately a similar 
 controversy arose over the Florida cession treaty. Secretary Adams said, 
 " The President considers the treaty of 22d February last as obligatory upon 
 the honor and good faith of Spain, not as a perfect treaty, ratification being 
 an essential formality to that, but as a compact which Spain was bound to 
 ratify." He then drew an analogy between an unratified treaty and a covenant 
 to convey land, asserting that "the United States have a perfect right to do 
 what a court of chancery would do in a transaction of similar character 
 between individuals, namely, to compel the performance of the engagement 
 as far as compulsion can accomplish it, and to indemnify themselves for all 
 the damages and charges incident to the necessity of using compulsion." It 
 should be noted that in the full powers of his plenipotentiary, the Spanish 
 monarch had expressly promised to ratify " whatsoever may be stipulated and 
 signed by you." 5 Moore, Digest, 189-190. In both of these cases the United 
 States distinguished its own position, in which the recognized constitutional 
 rights of the Senate precluded an obligation to ratify. 
 
 21 Crandall, op. cif., p. 79. The question might be raised whether such a 
 delegation is not an unconstitutional delegation of legislative power. See 
 infra, sec. 60.
 
 44 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 in his opinion, its ratification by the Senate indispensable." The 
 Senate immediately proceeded to ratify,^^ 
 
 26. Signature under Authority of the President. 
 
 In case the agreement is of a character which the President has 
 authority to make on his own responsibility, such as protocols, 
 truces and armistices, he is bound by the act of his agents acting 
 within their instructions. In such cases where the agent acts 
 beyond his instructions, as did General Sherman in concluding an 
 armistice with General Johnston in 1865, the President may repudiate 
 the agreement as did President Lincoln on this occasion.^^ 
 
 In the case of treaties, full powers and instructions are generally 
 from the President alone, although ratification requires the consent 
 of the Senate. Consequently the latter retains full discretion to 
 refuse ratification of the signed instrument.^* The Senate has 
 often rejected treaties and the practice was thus justified by 
 Secretary of State Clay : ^^ 
 
 "The government of his Britannic Majesty is well acquainted with the 
 provision of the Constitution of the United States, by which the Senate 
 is a component part of the treaty making power, and that the consent and 
 advice of that branch of Congress are indispensable in the formation of 
 treaties. According to the practice of this government the Senate is not 
 ordinarily consulted in the initiatory state of a negotiation, but its consent 
 and advice are only invoked after a treaty is concluded under the direction 
 of the President and submitted to its consideration." 
 
 Foreign nations have acquiesced in the practice though occasion- 
 ally exception has been taken to the practice of amendment or 
 reservation by the Senate on the ground that such amendments 
 present a virtual ultimatum to the foreign government to accept 
 or reject, leaving no opportunity for negotiation.^® 
 
 22Crandall, loc. cit.; Hayden, The Senate and Treaties, 1789-1817, N. Y., 
 1920, p. 7. 
 
 23 Halleck, International Law, 4th ed. (Baker), 2: 356, infra, sec. 167. 
 
 2* Supra, note 17. 
 
 -5 Moore, Digest, 5 : 200. See also Foster, Practice of Diplomacy, N 
 Y., 1906, p. 276. 
 
 20 Willoughby, Constitutional Law, p. 465. See also Crandall, op. cit., 
 p. 82, Moore, Digest, 5 : 201 ; Satow, op. cit., 2 : 274. See the vigorous 
 denunciation of the Senate amendment to the proposed King-Hawkesbury 
 treaty of 1803 by Great Britain, Am. St. Pap., For. Rel., 3: 92-94; Hayden, 
 op. cit., p. 150,
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 45 
 
 "His Majesty's Government," wrote Lord Lansdowne, refusing to accept 
 the first Hay-Pauncefote treaty as amended by the Senate, "find them- 
 selves 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." 
 
 Objection is here taken to a breach of diplomatic etiquette in 
 
 method but the full power of the United States under international 
 
 law to refuse ratification or to consent only if certain alterations 
 
 are made, is not denied. 
 
 27. Reservations Expressly Consented to. 
 
 Though the United States can not be reproached with violation 
 of international law if it refuses to ratify or qualifies its ratification 
 of a treaty signed by authority of the President alone, yet a qualified 
 ratification is of no effect unless consented to by both signatories. 
 How may this consent be evidenced? Express consent to reserva- 
 tions by statement in the act of ratification or by exchange of notes 
 would of course by sufficient,^'' as would acceptance without objec- 
 
 27 The Senate advised ratification of the treaty with France of Feb. 3, 
 1801, provided a new article be substituted for article IL Bonaparte ratified 
 with this modification but added a new proviso. Ratifications were ex- 
 changed at Paris, but before proclamation President Jefferson resubmitted 
 the treaty to the Senate which accepted Bonaparte's proviso. Malloy, 
 Treaties, etc., p. 505. Hayden, op. cit., p. 124. After consenting to rati- 
 fication of the General Act for the suppression of the African Slave Trade 
 (1890), the Senate "Resolved further, That the Senate advise and consent 
 to the acceptance of the partial ratification of the said General Act on the 
 part of the French Republic, and to the stipulations relative thereto, as set 
 forth in the protocol signed at Brussels, January 2, 1892." It then made a 
 reservation on its own behalf. The protocol of deposit of ratifications of 
 Feb. 2, 1892, provided for in Article 99 of the treaty, recites the Senate's 
 resolution and states: "This resolution of the Senate of the United States 
 having been preparatlvely and textually conveyed by the Government of 
 His Majesty the King of the Belgians to the knowledge of all the signatory 
 powers of the General Act, the latter have given their assent to its insertion 
 in the present Protocol which will remain annexed to the Protocol of 
 January 2d, 1892." Malloy, Treaties, etc., p. 1992. In the treaty of 191 1, 
 Japan gave express assent to an "understanding" and tacit assent to an 
 "amendment." The proclamation of President Taft reads: "And whereas, 
 the advice and consent of the Senate of the United States to the ratification 
 of the said Treaty was given with the understanding ' that the treaty shal\ 
 not be deemed to repeal or affect any of the provisions of the Act of 
 Congress entitled " An Act to regulate the Immigration of Aliens into the 
 United States," approved February 20th, 1907;*
 
 46 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 tion of an official note stating such reservations.-^ The terms 
 of such a note must be consented to by all the organs constituting 
 the treaty power of each state. Thus, as is the case with the 
 treaty itself, unless the President and Senate have each consented 
 to amendments, reservations or interpretations, the United States 
 is not bound. Attempts of either to act separately have been 
 unavailing. The Supreme Court said in reference to a joint 
 resolution passed by a majority of the Senate, stating the purpose 
 of the Senate in ratifying the treaty annexing the Philippines:^* 
 
 " We need not consider the force and effect of a resolution of this 
 sort. . . . The meaning of the treaty can not be controlled by subsequent 
 
 " And whereas, the said Treaty, as amended by the Senate of the 
 United States, has been duly ratified on both parts, and the ratifications of 
 the two Governments were exchanged in the City of Tokyo, on the fourth day 
 of April, one thousand nine hundred and eleven ; 
 
 " Now, therefore, be it known that I, William Howard Taft, President 
 of the United States of America, have caused the said Treaty, as amended 
 and the said understanding to be made public, to the end that the same and 
 every article and clause thereof may be observed and fulfilled with good 
 faith by the United States and the citizens thereof In testimony whereof, 
 etc." Charles, Treaties, etc., p. 82. An interpretation proposed by the 
 Senate to the treaty of 1868 with the North German Confederation was duly 
 communicated to that government and accepted as the true interpretation of 
 the article. It was, however, omitted in the exchange copy given by that 
 government. This omission being noticed later, a special protocol was 
 signed in 1871, recognizing the interpretation. Crandall, op. cit., p. 88. 
 
 28 In negotiating the treaty of 1850 with Switzerland, the American 
 negotiator agreed that the unqualified most-favored-nation clause of article 
 10 should be interpreted absolutely. In 1898, Switzerland claimed under 
 this clause, the benefits offered to France under a reciprocity agreement of 
 May 30, 1898 At first the United States objected that to admit the claim 
 would be contrary to her accepted interpretation of identical most-favored- 
 nation clauses, but " It was found upon an examination of the original cor- 
 respondence that the President of the United States was advised of the 
 same understanding and that the dispatch in which it was expressed was 
 communicated to the Senate when the treaty was submitted for its approval," 
 consequently customs officials were directed to admit Swiss importations at 
 the reduced rate. Moore, Digest, 5 : 284. 
 
 28 Fourteen Diamond Rings r. United States (1901), 183 U. S. 176. 
 "The power to make treaties is vested by the Constitution in the President 
 and Senate, and while this proviso was adopted by the Senate, there is no 
 evidence that it ever received the sanction or approval of the President." 
 N. Y. Indians z: U. S. (1898), 170 U. S. i. See also Moore, Digest, 5: 210; 
 Crandall, op. cit., p. 88.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 47 
 
 explanations of some of those who may have voted to ratify it." Justice 
 Brown, concurring, said : 
 
 " It can not be regarded as part of the treaty, since it received neither 
 the approval of the President nor the consent of the other contracting power. 
 . . . The Senate has no right to ratify the treaty and introduce new terms 
 into it, which shall be obligatory upon the other power, although it may 
 refuse its ratificatiton, or make such ratification conditional upon the adop- 
 tion of amendments to the treaty." 
 
 A similar fate has met interpretations or reservations made by 
 the President without consent of the Senate, even when accepted 
 by the other signatory. Thus explanatory notes signed by the 
 plenipotentiaries on exchange of ratifications to the Mexican peace 
 treaty of 1848 and the Clayton-Bulwer treaty with Great Britain 
 of 1850 were considered of doubtful validity,^" and on other 
 occasions the President has submitted such explanatory documents 
 to the Senate before proclaiming the treaty.'^ 
 
 Thus, if in fact the note has not received consent of the full 
 treaty-making power, the United States is not bound unless the 
 foreign nation can show that it had reason to suppose the note had 
 been constitutionally accepted. There would certainly be such a 
 
 30 Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 85, 381. Bigelow, 
 Breaches of Anglo-American Treaties, pp. 1 16-149, discusses at length the 
 effectiveness of these and other documents alleged to be explanatory of the 
 Clayton-Bulwer treaty. Secretary Root agreed by exchange of notes with 
 Mr. Bryce, British Ambassador, as to the meaning of Art II of the arbi- 
 tration convention of 1908. These documents were submitted to the Senate 
 for its information but apparently not for its approval. Crandall, o/>. cit., 
 p. 89; D. H. Miller, Reservations to Treaties, 1919, p. 89. 
 
 siJcfTerson thought it necessary to submit an interpretation offered by 
 Napoleon of the treaty of 1801 to the Senate before exchange of ratifica- 
 tions. Charles Francis Adams said that the British interpretation of the 
 Declaration of Paris, to which the United States desired to accede, would 
 have to be submitted to the Senate. Secretary Fish declared the exchange 
 of ratifications of a treaty with Turkey in 1874 was invalid because accom- 
 panied by an explanation of the American plenipotentiary which rendered 
 a Senate amendment nugatory. Secretary Bayard refused to give an ex- 
 planation of a Senate amendment to the treaty with Hawaii of 1884 and to 
 authorize a protocol explaining the submarine cable convention of 1886 
 without Senate approval. Crandall, op. cit., pp. 86-89; Moore, Digest, 5: 
 207. Although protocols prolonging the time for exchange of ratifications 
 have not always been submitted to the Senate, this has usually been done. 
 Crandall, op. cit., pp. 89-92.
 
 48 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 presumption where the exchange of notes took place before the 
 Senate had acted. Thus intrepretive agreements relating to the 
 treaties with Mexico (1848) and Great Britain (1850) not having 
 been exchanged until after ratification, though considered valid 
 by foreign nations,^^ were questioned by the United States.^' On 
 the other hand, the interpretive notes exchanged before the Senate 
 had acted on the Swiss treaty of 1855 were considered valid. In 
 this case the notes in question had been submitted to the Senate 
 but had not been formally acted on by that body.^* 
 
 28. Reservations Tacitly Consented to. 
 
 Tacit consent to reservatons is also possible, but it seems doubt- 
 ful whether the United States would be bound by a reservation 
 submitted by a foreign power unless the Senate has had an oppor- 
 tunity to object. The signature and exchange of ratifications of 
 treaties are formal ceremonies offering suitable opportunities for the 
 proposal of reservations. It would appear that if such proposals 
 are stated as conditions of consent by the proposing power, on 
 either of these occasions, lack of protest within a reasonable time 
 by others could be construed as tacit consent. At the Hague Con- 
 ferences, the numerous reservations offered upon signature of the 
 Conventions and maintained by the power upon ratification were 
 accorded tacit consent in this manner.^^ Other signatories are, 
 
 32 Mexico and Great Britain respectively asserted the validity of these 
 agreements. IMoore, 5: 205; Lord Clarendon to Mr. Buchanan, May 2, 1854, 
 Br. and For. St. Pap, 46: 267, Moore, 3: 138. The Mexican agreement is 
 printed after the Treaty in Malloj', Treaties, etc., p. 11 19. 
 
 33 Supra, note 30. 
 3* Supra, note 28. 
 
 35 The Marie Glaeser, L. R. (1914), P. 218; The Appam (1916), 243 U. S. 
 124, infra, note 38. In most cases reservations vi^ere offered at signature 
 and affirmed at ratification though sometimes they were offered for the first 
 time at ratification. Thus the Senate resolution advising ratification of the 
 1907 Hague Convention for the Pacific Settlement of International Dis- 
 putes affirmed the declaration made by the American plenipotentiaries on 
 signature and added a new reservation. Malloy, Treaties, etc., p. 2247. See 
 discussion, Scott. Reports of the Hague Conference, xxviii. and D. H. Miller, 
 Reservations to Treaties (p. 145), who considers silent acquiescence at ex- 
 change of ratifications, "express acceptance." Ibid., pp. 141, 145, 160. For 
 reservations with statement of the method of presentment see Carnegie En- 
 dowment edition of the Hague Conventions.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 49 
 
 however, at liberty to object to reservations. Thus the powers 
 objected to a reservation to the treaty of Versailles proposed by 
 China upon signature and, as a result, China refused to sign the 
 treaty. ^"^ Sometimes the treaty itself has stated that it is not sub- 
 ject to reservation. Thus article 65 of the Declaration of London 
 provided " The provisions of the present Declaration form an 
 indivisible whole." ^^ 
 
 The United States Senate is presumed to be aware of reserva- 
 tions made by foreign powers on signature, before it consents to 
 ratification, consequently the United States is bound by such reserva- 
 tions. Thus, said the Supreme Court of a reservation attached by 
 the King of Spain to his ratification of the Florida cession treaty 
 of 1819:^* 
 
 " It is too plain for argument that where one of the parties to a treaty 
 at the time of its ratification annexes a written declaration explaining am- 
 biguous language in the instrument' or adding a new and distinct stipulation 
 
 ^^Am. Year Book, 1919, p. 93. 
 
 37 Upon this, the drafting committee, of which M. Renault was chair- 
 man, commented as follows: "This Article is of great importance, and is in 
 conformity with that which was adopted in the Declaration at Paris. The 
 rules contained in the present Declaration relate to matters of great im- 
 portance and great diversity. They have not all been accepted with the 
 same degree of eagerness by all the Delegations; some concessions have 
 been made on one point in consideration of concessions obtained on another. 
 The whole, all things considered, has been recognized as satisfactory. A 
 legitimate expectation would be defeated if one Power might make reserva- 
 tions on a rule to which another Power attached particular importance." 
 Naval War College, Int. Law Topics. 1909, p. I55- Protocol No. 24 of the 
 Paris Congress of 1856 provided with reference to the Declaration of Paris, 
 " On the proposition of Count Walewski, and recognizing that it is for the 
 general interest to maintain the indivisibility of the four principles men- 
 tioned in the declaration signed this day, the plenipotentiaries agree that 
 the powers which shall have signed it. or which shall have acceded to it, can 
 not hereafter enter into any arrangement in regard to the application of the 
 right of neutrals in time of war, which does not at the same time rest on 
 the four principles which are the object of the said declaration." This was 
 recognized as a binding obligation on the powers and as a result the United 
 States being unwilling to accept one provision of the Declaration was ex- 
 cluded from the treaty, a situation which proved most disadvantageous upon 
 the outbreak of the Civil War five years later. Ibid., 1905, p. no. 
 
 38 Doe V. Braden, 16 How. 635, 656 (1853). See also Crandall, p. 88, and 
 supra, note 28.
 
 50 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 and the treaty is afterwards ratified by the other party with the declaration 
 attached to it, and the ratifications duly exchanged — the declaration thus 
 annexed is a part of the treaty and as binding as if it were inserted in 
 the body of the instrument. The intention of the parties is to be gathered 
 from the whole instrument as it stood when the ratifications were ex- 
 changed." 
 
 In case foreign reservations are proposed upon exchange of 
 ratifications, the Senate has no opportunity to object unless the 
 reservations are especially submitted to it by the President. Pres- 
 ident Jefiferson thus submitted Napoleon's reservation to the treaty 
 of 1801 after exchange of ratifications and the Senate consented.^' 
 Doubtless, prompt notification of Senatorial objection, had it been 
 given, would have relieved the United States of responsibility 
 under the treaty, in spite of the fact that ratifications had been 
 exchanged. 
 
 In multi-partite treaties a formal exchange of ratifications is 
 often dispensed with and provision is made for deposit of ratifica- 
 tions at a central bureau. This was provided in the African Slave 
 Trade, Algeciras, Hague, Versailles and other Conventions.*'' 
 With such provisions, qualified ratifications may be deposited in the 
 
 39 Crandall, op. cit., p. 86, and supra, note 27. 
 
 *o Article 440 of the Treaty of Versadles reads: 
 
 " The present Treaty of which the French and English texts are both 
 authentic, shall be ratified. 
 
 "The deposit of ratifications shall be made at Paris as soon as possible. 
 
 " Powers of which the seat of the Government is outside Europe, will 
 be entitled merely to inform the Government of the French Republic through 
 their diplomatic representative at Paris that their ratification has been given ; 
 in that case they must transmit the instrument of ratification as soon as 
 possible. 
 
 " A first proces-verbal of the deposit of ratifications will be drawn up as 
 soon as the Treaty has been ratified by Germany on the one hand, and by 
 three of the Principal Allied and Associated Powers on the other hand. 
 
 " From the date of this first proces-verbal the Treaty will come into 
 force between the High Contracting Parties who have ratified it. For the 
 determination of all periods of time provided for in the present Treaty this 
 date will be the date of the coming into force of the Treaty. 
 
 " In all other respects the Treaty will enter into force for each 
 Power at the date of the deposit of its ratification. 
 
 " The French Government will transmit to all the signatory Powers a 
 certified copy of the proces-verbaux of the deposit of ratifications."
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 51 
 
 method provided, but if upon receipt of the proces-verbal of the 
 deposit of such quahfied ratification, any signatory objects to the 
 reservations, the treaty will not be in effect as between those 
 signatories. As to signatories offering no objection the reservations 
 will be regarded as tacitly accepted, and the treaty will be in effect 
 as from the date of deposit of ratifications. Undoubtedly, when 
 foreign states make reservations the Senate ought to be given an 
 opportunity to object to such reservations*^ and that was done in 
 the French reservation to the African Slave Trade Convention of 
 1890."*^ It does not appear that all reservations attached to deposit 
 of ratifications of the Hague Convention were submitted to the 
 
 41 " It is believed that it is immaterial whether the reservation be made 
 before, at, or after signing, as until a Power has ratified and deposited rati- 
 fications of the Convention it is not bound. But good faith requires that 
 objections to any article be stated either before or at the time of signing, so 
 that nations may know the nature and extent of the obligations they are 
 assuming with other nations. International conventions are often com- 
 promises, and the price of a compromise to a nation may be the very article 
 which another nation excludes from the convention or interprets in a 
 special sense in the act of ratification." Scott, op. cit., p. xxviii. See also 
 supra, note 37. 
 
 42 The following draft of a Protocol of Jan. 2, 1892, is printed in 
 Malloy, Treaties, etc., p. 1990, following the African Slave Trade General 
 act of 1890: 
 
 "The undersigned . . . met at the Ministry of Foreign Affairs at 
 Brussels, in pursuance of Article XCIX of the General Act of July 2, 1890, 
 and in execution of the Protocol of July 2, 1891, with a view to preparing 
 a certificate of the deposit of the ratifications of such of the signatory 
 powers as were unable to make such deposit at the meeting of July 2, 
 1891. 
 
 " His Excellency the Minister of France declared that the President of 
 the Republic, in his ratification of the Brussels General Act had provisionally 
 reserved, until a subsequent understanding should be reached, Articles XXI, 
 XXII, XXIII, and XLII to LXI. The representatives . . . , acknowledged 
 to the Minister of France the deposit of the ratifications of the President of 
 the French Republic, as well as of the exception bearing upon Articles XXI, 
 XXII, XXIII, and XLII to LXI. 
 
 " It is understood that the powers which have ratified the General Act 
 in its entirety, acknowledge that they are reciprocally bound as regards all 
 its clauses. 
 
 " It is likewise understood that these powers shall not be bound toward 
 those which shall have ratified it partially, save within the limits of the 
 engagements assumed by the latter powers.
 
 52 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Senate and question might arise as to their vahdity, though undoubt- 
 edly, after a considerable lapse of time, the foreign nation would 
 be entitled to assume tacit acceptance of its reservation.*^ 
 
 29. Exchange of Ratifications under Authority of the President. 
 Even after the treaty has been ratified** by both parties and 
 interpretations, reservations or amendments properly consented to, 
 the foreign nation can not hold the United States bound until 
 ratifications have been exchanged.*^ This act, performed under 
 authority of the President,*® gives the treaty complete international 
 validity, which, so far as international obligations are concerned, 
 is then held to date back to the time of signature unless expressly 
 stated otherwise in the treaty itself.*^ 
 
 " Finally, it is understood that, as regards the powers that have par- 
 tially ratified, the matters forming the subject of Articles XLII to LXI, 
 shall continue, until a subsequent agreement is adopted to be governed by 
 the stipulations and arrangements now in force." 
 
 The United States Senate resolution of ratification expressly accepted 
 the French reservation and made another which was consented to by the 
 powers prior to deposit of ratification. Supra, note 27. 
 
 *3 It does not appear that the Senate had an opportunity to consider the 
 reservation to the Sanitary Convention of 1903 made by Persia on deposit of 
 ratifications. (Malloy, p. 2129.) The Proces-verbal of ratification contains 
 reservations by Great Britain and the United States also but these were pro- 
 posed at signature. (Miller, op. cit., pp. 112-117.) In its resolution of rati- 
 fication the Senate failed to note the reservations made at signature either 
 by the American or foreign plenipotentiaries. President Roosevelt hesitated 
 to ratify the convention but did so when informed by the French Government 
 that reservations attached to signature became part of the treaty and so had 
 been in reality accepted by the Senate. {Ibid., pp. 117-119.) 
 
 4* Ratification in the United States is under authority of the President 
 alone and he may refuse to ratify treaties after the Senate has consented. 
 Shepherd v. Insurance Co., 40 Fed. 341; Taft, Our Chief Magistrate, and His 
 Powers, p. 106; Crandall, op. cit., pp. 81, 94, 97; Willoughby, op. cit., i: 
 466; Black, Constitutional Law, p. 124; Foster, Practice of Diplomacy, p. 
 279; Spooner, Sen. from Wis., Cong. Rec, 59th Cong., 1st Sess., p. 1419, 
 quoted Corvvin, op. cit., p. 175. See also colloquy Senators Reed, Mo., and 
 Brandegee, Conn., March 2. 1920, Cong. Rec, 59: 4032. 
 
 <5 Scott, op. cit., p. xxvii; Foster, op. cit., p. 280; Crandall, op. cit., p. 6, 
 
 *^ Crandall, op. cit., p. 93. 
 
 *T Haver v. Yaker, 9 Wall. 32 ; Crandall, op. cit., p. 343 ; Willoughby, op. 
 cit., i: 517; Hall (Higgins ed.), op. cit., 343, supra, sec. 15, note 14; infra, 
 sees. 179, 180.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 53 
 
 It thus appears that foreign nations recognize their duty to 
 know the organization of the full treaty power under the Constitu- 
 tion. They recognize that the United States is not responsible for 
 any instrument beyond the instructions of the negotiators and is 
 not bound by a treaty, signed or ratified merely under authority of 
 the President without advice and consent of the Senate. They 
 have likewise recognized that reservations or amendments, not 
 consented to by the whole treaty power, do not bind the United 
 States unless there is reason to suppose that such action had taken 
 place. 
 
 30. Treaty Provisions Ultra Vires from Lack of Original Authority. 
 
 Difficulties, however, arise in cases where the constitutional law 
 defining the competence of the organ for making agreements is 
 obscure. In such cases, is the foreign nation justified in accepting 
 the President's interpretation of the Constitution? We must recall 
 that the President is for them the only official source of information 
 about the Constitution of the United States.*^ Following practice, 
 the answer seems to depend upon whether the alleged want of 
 competence arises ( i ) from a lack of original authority or (2) from 
 operation of obscure constitutional limitations. 
 
 Foreign nations are supposed to know what organs the Constitu- 
 tion designates for concluding various types of international agree- 
 ments. Thus they are supposed to know that in England power to 
 make treaties is vested in the Crown in Council,*^ that in France: " 
 
 " The President of the -RepubHc shall negotiate and ratify treaties. 
 Treaties of peace and of commerce, treaties which involve the finances or 
 the state, those relating to the person and property of French citizens in 
 foreign countries, shall be ratified only after having been voted by the 
 twro chambers." 
 
 That in the United States. "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." ^^ Until these 
 organs have authorized ratification, foreign nations can not hold 
 
 *8 Supra, sec. 13. 
 
 *9 Anson, op. cit., vol. 2, pt. i, p. 54; pt. 2, p. 108. 
 "^o Constitutional Law of July 16, 1875, art. 8. 
 ^1 Const. Arf>,IL sec. 2.
 
 54 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 the nation bound even though the authority conducting negotiations 
 neglected to inform them or informed them erroneously as to the 
 organs with constitutional competence. However, all agreements 
 are not treaties. Certain military agreements, such as armistices, 
 are usually within the inherent power of the Commander-in-Chief, 
 Others such as protocols and agreements of temporary effect are 
 within the inherent power of the representative organ.^^ The Pres- 
 ident has often concluded such agreements, notably the preliminaries 
 of peace to end the Spanish and World Wars. If he permits the 
 other nation to understand that such action is within his constitutional 
 authority, is the United States bound, even though the Senate sub- 
 sequently take a contrary view? Opinions have differed in the 
 United States^^ but foreign nations have actually held the United 
 States bound. ^* We believe that in such cases the United States 
 is bound only if the President actually is within the scope of his 
 constitutional powers. However, the extent of these powers is 
 so obscure that the foreign nation is justified in accepting the 
 President's own view of his powers and holding the United States 
 
 52 Crandall, op. cit., p. iii; Willoughby, op. cit., i: 200-202, infra, 
 sees. 161-172. 
 
 53 President Wilson took the position that the agreement of Nov. 5, 
 1918, and earlier exchanges of notes, upon the basis of which the armistice 
 of November 11, 1918, was concluded with Germany, rendered ratification of 
 a treaty in accordance with those terms obligatory upon the United States. 
 " I am ready," he said in a speech at Spokane, Washington, Sept. 12, 1919, 
 " to fight from now until all the fight has been taken out of me by death 
 to redeem the faith and promises of the United States." (Sen. Doc. No. 
 120, 66th Cong., 1st Sess., p. 173.) President Wilson and the German dele- 
 gation agreed as to the obligation of the preliminary agreement but differed 
 as to the concurrence of the treaty therewith. See also Wright, Minn. Law 
 Rev., 4 : 35. The Senate appears to have paid little attention to arguments 
 derived from the obligation of the preliminary agreements, in considering 
 either the Spanish treaty of 1898 or the German treaty of 1919. 
 
 5* Thus Spain insisted that the preliminaries of peace of Aug. 12, iSgS, 
 were a binding obligation and protested against proposed terms of the defini- 
 tive treaty on the ground of conflict (Benton, Int. Law and Diplomacy of 
 Spanish-American War, Baltimore, 1908. p. 244) and Germany protested 
 against proposed terms of the treaty of Versailles on the ground of conflict 
 with the prcb'minary exchange of notes of Nov. 5, 1918. (See Text of 
 German note of May 29, 1919, Int. Conciliation, T919, p. T203, and Official 
 Summary, 66th Cong., 1st Sess., Senate Doc. No. 149, p. 83.)
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 55 
 
 accordingly unless that view is very obviously erroneous, i.e., 
 unless the agreement in question is obviously of sufficient perma- 
 nence and importance to constitute a " treaty." 
 
 31. Treaty Provisions Ultra Vires from Operation of Constitutional 
 Limitations. 
 
 When an alleged want of constitutional competence in the agree- 
 ment-making power arises from the operation of an obscure con- 
 stitutional limitation, the foreign nation would seem entitled to 
 accept the ostensible competence of the agreement-making author- 
 ity absolutely and to hold the nation accordingly. Thus in England, 
 if the Crown in Council ratifies a treaty on its own responsibility, 
 the other party is entitled to insist upon its validity, even though 
 the treaty is of a character which, according to the law of the 
 Constitution, should have been submitted td parliament before 
 ratification, if indeed there are any such.'^"' So the United States 
 is bound by all agreements ratified by the treaty-making power, 
 even though it may subsequently appear that the treaty-making 
 power acted in disregard of limitations imposed by the guarantees 
 of the Constitution in favor of individual, state or other rights.^® 
 
 Thus in negotiation of the Webster-Ashburton treaty involving 
 a fixing of the Maine boundary and the cession to Great Britain of 
 land claimed by that state, the British government was aware of 
 the doubt which existed as to the competence of the United States 
 treaty-making power to cede territory belonging to the state without 
 that state's consent. They, therefore, refused to negotiate until 
 assured by authority of the President that the constitutional diffi- 
 culty had been eliminated, an assurance which was made possible 
 by Maine's consent to the cession. ^'^ So also, in 1854 France 
 
 ^5 Supra, note 49. 
 
 56 " The fundamental laws of a state may withhold from the executive 
 department' the power of transferring what belongs to the state; but if there 
 be no express provision of that kind, the inference is, that it has confided 
 to the department charged with the power of making treaties, a discretion 
 commensurate with all the great interests, and wants, and necessities of 
 the nation. (Kent, Commentaries, i : 166.) 
 
 ^^ " The negotiations for a convention to settle the boundary question 
 can hardly be said to have made any positive progress, since last year. . . . 
 The interest of both parties, undoubtedly, requires a compromise, and I have
 
 66 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 contended that the United States continued bound by the provision 
 of the treaty of 1852 granting consuls immunity from compulsory 
 process to serve as witnesses, in spite of the American contention that 
 the provision was in violation of the guarantee of compulsory process 
 for obtaining witnesses to persons accused of crime in the Fifth 
 Amendment of the Constitution, and thus beyond the competence 
 of the treaty-making power. The United States acquiesced after a 
 considerable controversy and made amends for the arrest of the 
 French consul which had actually occurred, although instructions 
 were issued to avoid the inclusion of such provisions in future 
 treaties."^^ 
 
 It appears that foreign nations are expected to know what 
 organs are authorized by the Constitution to conclude international 
 agreements of various kinds, but with respect to constitutional 
 limitations upon the power of these organs, they are entitled to 
 infer from the statements or silence of the President at the time, 
 that the Constitution has been followed. 
 
 " If is a principle of international law," says Willoughby, " that one 
 Nation in its dealings with another Nation is not required to know, and, 
 therefore, is not held to be bound by, the peculiar constitutional structure of 
 
 no doubt that the position which Maine has assumed is the only obstacle to 
 bringing such a compromise about. The English government can not treat 
 with us about a compromise, unless we say we have authority to con- 
 summate what we agree to ; and although I entertain not the slightest doubt 
 of the just authority of this government to settle this question by compro- 
 mise, as well as in any other way, yet in the present position of affairs, I 
 suppose it will not be prudent to stir, in the direction of compromise with- 
 out the consent of Maine." (Mr. Webster, Sec. of State, to Mr. Kent, Gov. 
 of Maine, Dec. 21, 1841, Moore, Digest, 5: 174. infra, sec. 50.) The terms 
 of the agreement with Maine and Massachusetts were included in article 5 
 of the treaty with Great Britain. The same principle doubtless applies to 
 constitutional limitation upon the treaty power arising from rights guaran- 
 teed to individuals and the rights and privileges of departments of the 
 national government as well as rights guaranteed the states. The tend- 
 ency, however, has been to minimize the application of these limitations 
 and where necessity presses as in treaties of peace to end a disastrous 
 war, doubtless the ostensible authority of the executive even of a de facto 
 government would fully bind the nation. (Kent, op. cit., i : 166-167, Wright, 
 Am. Jl. Inl. Lazv, 13: 249-250, infra, sec. 32.) 
 
 ^^ Moore, Digest, 5 : 80, 167. Infra, sees, 45, 46.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 57 
 
 that other Nation. It is required, indeed, to know what is the govern- 
 mental organ through which treaties are to be ratified." ^^ 
 
 2,2. Treaty Made under Necessity. 
 
 One general exception to this rule may be noticed. In case of 
 necessity any treaty whatever, even if made under mere de facto au- 
 thority, is valid under international law. While international law rec- 
 ognizes coercion of the negotiators of a treaty as grounds for void- 
 ing a treaty, it does not so recognize coercion of the state.^" All com- 
 mentators agree that in case an unfortunate war necessitated, the 
 treaty power might cede state territory without state consent or 
 impair the Republican form of government in a state by accepting 
 a monarchical protectorate.^^ This would be valid even though 
 the government under the Constitution were overthrown and a de 
 facto government with neither President nor Senate set up in its 
 stead were the only authority concerned in making the treaty. It 
 has been suggested that the phraseology of Article VI, whereby 
 treaties are supreme law if made " under the authority of the United 
 States " and need not, as statutes, " be made in pursuance " of the 
 Constitution, gives authority for this plenary power of treaty 
 making.*^ If that were accepted, however, it would free the treaty 
 power of constitutional restrictions in times of tranquility as well 
 as of necessity, a view which is not accepted. The better view 
 seems to admit that such a treaty would be unconstitutional in 
 its origin but would be valid under international law upon the 
 principle of self-preservation. 
 
 59 Willoughby, op. cit., i : 515. 
 
 ^0 Crandall, op. cit., p. 4. 
 
 «i Crandall, op. cit., pp. 227-229; Wright, Am. Jl. Int. Law, 13: 250. 
 
 62 See Congressman D. J. Lewis, Feb. 17, 1917, Cong. Rec, 64th Cong., 
 2d Sess., p 4205. quoted, Wright. Am. Jl. Int. Law, 13: 249, and Holmes, J. 
 in Mo. V. Holland, U. S. Sup. Ct., April 19, 1920: "Acts of Congress are the 
 supreme law of the land only when made in pursuance of the Constitution, 
 while treaties are declared to be so when made under the authority of 
 the United States. It is open to question whether the authority of the 
 United States means more than the formal acts prescribed to make the 
 convention." See also Kent, Commentaries, i : 166, 176. The different 
 phraseology was actually introduced to assure the validity of treaties con- 
 cluded by the United States before 1789. Rawle, On the Constitution, p. 
 60; Farrand, op. cit., 2: 417.
 
 58 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 C. With Reference to the Meeting of International Responsibilities. 
 
 33. United States Bound by International Law and Treaties, 
 
 Are foreign nations entitled to consider the President's interpre- 
 tation of the international responsibilities of the United States as 
 authoritative? We have noticed that the United States, as a sov- 
 ereign nation, is under international responsibilities, only in so far 
 as such responsibilities have been accepted by organs acting within 
 their apparent constitutional powers.®^ General international law 
 is presumed to have been tacitly accepted by the United States on 
 becoming a member of the family of nations.®* Treaties are formal 
 
 63 Supra, sec. 24 
 
 6* Maine, International Law, N. Y., 1888, p. 37, infra, sec. 258. Dupon- 
 ceau, Jurisdiction of the Courts of the U. S., Philadelphia, 1824, p. 3, has 
 expressed the same view : " The law of nations, being the common law of 
 the civilized world, may be said indeed to be a part of the law of every 
 civilized nation ; but it stands on other and higher grounds than municipal 
 customs, statutes, edicts or ordinances. It is binding on every people and 
 on every government. It is to be carried into effect at all times under the 
 penalty of being thrown out of the pale of civilization or involving the 
 country in war. Every branch of the national administration, each within 
 its district and its particular jurisdiction, is bound to administer it. It de- 
 fines offenses and affixes punishments and acts everywhere propria vigore, 
 whenever it is not altered or modified by particular national statutes or 
 usages not inconsistent with its great and fundamental principles. Whether 
 there is or not a national common law in other respects, this universal 
 common lazv can never cease to be the rule of executive and judicial proceed- 
 ings until mankind shall return to the savage state." The Supreme Court 
 said in Ware v. Hylton, through Wilson, J. : " When the United States de- 
 clared their independence, they were bound to receive the law of nations in 
 its modern state of purity and refinement." (3 Dall. 199, 281, 1796.) So 
 also Secretary of State Webster : " Every nation, on being received, at her 
 own request, into the circle of civilized governments, must understand that 
 she not only attains rights of sovereignty and the dignity of national char- 
 acter, but that she binds herself also to the strict and faithful observance of 
 all those principles, laws and usages which have obtained currency among 
 civilized states and which have for their object the mitigation of the 
 miseries of war." (Letter to Mr. Thompson, Minister to Mexico, April 15, 
 1842, Moore, Digest, i : 5.) Willoughby calls attention to the evidence that 
 the United States actually has accepted general international law : " The 
 federal constitution provides that Congress shall have the power to define 
 and punish offenses against the law of nations, and to make rules concern- 
 ing captures on land and water. Furthermore, it is declared that treaties 
 made under the authority of the United States shall be the supreme law of
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. ^9 
 
 modifications of the general law of nations with respect to the 
 parties, and are only valid when expressly accepted through ratifi- 
 cation by the proper constitutional process. But when consent 
 has been given whether tacitly or expressly, foreign nations can 
 hold the United States bound for the future. 
 
 34. Decisions by the President. 
 
 We have noticed that international law requires that every 
 independent government maintain a representative organ able to dis- 
 cuss with and give satisfaction to foreign nations for demands 
 based on international law and treaty.^'' We have seen that foreign 
 nations have recognized the President acting through the Depart- 
 ment of State as the representative organ of the United States."^ 
 It follows that, with respect to the meeting of international respon- 
 sibilities, foreign nations are entitled to accept the President's 
 opinion as the authoritative voice of the United States. Thus if the 
 President admits that international law or treaty requires the pay- 
 ment of a sum of money, the cession of territory, the dispatch of 
 military forces, the delivery of a fugitive, or the release of an alien 
 held in custody, the foreign nation can hold the United States 
 bound to perform such an act, even though Congress, or the states 
 or whatever other organ may be endowed with the necessary legal 
 power to act has not been consulted. 
 
 In practice foreign nations have acted on this theory. Where 
 the President has given an opinion against the contention of a 
 foreign nation, that nation may of course continue discussion until 
 a decision has been reached satisfactory to it or authorized by an 
 arbitration court or other body by whose decision it has agreed 
 to be bound. Where, however, the President has acknowledged the 
 justice of a foreign claim, the foreign nation has held the United 
 States bound. Thus in the McLeod case, the Italian lynching cases 
 
 the land. The effect of these clauses which recognize the existence of a 
 body of international laws and the granting to Congress of the power to 
 punish offenses against them, the courts have repeatedly held is to adopt these 
 laws into our municipal law en bloc except where Congress or the treaty- 
 making power has expressly changed them." (Op. cit., p. 1018.) 
 
 65 Supra, sec. 11. 
 
 *8 Supra, sec. 12.
 
 60 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 and the Panama Canal tolls controversy the ultimate acknowledg- 
 ment by the President of an obligation to return McLeod/^ to pay 
 damages®^ and to charge equal tolls upon American vessels using 
 the CanaP^ made the cases res adjudicata. 
 
 In many cases it would doubtless be expedient, in some it is 
 required by constitutional law/" and in others it is required by con- 
 stitutional understanding/^ that the President assure himself of 
 the needed cooperation of other departments before interpreting 
 an international responsibility or acknowledging a specific obligation 
 flowing therefrom, but the foreign nation is not obliged to concern 
 itself with such questions. It is entitled to present all international 
 claims to the President and to hold his voice as the voice of the 
 nation with respect to their settlement. 
 
 35. Decisions by Subordinates to the President. 
 
 This is true of agents acting under authority of the President 
 unless their action is promptly repudiated by the President. Thus 
 if a representative of the President should sit in the Council of the 
 League of Nations and admit that a guarantee undertaken by 
 treaty by the United States required the use of armed forces in a 
 specific manner under existing circumstances, the United States 
 would be bound to carry out the treaty in that precise manner.'^^ 
 The proposed Hitchcock reservation to Article X of the Covenant, 
 while not impairing the obligation of the United States to fulfiil 
 
 ^7^ Moore, Digest', 6: 261. 
 
 «8 Moore, Digest, 6: 839, 849. 
 
 ^° " In my own judgment, very fully considered and maturely formed, 
 that exemption ... is in plain contravention of the treaty with Great Britain 
 concerning the canal, concluded on November 18, 1901." (President Wilson, 
 Message to Congress, March 5, 1914, Cong. Rec, 51 : 4313.) 
 
 ^<* Infra, sees. 143-145. 
 
 ■'i Infra, sec. 251, 
 
 ^2 This interpretation of the Covenant is contained in the Swiss official 
 commentary. " The Council may formulate obligatory advice unanimously 
 only and solely for its own members and for other states invited in the 
 specific instance to be represented on the Council, Art. 4, par. 5." This im- 
 plies that for states whose representatives have consented, the advice is 
 obligatory. See the League of Nations, published by the World Peace 
 Foundation, III, No. 3, p. 125.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 61 
 
 the guarantee, transferred the representative powers of the Pres- 
 ident to Congress in this respect, by indicating that the representative 
 on the Council was not competent to acknowledge an obligation 
 owed by the United States and expressly stating that Congress 
 remained free to interpret the obligation according to its own 
 "conscience and judgment."''^ The same result could of course 
 be obtained by transferring control of the American representative 
 in the Council to the Congress, but this, as proved by the experience 
 of congressional control of diplomats during the revolutionary 
 period, would hardly be expedient^* 
 
 36. Decisions by International Organs Authorized by the President. 
 The same binding obligation flows from the decisions of inter- 
 national courts of justice or arbitration acting on cases submitted by 
 the President. As the President can himself interpret the obliga- 
 tions of the United States, or do so through agents in conference 
 with the representatives of other nations, so he can do so through 
 
 ■^3 Article X reads : " The members of the League undertake to respect 
 and preserve as against external aggression the territorial integrity and 
 existing political independence of all Members of the League. In case of any 
 such aggression the Council shall advise upon the means by which this 
 obligation shall be fulfilled." The proposed Hitchcock reservation reads: 
 " That the advice, mentioned in Article X of the Covenant of the League, 
 which the Council may give to the member nations as to the employment of 
 their naval and military forces, is merely advice, which each member nation 
 is free to accept or reject, according to the conscience and judgment of its 
 then existing government, and in the United States this advice can be ac- 
 cepted only by action of the Congress at the time, it being Congress alone, 
 under the Constitution of the United States, having the power to declare 
 war." The proposed Lodge reservation to Article X did not affect merely 
 the authority to interpret Article X, but under it the United States refused 
 to accept the guarantee of Article X altogether. For text of these reserva- 
 tions and notes upon the votes received in the Senate, see The League of 
 Nations, III, No. 4 (August, 1920). 
 
 '^* See Hamilton, The Federalist, No. 22, Ford ed., p. 141 ; and Fish, 
 American Diplomacy, N. Y., 1916, pp. 60, 77; "The experience of the 
 Continental Congress was most useful to the country. ... It had made it 
 clear that a most serious defect was in the absence of an executive, clothed 
 with sufficient power and dignity to properly conduct intercourse with foreign 
 sovereigns. . . . An attempt had been made to supply these wants by the 
 creation of various committees or boards. . . . The experience of the con- 
 federation with its various boards was most unsatisfactory and sometimes 
 pathetic." Foster, Century of Am. Diplomacy, N. Y., 1901, pp. 103-104.
 
 62 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 submission to an international court. It is true that under the 
 contitution, such submissions must, if involving national claims 
 or claims against the United States, be by general or special treaty 
 to which the Senate has consented,"^ but since the function of a 
 court of arbitration is to decide on obligations and not to make 
 agreements, the foreign nation is not obliged to take cognizance of 
 such constitutional provisions. It can hold the arbitrated case 
 res ad judicata even though' the President exceeded his powers in 
 submitting it.'^'^ 
 
 37. Meeting Responsibilities Distinguished from Making Agree- 
 ments. 
 
 It will be observed that while foreign nations are entitled to 
 accept the President's statements absolutely with respect to meeting 
 international responsibilities, it can only accept them presumptively 
 with respect to making international agreements. It is, therefore, 
 important to distinguish between these two acts. Usually the line 
 is clear enough. In the case of treaties, steps up to and including 
 the exchange of ratifications are making the treaty steps afterward 
 are meeting the responsibility. Thus the Senate has a part in 
 the making of treaties as it must give its advice and consent before 
 ratification. The House of Representatives, however, is concerned 
 only with meeting responsibilities under them as pointed out by 
 President Washington in the controversy over the Jay treaty.''^ 
 One hundred and twenty-five years later Former Secretary of State 
 Root explained the same point.'^^ 
 
 " The making of a treaty ... is a solemn assurance to all the nations 
 that (the subject matter) is within the treaty making power and that the 
 promise to make war binds Congress as fully as it binds all other members 
 
 T5 Infra, sec. 148. 
 
 T6 " Recourse to arbitration implies an engagement to submit in good 
 faith to the award." I Hague Conventions, 1907, act. 27- See also infra, 
 sec. 62. 
 
 77 Message to House of Rep., March 30, 1796. Richardson, Messages, 
 i: 195, Moore, Digest, 5: 225. 
 
 78 Telegram to Governor Cox, October 21, 1920. See also Hamilton, Pa- 
 cificus Paper, quoted Corwin, The President's Control of Foreign Relations, 
 p. 14; Taft, op. c'lt., p. 115.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 63 
 
 of our government to maintain the plighted faith of the United States. In all 
 governments the power to declare war rests somewhere, and an agreement 
 to make war is an agreement that that power shall be so exercised by the officers 
 in whom it rests. A refusal of Congress to pass the necessary resolution 
 would simply be a breach of the treaty." 
 
 Consequently though failure of the Senate to consent can be 
 offered to foreign nations as a valid excuse for non-ratification/® 
 failure of the House of Representatives to pass an appropriation, 
 declare war or take other measures necessary to give efifect to a 
 ratified treaty can not be offered as an excuse for avoiding the 
 r-,ponsibility.^° 
 
 " If a treaty," says Dana, " requires the payment of money, or any other 
 special act, which cannot be done without legislation, the treaty is still 
 binding on the nation; and it is the duty of the nation to pass the 
 necessary laws. If that duty is not performed, the result is a breach of the 
 treaty by the nation, just as much as if the breach had been an affirmative 
 act by any other department of the government. Each nation is responsible 
 for the right working of the internal system, by which it distributes its sov- 
 ereign functions ; and, as foreign nations dealing with it cannot be per- 
 mitted to interfere with or control these, so they are not to be affected or 
 concluded by tli^.n to their own injury." 
 
 38. Interpretation of Treaties. 
 
 But what of the interpretation of a treaty? Is interpretation 
 a step in the making, or in the execution of the treaty? Interpre- 
 tation is essentially a judicial function but there has been a long 
 controversy as to whether judges make law or merely apply it. The 
 familiar saying of Bishop Hoadley, "Whoever hath an absolute 
 authority to interpret any written or spoken laws, it is he who is 
 truly the law giver to all intents and purposes," points to the former 
 
 ''^ Supra, sees. 24-26. 
 
 80 Dana, note to Wheaton, Int. Law, sec. 543, p. 715. See also Wil- 
 loughby, op. cit., p. 515; Moore, Digest, 5: 230. "A treaty though complete 
 in itself, and the unquestioned law of the land, may be inexecutable without 
 the aid of an act of Congress. But it is the constitutional duty of Congress 
 to pass the requisite laws. But the need of further legislation, however, 
 does not affect the question of the legal force of the treaty per se." 
 Cushing, Att. Gen., 6 Op. 291, 1854; Moore, Digest, 5: 226, 370.
 
 64 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 view.*^ The true distinction seems to depend upon the generality 
 or concreteness of the interpretation. Where judicial interpreta- 
 tions of the law extend to merely the case before them, judges do 
 not make law. Where their opinions furnish precedents for the 
 future they do. Thus if an interpretation of law merely renders 
 the controversy res adjudicata, it is not law-making. If, on the 
 other hand, the principle stare decisis is applied the interpretation 
 assumes a legislative character.^^ 
 
 The same distinction exists in the decision of international 
 controversies. A decision upon the applicability of a treaty, or a 
 principle of international law to a particular case, and the deter- 
 mination of the obligation resulting therefrom, has to do with 
 the meeting of the responsibility and not with the making of the 
 treaty or the principle of law. Consequently foreign nations are 
 entitled to hold a controversy upon which decision has been made 
 under authority of the President, res adjudicata. But can they 
 regard such a decision and the interpretation of international law 
 or treaty upon which it is based as going farther than this and as 
 binding the United States when similar controversies arise in the 
 future.^^ 
 
 " The President," says ex-President Taft, " carries on the correspondence 
 through the State Department with all foreign countries. He is bound in 
 such correspondence to discuss the proper construction of treaties. He 
 must state our attitude upon questions constantly arising. While strictly 
 he may not bind our government as a treaty would bind it, to a definition of 
 its rights, still in futtire discussions foreign Secretaries of other countries 
 are wont to look for support of their contentions to the declarations and 
 admissions of our Secretaries of State in other controversies as in a sense 
 binding upon us. There is thus much practical framing of our foreign 
 policies in the executive conduct of our foreign relations. 
 
 81 Sermon preached before the King, 1717, Works, 15th ed., p. 12, Gray, 
 Nature and Sources of the Law, pp. 100, 120. " Statutory construction is 
 practically one of the greatest of executive powers. . . . One might say, . . . 
 Let any one make the laws of the country if I can construe them." (Taft, 
 Our Chief Magistrate, p. 78.) " I recognize that judges do and must legis- 
 late. But they can do so only interstitially : they are confined from molar 
 to molecular motions." (Holmes, J., dissent in Southern Pacific v. Jensen, 
 244, U. S. 205, 1917.) 
 
 82 See Gray, op. cit., chap. IX, and especially sec. 498; Cooley, Constitu- 
 tional Limitations, 6th ed., pp. 61-68. 
 
 83 Taft, op. cit., p. 113, see also infra, sec. 172.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 65 
 
 " Whenever our American citizens have claims to present against a 
 foreign nation, they do it through the President by the State Department 
 and when foreign citizens have claims to present against us, they present 
 them through their diplomatic representatives to our State Department, 
 and the formulation and the discussion of the merits of those claims create 
 an important body of precedents in our foreign policy." 
 
 As President Taft points out, it is inevitable that the principle of 
 stare decisis will be of weight in the settlement of future contro- 
 versies and consequently that executive practice will in fact es- 
 tablish an interpretation of responsibilities from which it will be 
 difficult for future Presidents to escape. In theory, however, it 
 is believed that foreign nations can not hold the United States 
 absolutely bound by decisions or interpretations under authority of 
 the President alone, except with reference to the specific contro- 
 versy under discussion.** Thus explanatory or interpretive notes, 
 designed to control the general application of a treaty in the future, 
 are part of its making, whether they precede, accompany, or follow 
 exchange of ratifications and do not internationally bind the United 
 States unless foreign nations had reason to suppose that the full 
 treaty power had consented to them.^'' 
 
 **In the Pious Fund Arbitration Case (U. S. v. Mexico), 1903, the 
 court held that while the principle stare decisis was not wholly applicable to 
 arbitration, the principle of res adjiidicata was : 
 
 " Considering that all the parts of the judgment or the decree con- 
 cerning the points debated in the litigation enlighten and mutually supple- 
 ment each other, and that they all serve to render precise the meaning and 
 the bearing of the dispositif (decisory part of the judgment) and to de- 
 termine the points upon which there is res judicata and which thereafter 
 can not be put in question ; 
 
 " Considering that this rule applies not only to the judgments of tribunals 
 created by the State, but equally to arbitral sentences rendered within the 
 limits of the jurisdiction fixed by the compromise; 
 
 " Considering that this same principle should for a still stronger reason 
 be applied to international arbitration, etc." (Wilson, Hague Arbitration 
 Cases, Boston, 1915, p. 9.) 
 
 85 The United States refused to consider itself bound by explanatory 
 notes exchanged prior to exchange of ratification of the Mexican peace treaty 
 of 1848 and the Clayton-Bulwer treaty of 1850 though Mexico and Great 
 Britain protested. See Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 
 85, 381; Wright, Minn. Law Rev., 4: 16; supra, sees. 27, 28. It has been the 
 usual practice to submit such explanatory notes to the Senate, See Cran- 
 dall, op. cit., pp. 86-89; Moore, Digest, 5: 207, 284.
 
 66 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 39. Understandings do not Require Forbearance in Pressing Inter- 
 national Claims. 
 The distribution of constitutional powers among various organs 
 in the national and state governments of the United States often 
 makes it very difficult for the President actually to satisfy claims 
 which he has admitted to be valid under international law. In fact 
 these constitutional limitations are well known to foreign nations. 
 The United States has sometimes urged such difficulties as an 
 excuse for failure to meet the obligation promptly. While such 
 a plea has no validity whatever, under international law^^ it remains 
 to be seen whether there is an international understanding whereby 
 nations withhold pressure on just claims in view of constitutional 
 difficulties in the delinquent state. 
 
 " Every nation," said Justice McLean, " may be presumed to know that, 
 so far as the treaty stipulates to pay money, the legislative sanction is 
 required. . . . And in such a case the representative of the people and the 
 States exercise their own judgment in granting or withholding the money. 
 They act upon their own responsibility and not upon the responsibility 
 of the treaty-making power." ^'^ 
 
 The theory is attractive for delinquent states. Unfortunately 
 for them it is not practiced. No such understanding of interna- 
 tional law exists. The United States did not withhold pressure 
 from France when she pleaded the refusal of her legislature to 
 appropriate for carrying out the claims treaty of 1831.^^ Nor have 
 European nations withheld pressure from the United States in 
 similar circumstances. Congress has always, though generally with 
 much protestation by the House of its untrammeled discretion, 
 appropriated money where treaty or international law has required,^® 
 but the states have often failed in performing essential acts. Thus 
 Louisiana failed to take sufficient interest in apprehending those 
 
 ^^ See supra, sec. 3;^ et seq. 
 
 87 Turner v. Am. Baptist Missionary Union, 5 McLean, 347, 1852, para- 
 phrased in Wharton, Digest, 2: jt,; Moore, Digest, 5: 222. 
 
 88 President Jackson recommended reprisals on this occasion. (Moore, 
 Digest, 7: 123-126.) See also note of Secretary of State Livingston to the 
 French government, supra, chap, i, note 3, and of Mr. Wheaton, Mjnisfer 
 to Copenhagen, to Mr. Butler, Attorney General, Jan. 20, 1835. * Wharton, 
 Digest, 1 : 36. 
 
 89 Infra, sees. 149, 256.
 
 ACTS AND UTTERANCES OF NATIONAL ORGANS. 67 
 
 guilty of lynching Italians in the nineties, nor did she take measures 
 adequate to prevent the frequent repetition of these gross violations 
 of the Italian treaty of 1871. In the state of congressional legis- 
 lation the power of the national government to act within the states 
 was not adequate and Italy was so informed but there was no 
 abatement of diplomatic pressure. In fact, Italy at length with- 
 drew her ambassador and the United States was forced to pay the 
 indemnity demanded.®" 
 
 Experience seems to show that it is unwise to assume the exist- 
 ence of such international understandings. Nations are wont to 
 demand the pound of flesh. " To calculate upon real favors from 
 nation to nation," said Washington, " is an illusion which expe- 
 rience must cure, which a just pride ought to discard." "^ Such 
 understanding may be well to follow in pressing claims against 
 others but to expect that others will observe them in pressing 
 claims against us is unwise."" The United States should so 
 modify its laws and the understandings of its own constitution that 
 acknowledged obligations of the nation under international law and 
 treaty will be promptly executed. 
 
 Thus from the standpoint of international law, the national 
 authority for meeting international responsibilities is the important 
 element in the control of foreign relations, and in the United States 
 this authority is the President acting through the Secretary of State. 
 Foreign nations are entitled to bring their grievances to him and to 
 expect from him redress according to the standard of international 
 law and treaty. Constitutional limitations upon his power to effect 
 the redress are to them unknown, either by law or understanding. 
 With the making of international agreements on the other hand 
 
 8° Moore, Digest, 6 : 838 et seq. See also infra, sees. 120, 149. 
 
 91 Farewell Address, Sept. 17, 1796, Richardson, op. cit., i: 22^. 
 
 ^^2 Vattel makes a similar distinction: "Since the necessary (natural or 
 moral) law is at all times obhgatory upon the conscience, a Nation must 
 never lose sight of it when deliberating upon the course it must pursue to 
 fulfill its duty; but when there is a question of what it can demand from 
 other states, it must consult the voluntary (positive) law whose rules are 
 devoted to the welfare and advancement of the universal society," op. cit., 
 Introduction, sec. 28.
 
 68 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 foreign nations are entitled to assume no such Presidential omnipo- 
 tence. The United States cannot be bound by new engagements 
 until the organs designated by the Constitution have acted. In the 
 meeting of international responsibilities, international law is prior, 
 in the making of international engagements the Constitution is 
 prior.
 
 PART III. 
 
 Constitutional Limitations upon the Foreign 
 
 Relations Power.
 
 CHAPTER V. 
 
 Limitations upon State Powers. 
 
 40. Position of the Foreign Relations Power under Constitutional 
 Law. 
 
 From the standpoint of international law the essential element 
 in the foreign relations power of any state is the authority rec- 
 ognized by foreign states as representing the state and competent to 
 meet its international responsibilities. We have seen that in the 
 United States this authority is the President acting through the 
 Department of State. Foreign states with claims or complaints need 
 know nothing of constitutional powers or limitations. They are 
 entitled to present their cases to the President through the State 
 Department and to demand of him satisfaction according to the 
 measure of international law and treaty. If he is unable to obtain 
 it the United States is liable to such measures of redress as inter- 
 national law may permit the claimant state. 
 
 In sharp contrast, is the position of the foreign relations power 
 under constitutional law. The question is not of responsibility but 
 of power. Under constitutional law the foreign relations power 
 consists of those organs of government competent to perform the 
 various acts connected with the conduct of foreign relations. 
 These acts may be classified as (i) the meeting of international 
 responsibilities, (2) the making of international agreements (3) 
 the making of national decisions of international importance. The 
 first includes the observance and enforcement of international law 
 and treaty. The second includes the settlement of international 
 controversies and the making of treaties. The third includes the 
 recognition of facts and the declaration of policies of international 
 significance. Before considering the constitutional authority for 
 performing these acts, however, it will be well to recall certain 
 fundamental principles of the Constitution, 
 
 71
 
 72 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 41. Relation Between State and National Powers. 
 
 Under American constitutional law the legal competence of 
 any organ is determined by two factors, the authorization of power 
 and restrictions upon the exercise of power. With one hand the 
 people are supposed to have granted certain powers expressed in 
 written constitutions, to be exercised by governmental organs, for 
 the general welfare,^ but with the other hand they are supposed 
 to have taken away in part the powers thus granted through re- 
 strictions upon their exercise expressed in bills of rights, guar- 
 antees and prohibitions for the protection of private individuals, 
 subordinate governmental areas and particular organs of the gov- 
 ernment.^ The authority for all powers exercised by organs of 
 the national government comes from the federal Constitution either 
 by express or implied delegation. The authority for all powers 
 exercised by state governments comes from their own Constitutions 
 and may include all governmental powers the exercise of which 
 does not conflict with the full exercise of its delegated powers by 
 the national government, and is not expressly prohibited by the 
 federal Constitution. This theory of the division of governmental 
 authority between national and state governments is set forth in 
 the tenth amendment and the sixth article of the federal Con- 
 stitution. 
 
 1 " The theory of our political system is that the ultimate sovereignty is 
 in the people, from whom springs all legislative authority." Cooley, Consti- 
 tutional Limitations, 6th ed., p. 39, citing McLean, J., in Spooner v. 
 McConnell, i McLean 347, Waite, C. J., in Minor v. Happersett, 21 Wall. 162, 
 172, etc. For influence of the theories of popular sovereignty and the social 
 contract on the constitutional fathers, see Merriam, Am. Political Theories, 
 N. Y., 1903, p. 38; Willoughby, Am. Constitutional System, N. Y., 1904, 
 p. 23 et seq. 
 
 2 The theory of constitutional limitations derived from the dogma of 
 separation of pov/ers and from the supposed division of sovereignty between 
 the state and nation was prominent in the federal convention, but the Fed- 
 eralist (No. 84) thought a bill of rights unimportant. The Jeffersonian 
 Republicans took a different view and succeeded in having the first ten 
 amendments attached to the Constitution, thereby following the usual cus- 
 tom in state constitutions. See Cooley, op. cit., chap, ix, p. 311 et seq. 
 For influence of theories of separation of powers, divided sovereignty, and 
 natural rights upon the constitutional fathers, see Merriam, op. cit., pp. 107, 
 J46, and Willoughby, lac. cit.
 
 LIMITATIONS UPON STATE POWERS. 73 
 
 " The powers not delegated to the United States by the Constitution, 
 nor prohibited by it to the States, are reserved to the States respectively 
 or to the people. 
 
 " This Constitution, and the Laws of the United States which shall 
 be made in Pursuance thereof; and all Treaties made, or which shall be 
 made, under the Authority of the United States, shall be the supreme law 
 of the Land; and the Judges in every State shall be bound thereby, any 
 Thing in the Constitution or Laws of any State to the Contrary notwith- 
 standing." 
 
 The system may be characterized by the three phrases: national 
 delegated powers, state residual powers, and national supremacy.^ 
 
 42. Constitutional Prohibitions of State Power. 
 
 Restrictions upon the exercise of state power may exist by virtue 
 of (i) express or implied constitutional prohibitions or (2) as a 
 result of action taken by national governmental organs. Consti- 
 tutional restrictions may be expressed in the state's own Constitu- 
 tion or in the federal Constitution. In the latter are several 
 express restrictions upon the exercise of state power. Some are for 
 the protection of private rights such as the prohibition of laws im- 
 pairing the obligation of contracts, ex post facto laws and laws de- 
 priving persons of life, liberty and property without due process of 
 law.* Others are intended to insure the centralization of power 
 in matters of national interest, especially in the control of for- 
 eign relations. Such are the prohibitions against treaty making, 
 war making, import, export and tonnage duties." In addition are 
 several prohibitions implied from the nature of the federal union 
 such as the prohibitions against secession" and the taxation of 
 agencies of the national government.^ Other prohibitions have 
 been implied from the necessarily exclusive character of certain 
 powers delegated to the national government such as the power 
 to regulate foreign commerce, except purely local regulations, and 
 to provide for the naturalization of aliens.* 
 
 3 See Willoughby, Const. Law, pp. 53, 78. 
 
 4 Constitution, Art. I, sec. ID, cl. I, Amendment XIV. 
 ^ Ibid., Art. I, sec. 10. 
 
 e Texas v. White, 7 Wall. 700 (1868). 
 
 ^McCulloch V. Md., 4 Wheat. 316, 432; Dobbins v. Erie County, 16 
 
 Pet. 435- 
 
 8 Willoughby, op. cit., pp. 73-74; J- P- Hall, Constitutional Law, pp. 254, 
 288; Cooley V. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259.
 
 74 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 43. Action of National Organs Limiting State Powers. 
 
 State powers may also be restricted in their exercise by the 
 principle of national supremacy. As national organs exercise more 
 and more of their concurrent powers, state powers are correspond- 
 ingly reduced. For example when Congress passes bankruptcy 
 statutes or statutes fixing standards of weights and measures, the 
 state's power in these fields is lost and state statutes on the subject 
 automatically cease to operate though if the national statute is re- 
 pealed they automatically come into force again.* 
 
 The state police power has been greatly restricted by the more 
 complete exercise by the national government of its powers to 
 regulate interstate commerce, to establish postoffices and post roads 
 and to tax.^*^ No less remarkable, however, has been the reduction 
 of state powers through the exercise of national powers relating 
 to foreign relations. Thus wars have justified legislation by 
 Congress such as recently illustrated by the draft acts, acts author- 
 izing railroad, telegraph, food and fuel control, and acts punishing 
 espionage and disloyal conduct. These have all entered fields 
 ordinarily within state control. Similar reductions of state power 
 but in less degree have resulted from a state of neutrality and the 
 consequent operation of laws punishing ofifenses against neutrality, 
 authorizing national censorship of telegraph and radio communica- 
 tion and a closer supervision of commercial transactions. Even 
 in time of peace the exercise of foreign relations powers has shown 
 a tendency to narrow state power. Thus Congress has extended 
 the jurisdiction of federal courts over many cases involving treaty 
 interpretation, over numerous controversies where aliens or persons 
 especially protected by international law are parties, and over many 
 ofifenses against international law and treaty. Congress has also 
 given national officers authority to enforce such treaties as those 
 protecting migratory birds, and fish in boundary waters, and those 
 requiring extradition of criminals and prohibition of the white slave 
 traffic. Many self-executing treaties have limited state power 
 
 Willoughby, 0/). cit., pp. 74, 779. 
 
 10 See Cushman, The Police Power of the National Government, 1920, 
 reprinted from the Minn. Law Rev., vols. 3, 4.
 
 LIMITATIONS UPON STATE POWERS. 75 
 
 without congressional action such as those according property and 
 personal rights to aliens. ^^ 
 
 Although this limitation of state powers by action of national 
 organs has been a patent phenomenon, its constitutionality has been 
 questioned, especially so far as effected through exercise by the 
 national government of its power over foreign relations. Thus it 
 has been alleged that all state powers are not merely residual but 
 that some, for instance the police power, are " reserved " powers 
 incapable of limitation by any exercise of its delegated powers by 
 the national government. It will readily be seen that this notion is 
 wholly incompatible with the principle of national supremacy and 
 while it has great historic importance, it never commanded whole- 
 hearted support from the courts and at present enjoys no legal 
 recognition.^^ The concept of " reserved " powers is, however, of 
 importance as an "understanding" of the Constitution. In practice 
 both Congress and the treaty-making power have sometimes re- 
 frained from fully exercising their powers out of respect for state 
 susceptibilities, and the courts have sometimes given rather strained 
 interpretations to treaties for the same reason.^^ 
 
 We may conclude that state exercises of power in the field of 
 foreign relations have been so restricted that such powers hardly 
 exist at all. 
 
 11 See Corvvin, National Supremacy, N. Y., 1913; Sutherland, Constitu- 
 tional Power and World Affairs, N. Y., 1919. 
 
 12 Infra., sees. 48-51. 
 ^^ Infra, sec. 50.
 
 CHAPTER VI. 
 
 Limitations upon National Powers : Private Rights and 
 
 States' Rights. 
 
 A. Private Rights. 
 
 44. Nature of Prohibitions. 
 
 Restriction upon the exercise of power by national organs may 
 be expressed in the federal Constitution or implied from the rights 
 guaranteed the states and individuals and the independence guar- 
 anteed the departments of government by the federal Constitution. 
 Whether stated in the negative form of a prohibition against the 
 national government or in the positive form of a right or privilege 
 guaranteed the individual, state, or particular organ of government, 
 the effect is the same. 
 
 These restrictions fall into three groups, (i) Some are in 
 behalf of the states, as those prohibiting anti-slave-trade laws 
 before 1808 and the freeing of fugitive slaves ; ^ those prohibiting 
 direct taxes except in proportion to population, export taxes and 
 discriminatory commercial or revenue regulations or tariffs ; ^ 
 those prohibiting the formation of new states within the jurisdiction 
 of existing states or the junction of states without their consent ;^ 
 and those implied from the guarantee to the states of territorial 
 integrity, a Republican form of government and immunity of their 
 necessary governmental organs from taxation.* (2) A second class 
 of restrictions is in behalf of the separation of powers as that 
 prohibiting members of the House or Senate from holding any office 
 under the United States,^ that prohibiting appropriations except by 
 " law," ® and those implied from the privileges expressly guaranteed 
 
 1 Constitution, I, sec. 9, cl. i ; IV, sec. 2, cl. 3. 
 ^ Ibid., I, sec. g, cl. 4-6; sec. 8, cl. i. 
 ^ Ibid., IV, sec. 3, cl. i, 2. 
 
 * Ibid., IV, sec. 4. See also infra, sec. 48. 
 " Ibid., I, sec. 6, cl. 2. 
 
 * Ibid., I, sec. 9, cl. 7. 
 
 76
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 77 
 
 certain organs or from the separation of the legislative, executive 
 and judicial departments/ (3) The most numerous prohibitions 
 are in behalf of individual rights and interests. Thus the indi- 
 vidual's supposed interest in democratic government, Puritanic 
 morals, and the general welfare are protected by prohibitions 
 against titles of nobility, the acceptance by officers of foreign 
 presents, the abridgment of the voting privilege on account of race, 
 color, previous condition of servitude, or sex ; ^ by prohibitions 
 against slavery and intoxicating beverages,'' and by the implied 
 prohibition against taxes not for the " general welfare." ^^ The 
 individual's interest in life, liberty and property are especially 
 protected by prohibitions against suspension of the privilege of 
 habeas corpus except in emergency, bills of attainder and ex post 
 facto laws ; ^^ prohibitions against religious tests for officers, 
 against the establishment of religion, the abridgment of the freedom 
 of speech, press, assembly, petition and the bearing of arms ; ^^ 
 prohibitions against compulsory quartering of troops in time of 
 peace, unreasonable searches and seizures, the taking of life, liberty 
 or property without due process of law and the taking of private 
 property for public use without just compensation,^^ and finally 
 prohibitions designed to assure a fair trial, especially in criminal 
 cases, as the requirement of jury trial and compulsory process to 
 obtain witnesses and the prohibition against excessive bail, double 
 jeopardy, cruel and unusual punishments.^* Prohibitions for the 
 protection of individual interests have seldom affected the power 
 of national organs in the conduct of foreign relations. 
 
 "^ See iufra, sees. 52-55- 
 
 ^Ibid., I, sec. 9, cl. 8; Amendments XV, XIX. 
 ^Ibid.. Amendments XIII, XVIII. 
 
 '^^ Ibid., I, sec. 8, cl. i. See also Willoughby, op. cit., p. 39; J. P. Hall, 
 Constitutional Law, pp. 173-174. 
 
 11 Ibid., I, sec. 9, cl. 2, 3. 
 
 12 Ibid., VI, sec. 3, Amendments I-II. 
 ''■^ Ibid., Amendments III-V. 
 
 ^* Ibid., Ill, sec. 2, cl. 3; sec. 3; Amendments V-VIII.
 
 78 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 45. Effect upon Pozver to Meet International Responsibilities. 
 
 Such guarantees have not interfered with the meeting of 
 responsibihties imposed by international law or treaty. ^^ They are 
 not applicable exterritorially, thus do not interfere with the carrying 
 out of treaties giving American consular courts jurisdiction over 
 crimes committed by American citizens abroad. It was held that 
 such a consular court in Japan was not obliged to accord jury trial 
 in criminal cases. ^^ Nor have constitutional guarantees interfered 
 with the execution of treaties for the internment of belligerent 
 troops entering the territory when the United States is neutral, 
 the return of seamen deserting from foreign vessels, and the extra- 
 dition of criminals found within the United States. Compliance 
 with the terms of the treaty has been held to accord the person 
 subject to internment/" return^* or extradition^^ the " due process 
 of law " required by the Vth Amendment. It is, however, doubt- 
 ful whether an extradition authorized by the President in the 
 absence of treaty would be legal though one Arguelles was thus 
 extradited to Spain under authority of President Lincoln in 1864.^° 
 
 Doubt has been expressed as to the power of the United States 
 to execute treaties requiring the punishment of persons for certain 
 acts, such as the acceptance of letters of marque, therein described 
 
 15 Most Constitutional Limitations cannot afifect the power to execute 
 treaties, because they apply to the treaty-making power as well as other 
 organs of government. Consequently if an apparent treaty proved inex- 
 ecutable by virtue of a constitutional limitation, it would really be no treaty 
 at all, but ultra z'ircs and void from the start. See Infra, sec. 46. As we 
 have noticed, however, the United States would be bound by such an 
 obligation because the foreign government cannot be presumed to know 
 of obscure constitutional limitations. Supra, sec. 31. See also Willoughby, 
 ofy. cit., p. 515. 
 
 16 /n re Ross, 140 U. S. 453 (1890). 
 
 1'' £.r Parte Toscano, 208 Fed. Rept. 938. 
 
 18 Tucker z'. Alexandroff, 183 U. S. 424 (1902); Moore, Digest, 6, 423, 
 
 ^^\J. S. V. Jonathan Robbins, Bees Adm., 266; The British Prisoners, 
 I Wood and Min. 66; Neeley 77. Henkel, 180 U. S. 109 (1901), Moore, Digest, 
 6: 267, 270. 
 
 20 Dicta in Terlinden z: Ames, 184 U. S. 271, 289 (1902), and Tucker v. 
 AlexandrofT, 183 U. S. 424, 431 (1902); Moore, Digest, 6: 247-253; Wil- 
 loughby, op. cit.. p. 479.
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 79 
 
 as crimes. ^^ There has also been doubt of its ability to punish those 
 violating rights guaranteed by treaty or international law to 
 resident aliens.^- In these cases, however, the difficulty has arisen 
 from the strictly statutory character of the jurisdiction of federal 
 courts and not from constitutional guarantees. Congress is compe- 
 tent^^ and in fact has provided for the punishment of offenses of 
 the first though not of the second character in federal courts.^* 
 
 Constitutional guarantees do not seem to interfere with a due 
 observance of the immunities guaranteed to foreign sovereigns, 
 diplomats, naval and military forces, consuls, etc., by international 
 law or treaty. Thus foreign diplomatic officers have been con- 
 sidered immune from compulsory attendance as witnesses. ^^ In 
 a case where the accused claimed a constitutional right to have a 
 French consul subpoenaed as a witness in a criminal trial, the 
 California court upheld the consul's claim of treaty immunity on 
 the ground that the guarantee of the Vlth Amendment of the Con- 
 stitution gave the accused only the same rights as the prosecution 
 and not an absolute right " to have compulsory process for obtain- 
 ing witnesses in his favor." ^*' It also appears that the prohibition 
 amendment does not interfere with the exemption from inspection 
 enjoyed by the baggage of diplomatic officers.^^ 
 
 21 See Marcy, Sec. of State, to Mr. Aspuria, Nov. 15, 1854, Moore, Digest, 
 2: 978; 5: 169; Livingston, J., in the Bello Corrunes, 6 Wheat. 152, and dis- 
 cussion by Wright, Am. Jl. Int. Law, 12: 79. The objection in these cases, 
 however, Avas based on a supposed encroachment by the treaty upon the 
 power of Congress to " punish . . . offenses against the law of nations." 
 
 22 Objection has been made in Congress on the score of encroachment 
 upon state reserved powers. See Taft, U. S. and Peace, N. Y., 1914, p. 74- 
 
 23 Baldwin v. Franks, 120 U. S. 678. 
 
 24 U. S. Rev. Stat., sees. S373-5374 ; Criminal Code of 1910, sees. 304-30S ; 
 infra, chap. XII. 
 
 25 See case of the Dutch minister Dubois, 1856, who refused to appear 
 in a criminal trial, and case of the Venezuelan minister, Comancho, who with 
 consent of his government waived his privilege and appeared as a witness 
 in the Guiteau trial for murder of President Garfield. Moore, Digest, 4: 
 
 643-^45. 
 
 26 /» re Dillon, Sawyer 561, Fed. Case No. 3914 (1854) ; Moore, Digest, 
 5: 78. 
 
 2'' The papers of October 22, 1920, reported a controversy on this sub- 
 ject between the State and Treasury departments at Washington. See Hyde, 
 International Law, 1922, i : 759.
 
 80 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Finally, constitutional guarantees have not impaired the gov- 
 ernment's ability to follow the custom of international law whereby 
 the succeeding government continues the existing system of civil 
 and criminal law in newly acquired territory. In the insular cases 
 the Supreme Court held that constitutional guarantees did not apply 
 to unincorporated territory ex propria vigore and hence the pre- 
 existing system of law in the Philippines, Porto Rico, etc., although 
 not providing for jury trial and other methods guaranteed by the 
 Constitution, might be continued. ^^ The court, however, suggested 
 that certain " natural rights " among these guarantees, such as that 
 requiring " due process of law," might apply even in these ter- 
 ritories.^^ Clearly the prohibition of slavery stated in amendment 
 XIII to extend to "any place subject to the jurisdiction" of the 
 United States would so apply. However, there is no international 
 custom favoring the continuance of institutions disapproved by the 
 usual standards of justice and morality.^" 
 
 46. Effect upon Power to Make International Agreements. 
 
 The power to make international agreements, likewise, seems 
 almost unafifected by constitutional guarantees of private right. 
 Many of these guarantees apply to all organs of the government, 
 and hence in theory limit the treaty-making power, but a treaty 
 has never been held void in consequence.^^ The courts have 
 shown an inclination to reconcile such guarantees to treaty 
 provisions where a conflict has been alleged. The various cases 
 we have considered in which the power of the government to 
 meet responsibilities founded on treaty has been sustained likewise 
 indicates the competence of the treaty power. According to Amer- 
 ican constitutional theory and the terms of the " necessary and 
 proper clause " the national government is competent to carry into 
 efifect all of its constitutional powers. ^^ Hence if the courts had 
 
 28 Hawaii v. Mankichi, tqo U. S. 197; Dorr v. U. S., 195 U. S. 138. 
 
 -^ Dicta of Brown, J., in Downes v. Bidwell, 182 U. S. 244, 282; Dorr v. 
 U. S., 195 U. S. 138. 
 
 3^ As to the attitude of international law on slavery see Story, J., in 
 U. S. z\ La Jeune Eup^enie, 2 Mason 409 (1822). 
 
 "' Willoughby, op. cit., p. 493 ; Corwin, National Supremacy, p. S ; An- 
 derson, Am. //. Int. Law, i: 647; Wright, ibid., 13: 248, infra, sec. 173. 
 
 S2 Marshall, C. J., in McCulloch v. Md., 4 Wheat. 316.
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 81 
 
 held the execution of treaties for extradition, internment, or the 
 return of deserting seamen to be in violation of constitutional 
 guarantees, they would in reality have been holding the treaty itself 
 void as beyond the competence of the treaty power.^^ This issue 
 was definitely raised in the case of the French consul referred to. 
 In this case as we have seen the California court upheld the 
 consul's claim to immunity by an interpretation reconciling the 
 treaty clause and the constitutional guarantee in question. ^^"^ How- 
 ever, in a diplomatic controversy resulting from a French protest 
 against the original arrest of the consul for refusal to obey the 
 subpoena. Secretary of State Marcy took a less favorable view of 
 the treaty : ^* 
 
 " The Constitution is to prevail over a treaty where the provisions of 
 the one come in conflict with the other. It would be difficult to find a 
 reputable lawyer in this country who would not yield a ready assent to this 
 proposition. Mr. Dillon's counsel admitted it in his argument for the con- 
 sul's privilege before the court in California. The sixth amendment to the 
 United States Constitution gives, in general and comprehensive language, 
 the right to a defendant in criminal prosecutions to have compulsory process 
 to procure the attendance of witnesses in his favor. Neither Congress nor 
 the treaty-making power are competent to put any restriction on this con- 
 stitutional provision. ... As the law of evidence stood when the Constitu- 
 tion went into effect, ambassadors and ministers could not be served with 
 compulsory process to appear as witnesses, and the clause in the Constitu- 
 tion referred to did not give the defendant in criminal prosecutions the 
 right to compel their attendance in court. But what was the case in this 
 respect as to the consuls? They had not the diplomatic privileges of am- 
 bassadors and ministers. After the adoption of the Constitution the de- 
 fendant in a criminal prosecution had the right to compulsory process to 
 bring into court as a witness in his behalf any foreign consul whatsoever. 
 If he then had it, and has it not now, when and how has this constitutional 
 right been taken from him? Congress could not take it away, neither could 
 the treaty-making power, for it is not within the competence of either to 
 modify or restrict the operation of any provision of the Constitution of the 
 United States." 
 
 Though with his interpretation of the Vlth Amendment, Secretary 
 Marcy was doubtless correct from a constitutional point of view, 
 
 85 
 
 ^3 Supra, note 15. 
 
 33a Supra, note 26. This interpretation is supported by J. B. Moore, Proc. 
 Am. Phil. Soc, Minutes, 60: xv; Digest, 5: 168. 
 
 3* Moore, Digest, S : 167. 
 
 35 To the same effect, see Mr. Marcy to Mr. Aspuria, Nov. 15, 1854; Mr. 
 Blaine, Sec. of State, to Mr. Chen Lan Pin, March 25, 1881 ; Mr, Cass to
 
 82 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 yet in the international discussion he found it necessary to acquiesce 
 in the French view and make amends for the arrest. ^^ Since 
 France could not be presumed to know of the constitutional limitation 
 when the treaty was made she was entitled to hold the United 
 States bound.^^ However, the state department has adhered to 
 Secretary IMarcy's position and instructed negotiators to exclude 
 such provisions from future treaties.^® 
 
 Finally it has been held that the treaty power violates no con- 
 stitutional guarantee when it refuses to press the claims of Amer- 
 ican citizens against foreign governments or settles them unjustly 
 by compromised^ Conventions of the latter efifect cannot be said 
 to deprive an individual of a guaranteed right, because the con- 
 stitution can guarantee no more than the government can obtain.*" 
 Where valid private claims are bartered for national advantage, as 
 were the French Spoliation claims in 1801, a moral duty of the 
 government to compensate undoubtedly exists and was acted on 
 in this case after the lapse of a century.*^ The constitutionality of 
 the treaty, however, was not questioned. 
 
 47. Effect upon Power to Make Decisions on National Policy. 
 
 Although important decisions on foreign policy such as the 
 
 Lord Napier, Feb. 7, 1859; Moore, Digest, 5: 169, 177; Cherokee Tobacco 
 Case, 1 1 Wall. 616 (1870) ; Geofroy v. Riggs, 133 U. S. 258 (1890) ; Corwin, 
 National Supremacy, p. 5; Crandall, op, cit., p. 266; VonHolst, Constitutional 
 Law of U. S., Chicago, 1887, P- 202. 
 
 3« Moore, Digest, 5 : 80. 
 
 ^"^ Supra, sec. 31. 
 
 38 Mr. Fish, Sec. of State, to Mr. Bassetf, Oct. 18, 1872, Moore, Digest, 
 5: 81. This provision is omitted in consular treaties with Greece and 
 Spain, 1902, Malloy, Treaties, pp. 855, 1701 ; Corwin, National Supremacy, p. 
 15; Wright, Am. Jl. Int. Law, 13: 260, 
 
 39 Comegj's V. Vasse, i Pet'. 193 (1828). "In as much as the govern- 
 ment is under no legal obligation to any citizen to prosecute his claim against 
 a foreign country, but is guided solely by the public interest, considerations 
 of public policy and upright dealing between states may warrant the aban- 
 donment of a claim." Borchard, op. cit., p. 367. 
 
 40 Corwin, National Supremacy, p. 16, and Borchard, op. cit., p. 366 et seq. 
 
 41 Gray v. U. S., 21 Ct. CI. 340, and Gushing v. U. S., 22 Ct. CI. i. 
 Meade's claim, however, though generally admitted to have been unjustly 
 settled by the Spanish treaty of 1819, has never been liquidated by the 
 United States. See Borchard, op. cit., pp. 2i77, 380,
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 83 
 
 recognition of foreign states, governments and belligerency, the 
 annexation of territory and the declaration of war and intervention 
 may have important effects upon the life, liberty or property of 
 individuals, such acts are considered " political questions " not 
 reviewable by the courts and are not affected by constitutional 
 guarantees.*^ The court refused to enjoin the Secretary of the 
 Treasury from disbursing funds for construction of the Panama 
 Canal on suit of one Wilson, a tax-payer, on the ground that Panama 
 was not properly a state and the United States had no authority. 
 The recognition of Panama by the President and acceptance of his 
 act by Congress were held conclusive by the court.'*^ 
 
 " For the courts to interfere," said Justice Brewer, " and at the instance 
 of a citizen, who does not disclose the amount' of his interest, stay the 
 work of construction by stopping the payment of money from the Treasury 
 of the United States therefore, would be an exercise of judicial power which, 
 to say the least, is novel and extraordinary. ... In the case at bar it is 
 clear not only that the plaintifT is not entitled to an injunction, but also 
 that he presents no ground for any relief." 
 
 In the carrying out of foreign policies and decisions in peace 
 and war the national government has been very little impeded by 
 constitutional guarantees. It may exclude or expel aliens without 
 judicial hearing, even when they allege citizenship, the courts 
 holding that in such cases administrative hearing is " due process 
 of law." *■* It may annex territory and subject it to military*^ 
 
 *2 Williams v. Suffolk Ins. Co., 13 Pet. 415; The Divina Pastora, 4 
 Wheat. 52; Jones z: U. S., 137 U. S. 202; The Prize Cases, 2 Black 635; 
 Willoughby, op. cit., pp. 999-1008. 
 
 *3 Wilson v. Shaw, 204 U. S. 24 (1907). 
 
 **U. S. V. Ju Toy, 198 U. S. 253 (1905). Holmes, J., also suggested 
 that the constitutional guarantee might not apply to an immigrant because 
 "although physically within our boundaries (he) is to be regarded as if he 
 had been stopped at the limit of our jurisdiction and kept there while his 
 right to enter was under debate." On power to expel see Fong Yue Ting v. 
 U. S., 149 U. S. 698 (1893). The immigration act of Feb. 5, 1917, art. 19, pro- 
 vides for return of immigrants illegally entering within a period of 5 years, 
 on warrant of the Secretary of Labor, and the act of Oct. 16, 1918, provides 
 for the expulsion of any alien within enumerated classes, on warrant of the 
 Secretary of Labor. Rule 19 of May i, 1917, gives the procedure of en- 
 forcement. See Dept. of Labor, Bureau of Immigration, ed. of Immigra- 
 tion Laws, 1919, and compiled statutes, sees. 4289 1/4 jj. 4289 1/4 b(2). 
 For Chinese exclusion and deportation provisions see acts. May 6, 1882, sees.
 
 84 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 or civil government*" untrammeled by constitutional guarantees. 
 The constitutional guarantees do not extend to annexed territory 
 until it has been incorporated by act of Congress.*'^ 
 
 The government may give its consuls, diplomatic and naval 
 officers authority over American citizens abroad, even to the extent 
 of criminal convictions without jury or other constitutional re- 
 quirements.*^ By a recognized custom at the time the Xlllth 
 Amendment was adopted, seamen may be compelled to fulfill their 
 contracts against their will and by force without violation of the 
 prohibition against slavery and involuntary servitude.*^ 
 
 Though the Supreme Court has said,^° " The war power of the 
 United States, like its other powers ... is subject to applicable 
 constitutional limitations," practice indicates that few such limita- 
 tions are applicable.°^ Military discipline may be enforced within 
 the army and navy by courts martial exempt from constitutional 
 restrictions and subject only to the articles of war enacted by 
 
 I, 12 (22 Stat. 58, 61), as amended July 5, 1884 (23 staf. 115, 117), Sept. 13, 
 1888, sec. 13 (28 Stat. 1210). For finality of decisions of immigration and 
 customs officials see act, Aug. 18, 1894, sec. i (28 stat. 390). See Comp. 
 Statutes, sec. 4290 et seq.; J. P. Hall, Const. Law, pp. 124, 325; Willoughby, 
 op. cit., pp. 1286-1293. 
 
 45 Neeley v. Henkel, 180 U. S. 109 (1901). 
 
 46 Dorr z: U. S., 195 U. S. 138. 
 
 47 Ibid. 
 
 *^ In re Ross, 140 U. S. 453 (1890). 
 
 49 Robertson v. Baldwin, 165 U. S. 275 (1897). This rule was altered by 
 the La Follette Seaman's act of 1915, sec. 16, 38 Stat. 1184, Comp. Stat., sec. 
 8382a. 
 
 ^° Brandeis, J., in Hamilton v. Ky. Distilleries and Warehouse Co., 251 
 U. S. 146, 156. See also Ruppert v. Caflfey, 251 U. S. 264. 
 
 ^1 " In my judgment, the power exists without any restrictions whatso- 
 ever, save those which are imposed by such express prohibitions of the 
 Constitution, and such fundamental restraints upon governmental action, 
 as are obviously and clearly intended to apply at all times and under all 
 conditions. There is, in this field of governmental activity therefore, little, 
 if any occasion to employ those niceties of logical analysis which have crys- 
 tallized into canons of statutory and constitutional construction, the appli- 
 cation of which tends to elucidate the meaning of language otherwise ob- 
 scure." Sutherland, Constitutional Power and World Affairs, N. Y., 1919, p. 
 94. Senator Sutherland's language doubtless elucidates the obscurities con- 
 nected with the limitations of the war power.
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 86 
 
 Congress.®^ Armies may be raised by draft without violation of 
 constitutional guarantees,^^ and by express exception of the Vth 
 Amendment persons in the service may be held to answer for 
 infamous crimes without presentment or indictment of grand jury. 
 Foreign territory, or even domestic territory in rebellion may be 
 occupied and governed without observance of the guarantees.'* 
 Within any territory of the United States the privilege of the writ 
 of habeas corpus may be suspended by Congress when in case of 
 rebellion or invasion the public safety may demand it. Though 
 such a suspension of the writ does not mean a suspension of the 
 other guarantees and a rule of martial law except in so far as 
 " necessity," due to public disturbance and an actual closure of the 
 courts, may demand, yet the practice of the Civil War indicates that 
 an actual rule of martial law may be established in territory not the 
 scene of immediate violence.'^ In pursuance of war. Congress 
 may provide for the confiscation of property in enemy territory 
 (even though American territory in rebellion) '® or property 
 belonging to enemy persons wherever found^^ without following 
 the guarantees of the Vth and Vlth Amendments. Such confisca- 
 tions are authorized under the power of Congress to make rules 
 concerning captures and not under its power of criminal legislation, 
 hence the guarantees for criminal trial do not apply. °* Under 
 military necessity executive authority alone will justify the confisca- 
 tion of property.'^ Congress may also provide for the internment 
 and expulsion of alien enemies by administrative process.^" 
 
 52 Dynes v. Hoover, 26 How. 65. 
 
 ^^ Selective Draft Cases, 245 U. S. 366. 
 
 " Neeley v. Henkel, 180 U. S. 109 (1901), Ford v. Surget, 97 U. S. 
 
 594- 
 
 ^^ Ex parte Milligan, 4 Wall. 2, and dissent by Chase, C. J., -whxch 
 Winthrop (Military Law, 2: 38) regards as the "sounder and more reason- 
 able " view. 
 
 56 Miller V. U. S., 11 Wall. 268. 
 
 57 Brown v. U. S., 8 Cranch no. See Trading with the Enemy Act, 
 Oct. 6, 1917. Property of loyal citizens may be taken under necessity but 
 must be paid for as required by the Vth Amendment, U. S. v. Russell, 13 
 Wall. 623; Willoughby, op. cit., p. 1243. 
 
 58 Miller V. U. S., 11 Wall. 268. 
 
 59 Mitchell V. Harmony, 13 How. 115. It has been held that the rights 
 of the President as commander-in-chief, though not limited by the Constitu-
 
 86 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 We may conclude that constitutional guarantees of individual 
 rights restrict the foreign relations power very little whether acting 
 to meet international responsibilities, to make international agree- 
 ments or to make and carry out national decisions and policies. 
 
 B. States' Rights. 
 
 48. Nature of Prohibition. 
 
 Restrictions upon the exercise of power by national organs 
 may be implied from the guarantee of certain rights to the states. 
 Territorial integrity,^^ a republican form of government®- and the 
 independence of their governmental organs from taxation or other 
 burdening*'^ appear to be genuine " states' rights " and must be 
 distinguished from the so-called " reserved powers " of the states. 
 The former constitute definite limitations upon the exercise of 
 national power, the latter if they restrict the exercise of national 
 powers at all, do so simply by virtue of constitutional understand- 
 ings. 
 
 tion, are limited by the international law of war and consequently confisca- 
 tion of property beyond those allowed by the law of war can only be 
 justified by act of Congress. Brown v. U. S., 8 Cranch no, thus held that 
 enemy property on land was not subject to confiscation except by express act 
 of Congress. See also Lieber's Instructions for the Government of the 
 Armies in the Field, Gen. Order, 100, April 24, 1863, arts. 4, 11; and 
 Sutherland, op. cit., pp. 75, yy. Willoughby thinks the President may even 
 go beyond the law of war {op. cit., 1212) and, regarding the Emancipation 
 Proclamation of Jan. i, 1863, as a confiscation of enemy property on land. 
 President Lincoln probably did so by that proclamation. For criticism see 
 Burgess, The Civil War and the Constitution, 2: 117; Rhodes, History 
 of U. S., 4 : 70. See also infra, sec. 218. 
 
 ^° See Alien Enemy Act, July 6, 1798 (i stat. 577), amended July 6, 
 1812 (i stat. 781, rev. stat., sees. 4067, 4068), and April 16, 1918, making it 
 applicable to women, which authorizes internment and expulsion. The 
 President issued proclamations under them April 6, Nov. 16, Dec. 11, 1917, 
 and April 19, 1918. See Comp. Stat., sees. 7615-18. See also Brown v. U. S., 
 8 Cranch no. 
 
 81 Constitution, IV, sec. 3, cl. i ; sec. 4. 
 
 62 Ibid., IV, sec. 4. 
 
 63 Collector t'. Day, n Wall, it 3; Willoughby, op. cit., pp. 110-114; 
 Willoughby. The American Constitutional System, pp. 123. 129. For ex- 
 press prohibitions upon the national government in behalf of the states, 
 see supra, sec. 44.
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 87 
 
 49. Effect upon Power to Meet International Responsibilities. 
 
 The power to meet international responsibilities does not seem 
 to be limited by any states' rights. The power to define and punish 
 offenses against the law of nations and the necessary and proper 
 clause of the Constitution®* confer upon Congress ample power 
 to provide for carrying out all treaties and all responsibilities under 
 international law. Legislation of Congress punishing offenses 
 against neutrality, offenses against foreign diplomatic officers, and 
 the counterfeiting of foreign securities have been held to violate 
 no guaranteed states' rights^^ and many acts for the carrying out 
 of treaties have been sustained.''® Of this character are acts pro- 
 viding for extradition and for the return of deserting seamen. 
 The conclusion of treaties may unquestionably extend the power of 
 Congress to provide for the exercise of police power within the 
 states. Thus although the court held unconstitutional an act of 
 1907 rendering persons criminally liable for harboring immigrant 
 women as prostitutes within a period of three years of landing, it 
 indicated that if the law had been in pursuance of a treaty it would 
 have been valid. "^ The Mann White Slave Act of 1910®^ actually 
 includes provisions in pursuance of the International White Slave 
 Convention of 1904. So also an act for the protection of migratory; 
 birds was held unconstitutional®^ but the court has sustained a 
 similar act passed in pursuance of a treaty with Great Britain.''® 
 
 " The treaty in question," says Mr. Justice Holmes, " does not contra- 
 vene any prohibitory words to be found in the Constitution. The only 
 question is whether it is forbidden by some invisible radiation from the 
 general terms of the loth Amendment. We must consider what this 
 country has become in deciding what that amendment has reserved. . . . 
 Valid treaties, of course, ' are as binding within the territorial limits of the 
 states as they are effective throughout the dominion of the United States.' " 
 
 6* Constitution, I, sec. 8, cl. 10, 18. 
 ^^U. S. V. Arjona, 120 U. S. 479. 
 66 Mo. V. Holland, 252 U. S. 416 (1920). 
 
 67Ullman v. U. S., 213 U. S. 138 (1909), declaring act of Feb. 20, 1907, 
 sec. 3 (34 Stat. 898), void. 
 
 68 Act, June 25, 1910, sec. 6, 36 stat. 825. 
 
 69 U. S. V. Shauves, 214 Fed. 154; U. S. v. McCullagh, 227 Fed. 288. 
 
 70 Mo. V. Holland, 252 U. S. 416 (1920).
 
 88 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Baldwin v. Franks, 120 U. S. 678, 683. No doubt the great body of private 
 relations usually falls within the control of the state, but a treaty may over- 
 ride its power. We do not have to invoke the later developments of con- 
 stitutional law for this proposition; it was recognized as early as Hopkirk v. 
 Bell, 3 Cranch 454, with regard to statutes of limitation, and even earlier 
 as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief 
 Justice Marshall with regard to the escheat of land to the state in Chirac v. 
 Chirac, 2 Wheat. 259, 275 ; Hauenstein v. Lynham, 100 U. S. 483 ; Geof roy v. 
 Riggs, 133 U. S. 258; Blythe v. Hinckley, 180 U. S. 2,2,3, 340. So, as to a 
 limited jurisdiction of foreign consuls within a state. Wildenhus Case, 120 
 U. S. I. See Re Ross, 140 U. S. 453. Further illustration seems unnecessary, 
 and it only remains to consider the application of established rules to the 
 present case. 
 
 "Here a national interest of very nearly the first magnitude is involved. 
 It can be protected only by national action in concert with that of another 
 power. The subject matter is only transitorily within the state, and has no 
 permanent habitat therein. But for the treaty and the statute, there soon 
 might be no birds for any powers to deal with. We see nothing in the 
 Constitution that compels the government to sit by while a food supply is 
 cut off and the protectors of our forests and of our crops are destroyed. 
 It is not sufficient to rely upon the states. The reliance is vain, and were 
 it otherwise, the question is whether the United States is forbidden to act. 
 We are of opinion that the treaty and statute must be upheld. Gary v. 
 South Dakota, 250 U. S. 118." 
 
 The present inability of federal courts to prosecute persons 
 within the states guilty of violating the rights of aliens guaranteed 
 by international lavi^ or treaty is not due to a limitation upon na- 
 tional power but to an insufficiency of congressional legislation.'^^ 
 
 50. Effect upon Power to Make International Agreements. 
 
 The national guarantee of territorial integrity and a repub- 
 lican form of government to the states limits the treaty power. 
 The capacity of the treaty power to cede state territory was discussed 
 in Washington's cabinet. Secretary of State Jefiferson maintained 
 that " the United States had no right to alienate one inch of the 
 territory of any state " while Secretary of the Treasury Hamilton 
 took the opposite view.'^^ While admission of the supremacy of 
 
 ''I Willoughby, Am. Constitutional System, p. 108; Pomeroy, Const. Law, 
 9th ed., p. 571; Corwin, National Supremacy, pp. 288-289; Taft, U. S. and 
 Peace, 40 et seq., Gammons, Am. Jl. Int. Law, 11: 6; Moore, Digest, 6: 839 
 et seq. 
 
 "Jefferson's Anas, March 11, 1792, Wharton, Digest, 2: 66.
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 89 
 
 treaties granting Indian tribes an exclusive right in reservations 
 within the states''^ seems to go far toward admitting the right of 
 the treaty power to aHenate state territory, an actual cession was 
 not here in question. In the only case of foreign cession of state 
 territory that has arisen, the adjustment of the Maine boundary by 
 the Webster-Ashburton treaty of 1842, the political expediency if 
 not the constitutional necessity of obtaining the state's consent 
 was admitted. The compensation to be paid Maine and Massa- 
 chusettes was especially referred to in the treaty,'^* The better 
 opinion seems to hold that state consent must be obtained,^^ though 
 in case of necessity, as to end an unfortunate war, a treaty cession 
 without such consent would doubtless stand. ''^ 
 
 The interpretation of the guarantee of a " Republican Form of 
 Government " was held by the courts a political question in a case 
 recognizing the legitimacy of the military government set up in 
 Texas after the Civil War." Doubtless a treaty putting a state 
 under a protectorate or otherwise subverting its government could 
 be equally well reconciled with the guarantee. Legally, however, 
 the guarantee unquestionably restricts the treaty power. 
 
 The " reserved powers " of the states, however, do not hmit 
 the treaty-making power. Powers often claimed to be " reserved 
 powers " may be classified as ( i ) the power to regulate exclusively 
 state land and natural resources; (2) the power to exercise ex- 
 clusive control over public services supported by state taxation; 
 (3) the power to exercise police control over classes of persons 
 and businesses within the state in behalf of public safety, health, 
 morals and economic welfare. Treaty provisions often guarantee 
 to aliens rights of entry, residence landholding, inheritance, etc., 
 
 "Worcester v. Ga., 6 Pet. 515 (1832). 
 
 7* Art. V of treaty. See Moore, 5: 172-174, supra, sec. 31. This inci- 
 dent is discussed in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 
 525, 541, quoting Webster's Works, 5: 99, 6: 273. 
 
 "^5 Dicta in Lattimer v. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 
 133 U. S. 267 (1890); Insular Cases, 182 U. S. 316 (1901) ; Fort Leaven- 
 worth Railroad Co. v. Lowe, 114 U. S. 525, 541; Moore, Digest, 5: 171- 
 175; Butler, The Treaty Making Power, 1902, i: 411-413, 2: 238, 287-294; 
 Corwin, National Supremacy, 130-134; Wright, Am. Jl. Int. Law, 13: 253. 
 
 76 Supra, sec. z^. 
 
 7T Texas v. White, 7 Wall. 700. /
 
 90 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 equal to that of citizens or subjects of the most-favored nation.''* 
 It has been alleged that such provisions are void in so far as they 
 conflict with the exercise by the States of these " reserved " 
 powers. The issue has been judicially considered in reference to 
 state statutes discriminating against aliens, or aliens of a partic- 
 ular race or nationality (i) in the privilege of owning land/® 
 operating mines, ^° and taking fish^^ and game;^- (2) in the use 
 of public schools^^ and the right to labor on public works ;^* (3) 
 and in the freedom of immigration,^^ labor,^" personal habits,^^ and 
 
 78 Art. XI of the Treaty of 1778 with France and Art. I of the Treaty 
 of 1894 with Japan, superseded by Art. I of the Treaty of 191 1, are examples 
 of this type of provision. 
 
 '9 Fairfax v. Hunter, 7 Cr. 603; Chirac v. Chirac, 2 Wheat. 259 (1817) ; 
 Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464 
 (1823) ; Carneal v. Banks, 10 Wheat. 259 (1825) ; California-Japanese con- 
 troversy, 1913, Corwin, op. cit., p. 232. Art. VII of the treaty of 1853 
 with France made concessions to this " states' right." It allowed French- 
 men to possess land on an equality with citizens " in all the states of 
 the Union where existing laws permit it, so long and to the same extent as 
 the said laws shall remain in force." As to the other states " the President 
 engages to recommend to them the passage of such laws as may be neces- 
 sary for the purpose of conferring the right." 
 
 so People v. Noglee, i Cal. 232 (1850). 
 
 81 Griggs, Att. Gen., 1898, 22 Op. 214. 
 
 82 Patsone v. Pa., 232 U. S. 138, 145, Mo. v. Holland, 252 U. S. 416 
 (1920). 
 
 83 California-Japanese school children controversy, 1906, Corwin, op. cit., 
 p. 217; E. Root, Am. Jl. Int. Laiv, i: 273, and editorials, ibid., i : 150, 449. 
 Art. IV of the Treaty of 1854 with Great Britain indicates that the United 
 States doubted its right to control a state established utility without state 
 consent. " The government of the LTnited States further engages to urge 
 upon the state government to secure to the subjects of Her Britannic 
 Majesty the use of the several State Canals on terms of equality with the 
 inhabitants of the L^nited States." 
 
 8* Baker v. Portland, 5 Sawyer 566 (1879); Heim v. McCall, 239 U. S. 
 175 (1915). Am. J I. Int. Lazv, 10: 162. 
 
 8!5 Elkinson v. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 
 (1823), Thayer, Cases in Constitutional Law, p. 1849, Corwin, op. cit., p. 
 125; Wirt, Att. Gen., 10: 661 (1824) ; Berrien, Att. Gen., 20: 431 (1831) ; The 
 Passenger Cases, 7 How. 283 (1849) ; in re Ah Fong, 3 Sawyer 144; 
 Henderson v. N. Y., 92 U. S. 259 (1875). 
 
 80 /m re Tiburcio Parrotf, 6 Sawyer 349 (1880); Truax v. Raich, 239 
 U. S. 2,2,, 43 (1915), Am. Jl. Int. Laiv, 10: 158. 
 
 87 Ho Ah Kow V. Nunan, 5 Sawyer 532 (1879).
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 91 
 
 conduct of business.^^ In a few cases dicta damaging to the treaty 
 power have been uttered ; ^° sometimes the treaty has been sub- 
 jected to a strained interpretation to save the State's power;"" but 
 in no case has a clear treaty provision been superseded by the state 
 law. On the contrary, state statutes of this character have fre- 
 quently been declared void when conflicting with clear treaty pro- 
 visions."^ With respect to statutes relating to the control of natural 
 resources and state-supported services, the attitude of the courts 
 has been cautious, with a decided tendency in recent cases to com- 
 promise by adopting interpretations of the treaty favorable to the 
 state power."- The question, however, has been on the applicability 
 of the treaty, not upon its validity. 
 
 A more extreme extension of the " reserved powers " doctrine 
 has been put forward in the claim that unlimited discretion in the 
 regulation and taxation of property and inheritances is a state power 
 exempt from interference by the treaty-making power. Treaties 
 of the character mentioned have sometimes conflicted with the 
 alleged exclusive right of the state to regulate the ownership, 
 transmission and inheritance of property within its limits.^^ An 
 historical view of the many cases bearing upon this point shows that 
 in the days of Marshall"* and since the Civil War"^ the Supreme 
 
 8^ Yick Wo V. Hopkins, ii8 U. S. 356 (1886); Compagnie Francaise v. 
 State Board of Health, 186 U. S. 380 (1902). Frequently in these cases the 
 XIV Amendment as well as treaties have been in opposition to the exercise 
 of state powers. See also Rocca v. Thompson, 232 U. S. 318. 
 
 89 Taney, C. J., in Holmes z'. Jennison, 14 Pet. 540 (1840); The Pas- 
 senger Cases, 7 How. 283, 465 (1849); Daniels, J., in The License Cases, 
 5 How. 504, 613; Grier, J., in The Passenger Cases, 7 How. 283 (1849). 
 
 90 Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). 
 9^ Chirac z'. Chirac, 2 Wheat'. 259 (1817) ; Elkinson z'. Deliesseline, supra, 
 
 note 42; in re Tiburcio Parrott, 6 Sawyer 349 (1880) ; Truax v. Raich, 239 
 U. S. 2>?>, 43 (1915), ^'"- Jl- ^"t. Law, 10: 158. 
 
 92Patsone v. Pa., 232 U. S. 138, 145; Heim v. McCall, 239 U. S. 175, 
 193 (1915)- ^'«. J^i- Jnt. Lazv, 10: 162. But see Mo. v. Holland, supra, 
 sec. 49. 
 
 93 Ware v. Hylton, 3 Dall. 199 (1796); Hopkirk v. Bell, 3 Cranch 454; 
 Prevost V. Greenaux, 10 How. i (1856) ; Fredricksen z'. La., 23 How. 443 
 (i860); Hauenstein v. Lynham, 100 U. S. 483 (1879); Wynans Petitioner, 
 191 Mass. 276; People v. Gerke, 5 Cal. 381 (1855). 
 
 9* Fairfax v. Hunter, 7 Cr. 603 (1813) ; Chirac z: Chirac, 3 Wheat. 259 
 (1817).
 
 92 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Court has uniformly and in no uncertain voice sustained the treaty 
 power as against these alleged states' reserved powers. Only 
 during the period preceding the Civil War was there a wavering, 
 even then confined to dicta.®^ 
 
 Statesmen and text writers with few exceptions have taken a 
 similar attitude in support of a broad treaty power.^^ We may 
 accept the view of a California judge in a case involving the state 
 intestacy laws.°^ 
 
 " One of the arguments at the bar against the extent of this power of 
 treaty is, that it permits the Federal Government to control the internal 
 policy of the States, and, in the present case, to alter materially the statutes 
 
 osHauenstein v. Lynham, lOO U. S. 483 (1879); Geofroy v. Riggs, 
 133 U. S. 258 (1890). 
 ^^Suf'ra, note 89. 
 
 ^'^ For supremacy of treaty power over state powers : 
 Anderson, C, Am. J I. Int. Law, i: 636; 
 Burr, Treaty Making Power of U. S., 1912; 
 Butler. The Treaty Making Power of the U. S., 1902; 
 Calhoun, Discourse, Works, ed. 1853, i: 202; Elliot's Debates, 4: 463; 
 Corwin, National Supremacy, 1913; 
 
 Crandall, Treaties, their Making and Enforcement, 1916; 
 Devlin, Treaty Power under the Constitution of U. S., San Francisco, 
 
 1908; 
 Elliott, E. C, The Treaty Making Power, with reference to the Re- 
 served Powers of the States, Case and Comment, 22: yy (1913) ; 
 Hall, J. P., State Interference with the Enforcement of Treaties, 
 
 Proc. Acad. Pol. Sci., 7: 24; 
 Livingston, Sec. of State, Wharton, 2: 67; 
 Moore, J. B., Pol. Sci. Quar., 32: 320; 
 Pomeroy, Introduction to the Constitutional Law of U. S., 9th ed., 
 
 1886, sec. 674; 
 Root, Am. Jl. Int. Law, i: 273; 
 Story, Commentaries on the Constitution ; 
 
 Willoughby, W. W., Constitutional Law of U. S., 2 vols., 1910. 
 Against supremacy of treaty power over state powers : 
 
 Hayden, Am. Hist. Rev., 22: 566 (takes a historical view showing 
 
 that the political check has sometimes preserved states' rights from 
 
 adverse treaties) ; 
 JefTerson, Manual of Parliamentary Practice, p. no; 
 Mikell, University of Pa. Law Rev., 57, 435, 528; 
 Tucker, H. S., Limitations on the Treaty Making Power under the 
 
 Constitution of U. S., Boston, 1915; 
 Tucker, J. R., Constitution of U. S., 2 vols., 1899. 
 98 People v. Gerke, 5 Cal. 381 (1855).
 
 PRIVATE RIGHTS AND STATES' RIGHTS. 93 
 
 of distribution. If this was so to the full extent claimed, it might be a 
 sufficient answer to say, that it is one of the results of the compact, and, 
 if the grant be considered too improvident for the safety of the States, the 
 evil can be remedied by the Constitution-making power." 
 
 Thus any respect that is shown by the treaty-making power to 
 " reserved powers " of the states is merely by virtue of an under- 
 standing of the Constitution. In fact such respect has often been 
 shown and it was thus to safeguard the interests of the states 
 that the Senate was made such an important element in treaty- 
 making."® This function the Senate has recognized, and, especially 
 in the period before the Civil War, has frequently exercised a veto 
 upon treaties thought to violate states' rights, or redrafted them 
 so as to permit of state consent before the treaty became effective 
 within its territory."" The practice of the Senate, the opinions 
 of statesmen and dicta of the courts indicate that, except for the 
 most cogent reasons, the treaty power ought to exercise its powers 
 in such way as not to interfere with the control by the states of 
 their own land, natural resources, and public services and not to 
 interfere unnecessarily with the enforcement by the state of its own 
 policy with reference to the protection of public safety, health, 
 morals and economic welfare. 
 
 51. Effect upon Power to Make Decisions upon National Policy. 
 
 States' Rights have not interfered with the making and carrying 
 out of national decisions. Such decisions as the declaration of 
 war, recognition of foreign states and governments, annexation of 
 territory, etc., being of external application, have never been alleged 
 to conflict with states' rights, unless the protests of the Hartford 
 Convention against the War of 1812 be so considered."^ The 
 
 99 Ralston Hayden, The States' Rights Doctrine and the Treaty Making 
 Power, Am. Hist. Rev., 22: 56; Corwin, National Supremacy, 141, 302. The 
 fathers seem to have considered the Senate a special bulwark of states' 
 rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford ed., 
 p. 432; Elliot, Debates, 4: 137. 
 
 100 Hayden, op. cit., Am. Hist. Rev., 22: 56. For example see supra, 
 note 79. 
 
 101 See proposed amendment to the Constitution requiring two-thirds vote 
 of both houses to declare war, MacDonald, Select Documents in American 
 History, N. Y., 1898, p. 206.
 
 94 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 exercise of war powers, has conflicted with alleged states' reserved 
 powers. Thus the drafting of armies was attacked as an impair- 
 ment of the states' reserved power over its militia.^°" Though the 
 contention at first received some judicial support in Civil War 
 cases/"^ it was thoroughly demolished during the World War.^°* 
 
 Apparently the only legal limitation upon the exercise of 
 powers in foreign relations imposed by states' rights is that upon 
 the power to cede state territory by treaty, which is acknowl- 
 edged to evaporate before necessity. 
 
 102 Constitution, Art. I, sec. 8, cl. 15, 16. The national government can 
 call forth the mihtia, as such, only " to execute the laws of the Union, sup- 
 press insurrections and repel invasions," which does not permit of use out- 
 side the territory (Wickersham, Att. Gen., 29 Op. 322), but under present 
 law the militia are not' used as such but are reenlisted in the national army 
 when called out for national service. (Act June 3, 1916, 39 stat. 200, 
 211, sees. 70, 71, 73, III.) The power to raise armies (Constitution, I, sec. 8, 
 cl. 12) is wholly distinct from the power over the militia and is not limited 
 by the state's right to its militia. (Selective Draft Cases, 245 U. S. 366.) 
 See Wright, Military Administration, Report of Efficiency and Economy 
 Committee of Illinois, 191S, p. 903. 
 
 losKneedler t'. Lane, 45 Fa. 238 (1863), Thayer, Cases on Constitutional 
 Law, p. 2316. Lowrie, J., supported by Justices Woodward and Thompson, 
 with Justices Strong and Read in dissent, granted a preliminary injunction 
 on November 9, 1863. On December 12, 1863, Justice Lowrie's term ex- 
 pired. He was succeeded by Justice Agnew, who sided with the two former 
 dissenting justices, thus making Justice Strong's opinion dissolving the 
 injunction the opinion of the court. 
 
 10* Selective Draft Cases, 245 U. S. 366; Sutherland, op. cit., p. 108.
 
 CHAPTER VII. 
 
 Limitations upon National Powers: The Separation of 
 
 Powers. 
 52. Nature of the Theory. 
 
 The doctrine of separation of powers means that the legislative, 
 executive, and judicial powers of government ought to be exercised 
 by separate and independent departments. 
 
 " It is also essential," says the Supreme Court, " to the successful work- 
 ing of the system that the persons intrusted with power in any one of these 
 branches shall not be permitted to encroach upon the powers confided to 
 the others, but that each shall by the law of its creation be limited to the 
 exercise of the powers appropriate to its own department and no others." ^ 
 
 The doctrine is implied by three clauses of the Constitution : 
 
 " All legislative power herein granted shall be vested in a Congress of 
 the United States." (Art. I, sec. i.) 
 
 " The executive power shall be vested in a President of the United 
 States of America." (Art. II, sec. i.) 
 
 " The judicial power of the United States shall be vested in one Su- 
 preme Court and in such inferior courts as the Congress may from time 
 to time ordain and establish." (Art. Ill, sec. i.) 
 
 It will be noticed that the Congress is vested merely with "all 
 legislative powers herein granted " while the President and the 
 courts are vested respectively with " the executive power " and 
 "the judicial power of the United States." The mere fact 
 that a power is legislative in character does not, therefore, indicate 
 its possession by Congress unless it is specifically granted to that 
 body elsewhere in the Constitution. It has been urged, however, 
 that all powers by nature executive belong inherently to the Pres- 
 
 1 Kilbourn v. Thompson, 103 U. S. 168. On impossibility of so defining 
 the functions of the departments as to make an actually complete separation, 
 see Goodnow, The Principles of the Administrative Law of U. S., N. Y., 1905, 
 p. 26, and Willoughby, op. cit., p. 1262. 
 
 2 Hamilton, " Pacificus " Letter, June 29, 1793, and Roosevelt, Auto- 
 biography, pp. 388-389, quoted, Corwin, The President's Control of Foreign 
 Relations, pp. 11, 168. See also infra, sec. 92. 
 
 95
 
 96 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ident^ and all powers by nature judicial to the courts.^ Doubtless 
 certain inherent executive and judicial powers and privileges, nec- 
 essary for the functioning of the organ, and for the preservation 
 of its independence, such as the executive power to remove officials* 
 and the judicial power to punish for contempts,^ exist aside from 
 express delegation, but so also do inherent legislative powers, such 
 as the power to subpoena witnesses necessary to give information 
 essential to intelligent legislation.^ The general vesting of executive 
 and judicial power cannot, therefore, be made the basis of powers 
 other than essentially inherent power. To do so would render 
 the subsequent express delegations of power to the President and 
 the courts useless verbiage. Expressis unius exclusis alteris 
 applies to the executive and judicial powers as well as the legis- 
 lative.'^ 
 
 Aside, therefore, from its assurance of certain necessary and 
 inherent powers to each department, the theory of separation of 
 power is a limitation rather than a source of power for each de- 
 partment. We may express the doctrine in three principles.^ 
 
 53. Protection of Independence of Departments. 
 
 Each department is endowed with such rights, privileges and 
 inherent powers as will assure its independence of the others^ 
 Thus members of Congress are immune from arrest during the 
 session, each house is given exclusive authority to judge the quali- 
 fications of its own members, to make its own rules of procedure, 
 to discipline and expel its own members and to subpoena witnesses 
 and commit for contempt when necessary for performing its 
 
 3 Kansas v. Colorado, 206 U. S. 46, 81-83, Corwin, <?/>. cit., p. 31. 
 
 * Parsons v. U. S., 167 U. S. 324; Willoughby, op. cit., pp. 1181-1184, 
 and Congressional debate of 1789 on the question there cited. Infra, sec. 
 230. The removal power is not, however, regarded as an inherent executive 
 power in the states. Goodnow, op. cit., p. 311. 
 
 ^ In re Debs, 158 U. S. 595; Carter v. Va., 96 Va. 791; Willoughby, op. 
 cit., pp. 1268-1270; J. P. Hall, Constitutional Law, p. 19. 
 
 •5 Anderson v. Dunn, 6 Wheat. 204; Kilbourn v. Thompson, 103 U. S. 
 168; In re Chapman, 166 U. S. 661; Willoughby, op. cit., p. 1272. 
 
 'See Taft, Our Chief Magistrate, pp. 73, 140, 144; Senate debate of 
 1831 quoted Corwin, op. cit., p. 59; and infra, sec. 92. 
 
 ^ Infra, sees. 53-55. 
 
 ° Goodnow, op. cit., p. 38.
 
 SEPARATION OF POWERS. 97 
 
 legislative functions.^" The President is immune from judicial 
 process except trial of impeachment and holds himself entitled to 
 exclusive control of the personnel of the national civil and military 
 service through the power to commission and remove officials.^^ 
 The Federal Justices are assured permanence of tenure and com- 
 pensation and the courts hold themselves to enjoy certain inherent 
 privileges such as the power to commit for contempt and perhaps 
 to control admissions to the bar and rules of practice.^^ These 
 rights, privileges and inherent powers cannot be impaired by action 
 of the organ itself or by that of other organs. 
 
 54. Protection of Delegated Powers of Departments. 
 
 Each department is entitled to exercise the powers delegated to 
 it by the Constitution. Two interpretations of this guarantee of 
 quite divergent eflfect must be distinguished. Thus it is generally 
 recognized that one organ cannot, unless the Constitution expressly 
 provides otherwise, take away a power specifically or impliedly 
 delegated to another organ or give away a power so delegated to 
 itself. ^^ But it is sometimes contended, that in addition, one organ 
 cannot so exercise its own powers as to limit the discretion of 
 another organ or of itself in the future exercise of its powers. 
 These two interpretations are very different and much misconcep- 
 tion has arisen from their confusion. Thus for the treaty power 
 to provide that in defined circumstances the United States would 
 automatically be at war, would be a clear invasion of the power 
 
 " Constitution, I, sees. 5, 6, and supra, note 6. 
 
 ^1 Mississippi v. Johnson, 4 Wall. 475; Willoughby, op. cit., 1300-1304; 
 Constitution, II, sec. 3, and supra, note 4. 
 
 12 Constitution, III, sec. i, supra, note 5. Illinois and Pennsylvania hold 
 the setting of standards for admission to the bar is an inherent judicial 
 power {In re Day, 181 III, 72, Jn f^ Splane, 123 Pa. 527), while New York 
 and North Carolina hold the contrary (Matter of Cooper, 22 N. Y. 67, Re 
 applicants for license, 143 N. C. i). Indiana holds that statutes cannot 
 lower the standard set by court rules of procedure. (Epstein v. State, 128 
 N. F. 353, Ind. 1920, and note in Minn. Law Rev., 5 : 7Z, Dec, 1920.) 
 
 13 Legislative power cannot be delegated even by the legislature itself, 
 but the Constitution gives considerable power to Congress over the deter- 
 mination of executive and judicial competence, Infra, sec. 60. But see 
 Goodnow, op. cit., p. 41.
 
 98 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of Congress to declare war. On the other hand for the treaty 
 power to provide that in defined circumstances the United States 
 would declare war, would not invade the power of Congress but 
 would merely limit its discretion in the future exercise of this power. 
 In certain circumstances the practical effect might be the same, but 
 the legal difference would nevertheless exist. It appears that 
 constitutional law merely guarantees to each organ continued pos- 
 session of its delegated powers. The degree of discretion which 
 the organ may actually enjoy in exercising these powers depends 
 largely upon constitutional understandings. 
 
 55. Prohibition upon Exercise of Uncharacteristic Power by Any 
 Department. 
 
 Each department is prohibited from "exercising pozvers (not 
 inherent or expressly delegated) which from their essential nature 
 do not fall within its division of governmental functions." ^* Thus 
 Congress cannot exercise such judicial powers as punishing for 
 contempt unless necessary for performing its legislative functions/"* 
 nor such executive powers as directing the detailed movement of 
 troops^** or appointing officers.^'' The courts cannot exercise such 
 executive powers as the giving of advisory opinions^^ or the making 
 of decisions which are reviewable by executive or legislative 
 officers.^^ The theory has been most difficult to apply as a restric- 
 tion upon the executive because methods closely approaching a 
 judicial and a legislative character often seem essential to the per- 
 formance of executive duties. Though the theory that the legis- 
 
 1* Willoughby, op. cit., p. 1263. 
 
 ^^ Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise ju- 
 dicial power by deciding specific cases involving private rights, Willoughby, 
 op. cit., p. 1264. 
 
 i6£;r parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207. 
 
 17 Constitution, II, sec. 2. Congress, however, has the inherent power to 
 appoint subordinate officers necessary for the conduct of its internal busi- 
 ness, Goodnow, op. cit., p. 38. 
 
 18 See Thayer, Cases of Const. Law, i : 175, and Willoughby, op. cit., 
 p. 13- 
 
 19 Hayburn's Case, 2 Dall. 409 ; Gordon v. U. S., 2 Wall. 561 ; Willoughby, 
 op. cit., p. 1275.
 
 SEPARATION OF POWERS. 99 
 
 lature cannot delegate its power exists, the courts actually give the 
 force of law to executive orders and regulations issued under 
 authority of statute.^" This is justified by the theory that the 
 ordinances are not legislation but merely the application of a policy 
 determined by Congress in the delegating act. So also executive 
 boards and commissions are permitted to proceed as courts and 
 give decisions of a definitive character in certain types of cases.^^ 
 The almost complete control over the organization and jurisdiction 
 of federal courts given by the Constitution to Congress^^ makes 
 any attempt by the courts to prevent the vesting of judicial func- 
 tions in administrative bodies virtually impossible.^^ 
 
 A. Effect on the Power to Meet International Responsibilities. 
 
 56. The Government as a Whole Competent to Meet Responsibil- 
 ities. 
 The doctrine of separation of powers does not impose any 
 limitation upon the power of the United States to meet its inter- 
 national responsibilities. International law and treaty provisions 
 have very seldom directed the instrumentality through which re- 
 sponsibilities shall be met. The responsibility rests on the nation 
 and it can ordinarily determine its own instrumentality for per- 
 formance. Consequently if any organ of the government has 
 power to meet a particular responsibility, or to provide for meeting 
 it, we may be sure the government as a whole has the power. 
 Treaties have occasionally required that responsibilities be met 
 through a particular instrumentality, as that certain controversies 
 be submitted to an international tribunal, or that the compromis 
 of arbitrations be made by the President with advice and consent 
 of the Senate.^* Such reference to domestic organs has usually 
 
 20 Field V. Clark, 143 U. S. 649 ; Goodnow, op. cit., pp. 42, 85. 
 
 21 U. S. V. Ju Toy, 198 U. S. 253 ; Willoughby, op. cit., p. 1278, et seq. 
 
 22 Constitution, I, sec. 8, cl. 9; III, sec. i, sec. 2, cl. 2, seems to give 
 Congress complete control over the courts except the original jurisdiction 
 of the Supreme Court. Ex Parte McCardle, 7 Wall. 506. 
 
 23 Willoughby, op. cit., p. 1277. 
 
 2* See pecuniary claims convention with Latin American States, 1910, 
 Charles, Treaties, 345; arbitration treaty with Great Britain, 1908, Art. V, 
 Malloy, Treaties, p. 814. For other treaty provisions referring to specific 
 organs see Wright, Cohimbia Law Rev., 20: 123-4.
 
 100 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 been declaratory of the Constitution, and has been inserted out of 
 excess of caution to give notice to the foreign government of 
 constitutional steps which must be taken, or by insistence of one 
 department of the government to prevent anticipated usurpations 
 by another. If, however, a treaty required that certain acts be 
 performed by a particular organ, which, under the theory of sep- 
 aration of powers, could not exercise such a power, that clause of 
 the treaty could not be executed by the United States. Such a 
 treaty clause, however, would be unconstitutional from the start. 
 The question would relate, therefore, to the power to make treaties 
 rather than to the power to meet international responsibilities.^^ 
 
 57. Power of President and Courts to Meet International Responsi- 
 bilities. 
 
 Although the doctrine of separation of powers does not legally 
 limit the power of the government to meet its responsibilities, it 
 often throws practical difficulties in the way of prompt action. 
 Congress is by nature slow moving but often under the constitu- 
 tional distribution of powers it alone has power to meet certain 
 international responsibilities. Were the President and the courts 
 vested with adequate authority to act, delay in the meeting of 
 responsibilities might often be avoided. The President and courts 
 cannot, under the doctrine which prohibits the delegation of legis- 
 lative power, be vested with such exclusive congressional powers 
 as that to appropriate money and to declare war. Thus a prompt 
 meeting of responsibilities requiring such acts depends upon con- 
 gressional observance of the constitutional understanding which 
 enjoins all departments to exercise such powers as they have in 
 order promptly to meet international responsibilities.^" 
 
 Often, however, it is within the power of Congress to vest the 
 President and courts by general law with adequate power to meet 
 responsibilities, and a mass of legislation with this purpose has 
 grown up dealing especially with the enforcement of neutrality, 
 the protection of diplomatic officers, the protection of foreign 
 securities, the suppression of piracy, the extradition of criminals, 
 
 25 Supra, sees. 45, 46. 
 ^^ Infra, sec. 258.
 
 SEPARATION OF POWERS. 101 
 
 and the enforcement of many treaties such as that for supressing 
 the slave trade and for the protection of migratory birds. No 
 general law has as yet been passed giving the President and courts 
 adequate power to protect the rights of resident aliens guaranteed 
 by international law and treaty, though Congress, undoubtedly, 
 has power to pass such laws.^^ 
 
 B. Effect on tJie Power to Make International Agreements. 
 
 58. Limitations upon the Government as a Whole. 
 
 In considering limitations derived from the separation of 
 powers, upon the power of the national government to make inter- 
 national agreements, we need consider only the limitations upon 
 the full treaty-making power. Whatever independent power the 
 President may enjoy in making international agreements is a 
 fortiori subject to the same limitations.^"'' These limitations exist by 
 virtue of the constitutional prerogatives of Congress, of the courts 
 and of the President. 
 
 59. Limitations Derived from Powers of Congress. 
 
 " The treaty making power," said Calhoun, " is limited by such provisions 
 of the Constitution as direct certain acts to be done in a particular way, and 
 which prohibit the contrary, of which a striking example is to be found in 
 that which declares that ' no money shall be drawn from the Treasury but 
 in consequence of appropriations to be made by law.' " ^s 
 
 Undoubtedly, the treaty power is prohibited from depriving organs 
 of the government of rights, privileges or powers inherent or 
 delegated by the Constitution, or from giving them powers not 
 appropriate to their nature. There does not appear to have ever 
 been a treaty attempting to deprive Congress of a delegated power 
 or to confer upon it power of a non-legislative nature. It is 
 believed that a treaty declaring that war should automatically exist 
 in certain circumstances would be an unconstitutional deprivation 
 of Congress's power to declare war," and that a treaty giving 
 
 27 Infra, sec. 120. 
 
 2Ta por an additional limitation upon the President's agreement-making 
 power see appendix. 
 
 28 Works, i: 203; Moore, Digest, 5: 166. 
 
 29 See Taft, address before League to Enforce Peace, May 26, 1916, 
 Enforced Peace, p. 64, and Hughes address, May 28, 1917, Proc. Acad. Pol. 
 Set., vol. 7, No. 2, p. 14, quoted in Am. Jl. Int. Law, 12: 75-76.
 
 102 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Congress power to appoint an officer of the United States, as 
 for instance a representative in an international body, would be 
 an unconstitutional delegation to Congress of power not of a legis- 
 lative character.^" 
 
 Jefferson stated among "exceptions" from the treaty-making 
 power: "those subjects of legislation in which it gave a participa- 
 tion to the House of Representatives." He noticed, however, that 
 this exception " would leave very little matter for the treaty power 
 to work on."^^ Practice does not sustain Jefferson's contention. 
 Most treaties have dealt with subjects within the delegated powers 
 of Congress and have been held valid. ^^ Congress has questioned 
 the validity of treaties requiring an appropriation, notably the Jay 
 treaty of 1794=*^ and the Alaska Purchase treaty of 1867.^* The 
 Senate refused consent to a commercial treaty with the German 
 states in 1844 because of " want of constitutional competency." " 
 President Jefferson himself seriously questioned the constitutionality 
 of the Louisiana annexation treaty,^^ and authorities have ques- 
 
 30 The exclusive mode of making appointments described in the Con- 
 stitution, II, sec. 2, does not include appointments by Congress. See also 
 Goodnow, op. cit., p. 39; Willoughby, op. cit., p. 1180. 
 
 31 Jefferson, Manual of Pari. Prac, sec. 52, printed in Senate rules, 1913; 
 H. of R. Rules, 1914; and Moore, Digest, 5: 162. 
 
 82Crandall, op. cit., p. 182; Wright, Am. Jl. Int. Laiv, 12: 93. "The 
 principle of interpretation on which the doubt is suggested appears to be 
 radically unsound and to belong in the category of notions which tend to 
 bring constitutional law into disrepute. That the United States cannot in- 
 ternationally agree to forego the exercise of any power which the Constitu- 
 tion has conferred on Congress, or other department of government, is a 
 supposition contradicted by every exercise of the treaty-making power since 
 the government came into existence. When we reflect upon the number and 
 extent of the powers conferred upon the national government, and upon their 
 distribution and the methods prescribed for their exercise, it is obvious that 
 the attempt to act upon such a supposition would exclude the United 
 States from any part in the progress of the world through the amelioration 
 of law and practice by international action." Moore, Principles of American 
 Diplomacy, 1918, p. 65. 
 
 33 Wharton, Digest, 2: 19; Moore, Digest, 5: 224; Crandall, op. cit., p. 
 165; Wright, Am. Jl. Int. Law, 12: 66. 
 
 3* Moore, Digest, 5: 226-228; Crandall, op. cit., p. 175. 
 
 s'' Crandall, op. cit., pp. 18^190; Wright, Am. Jl. Int. Law, 12: 68. 
 
 36 Crandall, op. cit., p. 172; Moore, Digest, 5: 225; Wright, Am. Jl. Int. 
 Law, 12: 69; Adams, History of U. S., 2: 83.
 
 SEPARATION OF POWERS. 103 
 
 tioned the constitutionality of treaties making certain acts crimes,'^ 
 treaties of guarantee which might require war for fulfillment/^ 
 and treaties forbidding privateering.^'' But treaties on all these 
 subjects and in fact most other subjects within the delegated powers 
 of Congress have been made, regularly acted upon and applied by 
 the courts without question of constitutionality. 
 
 " If this be the true view of the treaty-making power," said Calhoun 
 with reference to the Senate rejection of the German treaty in 1844, " it may 
 be truly said that its exercise has been one continual series of habitual 
 and uninterrupted infringements of the Constitution. From the beginning 
 and throughout the whole existence of the Federal Government it has 
 been exercised constantly on commerce, navigation, and other delegated 
 powers." *° 
 
 Treaties of this kind often require action by Congress for 
 execution and the degree of discretion Congress may exercise in 
 executing them is determined by constitutional understandings, but 
 the treaty is undoubtedly valid. It does not deprive Congress of 
 power but only of its full discretion in the exercise of power. 
 
 60. The Delegation of Legislative Power. 
 
 As an implication from the doctrine of separation of powers it 
 is recognized that legislative power cannot be delegated.*^ The 
 Constitution gives to Congress and to the treaty-making power 
 considerable authority to designate or even create organs for the 
 exercise of judicial and executive power*^ and such provision is 
 
 3^ For objection of Secretary of State Marcy to treaties making priva- 
 teering a crime see Moore, Digest, 2: 978; 5: 169; Wright, Am. Jl. Int. 
 Law, 12 : 79-80 ; Crandall, op. cit., p. 242. 
 
 38 For objection of W. J. Bryan and others see Wright, Am. Jl. Int. 
 Law, 12 : 73. 
 
 39 Black, Constitutional Law, 1910, p. 274; Moore, Principles of Ameri- 
 can Diplomacy, p. 64. 
 
 4° Moore, Digest, 5: 164; Willoughby, op. cit., p. 491; Wright, Am. Jl. 
 Int. Law, 12: 68. 
 
 *i Field 7'. Clark, 143 U. S. 649; Willoughby, op. cit., pp. 1317-1332. 
 
 •*2 Congress has power to create inferior federal courts (Constitution, I, 
 sec. 8, cl. 9; III, sec. i), to regulate their jurisdiction and the appellate juris- 
 diction of the Supreme Court (III, sec. 2, cl. 2), to create "offices" (II, 
 sec. 2, cl. 2), and to create and regulate a military and naval establishment 
 (I, sec. 8, cl. 12-16). See also McCuUoch %/, Md-, 4 Wheat. 316, holding
 
 104 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 not considered incompatible with the theory of separation of 
 powers, but no organs other than those specifically empowered 
 thereto by the Constitution can be authorized to exercise legislative 
 power. 
 
 " The Legislative," said John Locke, " neither must nor can 
 transfer the power of making laws to anybody else, or place it 
 anywhere but where the people have." *^ 
 
 However, this does not mean that all powers which the Legis- 
 lature might exercise are incapable of delegation. It is well 
 established that Congress can delegate to the President or other 
 authority power to decide when** and where*^ the conditions exist 
 which are to bring its enacted policy into operation, and the 
 method*" by which such a policy is to be administered. The legis- 
 lative power, which cannot be delegated, is not confined to the 
 making of permanent laws but includes such political powers of 
 Congress as appropriating money and declaring war.*^ Further- 
 more, " legislative power " is not confined to the powers of Congress 
 but includes political powers given by the Constitution to other 
 organs. Thus the treaty-making power exercises legislative power 
 which cannot be delegated since its acts, by Article VI, constitute 
 " the supreme law of the land " and this, nothwithstanding the 
 apparent contradiction in the statement of Article I, section i, that 
 "All Legislative power herein granted shall be vested in a Congress 
 of the United States." *« 
 
 that Congress may create other instrumentalities, necessary and proper for 
 carrying out constitutional powers. The treaty power may provide for 
 courts, hi re Ross, 140 U. S. 453; The Konigin Luise, 184 Fed. 170 (1910) ; 
 Wright, Am. Jl. Int. Law, 12: 70. See also infra, sees. 225, 226. 
 
 43 Treatise on Civil Government, Works, vol. 5, sec. 142, quoted Cooley, 
 Constitutional Limitations, 6th ed., p. 137. 
 
 4* Martin v. Mott, 12 Wheat. 19; Field v. Clark, 143 U. S. 649 (1892). 
 
 ^''Dalby v. Wolf, 14 Iowa 228 (1862). Legislative power may be dele- 
 gated to local bodies. State v. Noyes, 30 N. H. 279. 
 
 46 Morrill v. Jones, 106 U. S. 466; Ex Parte Killock, 165 U. S. 526. 
 
 47 The phraseology of the clauses conferring these powers indicates that 
 they cannot be delegated. Constitution, I, sec. 8, cl. 2; sec. 9, cl. 7. 
 
 48 The principle that legislative power cannot be delegated has always 
 been assumed to be applicable to the treaty power. See Senate For. Rel.
 
 SEPARATION OF POWERS. 105 
 
 Thus " legislative power " includes the power to make general 
 laws and political decisions in whatever organ vested by the Con- 
 stitution and does not include the executive power of carrying out 
 policies and enforcing decisions, nor the judicial power of deciding 
 questions of fact and applying law to particular cases. 
 
 6i. Congressional Delegation of Power to Make International 
 
 Agreements, 
 
 Although Congress has no power to make treaties, it has power 
 to make laws on many subjects which may be appropriate for inter- 
 national agreement. Within this field it has delegated power to 
 the President*'* to make international agreements in pursuance of 
 a policy outlined by Legislation and such delegation has been sus- 
 tained by the courts. Thus by an act of 1872^° Congress provided 
 that " for the purpose of making better postal arrangements with 
 foreign countries," the postmaster-general, acting under the advice 
 of the President, might " negotiate and conclude postal treaties." 
 The United States has become a party to the Universal Postal 
 Union Convention under this authority.^^ Similar provision for 
 the conclusion of patent, copyright and trademark agreements have 
 been made.^^ 
 
 Committee. Kept. 626. Cong., ist sess., S. Doc. 98, p. 6, and remarks of 
 Senator Walsh, Mont., Cong. Rec, 58: 8609, Nov. 8, 1919, quoted in Am. 
 Jl. Int. Lazv, 12: 91, and Col. Law Rev., 20: 133. 
 
 49 A possible encroachment upon the Senate's prerogative in treaty-making 
 is considered infra, sees. 159, 162. See also note in appendix. 
 
 so U. S. Rev. Stat., sec. 398. Compiled Stat., sec. 587, founded on Act of 
 1792, see Crandall, op. cit., p. 131. 
 
 51 Moore, Digest, 5 : 870. 
 
 52 Patents Act, March 3, 1903, 32 Stat. 1225, Rev. Stat., sec. 4887. Copy- 
 rights Acts, March 3, 1891, 26 Stat, mo, Moore, Digest, 2: 45, and March 4, 
 1909, sec. 8, 35 Stat. 1077, Comp. Stat., sec. 9220, Crandall, op. cit., p. 127. 
 Trademarks Act, March 3, 1881, 21 Stat. 502; Feb. 20, 1905, 33 Stat. 724. 
 as amended in 1906 and 1909, Comp. Stat., sec. 9485. In the Trademark 
 Cases (100 U. S. 82, 99) the Supreme Court held Congress incompetent to 
 pass and enforce general trademarks laws but implied that such laws if 
 confined to interstate and foreign commerce or to the protection of treaty 
 rights would be valid. In most cases trademark agreements have been 
 by treaty (See Secretary of State Hay to the Secretary of the Interior, 
 Nov. 4, 1898, Moore, Digest, 2: 37), but the statute provided for the regis- 
 tration of trademarks used in interstate or foreign commerce by persons 
 residing in foreign countries which, " by treaty, convention or law, applies
 
 106 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Under the McKinley Tariff Act of 1890 authority was given 
 the President to suspend by proclamation the free entry of speci- 
 fied articles from countries which did not give reciprocity. Ten 
 reciprocity agreements were negotiated by the President through 
 exchange of notes which were made effective by proclamation and 
 remained so until repeal of the McKinley Act in 1894." In Field 
 V. Clark^* the Supreme Court held this provision of the McKinley 
 Act valid since by it Congress had not delegated legislative power 
 but merely power to carry out the policy outlined by Congress in 
 the Act. The Dingley Tariff of 1897 and the Payne- Aldrich Tariff 
 of 1909 contained similar provisions for reciprocity which have 
 been carried out by a number of agreements. ^^ Similar provision 
 for reciprocity with Canada made in an act of 191 1 has never been 
 carried out because of the unwillingness of Canada to act.^" We 
 may conclude that power to make agreements in pursuance of 
 enacted legislative policy is not " legislative power " and Congress 
 may authorize the President to deal in this manner with subjects 
 within its competence. 
 
 62. Treaty Delegations of Power to National Organs. 
 
 Treaties have on occasion delegated power to both national and 
 international organs. These provisions have often been attacked 
 on the ground that " legislative power " has been unconstitutionally 
 delegated. The Cuban treaty of 1903, Article VII, authorized the 
 
 such privileges to citizens of the L^nited States " (sec. 3, Comp. Stat., sec. 
 9489). Apparently the President might independently recognize the extension 
 of laws to American citizens by foreign nations, entitling their citizens to 
 the privileges of the act, but in fact, such recognition seems always to have 
 been by treaty, except with reference to reciprocal protection in consular 
 courts in China and Morocco. See Crandall, op. cit., p. 130; Willoughby, 
 p/). cit., p. 477. 
 
 53 U. S. Tariff Commission, Reciprocity and Commercial Treaties, 1919, 
 pp. 27, 153; Crandall, op. cit., p. 122; Willoughby, op. cit., pp. 478. See 
 also Gresham, Secretary of State, to Mr. Mendonga, Brazilian Minister, 
 Oct. 26, 1894, Moore, Digest, 5: 359-362. 
 
 "Field r. Clark, 143 U. S. 649 (1892). 
 
 55 U. S. Tariff Commission, op. cit., pp. 29, ^, 205, 271 ; Crandall, op. cit., 
 p. 123; Fish, Am. Diplomacy, p. 471. 
 
 58 Act July 26, 1911, 37 Stat. 4, Comp. Stat., sec. 5326; Crandall, op. cit., 
 p. 125; U. S. Tariff Commission, op. cit., pp. 36-38, 371.
 
 SEPARATION OF POWERS. 107 
 
 President to acquire naval bases in Cuba and in accord therewith 
 President Roosevelt acquired Guantanamo by executive agreement." 
 Here the President was clearly carrying out the policy laid down by 
 the treaty and the case was clearly within the precedents of con- 
 gressional delegation of power to make international agreements. 
 
 One of the proposed Senate reservations to the treaty of Ver- 
 sailles provided for denunciation of the League of Nations Covenant 
 on two years, notice by " concurrent resolution " of Congress.^* 
 The only constitutional authorities for terminating treaties are 
 Congress by an act signed by the President or passed over his 
 veto, the treaty-making power and possibly the President alone.'"* 
 Clearly the termination of a law, such as a treaty, is an exercise 
 of legislative power and cannot be delegated to any authority 
 other than those specified for that purpose by the Constitution.^" 
 It was contended by the President and in the Senate, the writer 
 
 57 The provision of the treaty was also contained in an act of Congress 
 of March 2, 1901 (the Piatt Amendment), and in the Cuban Constitution. An 
 agreement to make the lease was signed February 16, 1903, and the lease 
 itself was signed July 2, 1903, while the treaty, although signed May 22, 
 1903, was not proclaimed until July 2, 1904. Thus the lease was in reality 
 authorized by the act of Congress rather than by the treaty. See Malloy, 
 Treaties, pp. 358-363. For other examples see Crandall, op. cit., p. 117. 
 
 58 Lodge Reservation No. i, in form voted on by Senate, Nov. 19, 1919. 
 and March 19, 1920. For text of Lodge Reservations see Cong. Rec, Nov. 
 19, 1919, 58: 9289; March 19, 1919, 59: 4915; The League of Nations, World 
 Peace Foundation, Boston, III, No. 4, pp. 166, 182, and note. Col. Law 
 Rev., 20: 156. 
 
 50 Jefferson, Manual, sec. 52, Senate Rules, 1913, p. 150; House Rules, 
 1914, sec. 592; Hinds, Precedents, 5: 6270; President Hayes, Message, March, 
 1879, Richardson, Messages, 7: 5191 Sen. Rept., No. 97, 34th Cong., ist Sess.; 
 Taft, Our Chief Magistrate, p. 117; Willoughby, op. cit., p. 518; Crandall, op. 
 cit., pp. 401-462; Wright, Col. Law Rev., 20: 129. See also infra, sees. 181-187. 
 
 80 The Constitution provides that " Every Order, Resolution, or Vote 
 to which the Concurrence of the Senate and House of Representatives may 
 be necessary (except on a question of Adjournment) shall be presented to 
 the President of the United States; and before the same shall take Effect, 
 shall be approved by him, or being disapproved by him, shall be repassed 
 by two thirds of the Senate and House of Representatives, according to the 
 Rules and Limitations prescribed in the case of a Bill."
 
 108 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 believes correctly, that delegation of this power to a mere majority 
 of the two houses of Congress without the President's approval 
 would be an unconstitutional delegation of legislative power.*^ 
 
 An extended controversy has arisen over the delegation of 
 power to the President by general arbitration treaties, to make the 
 compromis or instrument submitting specific cases to arbitration. 
 The I Hague Convention of 1899, as also that of 1907, provided a 
 panel of arbitrators, a method for selecting a court and a pro- 
 cedure for arbitrating cases. By Article 16, the parties including 
 the United States recognized arbitration " as the most efficacious 
 and at the same time the most equitable method of deciding contro- 
 versies which have not been settled by diplomatic methods." 
 Under these provisions, in 1903, President Roosevelt submitted the 
 Pious Fund claim against Mexico to the Hague Tribunal, without 
 consulting the Senate.^^ Opinion has differed as to whether the 
 Hague Convention delegated this power. Simeon E. Baldwin has 
 said : ^^ 
 
 '■ The Hague Convention when ratified by the Senate, became thus a 
 standing warrant, or, so to speak, a power of attorney, from the United 
 States to the President, to submit such international controversies as he 
 might think fit to the ultimate decision of the International Court of 
 Arbitration." 
 Ex-Secretary of State Foster, however, took a contrary view : ®* 
 
 " I apprehend that should our government decide to refer any dispute 
 with a foreign government to the Hague Tribunal, President Roosevelt, or 
 whoever should succeed him, would enter into a convention with the foreign 
 government, very carefully setting forth the question to be arbitrated, and 
 submit that convention to the Senate for its advice and consent. If I read 
 the Constitution of the United States and the Hague Convention aright, such 
 would be the only course permissible by those instruments." 
 
 61 " A statute or a treaty might end upon the occurrence of a fortuitous 
 event or upon the determination of a certain fact or of a certain condition 
 by a certain officer, he having no discretion on the subject at all; but when it 
 becomes a question of the exercise of his judgment or his discretion about 
 whether the law should remain in force or whether it should be repealed, 
 considering the good of the country, that would be an unlawful delegation of 
 legislative power." Senator Walsh, Mont., Cong. Rec, Nov. 8, 1919, 58: 
 8609. " I doubt whether the President can be deprived of his veto power 
 imder the Constitution even with his own consent." President Wilson, letter 
 to Senator Hitchcock, Jan. 26, 1920. 
 
 82 Willoughby, op. cit., p. 475. 
 
 *>' Yale Review, 9: 415, quoted, Willoughby, op. cit., p. 476. 
 
 ^*Yale Law Jl., 11: 76, quoted Willoughby, loc. cit.
 
 SEPARATION OF POWERS. 109 
 
 It may be observed that since the President has power under the 
 Constitution to settle claims of the United States against foreign 
 countries^^ he unquestionably had power to submit the Pious Fund 
 claim to arbitration aside from the Hague Convention or from 
 the arbitration provision of the Mexican treaty of 1848 in force in 
 1903.''^ Thus claims against Venezuela were submitted to the 
 Hague Tribunal in 1903 and 1909 by executive protocols.^'^ The 
 North Atlantic Fisheries arbitration with Great Britain, the remain- 
 ing Hague Case to which the United States has been a party, was, 
 however, submitted by a treaty,®^ though in this case treaty sub- 
 mission had been expressly required by the general arbitration 
 treaty with Great Britain of 1908,®^ and the United States had made 
 express reservation to the Hague Convention of 1907 requiring that 
 submission to the Hague Court be by " general or special treaties of 
 arbitration."'''' 
 
 The same question was raised with reference to the proposed 
 Hay arbitration treaties of 1905, providing for arbitration of " dif- 
 ferences " of a " legal nature " which do not affect the " vital 
 interests, the independence or the honor of the two contracting 
 states and do not concern the interests of third parties." These 
 treaties required conclusion of a " special agreement " defining the 
 matter in dispute, the powers of the arbitrators and the procedure. 
 The Senate was willing to consent only if the word " treaty " was 
 substituted for " agreement " and President Roosevelt refused to 
 submit the treaties thus amended thinking that a general arbitration 
 treaty was valueless if each specific submission required conclusion 
 of a " special treaty." '^^ In 1908, however. Secretary Root con- 
 
 65 Infra, sec. 171. 
 
 «6 Art. 21, Malloy, Treaties, p. 1117. 
 
 67 Ibid., pp. 1870, 1889. 
 
 «8 Ibid., p. 835. 
 
 69 Art. II, Ibid., p. 814. 
 
 '° Ibid., p. 2247. See also Scott, ed., Reports of the Hague Conferences, pp. 
 xxvii, 903. 
 
 71 Willoughby, op. cit., pp. 473-475 ; Taft, The United States and Peace, 
 1914, p. 95 ; Sutherland, op. cit., p. 129.
 
 110 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 eluded many treaties substantially of the form of the Hay treaties 
 with the Senate amendment.''^ 
 
 Aside from the question of policy, it seems that the Hay treaties 
 in their original form would not amount to an unconstitutional 
 delegation of legislative power/^ They merely authorize the 
 President to carry out the policy of arbitrating certain classes of 
 disputes laid down by the general treaty and are well within the 
 decision of Field v. Clark.'^* 
 
 63. Treaty Delegation of Power to International Organs. 
 
 Where treaties have delegated power to international bodies, 
 constitutional questions have often been raised. The courts have 
 sustained treaties submitting claims, boundary questions, etc., to 
 international arbitration courts and have held that the decision 
 of such a court is of the same legal weight in the United States as 
 the treaty itself. Thus after the Bering Sea Arbitration Tribunal 
 had held that American jurisdiction in Bering Sea terminated at the 
 three mile limit, the United States Circuit Court of Appeals refused 
 to apply the acts of Congress for protecting the seal herds, to 
 vessels engaged in sealing beyond that limit.'''* 
 
 Where, however, treaties have provided for an international 
 commission or court which shall decide whether or not a particular 
 dispute is of a justiciable character as defined by the general 
 treaty, doubt has been expressed in the Senate. The proposed 
 international Prize Court Convention of 1907 with its attached 
 protocol of 1910 provided that claims against the United States 
 for defined types of prize decisions might be brought in the inter- 
 national Prize Court by private individuals, and the court would 
 itself decide whether tht case was within the described classes i.e., 
 whether it had jurisdiction. This treaty and protocol, although 
 never operative, were consented to by the Senate in 1911.''° 
 
 ■^2 As example see British treaty, Malloy, Treaties, p. 814. 
 "Crandall, op. cit., p. 120; Willoughby, op. cit., p. 475; Taft, The United 
 States and Peace, p. 95; Moore, Pol. Sci. Quarterly, 20: 403. 
 7* Field V. Clark, 143 U. S. 649 (1892). 
 
 75 U. S. V. La Ninfa, 75 Fed. 513. 
 
 76 Charles, Treaties, p. 262. A constitutional objection of a different 
 kind connected with this convention is considered, infra, sec. 64. The Hague 
 Convention of 1907 provided in article 53 that the Permanent Court might
 
 SEPARATION OF POWERS. Ill 
 
 In 191 1 President Taft negotiated arbitration treaties with 
 Great Britain and France providing for the arbitration of defined 
 classes of cases and for decision by an international joint high 
 commission upon the question of whether a specific dispute was 
 within these classes/^ The Senate Foreign Relations Committee 
 reported adversely on the latter provision : ^^ 
 
 " This recommendation is made because there can be no question 
 that, through the machinery of the joint commission, as provided in Articles 
 II and III and with the last clause of Article III included, the Senate is de- 
 prived of its constituent power to pass upon all questions involved in any 
 treaty submitted to it in accordance with the Constitution. The committee 
 believes that it would be a violation of the Constitution of the United States 
 to confer upon an outside commission, powers which, under the Constitution, 
 devolve upon the Senate. . . . To vest in an outside commission the power to 
 say finally what the treaty means by its very general and indefinite language 
 is to vest in that commission the power to make for us an entirely different 
 treaty from that which we supposed ourselves to be making." 
 
 The delegation of power here objected to was of the same sort 
 as that to which exception had been taken in the Hay treaties of 
 1905. In the one case, however, delegation was to the Pres- 
 ident, in the other to an international commission.''^ Neither case 
 
 arrange the compromis on application of one party where the dispute is 
 " covered by a general treaty of arbitration concluded or renewed after the 
 present convention has come into force," specifying subjects for compulsory 
 arbitration ; and where the dispute arises from contract debts due by one 
 power to the nationals of another. (Malloy, Treaties, p. 2238.) The Senate 
 consented to ratification of the treaty with a reservation to this article assert- 
 ing that the United States " excludes from the competence of the permanent 
 court the power to frame the 'compromis' required by general or special 
 treaties of arbitration concluded or hereafter to be concluded by the United 
 States, and further expressly declares that the ' compromis ' required by 
 any treaty of arbitration to which the United States may be a party shall 
 be settled only by agreement between the contracting parties, unless such 
 treaty shall expressly provide otherwise." (Ibid., p. 2248, and Scott, ed., 
 Reports of the Hague Conferences, introduction, p. xxvii.) 
 
 '''^ These treaties though never ratified are printed in Charles, Treaties, 
 pp. 380-389. 
 
 78 62d Cong., 1st sess., S. Doc. 98, p. 6; Cong. Rec, 47: 3935. 
 
 ^8 It may be noticed that the Taft treaties accepted the point upon which 
 the Senate had insisted in 1905 and required that the "compromis" sub- 
 mitting each case be a treaty consented to by the Senate, even after the 
 Joint High Commission had given its decision. See next note.
 
 112 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 seems to involve a delegation of legislative power, but rather of 
 judicial power, to interpret the treaty. The minority report of the 
 Senate Committee signed by Senators Root and Cullom pointed out 
 that the majority view could "not be maintained except on the 
 theory that all general treaties of arbitration " involve a like un- 
 constitutional delegation of power, the only difference being that 
 the treaties under consideration submitted " certain described 
 classes " of cases to arbitration, instead of particular cases. The 
 decision of the joint high commission on what questions are 
 justiciable " is not delegating to a commission power to say what 
 shall be arbitrated ; it is merely empowering the commission to find 
 whether the particular case is one that the United States have said 
 shall be arbitrated." *° President Taft, Senator Sutherland, J. B. 
 Moore, and other constitutional authorities have endorsed this 
 opinion.^^ 
 
 A logical carrying out of the majority theory would seem to 
 deny any power to conclude treaties in good faith, for all treaties 
 require interpretation, and to say that the interpretations must 
 always be according to the will of the existing treaty-making power 
 of the United States, however that may differ from the intent of 
 the original negotiators, is virtually to substitute political expediency 
 for treaty obligation. Good faith would seem to require that the 
 true intent of the instrument govern its application through its entire 
 life, and it is hard to see where a more impartial determination 
 of what this intent was could be obtained than in an international 
 tribunal. The common law doctrine that no one should be judge 
 in his own case would seem as applicable to international as to 
 private relations. ^^ 
 
 8° Ibid., p. g. This report was signed by Senators Root and Cullom. 
 In a special minority report, Senator Burton pointed out that even after 
 decision by the joint high commission the " compromis" would go to the 
 Senate. " In such case, as in every other case, it would be within the power 
 of the Senate to refuse its advice and consent to the special agreement, but 
 it would be contrary to its treaty obligation." Ibid., p. 12. See also Wright, 
 Ant. Jl. Int. Law, 12: 93, Col. Law Rev., 20: 133. 
 
 81 Taft, The United States and Peace, p. 113; Our Chief Magistrate, p. 
 107; Sutherland, op. cit., p. 132; Moore, Independent, Aug. 8, 191 1. 
 
 82 See infra, sec. 139.
 
 SEPARATION OF POWERS. 113 
 
 This particular question has not been raised in connection with 
 the League of Nations Covenant because, according to Article XIII, 
 disputes can be submitted to arbitration only by consent of the 
 parties and in the United States this consent would be indicated by 
 the treaty-making power in concluding the instrument of sub- 
 mission.*^ Senator Knox and others have, however, in efifect 
 asserted that the powers conferred upon the Council and Assembly 
 of the League of Nations are in part legislative, and hence in so 
 far the treaty would be unconstitutional.** It is believed that this 
 criticism overlooks three important aspects of the Covenant. 
 ( I ) '* Decision at any meeting of the Assembly or of the Council 
 (except where otherwise expressly provided) shall require the 
 agreement of all the members of the League represented at the 
 meeting," *^ thus the United States would not be delegating legis- 
 lative power any more than it has in participating in international 
 conferences such as the Hague, Algeciras or Versailles Confer- 
 ences. It will be noticed that it is not the agreement of the Amer- 
 ican representative which is required but of the " member of the 
 League," that is, of the United States itself, and as has been noticed 
 the United States cannot be bound by any agreement unless the 
 proper constitutional organ has acted.*" Thus if the decision was 
 of a character which could only be made by the treaty-making 
 power, the United States would not be bound until the Senate had 
 consented. Apparently the only decisions, aside from questions of 
 procedure.*^ which by express exception might be made without 
 consent of the United States, are to admit new members (Art. I) 
 
 83 The scheme drafted by Mr. Root and others for the international 
 court authorized by Article XIV of the Covenant would, however, raise the 
 issue, since Article XXXIV provides : " In the event of a dispute as to 
 whether a certain case is within any of the categories above mentioned, 
 the matter shall be settled by the decision of the court." Am. Jl. Int. Law, 
 Supp. 14: 379 (Oct., 1920). This was modified by the Assembly of the 
 League of Nations in December, 1920, Ibid., 15 : 264. 
 
 ** Address in Senate, March i, 1919. 
 
 85 Art. V. The United States is by the terms of the Covenant repre- 
 sented in both the Council and the Assembly. 
 
 86 Supra, sec. 24. 
 
 87 These may be settled by a majority vote (Art. V). Amendments 
 to the Covenant, though requiring ratification by only a majority of the 
 members represented in the Assembly, require ratification by all the members
 
 114 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 which requires two-thirds of the Assembly but which is clearly not 
 an exercise of legislative power, and to make a report in a dispute 
 likely to lead to a rupture, to which the United States is a party. 
 (Art. XV. )^^ This will be discussed presently. 
 
 (2) The other consideration which seems to have been over- 
 looked by critics of the Covenant is that no legislative or binding 
 political power has been conferred upon the Council or Assembly. 
 The powers of these bodies are limited to the giving of " advice " 
 or the making of " proposals," " recommendations " or " reports," 
 which even if unanimous are of binding effect in only three cases.^* 
 These three cases are: (a) The limits of armament once agreed 
 upon by members " shall not be exceeded without the concurrence 
 of the Council." (Art. VIII, sec. 4.) (b) If a country has vol- 
 untarily accepted a mandate, and has neglected to fully define " the 
 degree of authority, control or administration " which it is to exer- 
 cise, the Council may "explicitly define" these powers in each case. 
 (Art. XXII, sec. 8.) (c) A dispute likely to lead to a rupture 
 must be submitted to the Council or Assembly and if no solution 
 is reached the Council or Assembly make a report. 
 
 " If a report by the Council is unanimously agreed to by the members 
 thereof, other than the representatives of one or more of the parties to 
 the dispute, the members of the League agree that they will not go to war 
 with any party to the dispute which complies with the recommendations of 
 the report." (Art. XV, sec. 6.) 
 
 represented in the Council, thus always including the United States (Art. 
 26). 
 
 88 See Lowell, The Covenanter, N. Y., 1919, p. 81, and British Official 
 Commentary, printed in Pollock, The League of Nations, London, 1920, p. 
 208. 
 
 89 Lowell, The Covenanter, pp. 40, 80. Some doubt exists as to whether 
 the " advice " which the Council may give as to the method of carrying out 
 the guarantees of Article X is obligatory. Lowell (Ibid., p. 40) and Pollock 
 (op. cit., p. 128) believe not, while the Official Swiss Commentary holds that 
 for members that have assented to the " advice," if unanimous, it is obligatory. 
 (League of Nations, World Peace Foundation, III, No. 3, p. 125.) So far 
 as the "advice " extends merely to an interpretation of the meaning of the 
 treaty, we are inclined to agree with the latter opinion (supra, sec. 35), which 
 appears to be consonant with the interpretation of similar terms in article XVI 
 by the Second Assembly of the League (see Report of International Block- 
 ade Committee, Second Assembly Document No. 28, part II, and resolutions 
 adopted October 4, 1921, Official Journal, Special Supp. No. 6, p. 25).
 
 SEPARATION OF POWERS. 115 
 
 If the dispute is submitted to the Assembly it has the same effect 
 
 " if concurred in by the Representatives of those Members of the League rep- 
 resented on the Council and by a majority of the other Members of the 
 League, exclusive in each case of the Representatives of the parties to the 
 dispute." (Art. XV, sec. lo.) 
 
 Although binding decisions may be given in the first two cases by 
 unanimous action of the Council, the power exercised would not 
 be "legislative" but merely a carrying out of the policy already 
 agreed upon in the treaties providing for disarmament or accept- 
 ance of the mandatory. Decision on such a question clearly may 
 be delegated.^" In the third case which relates to the settlement 
 of political controversies which the parties have not agreed to 
 submit to arbitration, it will be observed that the decision even if 
 unanimous with exception of the parties to the dispute is not strictly 
 binding. If the United States were a party to the dispute it would 
 not be legally bound to follow the report, even if all other members 
 of the Council or Assembly had signed it. Doubtless, however, 
 there would be a practical compulsion, in view of the fact that it 
 could get no members of the League as allies in case it went to war 
 with the other party to the dispute.^^ 
 
 (3) A third consideration which should be noticed is that the 
 most discussed provisions of the Covenant such as Articles X, XII, 
 and XVI do not delegate power at all. They are guarantees which 
 leave to the members of the League discretion in deciding upon the 
 method for carrying them out in concrete cases.^^ Of course the 
 United States would have to follow constitutional provisions in 
 doing so.^^ It does not appear that there is any unconstitutional 
 delegation of legislative power in the League of Nations Cov- 
 enant. 
 
 64. Limitations Derived from Powers of the Judiciary. 
 
 The constitutionality of a treaty seems never to have been 
 questioned on the ground that it was itself an exercise of 
 
 ^0 Supra, sec. 60. 
 
 91 See British Commentary, Pollock, op. cit., p. 212; Swiss Commentary, 
 op. cit., p. 137- 
 
 92 Lowell, The Covenanter, p. 37. 
 
 93 W. H. Taft, The Covenanter, p. 60 et seq. See also Wright, Ant. 
 Jl. Int. Law, 12: 75, and supra, sec. 59.
 
 116 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 judicial power though treaties or arbitrations based upon them have 
 interpreted statutes and international law and the courts have 
 followed such decisions.^* Nor is there any encroachment upon 
 the judicial power when treaties vest judicial powers in bodies 
 other than the supreme and inferior courts of the United States. 
 Consular courts abroad and international courts founded on 
 treaty do not exercise " the judicial power of the United States " in 
 the meaning of Article III of the Constitution®^ and foreign con- 
 sular courts in the United States for the trial of seamen of vessels 
 of the consul's nationality have been held of "ministerial" rather 
 than judicial character, though the grounds for this distinction is 
 not apparent.**^ 
 
 A treaty depriving courts of any inherent right, privilege or 
 power would, undoubtedly, be void,"^ though a treaty may exempt 
 certain persons from the judicial power of subpoena''^ and need 
 not provide security of tenure and compensation for the judges 
 
 9*U. S. z: La Ninfa, 75 Fed. 513; Comegys v. Vasse, i Pet. 193 (1828) ; 
 Meade v. U. S., 9 Wall. 691; Wright, Am. Jl. Int. Law, 12: 85, and supra, 
 note 75. 
 
 85 " The treaty-making power vested in our government extends to 
 all proper subjects of negotiation with foreign governments. It can, equally 
 with any of the former or present governments of Europe, make treaties 
 providing for the exercise of judicial authority in other countries by its 
 officers appointed to reside therein. . . . The Constitution can have no 
 operation in another country. When, therefore, the representatives or officers 
 of our government are permitted to exercise authority of any kind in another 
 country, it must be on such conditions as the two countries may agree, the 
 laws of neither one being obligatory upon the other." In re Ross, 140 U. 
 S. 453 (1890). Nor is the "Judicial power of the United States" exercised 
 by congressional courts in the territories (Am. Ins. Co. v. Canter, i Pet. 
 511) ; nor by presidential courts organized in territory under military occupa- 
 tion (Neeley v. Henkel, 180 U. S. 109) or in annexed territory under mili- 
 tary government. (Cross v. Harrison, 16 How. 164; Magoon, Reports, pp. 
 16, 30.) Such presidential courts may exercise local jurisdiction but may 
 not be given an admiralty and prize jurisdiction. (Jecker v. Montgomery, 
 13 How. 498.) 
 
 o« Cushing, Att. Gen., 8 Op. 390, 1857. See also the Konigin Luise, 184 
 Fed. 170 (1910), and Wright, Am. II. Int. Law, 12: 71. 
 8^ Infra, sec. 53. 
 °8 Dillon's case, supra, sec, 46.
 
 SEPARATION OF POWERS. 117 
 
 in consular and other courts it establishes, as they do not exercise 
 the " judicial power of the United States." "^ 
 
 Treaties cannot vest courts exercising " the judicial power of 
 the United States " with non-judicial functions.^"" Thus doubt 
 has been expressed whether treaties could provide for appeal from 
 federal courts to an international tribunal, since with such a review 
 by an authority not exercising " the judicial power of the United 
 States " the original hearing by the federal court would be rendered 
 non-judicial in character. Such an international tribunal could 
 not be endowed by Congress with the " judicial power of the 
 United States " since its judges could not be assured the security 
 of tenure and compensation required of courts exercising that 
 power and the Supreme Court has expressly held that courts 
 established by Congress in the territories and courts established 
 abroad or in the United States by treaty do not exercise that 
 power.^"^ In the case of Gordon v. United States the Supreme 
 Court refused to hear appeals from the Court of Claims which 
 would subsequently be reviewable by the Secretary of the Treasury, 
 saying : ^°^ 
 
 "The Supreme Court's jurisdiction and powers and duties being defined in 
 the organic law of the government, and being all strictly judicial, Congress 
 cannot require or authorize the court to exercise any other jurisdiction or 
 power, or perform any other duty. . . . The award of execution is a part', 
 and an essential part, of every judgment passed by a court exercising 
 judicial power. It is no judgment in the legal sense of the term, without it. 
 Without such an award judgment would be inoperative and nugatory, leav- 
 ing the aggrieved party without a remedy. . . . Such is not the judicial power 
 confided to this court, in the exercise of its appellate jurisdiction; yet it is the 
 whole power that the court is allowed to exercise under this act of Congress." 
 
 The XII Hague Convention of 1907 proposed an International Prize 
 Court with appellate jurisdiction in prize cases. Doubts as to its 
 constitutionality were felt by Secretary Root, on the grounds of 
 this case, and he instructed the American delegation to the London 
 Naval Conference (designed to codify the law for this court) to 
 
 ^^ Supra, note 95- 
 
 100 Supra, sec. 55. 
 
 101 Supra, note 95. 
 
 102 Gordon v. U. S., 117 U. S. 697.
 
 118 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 propose a supplementary protocol, whereby, instead of subjecting 
 decisions of the United States courts to appeal and possible re- 
 versal in the International Prize Court, a direct claim might be 
 brought there against the United States " in the form of an action 
 in damages for the injury caused by the capture." ^"^ This sug- 
 gestion was adopted by the Naval Conference in a final protocoP°* 
 and was ultimately incorporated in a protocol signed by all signa- 
 tories of the original Prize Court Convention."'* 
 
 " The (American) delegation remarked that for certain states the func- 
 tioning of the International Prize Court is not compatible with that of the 
 Constitution. The decision of national courts cannot be annulled by for- 
 eign decisions in certain countries, such as the United States of America. 
 Recourse to the Prize Court might have that effect of annulling a decision 
 of the Supreme Court of the United States of America, a result incom- 
 patible with their Constitution." i^e 
 
 The option permitted by the protocol would eliminate this possibility. 
 It seems probable that the difficulty might have been equally met 
 by domestic legislation providing special courts for the original 
 hearing of Prize Cases. 
 
 " Congress," said the Supreme Court in the Gordon Case, " may un- 
 doubtedly establish tribunals with special powers to examine testimony and 
 decide, in the first instance, upon the validity and justice of any claim 
 for money against the United States, subject to the supervision and control 
 of Congress, or a head of any of the executive departments." ^'"' 
 
 The establishment of such special tribunals not exercising the 
 judicial power of the United States would, however, be a cumber- 
 some process if applied merely to prize courts and would become 
 impracticable if appeal to an international tribunal were provided 
 in nil cases involving international law or treaty. 
 
 ^°3 U. S. For. Rel., 1909, p. 303. 
 
 ^o*Ibid., p. 318; Report of U. S. delegates. Ibid., p. 305, and President 
 Taft's message, Dec. 6, 1910, Ibid., 1910, p. viii. 
 
 106 Charles, Treaties, p. 263. Neither the Protocol nor the original con- 
 vention has been ratified though ratification was advised by the Senate, Feb. 
 15. iQii- 
 
 106 Proceedings, London Naval Conference, British Par, Pap. Misc. No. 
 5 (1909), p. 222. See American statement, Ibid., p. 216. 
 
 107 Gordon 7-. U. S.. 117 U. S. 697.
 
 SEPARATION OF POWERS. 119 
 
 65. Limitations Derived from Powers of the President. 
 
 A treaty may delegate ministerial powers within the United 
 States but it may not deprive the President of rights, privileges, 
 or powers inherent or expressly granted by the Constitution. Some 
 of the proposed Senate reservations to the Treaty of Versailles 
 seemed to be unconstitutional as in certain circumstances they would 
 deprive the President of his veto,"^ of his power to direct the move- 
 ment of troops/**^ of his power to conduct foreign negotiations in 
 person or through agents^" and of his power to make interim 
 appointments. 
 
 Ill 
 
 108 " Notice of withdrawal by the United States (from the League of 
 Nations) may be given by concurrent resolution of the Congress of the 
 United States," i.e., by a resolution not submitted to the President. Lodge 
 Reservations, No. i. See Wright, Col. Law Rev., 20: 128, and supra, sec. 62. 
 
 109 " Congress . . . under the Constitution, has the sole power to declare 
 war or authorize the employment' of the military or naval forces of the 
 United States." Lodge Reservations, No. 2. " The President is made 
 Commander-in-Chief of the army and navy by the Constitution, evidently for 
 the purpose of enabling him to defend the country against invasion, t'o 
 suppress insurrection, and to take care that the laws be faithfully executed. 
 If Congress were to attempt to prevent' his use of the army for any of 
 these purposes, the action would be void." Taft, Our Chief Magistrate, pp. 
 128-129. See also Wright, Col. Law Rev., 20: 134-136. 
 
 110 " Until such participation and appointment have been so provided for 
 {i.e., by act of Congress) and the powers and duties of such representatives 
 have been defined by law, no person shall represent the United States under 
 either said League of Nations or the treaty of peace with Germany or be 
 authorized to perform any act for or on behalf of the United States there- 
 under." Lodge Reservation No. 7. This was somewhat modified in the 
 reservations as voted on March 19, 1920. With reference to the independent 
 powers of the President, the Senate Foreign Relations Committee reported 
 in 1894 : " Many precedents could be noted to show that such power has 
 been exercised by the President on various occasions without dissent' on the 
 part of Congress. These precedents also show that the Senate of the United 
 States, though in session, need not be consulted as to the appointment of 
 such agents." {Cong. Rec., 2d Sess., p. 127, quoted Corwin, op. cit., p. 64.) 
 See also Wright, Col. Law Rev., 20: 136-137. 
 
 ^11 " No citizen of the United States shall be selected or appointed as a 
 member of said commissions, committees, tribunals, courts, councils or 
 conferences except with the approval of the Senate of the U. S." Lodge 
 Reservation No. 7 but eliminated in revision voted on March 19, 1920. 
 This conflicts with the constitutional provision : " Th? President shall have
 
 120 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 The manner in which the power to make treaties must be 
 exercised in the United States does not affect the power of the 
 national government as a whole to make international agreements. 
 The distribution of power in making treaties between the President 
 and the Senate will be considered in a later chapter."^ Suffice it 
 to say here, that controversy has arisen over the power of the 
 President to negotiate treaties by agents to whose appointment the 
 Senate has not consented, to make executive agreements without 
 Senate consent, and to ignore directions of Congress in negotiation 
 and treaty making. 
 
 C. Effect on Power to Make National Decisions. 
 
 66. Alleged Encroachments. 
 
 The doctrine of separation of powers does not limit the power 
 of the United States to make national decisions on international 
 questions. It does, however, limit the power of particular organs 
 to make such decisions. The details of this distribution of power 
 will be considered in a later chapter.^^^ A few of the contro- 
 versies which have arisen may be suggested here. 
 
 Congressional resolutions recognizing foreign states or govern- 
 ments, expressing national sentiment or policy, directing the Pres- 
 ident in foreign policy, or ordering the detailed movement of troops, 
 have been alleged to encroach upon the President's exclusive power 
 in these matters. 
 
 Congressional delegations of power to the President to decide 
 when the conditions, previsioned by statutes, actually exist, and 
 upon such decision to put legislative policies into effect by proclama- 
 tion have been questioned. 
 
 Presidential proclamations of neutrality and war, and confisca- 
 tion orders in time of war, have been questioned as encroachments 
 upon the powers of Congress. 
 
 Finally, judicial decisions on political questions have been alleged 
 to encroach upon the powers of the President and Congress. 
 
 power to fill up all vacancies that may happen during the recess of the 
 Senate, by granting commissions which shall expire at the end of their next 
 session." II, sec. 2, cl. 3. See Wright, Col. Law Rev., 20: 138. 
 
 ^^^ Infra, chap. XIV. 
 
 "8 Infra, chap. XV.
 
 CHAPTER VIII. 
 Conclusion on Constitutional Limitations. 
 
 67. Traditional Statements of Limitations upon the Treaty Power. 
 
 As we have seen, limitations upon the power of national organs 
 are of three kinds, in defense of the rights and privileges of individ- 
 uals, the rights and privileges of the states, and the rights, privi- 
 leges and powers of the organs of the national government. The 
 observance of these limitations is considered essential to the preser- 
 vation respectively of individual liberty, the autonomy of the states, 
 and the separation of powers. 
 
 These three types of limitations are expressed in the classic 
 statement of Justice Field in reference to the treaty power r'^ 
 
 " The treaty power, as expressed in the Constitution, is in terms un- 
 limited except by those restraints which are found in that instrument against 
 the action of the government or of its departments, and those arising from 
 the nature of the government and of that of the States. It would not be 
 contended that it extends so far as to authorize what the Constitution 
 forbids, or a change in the character of the government or in that of one 
 of the States, or a cession of any portion of the territory of the latter, 
 without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 
 525, 541- But with these exceptions, it is not perceived that' there is any 
 limit to the questions which can be adjusted touching any matter which is 
 properly the subject of negotiation with a foreign country. Ware v. 
 Hylt'on, 3 Dall. igg; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 
 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 California 
 3S1." 
 
 Jefferson and Calhoun each attempted to define the limits of the 
 treaty power in well-known statements. Calhoun wrote : ^ 
 
 " It (the treaty-making power) is . . . limited by all the provisions of 
 the Constitution which inhibit' certain acts from being done by the govern- 
 ment, or any of its departments ; of which description there are many. It 
 is also limited by such provisions of the Constitution as direct certain acts to 
 
 1 Geofroy v. Riggs, 133 U. S. 258, 267 (1890). 
 
 2 Calhoun, Discourse on Constitutional Government of U. S., Works, I : 
 203; Moore, Digest, 5: 166. 
 
 121
 
 122 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 be done in a particular way, and which prohibit the contrary, of which a 
 striking example is to be found in that which declares that no money shall 
 be drawn from the Treasury but in consequence of appropriations to be made 
 by law. This not only imposes an important restriction on the power, 
 but gives to Congress as the law-making power, and to the House of Rep- 
 resentatives as a portion of Congress, the right to withhold appropriations; 
 and thereby, an important control over the treaty-making power, whenever 
 money is required to carry a treaty into effect ; which is usually the case, 
 especially in reference to those of much importance. There still remains 
 another, and more important limitation, but of a more general and indefinite 
 character. It can enter into no stipulation calculated to change the char- 
 acter of the government; or to do that which can only be done by the 
 constitution-making power; or which is inconsistent with the nature and 
 structure of the government." 
 
 This seems to follow the recognized view. It should be noticed, 
 however, that while, under constitutional law (though not under 
 international law). Congress has the right to withhold appropria- 
 tions, yet by constitutional understandings^ it ought not to do so. 
 Thus though a treaty could not vest the power to make appropria- 
 tions in any organ other than Congress, yet, the fact that a treaty 
 requires an appropriation does not impeach the validity of a treaty, 
 as Calhoun himself clearly stated while Secretary of State : * 
 
 " The treaty-making power has, indeed, been regarded to be so compre- 
 hensive as to embrace, with few exceptions, all questions that can possibly 
 arise between us and other nations, and which can only be adjusted by 
 their mutual consent, whether the subject matter be comprised among the 
 delegated or the reserved powers. So far, indeed, is it from being true, 
 as the report supposed, that the mere fact of a power being delegated to 
 Congress excludes it from being the subject of treaty stipulations; that even 
 its exclusive delegation, if we may judge from the habitual practice of the 
 government, does not — of which the power of appropriating money affords 
 a striking example. It is expressly and exclusively delegated to Congress, 
 and yet scarcely a treaty has been made of any importance which does not 
 stipulate for the payment of money. No objection has ever been made on 
 this account. The only question ever raised in reference to it is, whether 
 Congress has not unlimited discretion to grant or withhold the appro- 
 priation." 
 
 " Infra, sec. 256. 
 
 * Mr. Calhoun, Sec. of State, to Mr. Wheaton, Minister to Prussia, 
 June 28, 1844, Moore, Digest, 5: 164. See also infra, sec. 59.
 
 CONSTITUTIONAL LIMITATIONS. 123 
 
 . 5 
 
 Jefferson wrote in his Manual of Parliamentary Practice : 
 
 "To what subjects this power extends, has not been defined in detail 
 by the Constitution, nor are we entirely agreed among ourselves. (i) 
 It is admitted that it must concern the foreign nation, party to the contract, 
 or it would be a mere nullity, res inter alios acta. (2) By the general 
 power to make treaties, the Constitution must have intended to comprehend 
 only those objects which are usually regulated by treaty and cannot be 
 otherwise regulated. (3) It must have meant to except out of these the 
 rights reserved to the states ; for surely the President and Senate cannot do 
 by treaty what the whole government is interdicted from doing in any way. 
 (4) And also to except those subjects of legislation in which it gave a par- 
 ticipation to the House of Representatives. This last exception is denied by 
 some, on the ground that it would leave very little matter for the treaty 
 power to work on. The less the better, say others." 
 
 This -statement is both erroneous and incomplete, it seems, there- 
 fore, unfortunate that it should be reprinted in both Senate and 
 House manuals without explanatory comment.® It does not state 
 all of the limitations which actually exist and the last two limitations 
 stated do not exist. The last is effectively refuted by the state- 
 ment quoted from Calhoun. The third is thus dealt with by 
 Attorney General Griggs : '^ 
 
 " The regulation of fisheries in navigable waters within the territorial 
 limits of the several States is, in the absence of a treaty, a subject of State 
 rather than of Federal jurisdiction; but the government of the United States 
 has power to enter into treaty stipulations on the subject, e.g., with Great 
 Britain, for the regulation of the fisheries in the waters of the United 
 States and Canada along the international boundary; and the fact that a 
 treaty provision would annul and supersede a particular State law on the 
 subject would be no objection to the validity of the treaty." 
 
 The limitation referred to last by Justice Field and first and sec- 
 ond by Jefferson applies to the exercise of all powers in the field of 
 foreign relations. They must be bona fide directed toward the 
 conduct of international relations. Thus a purported declaration 
 of war, really designed to excuse an invasion of the residual powers 
 of the states, would doubtless be void ; though it might be difficult 
 to discover a court with sufficient temerity to declare it so, if con- 
 
 5 Art. 52, Moore, Digest, 5 : 162. 
 
 8 Senate, Manual, 1913, p. 149; Rules of H. of R., 1914, sec. 587, p. 252, 
 ■^ Griggs, Att. Gen., 22 Op. 214 (1898), Moore, Digest, 5: 161-162. See 
 also supra, sec. 50.
 
 124 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 stitutional government had so lapsed in vigilance as to present the 
 opportunity. Such acts can only be prevented by operation of the 
 political checks upon government.^ 
 
 68. Most Limitations Unimportant in Practice. 
 
 Although in theory constitutional limitations apply to the organs 
 of government in the conduct of foreign relations, as well as 
 domestic affairs, yet in practice it is discovered that many limita- 
 tions, especially those for the protection of individual and states' 
 rights, are applicable only within American territory and hence 
 do not limit the exterritorial action of national organs.^ Further- 
 more, even when limitations are legally applicable, their enforce- 
 ment is apt to belong to the political departments of government 
 because of the disinclination of the courts to pass on " political 
 questions." ^'^ Obviously the political departments are more likely 
 to err on the side of an efficient exercise of national power than on 
 the side of an excessive regard for constitutional limitations. 
 Finally, even when such cases do come before the courts, they 
 show an unquestionable tendency to interpret limitations less rigor- 
 ously where foreign affairs are involved." " In the exercise of 
 its international and military power," says Freund, " the state is 
 freed from many of the restraints under which it must conduct the 
 peaceful government of its own citizens." ^^ Though this can 
 hardly be accepted in constitutional theory, except as explained 
 above, undoubtedly, it is true in fact,^^ and for reasons thus ex- 
 plained by Hamilton : ^* 
 
 " As the duties of superintending the national defense and of securing 
 the public peace against foreign or domestic violence involve a provision for 
 casualties and dangers to which no possible limits can be assigned, the power 
 
 8 Willoughby, op. cit., p. 504; Corwin, National Supremacy, pp. 302-308. 
 
 ^ In re Ross, 140 U. S. 453. 
 
 ^0 Foster v. Neilson, 2 Pet. 253 ; The Prize Case, 2 Black 635 ; Texas v. 
 White, 7 Wall. 700, Infra, sec. 107. 
 
 " Dillon's case, 7 Sawyer 561, Fed. Cas. No. 3914 (1854) ; Moore, Digest, 
 5 : 79 ; Supra, sec. 46. 
 
 12 Freund, The Police Power, Chicago, 1904, p. 4. 
 
 " Note the long leash given to the military power during the Civil War 
 as compared with the law as subsequently stated in Ex Parte Milligan, 4 
 Wall. 2; Rhodes. History of U. S., 4: 248 et seq. 
 
 "The Federalist, No. 31, Ford ed., p. 194.
 
 CONSTITUTIONAL LIMITATIONS. 125 
 
 of making that provision ought to know no other bounds than the exigencies 
 of the nation and the resources of the community." 
 
 69. Important Limitations from Separation of Powers. 
 
 In fact the only important legal limitation upon the foreign 
 relations power seems to be that, resulting from the doctrine of 
 separation of powers, that all acts must be performed by the organ 
 designated for that purpose by the Constitution. With a proper 
 application of the understandings of the Constitution this limita- 
 tion does not interfere with an adequate meeting of international 
 responsibilities and carrying out of national policies except in one 
 case. This is where the achievement of these ends requires that 
 powers be vested in an international body created by treaty. As 
 we have seen there is no difficulty in vesting such a body with au- 
 thority to decide on questions of fact and law since the treaty 
 power, or the treaty power supplemented by congressional legisla- 
 tion have been held fully competent to create agencies for these 
 purposes.^^ A difficulty might arise, in case such a body were 
 given appellate jurisdiction over the Supreme Court but this could 
 be eliminated either by treaty provision for starting original action 
 in the international tribunal or, in certain cases, by congressional 
 provision for special tribunals within the United States, not exer- 
 cising the judicial power of the United States, for the original 
 hearing, from which appeal might be taken to the international 
 court." 
 
 A delegation of political power, that is legislative or treaty-mak- 
 ing power, to such a body would be unconstitutional, but this never 
 seems to have been contemplated. Bodies such as the Assembly 
 and Council of the League of Nations, in which all binding political 
 decisions require the assent of the American representative, would 
 not violate this principle, since the American representative would 
 presumably be instructed to withhold his consent or give merely 
 tentative consent in any matter within the exclusive competence 
 of Congress or the treaty-making power until those organs had 
 acted. ^'^ 
 
 15 Supra, sec. 60, note 42 ; infra, sees. 225-227. 
 1^ Supra, sec. 64. 
 1^ Supra, sec. 63.
 
 126 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 A too rigid application of the doctrine of separation of powers 
 will inevitably produce friction between the departments and impair 
 the ability of the government rapidly and efficiently to meet inter- 
 national responsibilities and to decide upon and carry out national 
 policies. This difficulty may be greatly reduced through the regular 
 observance by each organ of certain constitutional understandings, 
 directing the method by which discretionary power ought to be 
 exercised. Thus before making a decision each independent organ 
 ought to consider the views of other independent organs whose 
 cooperation will be necessary in order to carry out such decision ; 
 and after a decision has been made by any organ acting within its 
 constitutional powers, all other independent organs ought to con- 
 sider themselves bound to so exercise their powers as to give that 
 decision full efifect. The development of and adhesion to these 
 understandings is most essential if foreign relations are to be carried 
 on effectively by a government guaranteeing the separation of 
 powers by its fundamental law.^* 
 
 18 Infra, sec. 249.
 
 PART IV. 
 
 The Power to Conduct Foreign Relations under 
 
 THE Constitution.
 
 CHAPTER IX. 
 
 The Position of the Foreign Relations Power in the 
 
 Constitutional System. 
 
 A. Source of National Powers. 
 
 70. Distribution of Powers Between States and National Govern- 
 ment. 
 
 The Constitution establishes a federal government, certain 
 powers being expressly or impliedly delegated to the national gov- 
 ernment, the rest, unless prohibited to the states, being reserved to 
 the states respectively or to the people. Now the control of foreign 
 affairs has been very largely vested in the national government. 
 Its organs are given power to send and receive diplomatic officers, 
 to make treaties, to grant letters of marque and reprisal, to declare 
 and conduct war, to assume jurisdiction in cases involving for- 
 eign diplomatic officers, foreign states or the interpretation of 
 treaties, to pass laws relating to foreign commerce, naturalization, 
 piracies and offences against the law of nations and any other laws 
 that may be necessary and proper for carrying any of these powers 
 into execution. 
 
 On the other hand, the states are expressly forbidden to enter 
 into any treaty, alliance, or confederation or, unless Congress 
 consent, into any agreement or compact with a foreign power; to 
 grant letters of marque and reprisal or without the consent of 
 Congress to engage in war unless invaded or in imminent danger 
 thereof ; to lay tonnage, import or export duties, except for execut- 
 ing their inspection laws. The only powers connected with foreign 
 relations which the states seem competent to exercise without con- 
 gressional consent relate to the meeting of international responsi- 
 bilities. The states have power to provide aliens within their 
 borders the protection and to assure them the other rights, guaran- 
 teed by international law and treaty, and state judges are ex- 
 pressly enjoined to observe treaties as the supreme law of the land, 
 
 129
 
 130 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 anything in the state constitution or laws to the contrary notwith- 
 standing. Full power to enforce treaties and international law 
 within the state could doubtless be conferred upon national officers 
 and courts by act of Congress under the necessary and proper 
 clause, but the legislation at present in force is not complete and 
 state authorities alone must be relied on to meet certain international 
 responsibilities. 
 
 71. Theory of Sovereign Powers in National Government. 
 
 In view of the almost complete prohibition of the states from 
 the control of foreign relations, it has been argued that the national 
 government must necessarily have all powers in this field enjoyed 
 by sovereign nations. Thus said Justice Field in the Chinese Ex- 
 clusion Cases : ^ 
 
 " While under our Constitution and form of government the great mass 
 of local matters is controlled by local authorities, the United States, in their 
 relation to foreign countries and their subjects or citizens, are one nation, 
 invested with powers which belong to independent nations, the exercise 
 of which can be invoked for the maintenance of its absolute independence 
 and security throughout its entire territory." 
 
 Justice Gray repeated the theory in Fong Yue Ting v. United 
 States : ^ 
 
 " The United States are a sovereign and independent nation, and are in- 
 vested by the Constitution with the entire control of international relations, 
 and with all the powers of government necessary to maintain that control 
 and to make it effective." 
 
 Aside from the power to exclude aliens, the court has derived the 
 power to acquire territory from this theory,^ but in other cases the 
 latter power has been implied from the power to make treaties, 
 and to declare war.* 
 
 1 Chinese Exclusion Cases, 130 U. S. 581. 
 
 2 Fong Yue Ting v. U. S., 149 U. S. 698. 
 
 3 Jones V. U. S., 137 U. S. 202, and discussion by Willoughby, op, cit., 
 p. 340. See also cases cited. Ibid., pp. 454-455. 
 
 * American Insurance Co. v. Canter, i Pet. 511; Flemming v. Page, 9 
 How. 603 ; Willoughby, op. cit., p. 339. The power to admit new states to 
 the Union has also been suggested as a ground for annexation, though such 
 an interpretation of the clause (Constitution, IV, sec. 3, cl. i) was not
 
 iTHE FOREIGN RELATIONS POWER. 131 
 
 The general theory of national powers derived from sover- 
 eignty has not been approved by commentators^ or by the weight of 
 judicial decisions. Thus in Kansas v. Colorado Justice Brewer 
 emphatically repudiated the " doctrine of sovereign and inherent 
 powers." ^ 
 
 " But," he said, " the proposition that there are legislative powers 
 affecting the nation as a whole which belong to, although not expressed in 
 the grant of powers, is in direct conflict with the doctrine that this is a 
 government of enumerated powers. That this is such a government clearly 
 appears from the Constitution, independently of the amendments, for other- 
 wise there would be an instrument granting certain specified things made 
 operative to grant other and distinct things. This natural construction of 
 the original body of the Constitution is made absolutely certain by the 
 Tenth Amendment." 
 
 Chief Justice Taney had earlier insisted that no argument could 
 be drawn " from the nature of sovereignty, or the necessities of 
 government for self-defense in time of tumult and danger." '' 
 
 72. Theory of National Sovereignty in Foreign Relations. 
 
 But though the general theory of sovereign powers, which 
 
 would vest in the national government all powers not expressly 
 
 prohibited, cannot be maintained, more support can be cited for 
 
 the theory if confined to the control of foreign relations. Thus 
 
 Willoughby says : 
 
 " From these express grants of power to the General Government, and 
 prohibitions of treaty povvers to the States, the intention of the framers 
 
 intended by the drafter of the Constitution. See letter of Gouverneur Mor- 
 ris to Livingston, 1803, Life and Writings (Sparks), 3: 192, quoted in Wil- 
 loughby, op. cit., p. 328. 
 
 5 Willoughby, op. cit., p. 69, who, however, approves a limited applica- 
 tion of the theory in respect to foreign relations, Ibid., p. 45. " It cannot, 
 therefore, be maintained that, merely because the United States is classed 
 as a ' sovereign nation,' the government or any part of it can therefore per- 
 form a sovereign act beyond the scope of the purposes for which it was 
 created, for although the nation is sovereign the Government is not. Com- 
 plete sovereignty resides in the people as a whole, and not in any or all of 
 the public officers." D. J. Hill, Present Problems of Foreign Policy, N. Y., 
 
 1919, p. 155. 
 
 8 Kansas v. Colorado, 206 U. S. 46. 
 
 ^ Ex Parte Merryman, Taney's reports, p. 246 ; Thayer, Cases on Const. 
 Law, 2: 2361, 2368.
 
 132 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of the Constitution to invest the Federal Government with the exclusive 
 control of foreign affairs is readily deducible. 
 
 " The control of international relations vested in the General Govern- 
 ment is not only exclusive but all-comprehensive. That is to say, the au- 
 thority of the United States in its dealings with foreign powers includes not 
 only those powers which the Constitution specifically grants it, but all those 
 powers Ti'hich States in general possess with regard to matters of inter- 
 national concern. 
 
 " This appeal, however, to the fact of ' national sovereignty ' as a source 
 of federal power is not a valid one outside of the international field. It 
 cannot properly be resorted to when recognition of an international obliga- 
 tion on the part of the United States is not involved, and when, therefore, 
 the matter is purely one relating to the reserved powers of the States or to 
 the private rights of the individuals. To permit the doctrine to apply within 
 these fields would at once render the Federal Government one of unlimited 
 powers." 8 
 
 The writer is unable to accept this doctrine. The fact that powers 
 relating to the control of foreign relations are expressly enumerated 
 by the Constitution, which enumeration would be rendered super- 
 fluous by the theory, the fact that the states actually exercise some 
 powers which directly afifect foreign relations, such as the protection 
 of domiciled aliens, the fact that certain constitutional limitations 
 such as those contained in the bill of rights are generally acknowl- 
 edged to limit the scope of treaty-making and other activities in 
 the control of foreign relations seem to indicate that the national 
 foreign relations power is neither implied from sovereignty, nor 
 exclusive, nor all-comprehensive, though it undoubtedly, very nearly 
 enjoys the two latter characteristics. The writer is not aware of 
 any judicial decision which requires the theory for support, and he 
 considers that certain judicial dicta, unquestionably supporting it, 
 are overborne by the repeated assertions of the Supreme Court 
 that the national government is a government of delegated power. 
 Consequently in the field of foreign relations as in other fields he 
 assumes that all national powers must be founded upon express or 
 implied delegation by the Constitution. 
 
 73. Theory of Resultant Powers. 
 
 However, powers may be implied as a " resultant " of a group 
 
 8 Willoughby, op. cit., pp. 451, 454. See also Ibid., p. 65.
 
 THE FOREIGN RELATIONS POWER. 133 
 
 of express powers — it is not necessary that implied powers be traced 
 
 always to a single express delegation. 
 
 " It is to be observed," said Chief Justice Marshall, " that it is not indis- 
 pensable to the existence of every power claimed for the Federal Government 
 that it can be found specified in the words of the Constitution, or clearly and 
 directly traceable to some one of the specified powers. Its existence may be 
 deduced fairly from more than one of the substantive powers expressly de- 
 fined, or from them all combined. It is allowable to group together any 
 number of them and to infer from them all that the power claimed has been 
 conferred." ^ 
 
 Thus the power to recognize foreign states and governments may 
 be implied from the powers of receiving and commissioning diplo- 
 matic officers ; " the power to exclude and expel aliens may be 
 implied from the powers of regulating foreign commerce, natural- 
 izing aliens and declaring war;^^ the power to annex and govern 
 territory may be implied from the power of making treaties, declar- 
 ing war, and admitting new states to the Uxiion.^- We assume, 
 
 "Cohens v. Va., 6 Wheat. 264; U. S. v. Gettysburg Electric Ry. Co., 160 
 U. S. 668, 681-683 (1896). See Willoughby, op. cit., p. 66, and Legal Tender 
 Cases, 12 Wall. 457, quoted ibid., p. 65. 
 
 10 Corwin, The President's Control of Foreign Relations, p. 71. 
 
 11 Although in the Chinese Exclusion Cases (130 U. S. 581, 1889) and 
 Fong Yue Ting v. U. S. (149 U. S. 698, 1893) certain expressions of the court 
 support the contention that the power of exclusion and expulsion are derived 
 from national sovereignty in foreign affairs, yet it is to be noted that in both 
 of these cases the court carefully enumerated the specific grants of power of 
 which these so-called sovereign powers are the resultant. The argument in 
 the Chinese Exclusion Cases, that the power to make war for defense implies 
 a power to take lesser defensive measure, and that the occasion for and 
 methods of such defense is a political question not subject to judicial deter- 
 mination, may also be noticed. " It matters not in what form such aggression 
 and encroachment come, whether from the foreign nation acting in its national 
 character or from vast hordes of its people crowding in upon us. The gov- 
 ernment, possessing the powers which are to be exercised for protection and 
 security, is clothed with authority to determine the occasion on which the 
 powers shall be called forth; and its determination, so far as the subjects 
 affected are concerned, is necessarily conclusive upon all its departments and 
 officers." Thus when the court spoke of "sovereign powers" it had in mind 
 powers resultant from a group of express or implied powers, and not powers 
 deduced from an abstract theory of sovereignty. 
 
 12 The case of Jones v. U.S. (137 U. S. 202), which is cited by Willoughbv 
 as not only practically upholding the right of the United States to acquire 
 territory by discovery and occupation, but applying the principle, that ' the
 
 134 ^KE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 therefore, that the foreign relations power in common with all other 
 national powers, exists only as far as (i) expressly delegated by 
 the Constitution, (2) implied from expressly delegated powers, or 
 (3) implied as a "resultant" from a group of express or implied 
 powers.^^ 
 
 B. Essential Nature of the Foreign Relations Pozuer. 
 
 74. Controversy as to Nature of Foreign Relations Power. 
 
 Since the beginning of the government under the Constitution 
 there has been a controversy as to the essential nature of the for- 
 
 United States may exercise a power not enumerated in the Constitution, pro- 
 vided it be an international power generally possessed by sovereign states" 
 {op. cit., p. 341), really turned on the principle of "political question." "Who 
 is the sovereign, de jure or de facto, of a territory is not a judicial, but a 
 political, question, the determination of which by the legislative and executive 
 departments of any government conclusively binds the judges, as well as all 
 other officers, citizens, and subjects of that government. This principle has 
 always been upheld by this court, and has been affirmed under a great variety 
 of circumstances." Apparently the President's power to recognize acquisi- 
 tions of territory by the United States, through the operation of international 
 law, flows from his constitutional position as the representative organ of the 
 government. It is to be noted that he has recognized such acquisitions aside 
 from congressional legislation. (Moore, Digest, i : 555.) Thus such acquisi- 
 tions are made by operation of international law. Recognition thereof is a 
 political function of the President, and the courts are bound by such decision. 
 The act of Congress (Act of Aug. 18, 1856, Rev. Stat., sees. 5570-5578) in- 
 volved in this case defines the circumstances under which and the procedure 
 by which American citizens, discovering Guano Islands, can benefit by the 
 rule of international law and the rights and degree of protection to which 
 they are entitled, thus falling under the power to govern territory. Constitution, 
 art. IV, sec. 3, par. 2. (See Moore, Digest, i: 556 ct scq.) 
 
 13 Unquestionably the enumerated powers relating to foreign affairs, either 
 by implication or combination, will permit Congress to pass practically any 
 laws properly within that field. Consequently in practice this theory of con- 
 gressional power differs little from the theory asserting that congressional 
 powers can be deduced from national sovereignty in foreign affairs. J. B. 
 Moore in Proc. Am. Phil. Soc, Minutes, 60: xvi, quoting Taney, C. J., in 
 Holmes vs. Jennison, 14, Pet. 540; "all the powers which relate to our for- 
 eign intercourse are confided to the general government." The difficulty of 
 the sovereignty theory, however, lies in the fact that a recognition of congres- 
 sional sovereignty in foreign affairs would seem to exempt Congress from 
 constitutional limitations arising from individual rights, states' rights and the 
 separation of powers in this field. "Sovereignty" is not only plenitude of 
 power, but also absence of limitation. See supra, note 5.
 
 iTHE FOREIGN RELATIONS POWER. 135 
 
 eign relations power. One school has contended that such powers 
 are essentially executive and hence all delegations of power to 
 Congress in this field must be strictly construed while delegations 
 of power to the President may be liberally construed. Some have 
 gone even farther and in view of the constitutional statement that 
 " The Executive power shall be vested in a President of the United 
 States of America " have contended that all foreign relations 
 powers not otherwise expressly delegated are by this general grant 
 of executive power vested in the President. Another school has 
 taken the reverse view, supporting a liberal legislative power and a 
 narrow construction of executive powers. 
 
 75. Foreign Relations Power not Essentially Judicial. 
 
 The courts have been perfectly clear that these powers are 
 not of an essential judicial nature, and consequently have con- 
 sidered themselves incompetent to decide them. They have usually 
 called them " political questions " and have accepted the decisions of 
 the political branches of the government without question.^* 
 However, the political branches of the government include both the 
 legislative and executive branches, consequently judicial opinions 
 give us little assistance in our effort to determine whether these 
 powers are essentially legislative or essentially executive. 
 
 76. Theory of Essentially Executive Nature. Early Opinion. 
 
 Supporters of the essentially executive character of foreign rela- 
 tions powers notice that writers with whom the members of the 
 federal convention were familiar such as Locke, Montesquieu, De 
 Lolme and Blackstone appeared to classify the control of foreign 
 relations as executive. In European countries, especially in Great 
 Britain, the Chief Executive conducted foreign relations. Further- 
 more, they say, the debates in the federal convention tended in this 
 direction. The treaty-making power, vested in Congress under the 
 Confederation, was first given to the Senate by the Convention, but 
 finally the President was added and in the ultimate draft the subject 
 is concluded in the section dealing with Executive power, indicating 
 that the Convention had become convinced of its executive char- 
 
 1* Infra, sec. 107,
 
 136 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 acter. Washington's recognition of the new French republic by 
 reception of Citizen Genet upon his own responsibiHty set a prec- 
 edent which has since been followed. His proclamation of neu- 
 trality, when many thought the French alliance treaty required war, 
 was loudly denounced by the JefTersonian Republicans, but the 
 precedent has been invariably followed since when occasion has 
 arisen for proclaiming neutrality. This first neutrality proclama- 
 tion occasioned a lively pamphlet debate between Hamilton and 
 Madison under the names of "Pacificus" and " Helvidius," and 
 Hamilton, who supported the executive character of the procla- 
 mation, won, if future practice is to be the judge.' 
 
 15 
 
 "It deserves to be remarked," he wrote, "that as the participation of the 
 Senate in the making of treaties, and the power of the legislature to declare 
 war, are exceptions out of the general 'executive power' vested in the Presi- 
 dent, they are to be construed strictly, and ought to be extended no further 
 than is essential to their execution. While, therefore, the legislature can alone 
 declare war, can alone actually transfer the nation from a state of peace to 
 a state of hostility, it belongs to the ' executive power ' to do whatever else 
 the law of nations, cooperating with the treaties, of the country enjoins in the 
 intercourse of the United States with foreign powers." 
 
 yj. Essentially Executive Nature. Practice. 
 
 Advocates of this theory notice that in practice the President 
 alone has recognized foreign governments and states and pro- 
 claimed neutrality. He has initiated all foreign negotiations and 
 has held himself free to ignore congressional resolutions or acts on 
 the subject. He has even authorized foreign military expeditions 
 on his own authority and has initiated all wars. He has on his 
 own responsibility executed treaties of extradition, guarantee, and 
 intervention. He has made executive agreements terminating hos- 
 tilities, outlining terms of peace, annexing territory and providing 
 for administration in foreign territory, and he has denounced 
 treaties. 
 
 78. Essentially Executive Nature. Recent Opinion. 
 
 A debate on the extent of executive prerogative in foreign rela- 
 tions was indulged in by Senators in 1906 on the occasion of Pres- 
 ident Roosevelt's negotiation of the Algeciras convention through 
 
 15 Hamilton, Works (Federal ed., Lodge), 4: 443.
 
 iTHE FOREIGN RELATIONS POWER. 137 
 
 personal agents, whose appointments had not been consented to by 
 the Senate. Senator Spooner of Wisconsin supported the Pres- 
 ident.^« 
 
 " From the foundation of the Government it has been conceded in practice 
 and in theory that the Constitution vests the power of negotiation and the 
 various phases — and they are multifarious — of the conduct of our foreign re- 
 lations exclusively in the President. And, Mr. President, he does not exer- 
 cise that constitutional power, nor can he be made to do it, under the tutelage 
 or guardianship of the Senate or of the House or of the Senate and House 
 combined. ... 
 
 " Mr. President, I do not stop at this moment to cite authorities in sup- 
 port of the proposition, that so far as the conduct of our foreign relations is 
 concerned, excluding only the Senate's participation in the making of treaties, 
 the President has the absolute and uncontrolled and uncontrollable au- 
 thority. . . . 
 
 " We as the Senate, a part of the treaty-making power, have no more 
 right under the Constitution to invade the prerogative of the President to 
 negotiate treaties, and that is not all — the conduct of our foreign relations is 
 not limited to the negotiation of treaties — we have no more right under the 
 Constitution to invade that prerogative than he has to invade the prerogative 
 of legislation. . . . 
 
 " I do not know whether it will be any ' light ' to the Senator from South 
 Carolina, but in Mr. Jefferson's opinion on the Powers of the Senate, a very 
 celebrated document, which he gave at the request of the President, this lan- 
 guage was used : ' The transaction of business with foreign nations is execu- 
 tive altogether. It belongs, then, to the head of that department, except as to 
 such portions of it as are especially submitted to the Senate. Exceptions are 
 to be construed strictly.' " 
 
 79. Theory of Essentially Legislative Nature. Early Opinion. 
 
 However, supporters of the essentially legislative character of 
 the foreign relations power are not without ammunition. Whatever 
 
 16 Cong. Rec, Jan. 23, Feb. 6, 1906, 40: 1417-1421, 2125-2148; Reinsch, 
 Readings in Am. Fed. Govt., 81-124; Corwin, op. cit., pp. 170, 172, 176, 203. 
 Senator Beveridge remarked during this debate : " Does not the Senator 
 (Bacon) think that in the natural division of the powers of the Government 
 into legislative, executive, and judicial the treaty-making power has always 
 been considered an executive function, and therefore, if the Constitution had 
 been silent upon the subject of treaties, it would have been completely under 
 the President's control, under that provision of the Constitution which con- 
 fides in the President executive power, and that the section concerning trea- 
 ties is merely a limitation upon that universal power?" Ibid., p. 184. "All 
 duties in connection with foreign relations not otherwise specified fall within 
 the sphere of the executive." Sen. Doc. No. 56, 54th Cong., 2d sess. See 
 also infra, sec. 92.
 
 138 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 may have been the opinion of theoretic writers and the practice of 
 European nations, the fact is undoubted that the first American 
 Government vested all foreign relations powers in Congress and the 
 Constitutional Convention started from the assumption that these 
 powers were legislative. The particular powers in the field which 
 they delegated to the President in part or in full may have been 
 in view of particular expediencies. But the most important for- 
 eign relations powers were left largely legislative. The power to 
 declare war, to define piracies and offenses against the law of 
 nations and to regulate foreign commerce are left with Congress 
 and the power to make treaties and to appoint ambassadors, 
 public ministers and consuls requires the consent of the Senate. 
 
 Furthermore, whatever Jefferson may have said or done at 
 other times, certainly he denounced Hamilton's theory of the 
 essentially executive nature of the foreign relations power in 1793 
 and urged Madison to " take up your pen, select the most striking 
 heresies, and cut him to pieces in face of the public." ^'^ Madison 
 actually entered the lists and wrote, under the name of " Hel- 
 vidius " : ^^ 
 
 "In the general distribution of powers, we find that of declaring war 
 expressly vested in the Congress, where every other legislative power is de- 
 clared to be vested; and without any other qualifications than what is common 
 to every other legislative act. The constitutional idea of this power would 
 seem then clearly to be, that it is of a legislative and not an executive 
 nature. . . . 
 
 " There are sufficient indications that the power of treaties is regarded 
 by the Constitution as materially different from mere executive power, and 
 as having more affinity to the legislative that to the executive character. 
 
 " One circumstance indicating this is the constitutional regulation under 
 which the Senate give their consent in the case of treaties. In all other cases 
 the consent of the body is expressed by a majority of voices. In this particu- 
 lar case, a concurrence of two-thirds at least is made necessary, as a substi- 
 tute or compensation for the other branch of the legislature, which, on certain 
 occasions, could not be conveniently a party to the transaction. 
 
 " But the conclusive circumstance is, that treaties, when formed according 
 to the constitutional mode, are confessedly to have the force and operation of 
 laws, and are to be a rule for the courts in controversies between man and 
 man, as much as any other laws. They are even emphatically declared by the 
 Constitution to be ' the supreme law of the land.* 
 
 1^ Jefferson, Writings, P. L. Ford, ed., 6: 338. 
 18 Madison, Writings, Hunt, ed., 6: 147-150.
 
 THE FOREIGN RELATIONS POWER. 139 
 
 " So far the argument from the Constitution is precisely in opposition to 
 the doctrine. As little will be gained in its favour from a comparison of the 
 two powers with those particularly vested in the President alone. . . . 
 
 " Thus it appears that by whatever standard we try this doctrine, it must 
 be condemned as no less vicious in theory than it would be dangerous in prac- 
 tice. It is countenanced neither by the writers on law; nor by the nature of 
 the powers themselves ; nor by any general arrangements, or particular ex- 
 pressions, or plausible analogies, to be found in the Constitution. 
 
 "Whence then can the writer have borrowed it? 
 
 "There is but one answer to this question. 
 
 " The power of making treaties and the power of declaring war are royal 
 prerogatives in the British government, and are accordingly treated as execu- 
 tive prerogatives by British commentators." 
 
 80. Essentially Legislative Nature. Practice. 
 
 In practice it can be shown that Congress has occasionally 
 passed resolutions advising or directing the opening of negotia- 
 tions with a view to the conclusion or modification of treaties and 
 the President has usually followed this advice. Congress has also 
 passed resolutions directing the termination of treaties and the use 
 of force abroad aside from the exercise of its express powers of 
 declaring war, defining piracies and offenses against the law of na- 
 tions and regulating foreign commerce. The Senate, moreover, 
 has, throughout American history, exercised its power to reject 
 treaties, or consent to their ratification with amendments or reser- 
 vations. 
 
 81. Essentially Legislative Nature. Recent Opinion. 
 
 In the Senatorial Debate of 1906 referred to, Senator Bacon 
 of Georgia supported the legislative nature of the foreign relations 
 power : ^® 
 
 "Mr. Beveridge (Indiana). I will ask this question: If the Constitution 
 had said nothing about the treaty-making power, where would the treaty- 
 making power have been lodged? 
 
 " Mr. Bacon. I have received that question from the Senator several 
 times. I have said that I did not agree with him that it would be with the 
 Executive. 
 
 "Mr. Beveridge. Where would it be? 
 
 " Mr. Bacon. I think, undoubtedly, in the legislative branch of the Gov- 
 ernment, for reasons which I will give. 
 
 " Mr. Beveridge. That is the whole question. 
 
 19 Supra, note 16.
 
 140 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " Mr. Bacon. Here is where the sovereignty of the Government was 
 intended to be in almost its totality — in the legislative branch of the Govern- 
 ment, and the vast array of powers in the first article of the Constitution 
 proves it; and, further than that, the Constitution of the United States was 
 intended to take the place of and to supersede the Articles of Confederation, 
 under which articles the power to make treaties did lodge in Congress alone ; 
 and it was not to be presumed when the Constitution was formed in the 
 absence of some special and particular designation, that it was the intention 
 to confer it upon the Executive. The presumption would be the other way." 
 
 82. Theory of a Fourth Department Different from Either Ex- 
 ecutive or Legislative. 
 
 Although on the whole those favoring the executive prerogative 
 have the better of the argument, especially in the light of practice 
 in such matters as recognition and treaty negotiation, yet there does 
 not seem warrant for a full acceptance of the view stated by Sen- 
 ator Spooner. We are inclined to reject both views in their ex- 
 treme forms and to accept that of the Federalist which held the 
 foreign relations power to be neither legislative nor executive but 
 a fourth department of government.^** 
 
 However, to sustain this distinction we must recognize the am- 
 biguity of the term " executive power." Writers on administrative 
 law have recognized the two distinct functions frequently vested in 
 the chief executive, designated respectively as " political " and " ad- 
 ministrative " functions. ^^ The political functions exhausted the 
 early conception of " executive power " and corresponded very 
 closely to what we call the foreign relations power. During the 
 nineteenth century, however, the administrative functions of the 
 chief executive or the functions of executing the law and direct- 
 ing the national civil services have increased in importance and 
 now it is to these that writers and courts usually refer when they 
 speak of " executive power." Thus though foreign relations power 
 is almost .synonymous with executive power according to the earlier 
 usage, under present usage the two are distinct. 
 
 This is especially true in the United States. Here the political 
 functions of the executive are largely in the field of foreign rela- 
 
 20 Infra, sec. 85. 
 
 21 Goodnow, Principles of the Administrative Law of the U. S., p. 66; 
 Willoughby, op. cit., p. 11 56.
 
 iTHE FOREIGN RELATIONS POWER. 141 
 
 tions.^- Though the President has been gaining an increasing 
 pohtical influence in domestic affairs through the veto, the patron- 
 age, and his extra-constitutional position as head of his pohtical 
 party, yet, lacking the powers of initiating legislation, personally 
 forcing it through the legislature, and if necessary proroguing or 
 dissolving that body, commonly exercised by European executives, 
 he has not assumed the dominating position in domestic policy 
 found there. His legal powers have been in the main confined to 
 executing the law and directing the national civil service. 
 
 In foreign affairs, on the other hand, the President's political 
 powers are as great as those of the executive in most European 
 countries, but for their exercise he usually requires the advice and 
 consent of the Senate. Thus, these powers have tended to be dis- 
 sociated from the ordinary executive powers exercised independ- 
 ently by the President but within the limits of detailed statutes. 
 
 83. A Fourth Department. Opinion of Theoretical Writers. 
 
 A careful examination of the views of Locke and Montesquieu 
 will indicate that they regarded the control of foreign relations as 
 a distinct department of government. Locke used the term " fed- 
 erative " to designate this department and distinguished it from 
 both the " executive " and " legislative " departments.^^ 
 
 " But because the laws, that are at once, and in a short time made, have 
 a constant and lasting force, and need a perpetual execution or an attendance 
 thereunto; therefore, it is necessary there should be a power always in being 
 which should see to the execution of the laws that are made, and remain in 
 force. And thus the legislative and executive power come often to be 
 separated. 
 
 " There is another power in every commonwealth. . . . Though in a 
 commonwealth the members of it are distinct persons still in reference to one 
 another, and as such are governed by the laws of the society; yet in reference 
 to the rest of mankind, they make one body. . . . Hence it is that the con- 
 
 22 The only ones which are not are the veto power given by Art. I, sec. 7, 
 par. 3, and those in Art. II, sec. 3. " He shall from time to time give to the 
 Congress information of the State of the Union, and recommend to their 
 Consideration such Measures as he shall judge necessary and expedient; he 
 may, on extraordinary occasions, convene both Houses, or either of them, and 
 in Case of Disagreement between them, with respect to the Time of Adjourn- 
 ment, he may adjourn them to such time as he shall think proper." 
 
 23 Treatise of Civil Government, sees. 144-148, Works, ed. 1801, 5 : 425-6.
 
 142 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 troversies that happen between any man of the society with those that are 
 out of it are managed by the public, and an injury done to a member of their 
 body engages the whole in the reparation of it. This, therefore, contains the 
 power of war and peace, leagues and alliances, and all the transactions, with 
 all persons and communities without the commonwealth ; and may be called 
 federative, if anyone pleases. So the thing be understood, I am indifferent 
 as to the name. 
 
 " These two powers, executive and federative, though they be really dis- 
 tinct in themselves, yet one comprehending the execution of the municipal 
 laws of the society within itself, upon all that are parts of it; the other the 
 management of the security and interest of the public without, with all those 
 that it may receive benefit or damage from ; yet they are always almost 
 united. And though this federative power in the well- or ill-management of 
 it be of great moment to the commonwealth, yet it is much less capable to be 
 directed by antecedent standing, positive laws, than the executive; and so 
 must necessarily be left to the prudence and wisdom of those whose hands it 
 is in, to be managed for the public good: for the laws that concern subjects 
 one amongst another, being to direct their actions, may well enough precede 
 them. But what is to be done in reference to foreigners, depending much 
 upon their actions, and the variation of designs, and interests, must be left in 
 great part to the prudence of those who have this power committed to them 
 to be managed by the best of their skill, for the advantage of the common- 
 wealth. 
 
 " Though, as I said, the executive and federative power of every com- 
 munity be really distinct in themselves, yet they are hardly to be separated 
 and placed at the same time in the hands of distinct persons; for both of them 
 requiring the force of the society for their exercise, it is almost impracticable 
 to place the force of the commonwealth in distinct, and not subordinate 
 hands; or that the executive and federative power should be placed in persons 
 that might act separately, whereby the force of the public would be under 
 diflFerent commands : which would be apt some time or other to cause disorder 
 and ruin." 
 
 Montesquieu's triple division was the same : ^* 
 
 "In every government," he says, "there are three sorts of power: the 
 legislative; the executive, in respect to things dependent on the law of na- 
 tions; and the executive in regard to things that depend on the civil law. By 
 virtue of the first, the prince or magistrate enacts temporary or perpetual 
 laws, and amends, or abrogates those that have been already enacted. By 
 the second, he makes peace or war, sends or receives embassies, establishes 
 the public security, and provides against invasion. By the third, he punishes 
 criminals, or determines the disputes that arise between individuals. The 
 latter we shall call the judiciary power, and tlie other simply the executive 
 power of the state." 
 
 =■* L'Esprit des Lois, Ixi, c. 6, Philadelphia, 1802, i: 181. Note Madison's 
 paraphrase of this in the Federal Convention, infra, note 34.
 
 iTHE FOREIGN RELATIONS POWER. 143 
 
 Both of these writers grouped judicial and " executive " powers 
 in one department which Locke designated " executive " and Mon- 
 tesquieu " judicial." Each considered the conduct of foreign rela- 
 tions a distinct department of government, which Locke called 
 " federative " and Montesquieu, " executive." Confusion results 
 from the different meaning given to the term " executive " by the 
 two men, but in substance their classifications were precisely the 
 same. This classification of departments was also that which they 
 actually observed in the British government of the time. 
 
 84. A Fourth Department. British and Colonial Precedents. 
 
 In the i8th century the prerogative of the British Crown in 
 Council concerned largely war, foreign relations, colonies, appoint- 
 ments and removals, the summoning, proroguing and dissolution of 
 Parliament. The Crown administered the finances and the com- 
 mercial regulations but it did so under authority delegated by Par- 
 liament, which levied all taxes, made all appropriations, and 
 passed general laws for defining commercial policy. With the ex- 
 ception of taxation, however, domestic administration was almost 
 entirely conducted by the courts and the justices of the peace.^" 
 
 25 The English Government has been undergoing continuous functional 
 differentiation throughout its history. Locke and Montesquieu caught the 
 process at a particular time and crystallized it in the theory of separation of 
 powers. In the period of the Norman and Angevin kings the functions of 
 government were: (i) Military, controlled by the king under restrictions of 
 feudal and customary law, and naval, exercised at first through the Cinque 
 ports with their Warden, and later delegated to the Lord High Admiral; (2) 
 Financial, in which the Crown was gradually forced to rely on parliamentary 
 grants, merely retaining control of the administrative machinery for collecting 
 and disbursing, exercised through the Justiciar later supplanted by the Treas- 
 urer and through the Exchequer with its chancellor; (3) Judicial, in which 
 the Crown delegated authority to the central courts of Common Pleas, King's 
 Bench and Exchequer, which, though appointed by the Crown, tended to ac- 
 quire an independence from its control. A certain residuum of judicial 
 power, however, remained on the one hand in the House of Lords and on 
 the other in the Crown, who exercised it through the Lord Chancellor and 
 the Privy Council. 
 
 As time went on, relations of a peaceful kind with foreign nations were 
 established and the making of treaties and sending and receiving of diplo- 
 matic officers were added to the military functions of the Crown. These
 
 144 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Not until the late eighteenth and nineteenth centuries did the great 
 ministries for domestic administration develop,^^ and not until this 
 time did the responsibility of the Cabinet to Parliament become 
 established.^^ Even during the 19th and 20th centuries, the pre- 
 rogative in foreign relations has been exercised by the Crown in 
 Council quite independently both of party politics and of parlia- 
 mentary responsibility.-* The distinction has continued to exist 
 between the foreign relations power exercised rather independently 
 by the Crown in Council and the executive power exercised by the 
 Crown under powers delegated by Parliament and through ministers 
 responsible to that body. 
 
 The executive power as known to the constitutional fathers in 
 the colonial governor was similar to that of the British Crown in 
 
 were conducted by the Secretary of State. Parliament soon began to 
 insist that, in exchange for its grants of money, the King should reform 
 abuses, first requested by petition, but tending to assume the form of definite 
 bills. Thus in addition to taxation, Parliament acquired the function of 
 legislation. As population increased and the problems of local administration 
 became more complex, the courts, and especially the Justices of the Peace, 
 added to their judicial functions much of an administrative character. Thus 
 by the time of the Revolution of 1688 the functions of government were dis- 
 tributed among three fairly distinct departments. The Crown controlled mili- 
 tary, naval and foreign aflFairs, the administration of finances and power of 
 appointment. Parliament controlled the raising and appropriation of revenue 
 and the enactment of general laws. The Courts and Justices of the Peace 
 administered criminal and civil laws and performed practically all functions 
 of domestic administration, except finance. This division of pov/er was de- 
 scribed by John Locke, taken from him by Montesquieu and Blackstone and 
 from them by the American Constitutional Fathers. (See Medley, English 
 Constitutional History, 2d ed., pp. 112, 231, 367, 392.) 
 
 2" Before 1782 the important ministerial offices were Lord Chancellor, 
 Lord High Admiral in Commission, Secretary at War, two Secretaries of 
 State, one each for northern and southern Europe, Lord Treasurer in Commis- 
 sion, Chancellor of the Exchequer and Board of Trade. None of these really 
 concerned domestic administration except finances. The Secretary of State 
 for Home Affairs was created in 1782; Board of Works and Public Build- 
 ings, 1851 ; Committee on Education, later a Board of Education, in 1856; 
 Local Government Board, 1871 ; Board of Agriculture and Fisheries, 1889. 
 (Medley, op. cit., p. 112 et seq.) 
 
 2^ " The first definite recognition of this corporate responsibility (of the 
 cabinet) may be said to date from 17S2." (Medley, op. cit., p. 109.) 
 
 28 See Low, The Governance of England, N. Y., 1915, p. 301; Ponsonby, 
 Democracy and Diplomacy, London, 191 5, p. 45 et seq.
 
 iTHE FOREIGN RELATIONS POWER. 145 
 
 the i8th century with the very important exception of the foreign 
 relations power. The colonial governor exercised merely such 
 powers as summoning and dissolving the legislature and appointing 
 and removing ofiBcers. 
 
 "Administrative matters," says Goodnow, "outside of those directly con- 
 nected with the military powers of the governor had not been attended to by 
 the central colonial government but, in accordance with English principles of 
 local government, by various officers in the local districts of the state who 
 were regarded as local in character and who often at the same time discharged 
 judicial functions." 29 
 
 This was also true of the succeeding state governors. Since all 
 powers of the national government under the Continental Congress 
 and Articles of Confederation were vested in Congress no concep- 
 tion of the scope of executive or legislative power could be gained 
 from this experience, though the need of a more efficient control of 
 foreign relations was strongly felt and was one leading motive 
 toward the formation of the Constitution.^" 
 
 85. A Fourth Department. Opinion of Constitutional Fathers. 
 
 When the presidency was first considered in the federal conven- 
 tion it was undoubtedly conceived as analogous to the colonial 
 and state governors who exercised at that time neither foreign 
 relations powers nor administrative powers but merely political 
 powers in domestic affairs. ^^ 
 
 The Senate was thought of as the repository of power in for- 
 eign relations.^^ As discussion advanced, however, the analogy of the 
 Presidency to the British Crown was pressed upon the convention 
 by such men as Hamilton and Gouverneur Morris, ^^ while Madi- 
 son referred to Montesquieu's conception of " executive power " 
 as a definition of the President's powers.^* The view of these men 
 
 29 Goodnow, op. cit., p. 71. 
 
 30 Farrand, op. cit., i : 426, 513. 
 
 31 James Wilson, Farrand, op. cit., i: 65, 153. 
 82 Ibid., 1 : 426. 
 
 33 Hamilton, Farrand, i: 288; G. Morris, Ibid., i: 513; 2: 104; Mercer, 
 Ibid., 1 : 297 ; Sherman, Ibid., i : 97. 
 
 3* " A dependence of the Executive on the Legislature would render it 
 the executor as well as the maker of laws; and according to the observation 
 of Montesquieu, tyrannical laws may be made that they may be executed in
 
 146 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 which vested the President with political powers regarding foreign 
 relations was, in the main, accepted, but to curb possible autocratic 
 exercises of power by the President, the Senate was given a veto 
 on treaties, while the power to declare war was left with Congress. 
 The powers finally delegated to the President, and included in 
 Article II of the Constitution as finally drafted by Gouverneur 
 Morris, are mostly in the diplomatic fields. 
 
 The powers of domestic administration which we now regard 
 as the essential executive powers were not within the power of 
 either the colonial governor or the British monarch in the eighteenth 
 century and it was not intended that they should be within the 
 President's discretionary control. The fathers intended that these 
 powers should be exercised by officers largely under the detailed 
 control of Congress and in the early acts organizing departments 
 of government this plan was carried out. 
 
 " In the United States," says Willoughby, " it was undoubtedly intended 
 that the President should be little more than a political chief; that is to say, 
 one whose functions should in the main consist in the performance of those 
 political duties which are not subject to judicial control. It is quite clear that 
 it was intended that he should not, except as to these political matters, be the 
 administrative head of the government, with general power of directing and 
 controlling the acts of subordinate administrative agents." ^s 
 
 Later, through the use of the implied or perhaps inherent power of 
 the President to remove officers, and by a wide interpretation of 
 the clause requiring the President "to take care that the laws be 
 faithfully executed," originally indicating supervision rather than 
 direction, the administrative powers of the President increased. 
 At the same time the term " executive power " changed in meaning 
 
 a tyrannical manner. There was an analogy between the Executive and Ju- 
 diciary departments in several respects. The latter executed the laws in cer- 
 tain cases as the former did in others. The former expounded and applied 
 them for certain purposes as the latter did for others. The difference be- 
 ween them seemed to consist chiefly in two circumstances — i. The collective 
 interest and security were much more in the power belonging to the Execu- 
 tive than to the Judiciary department. 2. In the administration of the former 
 much greater latitude is left to opinion and discretion than in the adminis- 
 tration of the latter." Madison, Farrand, op. cit., 2: 34. 
 
 3« Willoughby, op. cit., p. 1156. See also Qogdnow, op. cit., p. 78.
 
 .THE FOREIGN RELATIONS POWER. 147 
 
 and although it stiH mcluded the notion of political functions, its 
 primary association was with the new administrative functions. 
 
 Thus when the constitutional convention gave "executive 
 power " to the President, the foreign relations power was the 
 essential element in the grant, but they carefully protected this 
 power from abuse by provisions for senatorial or congressional 
 veto. This power ought to be distinguished from the power of 
 the President as head of the administration which he exercises 
 independently within the limits of congressional legislation and 
 which by present usage forms the essential element in " executive 
 power." 
 
 Whether consideration is given to the works of theoretical 
 writers known to the fathers, the precedents of England, the colonies 
 or the Confederation, or the discussion of the Federal convention 
 itself, we may conclude that The Federalist expressed the opinion 
 of the constitutional convention as to the nature of the foreign 
 relations power, so far as they had an opinion on that subject, when 
 with prevision of the later significance of the term "executive 
 power " it classified the treaty power as a fourth department of 
 government ; ^^ 
 
 "The essence of the legislative authority is to enact laws, or, in other 
 words, to prescribe rules for the regulation of the society; while the execu- 
 tion of the laws and the employment of the common strength, either for this 
 purpose or for the common defense, seem to comprise all the functions of the 
 executive magistrate. The power of making treaties is plainly neither the 
 one nor the other. It relates neither to the execution of the subsisting laws 
 nor to the enaction of new ones, and still less to an exertion of the common 
 strength. Its objects are contracts with foreign nations, which have the force 
 of law, but derive it from the obligations of good faith. They are not rules 
 prescribed by sovereign to the subject, but agreements between sovereign and 
 sovereign. The power in question seems, therefore, to form a distinct depart- 
 ment, and to belong, properly, neither to the legislative nor to the executive. 
 The qualities elsewhere detailed as indispensable in the management of foreign 
 negotiations point out the Executive as the most fit agent in those trans- 
 actions; while the vast importance of the trust, and the operation of treaties 
 as laws, plead strongly for the participation of the whole or a portion of the 
 legislative body in the office of making them." 
 
 36 The Federalist, No. 75 (Hamilton), Ford ed., p. 500. Hamilton later 
 shifted to a defense of the wholly executive nature of the foreign relations 
 power. Supra, sec. ^6.
 
 148 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 86. A Fourth Department. Functional Classification. 
 Functionally it would seem that the foreign relations power, 
 
 which both frames and carries out foreign policies, both contracts 
 and meets international responsibilities, is essentially dififerent from 
 either the legislative power, which frames domestic laws and 
 policies, or the executive power which administers domestic laws 
 and policies. According to the terminology of Professors Good- 
 now ^' and other writers on administrative law the conduct of foreign 
 relations involves both " politics " and " administration " in external 
 affairs and is distinct from either "politics" or "administration" 
 in internal affairs. 
 
 87. A FourtJi Department. Practice. 
 
 In practice the control of foreign relations has differed from 
 the control of either legislation or domestic administration. While 
 the President has suggested legislation in messages to Congress 
 he has not as a rule taken a position of active leadership in the 
 formulation of domestic policy. The initiative has been with the 
 committees of Congress and the President's discretion has been closely 
 limited by law enforceable in the courts. It is true the President 
 controls administrative officials through his removal power. He 
 instructs officials as to the method of executing the laws under au- 
 thority given him by Congress and sometimes he even supplements 
 legislation by instructions or regulations of a general character not 
 specifically authorized. ^^ But he must always act within the con- 
 fines of an ever-increasing mass of congressional legislation. 
 Congress has described the powers of officials and the methods of 
 administration in considerable detail and the President, or rather 
 his subordinates, are forced by the courts to observe such legislation. 
 As legislation of this character increases in mass and detail, and as 
 the practices and methods of permanent services become fixed by 
 tradition as well as law, the President's discretion as head of the 
 administration becomes reduced. His functions in this capacity 
 tend to assume a purely supervisory and ministerial character. 
 
 37 Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156. 
 ^8 Goodnow, op. cit., pp. 47, 75.
 
 [THE FOREIGN RELATIONS POWER. 149 
 
 In foreign relations, however, the President exercises discretion, 
 both as to the means and as to the ends of policy. He exercises a 
 discretion, very little limited by directory laws, in the method of 
 carrying out foreign policy. He has moved the navy and the marines 
 at will all over the world. He has exercised a broad discretion in 
 issuing both standing regulations and instructions and special in- 
 structions for the diplomatic, consular, military and naval services. 
 Though Congress has legislated on broad lines for the conduct of 
 these services it has descended to much less detail than in the case 
 of services operative in the territory of the United States. In the 
 foreign affairs the President, also, has a constitutional discretion 
 as the representative organ and as commander-in-chief which can- 
 not be taken away by Congress and because of the exterritorial 
 character of most of his action, his subordinates are not generally 
 subject to judicial control. 
 
 But more than this he has initiated foreign policies, even those 
 leading to treaties and those leading to war, and has generally 
 actively pushed these policies when the cooperation of other organs 
 of government is necessary for their carrying out. Though Congress 
 may by resolution suggest policies its resolutions are not mandatory 
 and the President has on occasion ignored them. Ultimately, how- 
 ever, his power is limited by the possibility of a veto upon matured 
 policies, by the Senate in the case of treaties, by Congress in the 
 case of war. This contrast between the domestic and foreign powers 
 of the President is thus emphasized by Rawle : ^^ 
 
 "On a full view of the powers and duties of the President, the reader 
 will probably perceive that they are of more importance in respect to foreign 
 relations than the internal administration of government. 
 
 " At home, his path though dignified, is narrow. In the tranquility which 
 we have hitherto in time of peace enjoyed, little more has been requisite, in 
 either his legislative or executive functions than regularly to pursue the plain 
 mandates of laws, and the certain text of the constitution. . . . 
 
 " But it is in respect to external relations ; to transactions with foreign 
 nations, and the events arising from them, that the President has an arduous 
 task. Here he must chiefly act on his own independent judgment." 
 
 88. The Foreign Relations Department. Conclusion. 
 
 In foreign affairs, therefore, the controlling force is the reverse 
 
 ^° Rawle, A View of the Constitution, Philadelphia, 1825, pp. 182-183.
 
 150 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of that in domestic legislation. The initiation and development of 
 details is with the President, checked only by the veto of the 
 Senate or Congress upon completed proposals. In domestic legis- 
 lation on the other hand, the initiative and drafting of details is 
 with Congress, checked by the President's limited veto upon com- 
 pleted bills. In practice it seems possible to distinguish four great 
 departments of government, not only according to their functions, 
 but also according to their organization and methods. The legis- 
 lative power is vested in Congress with a limited presidential veto. 
 The foreign relations power is vested in the President with an 
 absolute senatorial or congressional veto. The executive power 
 is vested in the President acting independently within the limits of 
 detailed congressional legislation defining the power and procedure 
 of administrative officials. The judicial power is vested in the 
 courts acting independently within the narrowly defined limits of 
 procedure and jurisdiction defined by the common law and congres- 
 sional legislation.
 
 CHAPTER X. 
 The Power to Meet International Responsibilities. 
 
 89. The Law of International Responsibility. 
 
 The principles determining the responsibiHty of states under in- 
 ternational law have not been fully formulated and such formula- 
 tion has proved difficult because of the divergencies of practice 
 which have sometimes resulted from differences in national power. 
 Borchard has given the best survey of the subject and the following 
 statement is based largely on his work.^ 
 
 I, Acts of Government Organs. 
 
 The state is responsible for tortious acts committed by executive, 
 diplomatic, naval, military, and superior administrative officers of 
 the central government or local subdivisions unless plainly outside 
 of their functions and promptly disavowed. For such acts by 
 inferior administrative officers, the state is responsible only if there 
 is evidence either express, by authorization of a superior officer or of 
 the law, or tacit, by the failure to afford redress or to punish the 
 offending officer, that it sanctioned the act.^ Judicial errors are not 
 in themselves torts, though the courts may involve the interna- 
 tional responsibility of the state if they fail to apply international 
 law or deny justice.^ 
 
 The state is also responsible for the authorization of acts 
 violative of international law, or treaty, or unreasonably discrimi- 
 natory, by constitutional provision, legislative act, executive or ad- 
 ministrative decree, or judicial decision of central or local de jure 
 
 1 Borchard, Diplomatic Protection of Citizens Abroad, p. 177 et seq. 
 See also Hall, International Law (Higgins), pp. 226-232; Oppenheim, Int. 
 Law, I : sec. 148 et scq. For definition of "responsibility" see infra, sec. 141. 
 
 2 Borchard. op. cit., pp. 189-192. 
 ^ Ibid., p. 195. 
 
 161
 
 152 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 authority.* The promulgation of such constitutional provision, 
 statute, ordinance or decision, if sufficiently concrete to raise a 
 presumption that international law will be violated, is a ground for 
 immediate protest. Other states are not obliged to await the 
 actual commission of an act in violation of their rights.^ 
 
 2. Acts or Omissions of Individuals zvithin State Jurisdiction. 
 
 The state is responsible for the nonfulfillment of contractual 
 obligations made by private individuals or by public officers, ultra 
 vires, and for tortious acts committed in its jurisdiction by private 
 individuals, inferior officers or any officers acting without authority, 
 only in case its courts " deny justice " or executive and administra- 
 tive officers fail to exert " due diligence " in the maintenance of 
 order and enforcement of international law and treaty.® The de- 
 finition of " denial of justice " involving an investigation of the 
 adequacy of municipal law remedies and the degree of their ob- 
 servance in the particular case and of " due diligence," involving 
 the establishment of criteria applicable to mob violence, insurrec- 
 tion, war and neutrality, has proved the most difficult branch of the 
 subject of responsibility. In other cases of responsibility the gov- 
 ernment itself is at fault and the responsibility of the state is direct 
 and immediate. In the present case the original fault is not by 
 the government, and the state is responsible indirectly or vicariously 
 and only after municipal law remedies have been exhausted.'^ 
 
 3. Non-fulfillment of Obligation. 
 
 The state is responsible for the non-fufillment of contractual 
 obligations made by any legislative, executive or administrative 
 organ acting within legal authority derived from a de jure govern- 
 
 * Ibid., p. 181. 
 
 ° See Ambassador Bryce to Secretary of State Knox, February 27, 1913, 
 Diplomatic History of the Panama Canal, 65th Cong., 2d sess., Sen. Doc, No. 
 474, p. 1 01, supra, sec. 15. 
 
 ^ Borchard, op. cit., pp. 183, 213, 283. As to two meanings of expression 
 "denial of justice," see ibid., p. 335. 
 
 "^ Ibid., p. 180. See also Hall, op. cit., p. 226. Oppenheim, loc. cit., origi- 
 nated the expression "vicarious responsibility" in this connection.
 
 INTERNATIONAL RESPONSIBILITIES. 153 
 
 merit or generally recognized de facto government of the state as 
 a whole, and for the non-performance of acts required by interna- 
 tional law. Contractual obligations made under authority of po- 
 litical subdivisions of the state or under authority of local de facto 
 governments, or de facto governments which never attain general 
 recognition, do not involve an international responsibility unless the 
 state received a benefit therefrom.^ The question of whether force 
 may be used to compel the payment of public contract debts (in- 
 volved in the Drago Doctrine and II Hague Conventions 1907) 
 relates to the remedy and not to the legal responsibility." 
 
 The state is responsible for the reparation which treaty or in- 
 ternational law may impose, in case of failure to meet any of the 
 foregoing responsibilities. 
 
 90. State Power to Meet International Responsibilities. 
 
 Extensive powers for the employment of military force, the rais- 
 ing and appropriation of money, the administration of justice and 
 criminal law, and the organization and administration of public 
 services are given to the national government by the Constitution. 
 Are these powers sufficient to meet all present and possible inter- 
 national responsibilities? The states originally had full power to 
 meet international responsibilities except as restricted by their own 
 constitutions and they retain that power except as expressly or im- 
 pliedly limited by the Federal Constitution. The delegation of 
 power to the national government does not of itself deprive states 
 of concurrent power, unless the power is by nature exclusive.^" The 
 express prohibition of treaty-making and of agreement-making with- 
 out consent of congress prevents them from extraditing criminals 
 without express authorization by congress or treaty. Justice Taney 
 held in 1839 that extradition belonged "exclusively to the Federal 
 Government " and the action of Governor Jennison of Vermont in 
 issuing a warrant for the arrest of one Holmes charged with mur- 
 der in Canada was " repugnant to the Constitution of the United 
 States." ^^ 
 
 8 Borchard, op. cit., p. 184. 
 
 » Ibid., pp. 286, 308. 
 
 i<> Cooley V. Board of Port Wardens, 13 How. 294. 
 
 11 Holmes v. Jennison, 14 Pet. 540, 579 (1840) ; Moore, Digest, 4: 242.
 
 154 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 However, the states still have power to meet many international 
 responsibilities involving action within their own borders. Thus the 
 jurisdiction of state courts usually extends to many cases involving 
 the enforcement of treaty provisions such as those according civil 
 rights, rights of property and inheritance to resident aliens, and in 
 such cases, under the Federal Constitution they are obliged to apply 
 the treaty as the supreme law of the land. State courts usually also 
 have jurisdiction under common law to give justice to aliens in civil 
 cases and to punish many offenses against the law of nations such 
 as libels and conspiracies against foreign governments. The state 
 executive ordinarily has power to employ the militia to preserve 
 order and accord aliens within the state's territory the protection 
 required by international law and treaty and state legislatures gen- 
 erally have power to pass acts for the punishment of offenses against 
 international law.^^ 
 
 91, National Power to Meet International Responsibilities. 
 
 Does the national government have power to take over the entire 
 burden from the states? Authorities say yes, and have rested on 
 three theories. The argument drawn from the assumed enjoyment 
 by the national government of sovereign powers with respect to 
 matters transcending state limits has been discussed and found want- 
 ing." Repudiating this argument, Willoughby says : ^* 
 
 " Starting from the premise that in all that pertains to international rela- 
 tions the United States appears as a single sovereign nation, and that upon it 
 rests the constitutional duty of meeting all international responsibilities, the 
 Supreme Court has deduced corresponding federal powers." 
 
 This argument seems equally untenable. It commits the fallacy 
 of deducing powers from responsibilities which Professor Wil- 
 loughby himself denounced later in the same book.^^ The supreme 
 court has not relied on such an argument but on specific delega- 
 tions of power by the Constitution;^^ 
 
 '^'^ Infra, sees. 98, no, 136. 
 
 13 Supra, sec. 71. 
 
 1* Willoughby, op. cit., p. 64. See also ibid., p. 451. 
 
 1^ See infra, sec. 93. 
 
 16 U. S. V. Arjona, 120 U. S. 479, 483; Moore, Digest, 2: 430.
 
 INTERNATIONAL RESPONSIBILITIES. 155 
 
 " As all official intercourse between a State and foreign nation is pre- 
 vented by the Constitution and exclusive authority for that purpose given to 
 the United States, the National Government is responsible to foreign nations 
 for all violations by the United States of their international obligations, and 
 for this reason Congress is expressly authorized to define and punish . . . 
 offenses against the law of nations." 
 
 In addition to the clause here referred to, the " necessary and 
 proper " clause accords the national government powders adequate to 
 meet all international responsibilities, derived from valid acts or 
 commitments made by national organs.^^ 
 
 92. Theory of Inherent Executive Power to Meet International Re- 
 sponsibilities 
 
 How is the power to meet international responsibilities distributed 
 among the departments of the national government? 
 
 Hamilton, Roosevelt and others have considered the President 
 empowered to take measures for meeting all responsibilities by the 
 first clause of Article H which vests him with " the executive power 
 of the United States." 
 
 "It would not consist with the rules of sound construction, to consider 
 this enumeration of particular authorities" (in Article II), wrote Hamilton 
 in the Pacificus Paper, " as derogating from the more comprehensive grant in 
 the general clause, further than as it may be coupled with express restrictions 
 or limitations; as in regard to the cooperation of the Senate in the appoint- 
 ment of officers, and making of treaties; which are plainly qualifications of 
 the general executive powers of appointing officers and making treaties. The 
 difficult}' of a complete enumeration of all the cases of executive authority 
 would naturally dictate the use of general terms, and would render it improb- 
 able that specification of certain particulars was designed as a substitute for 
 those terms, when antecedently used. The different mode of expression em- 
 ployed in the Constitution, in regard to the two powers, the legislative and 
 the executive, serves to confirm this inference. In the article which gives the 
 legislative powers of the government the expressions are, 'All legislative 
 powers herein granted shall be vested in a Congress of the United States.' 
 In that which grants the executive power, the expressions are, ' The execu- 
 tive power shall be vested in a President of the United States.' This enu- 
 meration ought, therefore, to be considered as intended merely to specify the 
 principal articles implied in the definition of executive power; leaving the 
 rest to flow from the general grant of that power, interpreted in conformity 
 with other parts of the Constitution, and with the principles of free govern- 
 
 1^ Infra, sec. 95. ' /
 
 156 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ment. The general doctrine of the Constitution then is, that the executive 
 power of the nation is vested in the President, subject only to the exceptions 
 and qualifications which are expressed in the instrument." ^^ 
 
 President Roosevelt affirmed belief in the same doctrine over a 
 century later in his autobiography:^^ 
 
 " I declined to adopt the view that what was imperatively necessary for 
 the Nation could not be done by the President unless he could find some 
 specific authorization to do it. My belief was that it was not only his right 
 but his duty to do anything that the needs of the Nation demanded unless 
 such action was forbidden by the Constitution or by the laws. Under this 
 interpretation of executive power I did and caused to be done many things 
 not previously done by the President and the heads of departments. I did 
 not usurp power, but I did greatly broaden the use of executive power. In 
 other words, I acted for the public welfare, I acted for the common well- 
 being of all our people, whenever and in whatever manner was necessary, 
 unless prevented by direct constitutional or legislative prohibition." 
 
 As an illustration of the exercise of power "not explicitly given me 
 by the Constitution " he cites the making and carrying out of the 
 executive agreement with San Domingo whereby he took over the 
 administration of her customs houses.^" 
 
 This view of executive authority has not been supported by 
 writers of a more legalistic temperament : 
 
 " The general grant of executive power to the President," says Goodnow, 
 " meant little except that the President was to be the authority in the govern- 
 ment that was to exercise the powers afterwards enumerated as his." ^i 
 
 " The true view of the Executive functions is," says President Taft, " as 
 I conceive it, that the President can exercise no power which cannot be 
 fairly and reasonably traced to some specific grant of power or justly implied 
 and included within such express grant as proper and necessary to its exer- 
 cise. Such specific grant must be either in the Federal Constitution or in an 
 act of Congress passed in pursuance thereof. There is no undefined residuum 
 of power which he can exercise because it seems to him to be of public in- 
 terest, and there is nothing in the Neagle case and its definition of a law of 
 the United States, or in other precedents, warranting such an inference." 
 
 18 Hamilton, in document quoted supra, sec. 78. 
 
 19 Roosevelt, Autobiography, pp. 388-389, 
 
 20 Op. cit., pp. 551-552. 
 
 21 Goodnow, op. cit., p. y^.
 
 INTERNATIONAL RESPONSIBILITIES. 157 
 
 Later President Taft attacks the Roosevelt doctrine on practical 
 grounds : 
 
 " My judgment is that the view of Mr. Garfield and Mr. Roosevelt ascrib- 
 ing an undefined residuum of power to the President is an unsafe doctrine 
 and that it might lead under emergencies to results of an arbitrary character, 
 doing irremediable injustice to private right. The mainspring of such a view 
 is that the Executive is charged with responsibility for the welfare of all 
 people in a general way, that he is to play the part of a Universal Providence 
 and set all things right and that anything that in his judgment will help the 
 people, he ought to do, unless he is expressly forbidden not to do it. The 
 wide field of action that this would give to the Executive one can hardly 
 limit." 22 
 
 93. President's Duty to Execute the Laws. 
 
 The responsibility of the President to " take care that the laws be 
 faithfully executed " was held in the Neagle case^^ to confer power 
 upon the President to authorize an individual to employ force for 
 the protection of a federal justice. Here again we seem to find 
 power derived from responsibility. If this doctrine were carried out 
 and as the court said in this case, the term " laws " includes not 
 only acts of congress and treaties but also " the rights, duties and 
 obligations growing out of . . , international relations," a most in- 
 admissible result would be reached. The President would be found 
 to have power to declare war, pay out money, reduce the military 
 establishment and perform all other acts necessary to meet interna- 
 tional responsibilities. We must agree with Willoughby^* that the 
 doctrine of the Neagle case is "justified only in exceptional circum- 
 stances " and " the obligation to take care that the laws of the United 
 States are faithfully executed, is an obligation but confers in itself 
 no powers. It is an obligation which is to be fulfilled by the exer- 
 cise of those powers which the Constitution and Congress have seen 
 fit to confer." The constitutional requirement in question means 
 that the President shall exercise his power as commander-in-chief to 
 
 22 Taft, op. cit., pp. 140, 144. See also Senatorial debate of 1831, quoted 
 Corwin, op. cit., p. 59. 
 
 23 /m re Neagle, 135 U. S. i. 
 
 24 Willoughby, op. cit., pp. 1155. But see Goodnow, op. cit., pp. 47, 75, 
 and Hamilton, quoted Corwin, op. cit., p. 15.
 
 1^8 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 move the forces, his power as head of the civil administration to 
 direct and instruct diplomatic, consular and other officers within 
 the scope of their powers as fixed by congress, his power to negotiate 
 treaties, his power to receive diplomatic officers and his other powers 
 given specifically by the Constitution or by congress in the manner 
 most appropriate to execute the laws, including international law 
 and treaties. It does not mean that he can supply means not pro- 
 vided by law or take measure not within the scope of his delegated 
 powers, however appropriate they might be for the meeting of inter- 
 national responsibilities. Within his recognized powers, however, 
 assuming the existence of the military, naval and civil organizations 
 as provided by congress, the President has power to meet many in- 
 ternational responsibilities without the aid of congress. 
 
 94. Power of Courts to Meet International Responsibilities. 
 
 The federal courts are obliged by the Constitution to apply 
 treaties as the supreme law of the land and have held that they 
 must apply international law in appropriate cases, though subsequent 
 express statutes will prevail in either case.~^ This, however, is an 
 obligation and not a power. The view taken by the courts in a 
 few early cases that from these duties they could derive jurisdiction 
 to enforce international law even by criminal punishments has not 
 prevailed.-*' The extension of federal judicial power by Article III 
 of the Constitution : 
 
 " to all cases, in law and Equity, arising under this Constitution, the Laws 
 of the United States, and Treaties made, or which shall be made under their 
 Authority; — to all Cases of admiralty and maritime jurisdiction; to contro- 
 versies to which the United States shall be a party ; and to controversies . . . 
 between a State or the Citizens thereof, and Foreign states. Citizens or 
 Subjects " 
 
 seems to give an opportunity for a full cooperation of the federal 
 courts in meeting international responsibilities. This jurisdiction, 
 however, with exception of the original jurisdiction of the Supreme 
 Court which includes cases afifecting diplomatic officers and consuls, 
 
 26 Infra, sees. 106-108. 
 ^^ Infra, sec. 129.
 
 INTERNATIONAL RESPONSIBILITIES. 159 
 
 is subject to regulation by congress. Thus in fact, aside from the 
 recourses offered diplomatic officers and consuls to the Supreme 
 Court, the federal courts can aid in the meeting of international re- 
 sponsibilities only in so far as congress has specifically conferred 
 jurisdiction upon them. Their jurisdiction has in fact been extended 
 to most of the cases described in the Constitution and their appli- 
 cation of international law and treaties, in prize cases, cases affecting 
 foreign sovereigns, diplomatic, military and naval officers, cases 
 affecting domiciled aliens, sojourning foreign vessels and others is 
 an effective means of meeting many international responsibilities. 
 Congress has defined a considerable number of crimes at interna- 
 tional law, such as piracy, offenses against neutrality, offenses 
 against foreign ministers and offenses against foreign currency, 
 which are made punishable by the federal courts.^^ 
 
 95. Power of Congress to Meet International Responsibilities. 
 
 Aside from the exercise of specific powers, such as the appro- 
 priation of money, the regulation of commerce, provision for the 
 punishment of piracies and offenses against the law of nations, 
 declaration of war, grant of letters of marque and reprisal, making 
 of rules concerning capture, maintenance and regulation of an army 
 and navy. Congress can " make all laws which shall be necessary 
 and proper for carrying into execution . . . all . . . powers vested 
 by this Constitution in the Government of the United States or in 
 any department or officer thereof." This clause unquestionably con- 
 fers power upon Congress sufficient to meet every possible inter- 
 national responsibility. Accepting the doctrine of the Supreme 
 Court that the exercise of sovereignty may be limited only by its 
 own consent,'* it follows that every international responsibility must 
 have originated in a constitutional exercise of power by some organ 
 of the national government, either through positive action or tacit 
 recognition. Thus responsibilities founded on treaty originate in a 
 
 2T/n/ra, sees. 113-118. 
 
 28 The Schooner Exchange v. McFaddon, 7 Cranch 116, quoted with ap- 
 proval in the Chinese Exclusion Cases, 130 U. S. 581 (1889). See also infra, 
 sec. 138.
 
 160 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 valid act of the treaty power, responsibilities founded on arbitral 
 decisions originate either in a valid act of the treaty power or of 
 the President, responsibilities founded on general international law 
 originate in the tacit acceptance of that law by the terms of the Con- 
 stitution"'' and by the President in continuing membership in the 
 family of nations, as evidenced through the continued exchange of 
 diplomatic officers.^'' In providing for carrying these powers into 
 execution, therefore, Congress would be providing for meeting the 
 international responsibilities they created. Thus if the President or 
 the Courts are unable properly to meet any international respon- 
 sibility it is not from a defect in the Constitution, but from failure 
 of Congress fully to exercise its powers under the "necessary and 
 proper " clause. Congress has in fact enacted many laws whose 
 purpose is the enforcement of international law and treaty. ^^ It has 
 never failed to make an appropriation when called for by treaty 
 and has often made appropriations to satisfy claims based on inter- 
 national law as determined by diplomatic correspondence or arbi- 
 tration.^^ 
 
 96. Power to Meet International Responsibilities by Treaty. 
 
 An international responsibility may occasionally require conclu- 
 sion of a treaty. Suffice it to say that the President, acting with 
 advice and consent of two-thirds of the senate, is authorized to make 
 treaties on all subjects suitable for international agreement.^^ 
 
 29Winoughby, op. cit., p. 1018, and Am. Jl. Int. Law, 2: 357. 
 30 Maine, Int. Law, pp. 37-38, quoted in Moore, Digest, i : 7. 
 ^'^ Infra, sees. 112-118. 
 ^~ Infra, sec. 149. 
 ^^ Infra, sec. 173.
 
 CHAPTER XI. 
 
 The Power to Meet International Responsibilities Through 
 THE Observance of International Law. 
 
 97. Conditions Favoring the Observance of International Law. 
 The responsibility of the nation for acts of government organs 
 
 imposes a duty upon every organ to abstain from action in violation 
 of international law or treaty. This responsibility will be met if 
 every independent organ of government is careful to exercise its dis- 
 cretionary power in accordance with this duty, consequently there 
 can be no question of the power of the government to meet this 
 responsibility. Is it probable that independent organs will recog- 
 nize international law, rather than national policy, as a proper guide 
 in the exercise of their powers? No organ is in fact wholly inde- 
 pendent. The government is a complex organization, the action of 
 each organ being to a certain extent influenced by that of others. 
 We may, therefore, investigate the conditions which tend to assure 
 the observance of international law and treaty by the various organs 
 of government in the present state of public law. 
 
 98. Observance of International Law by the States. 
 
 A state constitution or legislative provision in violation of cus- 
 tomary international law is valid unless in conflict with a Federal 
 constitutional provision or an act of Congress as would usually be 
 the case. However, it appeared in 1842 that the criminal laws of 
 New York made no exception in favor of persons entitled to im- 
 munity under international law and the United States had no means 
 of relieving Alexander McLeod from the operation of those laws, al- 
 though the Secretary of State admitted the responsibility to do so 
 under international law. Congress has power to pass legislation assur- 
 ing respect for international law by the states and such legislation was 
 passed soon after this incident.^ If a state law disregards a treaty 
 
 lAct of Aug. 29, 1842, Rev. Stat., sec. 753, See Moore, Digest, 2 : 24-30. 
 
 161
 
 162 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 it is void. The courts both federal and state are obhged to apply 
 treaties "anything in the Constitution or Laws of any State to the 
 Contrary notwithstanding." ^ Thus state confiscation acts were held 
 void as in violation of the treaty of peace with Great Britain of 1783 
 and many other state statutes discriminating against aliens have been 
 similarly invalidated.' 
 
 99. Observance of International Law by the Constitution. 
 
 If the Constitution proves in any respect in violation of inter- 
 national law there is no recourse except to the amending process, 
 but in view of the generality of its provisions, a conflict, incapable 
 of reconciliation by interpretation, is not likely to occur. The courts 
 have held that they must interpret the Constitution in accord with 
 international law if possible and thus have protected the immunities 
 of diplomatic officers against the constitutional clause guaranteeing 
 the accused a right "to have compulsory process for obtaining wit- 
 nesses in his favor."* The i8th amendment has been held to permit 
 the customary exemption from search of the baggage of diplomatic 
 officers. 
 
 100. Observance of International Law by Congress. 
 
 The observance of international law and treaty by Congress de- 
 pends upon the discretion of that body. An act of Congress if con- 
 stitutional is valid within the United States even though in direct 
 violation of international law or treaty as was illustrated by the Chi- 
 nese exclusion act of 1888. 
 
 "It must be conceded," said the Supreme Court, "that the act of 1888 
 is in contravention of express stipulations of the treaty of 1868 and of the 
 supplemental treaty of 1880, but it is not on that account invalid or to be 
 
 2 U. S. Constitution, Art. VI, sec. 2. 
 
 3 Ware v. Hylton, 3 Dall. 199. On this case see Crandall, op. cit., 
 pp. 154-160. H. Sf. George Tucker, Limitations of the Treaty Making 
 Power, Boston, 1915, has been led by what J. B. Moore calls an "appre- 
 hensive" interpretation of the Constitution (Pol. Sci. Quar., 32: 320) to 
 take a novel view of this case. Crandall, loc. cit., effectively deals with this 
 interpretation. See also infra, sec. 50. 
 
 * See cases of Dubois and Comancho, Moore, Digest, 4 : 643-645 ; 
 Wright, Am. Jl. Int. Law, 11: 5; and supra, sec. 45.
 
 OBSERVANCE OF INTERNATIONAL LAW. 163 
 
 restricted in its enforcement'. . . . The question whether our government 
 was justified in disregarding its engagements with another nation is not one 
 for the determination of tlie courts. . . . The court is not the censor of the 
 morals of the other departments of the Government." ^ 
 
 In spite of the protests of China, the act remained in effect. The 
 same was true of the act of Congress exempting American vessels 
 from tolls in the use of the Panama Canal. Great Britain consid- 
 ered the act in disregard of the Hay-Pauncefote treaty but it re- 
 mained effective until repealed by Congress itself, at the solicita- 
 tion of President Wilson whose judgment " very fully considered 
 and maturely formed " found it " in plain contravention of the 
 treaty." « 
 
 Congress has sometimes made express exception from the oper- 
 ation of statutes out of deference to international law. Thus, the 
 various acts describing rules of navigation " shall not be construed 
 as applying to ships of war or to government ships." '^ The se- 
 lective draft act of 1917 as amended August 31, 1918, exempted for- 
 eign consular and diplomatic officers from registration and resident 
 aliens except declarants of co-belligerent nationality from service.' 
 The Supreme Court is given only such jurisdiction of cases against 
 foreign diplomatic officers " as a court of law can have consistently 
 with the law of nations."^ An act of 1790 expressly exempts resi- 
 dent " pul)lic ministers," their " domestics and domestic servants " 
 and their " goods and chattels " from all legal process,^" and an act 
 of 1888 excepts " the ownership of legations, or the ownership of 
 residences by representatives of foreign governments or attaches, 
 thereof " from the general law prohibiting alien landholding in the 
 District of Columbia.^^ Frequently Congress has shown respect for 
 treaties by excepting persons entitled to treaty privileges from the 
 operation of statutes or by making the operation of the statute de- 
 
 5 Chinese Exclusion Cases, 130 U. S. 581 (1889). 
 ^Message, March 5, 1914, Cong. Rec, 51: 4313. 
 
 7 Act Aug. I. 1912, sec. 5, 27 Stat. 242, Comp. Stat., sec. 7994. 
 
 8 Acts July 9, 1918, and Aug. 31, 1918, amending act May 18, 1917, sees. 
 4, 5, Comp. Stat., sec. 2044b, e. 
 
 oRev. Stat., 687, Judicial Code of 191 1, sec. 233, 36 Stat., 1156, Comp. 
 Stat., sec. 1210. 
 
 10 Rev. Stat., 4063, Comp. Stat., 761 1. 
 
 " Act March 9, 1888, 25 Stat. 45, Comp. Stat., sec. 3501.
 
 164 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 pendent upon denunciation of the treaty according to its own terms. 
 Thus certain provisions of the La Follette seaman's act were to re- 
 main in abeyance until conflicting treaties should be properly ter- 
 minated ^^ and acts of Congress for the restoration of captured 
 prizes/^ for the imposition of discriminatory tariffs or import pro- 
 hibitions" and for levying tonnage duties^^ and for prohibiting 
 alien landholding in the territories and the District of Columbia^® 
 were not to apply in conflict with existing treaties. 
 
 loi. Checks upon Congressional Disregard of International Law. 
 
 Although disregard of international law and treaty by Congress 
 is prevented primarily by that body's own sense of international re- 
 sponsibility, the Constitution does provide certain checks against 
 such disregard. The treaty-making power may conclude a treaty or 
 provide for an arbitration either of which would supersede an ear- 
 Her act of Congress. Thus the act of Congress of 1889 as judi- 
 cially interpreted extended American jurisdiction in Behring Sea, 
 one hundred Italian miles from shore, in disregard of the principle 
 of international law limiting maritime jurisdiction to the marine 
 league. This act was held to be superseded by the arbitration based 
 on a treaty with Great Britain of 1892.^'^ 
 
 The President's veto has proved a check upon congressional dis- 
 regard of international responsibilities. Since the President feels 
 the pressure of foreign nations he is likely to be more sensitive to 
 violations of international law than the houses of Congress. Thus 
 President Hayes vetoed the first Chinese exclusion bill as in viola- 
 tion of the Burlingame treaty of 1868. After explaining some con- 
 
 12 Act March 4, 1915, 38 Stat. 1184, sees. 16, 17; Comp. Stat., sec. 
 8382a, b. 
 
 ^3 Rev. Stat., sec. 4652 ; Comp. Stat., sec. 8426. 
 
 ^* Underwood tariff, Oct. 3, 1913, sec. IV, j, sub. sees, i, 2, 7; 38 Stat. 
 19s, 196; Comp. Stat., 5305, 5306, 531 1. According to sec. IV, b, 38 Stat. 192, 
 the Cuban reciprocity treaty of 1902 was unaffected by the tariff. 
 
 15 Rev. Stat., sec. 4227; Comp. Stat., sec. 7820. 
 
 16 Act March 3, 1887, 24 Stat. 476, March 2, 1897, 29 Stat. 618, Comp. 
 Stat., sees. 3490, 3498. 
 
 i^La Ninfa, 75 Fed. 513, 1896.
 
 OBSERVANCE OF INTERNATIONAL LAW. 165 
 
 stitutional objections to the act he referred to the " more general 
 considerations of interest and duty which sacredly guard the faith 
 of the nation, in whatever form of obligation it may have been 
 given," and concluded " in asking the renewed attention of Congress 
 to this bill, I am persuadad that their action will maintain the public 
 duty and the public honor." ^^ President Arthur vetoed the second 
 Chinese exclusion bill for similar reasons.^^ The President may 
 also use his powers of persuasion upon Congress to cause the re- 
 peal of an act in disregard of international law or treaty as did 
 President Wilson with success in the Panama Canal tolls contro- 
 versy. ^° 
 
 The courts are bound by acts of Congress, but said Chief Jus- 
 tice Marshall, " an act of Congress ought never to be construed to 
 violate the law of nations if any other possible construction re- 
 mains." -^ With this principle Marshall construed the broad juris- 
 diction over ofifenses at sea conferred by various acts of Congress 
 as confined to American vessels or vessels within American juris- 
 diction as defined by international law.'^ It seems that the court 
 neglected an opportunity to apply this principle in the Behring Sea 
 cases of 1887, a neglect which may have been partly responsible for 
 the expensive and futile arbitration later entered into.^^ In the case 
 of American Banana Co. v. United Fruit Co., however, the supreme 
 court applied the principle by interpreting the Sherman Anti-Trust 
 Act, though general in terms, as applying only within the jurisdic- 
 tion of the United States as defined by international law 
 
 24 
 
 18 Richardson, op. cit., 7: 519-520. 
 
 I'' Message, April 4, 1882, ibid., 8: 112. 
 
 20 Supra, note 6. 
 
 21 Murray v. The Charming Betsey, 2 Cranch 64, 118, 1804. 
 
 22 U. S. z: Palmer, 3 Wheat. 610, 1818; U. S. v. Pirates, U. S. v. 
 Klintock, U. S. v. Holmes, 5 Wheat. 144, 152, 184, 200, 412, 1820. 
 
 23 Infra, sec. 107. 
 
 2* "All legislation is prima facie territorial, words having universal 
 scope, such as every contract in restraint of trade, . . . will be taken as a 
 matter of course to mean only every one subject to such legislation, not all 
 that the legislator may subsequently be able to catch." American Banana 
 Co. 7'. United Fruit Co., 219 U. S. 347, 1909. See also Sandberg v. 
 McDonald, 248 U. S. 185, Am. Jl. Int. Law, 13: 339.
 
 166 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 102. Observance of International Law by the Treaty-making Power. 
 The President and Senate ought not to make treaties in disre- 
 gard of the rights of third states under international law or earlier 
 treaties and have not often done so. Frequently treaties have ex- 
 pressly excepted the rights of third states under existing treaties or 
 general international law. Thus the Hague Conventions on war 
 and neutrality by their own terms " do not apply except between 
 contracting powers and then only if all the belligerents are parties 
 to the Convention.'' ^^ American arbitration treaties have usually 
 excepted from the scope of obligatory arbitration cases " concerning 
 the interests of third parties " and Article 25 of the Jay treaty with 
 Great Britain of 1794 expressly provided that " nothing in this treaty 
 contained shall ... be construed or operate contrary to former and 
 existing public treaties with other sovereigns or states." If there is 
 a conflict, however, the later treaty is valid as municipal law until 
 superseded by another treaty or an act of Congress. ^^ 
 
 But, as in the case of acts of Congress, courts attempt to con- 
 strue treaties in accord with the rights of third states. Thus they 
 gave a very narrow construction to the special privileges in Amer- 
 ican ports given to French privateers and war vessels by the 
 treaty of 1778, out of respect for the British right to demand from 
 a neutral state impartiality in regulating the use of its ports.^^ 
 
 103. Observance of International Law by the President. 
 
 The President might recognize a state or government or an ac- 
 quisition of territory in disregard of international law, or proclaim 
 neutrality in desregard of a treaty of alliance or wrongfully inter- 
 vene in a foreign state, and his act would be followed by the 
 courts.^^ There is no guarantee that the President will exercise his 
 discretionary powers in accord with international law and treaty, 
 
 25 See also League of Nations Covenant, Art. 20. 
 
 26 Belcher v. Darrell, Fed. Cas. 1607, 1795 ; The Phoebe Ann, 3 Dall. 
 .319- See also Wright, Conflicts between International Law and Treaties, 
 Am. Jl. Int. Law, 11: 566 et seq. (July, 1917). 
 
 27 The Phoebe Ann, supra. Wright, op. cit., pp. 574-5 ; Moore, Digest, 
 S: 591-598. 
 
 ^^ Infra, sec. 107.
 
 OBSERVANCE OF INTERNATIONAL LAW. 167 
 
 except his own sense of international responsibility and a fear of a 
 possible impeachment.^^ Congress has passed laws defining and 
 limiting the purposes for which the army, navy and militia may be 
 used, but the validity of such legislation, except as applied to the 
 militia, has been questioned.^" 
 
 104. Observance of International Law by Military and Civil Ser- 
 vices. 
 
 Usually, however, the President is obliged to act through serv- 
 ices which are subject to control by acts of Congress and judicial 
 processes. Congress has provided for the organization of the 
 diplomatic, consular, naval, military and administrative services 
 but has not generally attempted to regulate their conduct in detail. 
 A few statutory regulations are designed to assure observance of 
 international law by public officers of which may be mentioned that 
 forbidding ministers to give information relating to the affairs of 
 the foreign state to which they are accredited except to the De- 
 partment of State,^^ that forbidding administrative officers from 
 serving process on resident diplomatic officers and others entitled to 
 immunity under international law,^^ that forbidding the injury or 
 destruction of prizes or maltreatment of those on board by naval 
 forces,^^ and that requiring the restoration of recaptured prizes 
 originally the property of neutral individuals on the principle of 
 reciprocity.^* 
 
 These services are regulated in detail by executive regulations 
 and instructions, which, though issued by and subject to alteration 
 by the President, in fact furnish a fairly permanent law for their 
 guidance. These regulations have usually enjoined a strict ob- 
 
 29 Impeachment' lies for moral and political offenses as well as crimes in 
 the legal sense. Willoughby, op. cxt., p. 1124. See also Corwin, John Mar- 
 shall and the Constitution, p. 78. 
 
 20 Infra, sec. 125. 
 
 31 Act Aug. 18, 1850, Rev. Stat., sec. 1751. 
 
 32 Rev. Stat., sec. 4063, Comp. Stat., sec. 7611. 
 
 33 Articles for Government of the Navy, Rev. Stat., sec. 1624, Arts. 6, 11, 
 12. See also Rev. Stat., sec. 4617, Comp. Stat., sec. 8397, and Wright, En- 
 forcement of International Law through Municipal L^w, pp. 183 et seq. 
 
 34 Rev. Stat., sec. 4652, Comp. Stat'., sec. 8426.
 
 168 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 servance of international law and treaty. The " Diplomatic In- 
 structions," " Consular Regulations," " Rules of Naval Warfare " 
 and " Rules of Land Warfare," each a volume officially issued from 
 time to time, are largely codifications of international law and treaty 
 provisions.^'^ The permanent army regulations forbid armed forces 
 passing into foreign territory without license, and army officers 
 are required to observe proper formalities in dealing with the rep- 
 resentatives of foreign governments.^*' The permanent navy regu- 
 lations require naval commanders " scrupulously to respect the 
 territorial authority of foreign civilized nations in amity with the 
 United States," to observe local regulations on entering foreign 
 jurisdiction, to exchange the proper salutes when meeting foreign 
 public vessels, to refuse asylum to criminals, slaves and political 
 refugees while in foreign ports, to observe strict neutrality in wars 
 to which the United States is not a party, and " when the United 
 States is at war, the Commander-in-Chief shall require all under 
 his command to observe the rules of humane warfare and the 
 principles of international law." ^^ Treasury regulations have re- 
 quired customs officials to respect the immunities of diplomatic 
 officers.^* 
 
 The diplomatic and consular regulations are enforced by the 
 President's disciplinary control and power of removal and by statu- 
 tory provisions for bonding and criminal liability enforced by the 
 courts.^'' Military and naval regulations and instructions are en- 
 forced by courts martial whose jurisdiction, however, is largely con- 
 fined to the statutory articles of war, and by military commissions.*" 
 
 " See Wright, op. cit., p. 68. 
 
 38 Army Regulations, 1913, sees. 398, 407, 889, ch. 3; Digest of Opinions 
 of Judge Ad. Gen., 1912, Howland ed., pp. 90, 106. 
 
 37 Navy Regulations, 1913, sees. 1502, 1633-35, 1645-47. Naval com- 
 manders are allowed some discretion under these regulations. See note at 
 head of Chap. 15, Navy Reg., 1913, p. 159, r. For case in vi^hich Navy 
 regulations were enforced against a commander see Moore, Digest, i : 240 
 241. See Wright, op. cit., 68, 126, 177, 213. 
 
 38 Moore, Digest, 4 : 676. 
 
 39 Wright, op. at., p. 69. 
 
 40 Navy, see Rev. Stat., sec. 1624, Arts. 22, 24, 26, 38, and Wright, 
 op. cit., p. 68, 177. Army, see Rev. Stat. sees. 1342-1343, Lieber's Instructions, 
 Gen. Ord. 100, 1863, art. 13; Digest of Opinions of Judge Ad. Gen. 1912, p. 
 1067; Wright, op. cit., p. 210.
 
 OBSERVANCE OF INTERNATIONAL LAW. 169 
 
 The federal courts, in exercising prize jurisdiction, exercise a con- 
 siderable control over the navy in time of war. They not only 
 return captured vessels and cargoes not liable to condemnation 
 under international law,*^ but decree damages against naval officers 
 for illegal captures. ^^ They exercise a similar jurisdiction over 
 captured vessels in time of peace, and may thus prevent illegal 
 seizures upon the high seas or in foreign territorial waters by vessels 
 of the navy or revenue cutter service.'*^ In such cases, however, 
 the courts sometimes refuse relief on the ground that the question 
 is political."'* Although the courts exercise less control of the army 
 than of the navy in time of war, yet they may give relief in case mili- 
 tary action violates property rights protected by international law. 
 Thus in Mitchell v. Harmony*^ the court applied international law to 
 determine the right of military officers to confiscate enemy property 
 in the occupied territory of Mexico and in Brown v. the United 
 States** the court refused to confiscate enemy property in American 
 territory holding that international law regarded such confiscation 
 with disfavor and the court could not permit it unless authorized 
 by an express act of Congress. In other cases the courts have held 
 that the President's power in conducting war is limited by interna- 
 tional law and any action he may authorize contrary to that law is 
 void. Congress alone can authorize military methods conflicting 
 with international law and as we have seen the courts will not 
 presume such a conflict.*'^ 
 
 "The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677. 
 
 *2 Little V. Barreme, 2 Cranch 170. 
 
 *3 La Jeune Eugenie, 2 Mason 409, 1822; Rose v. Himeley, 4 Cranch 241; 
 Hudson V. Guestier, 6 Cranch 281, 1810; The Marianna Flora, 11 Wheat. I, 
 1826; The Antelope, 10 Wheat. 66, 122, 1825; La Ninfa, 75 Fed. 513, 1896. 
 
 44 Ship Richmond v. U. S., 9 Cranch 102, 104, 1815; Davisson v. Seal- 
 skins, 2 Paine 324; Moore, Digest, 2: 364-365, and supra, sec. 107. 
 
 45 Mitchell V. Harmony, 13 How. 115. 
 
 48 Brown v. U. S., 8 Cranch no. See also McVeigh v. U. S., 11 Wall. 
 259, 1870, in which the court relaxed the rule which permits an alien enemy 
 no status in court and permitted him to defend, and Wright, Am. Jl. Int. Law, 
 II : 19. 
 
 47^ Mitchell V. Harmony, 13 How. 115; Miller v. U. S., 11 Wall. 268; 
 Fleming v. Page, 9 How. 603; Willoughby, op. cit., p. 1196, says: "With 
 respect to the persons and property of the enemy, however, he (the military
 
 170 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 105. Observance of International Law by the Courts. 
 
 Judicial action may give grounds for international complaint in 
 case justice is denied to aliens by the courts in civil or criminal 
 trials and in case international law or treaty are not applied in cases 
 affecting aliens or foreign governments.*^ The guarantees of " due 
 process of law" to all persons in the United States by the Vth and 
 XlVth amendments are applicable respectively against the national 
 and state governments, and in both federal and state courts. To- 
 gether with other more specific constitutional guarantees relating 
 especially to criminal trials, they seem to assure aliens a procedure 
 and an absence of unreasonable discrimination in the law applied, 
 sufficient to prevent a '* denial of justice " as understood in inter- 
 national law. 
 
 However, the alien may feel greater confidence in federal than 
 in state courts because of the decreased chance of local prejudice. 
 Under present statutes he is entitled to bring action against citizens 
 in civil cases in the federal district court if over $3,000 is in contro- 
 versy or if " for tort, only in violation of the laws of nations or of 
 a treaty of the United States."*'' Ambassadors and consuls of 
 foreign governments are entitled to bring suits originally in the 
 Supreme Court, though they may also sue in the state courts. They 
 may be sued, however, only in the federal courts, and diplomatic 
 officers only in the Supreme Court and then only so far as the law 
 of nations permits.^" 
 
 commander) is subject only to the limitations which the laws of war, as 
 determined by international usage, supply, and for violations of these he 
 is. responsible only to the military tribunals." But on page 1212 he says: 
 " Indeed, the President, in the exercise simply of his authority as commander- 
 in-chief of the army and navy, may, unless prohibited by congressional stat- 
 ute, commit or authorize acts not warranted by commonly received principles 
 of international law." Sutherland, however (op. cit., p. yy), says: "The 
 usages and laws of war alone, and not the Constitution of the United 
 States, fix the limits " of the President's authority in conducting military op- 
 erations. See also British case of the Zamora, L. R. 1916, 2 A. C. 77, 
 holding an order in council contrary to international law void; Wright, Am. 
 Jl. Int. Laiv, 11:2, and supra, sec. 47. 
 
 *^ Borchard, op. cit., p. 335. 
 
 4» Judicial code of 191 1, sec. 24, pars, i, 17, 36 Stat. 1091, 1093. 
 
 ^° Ibid., sec. 24, par. 18, sec. 233 ; sec. 256, par. 8.
 
 OBSERVANCE OF INTERNATIONAL LAW. 171 
 
 Any alien not resident in the state may have an action brought 
 against him in a state court, removed to a federal district court if 
 it is of a type which might have originated in that court. If 
 " from prejudice or local influence he will not be able to obtain 
 justice " in the state court, he may have any suit removed.^^ Any 
 alien may also have the case removed : 
 
 " In any civil suit or criminal prosecution commenced in any State 
 court for any cause whatsoever," if he " is denied or can not enforce in the 
 judicial tribunals of the State, or in the part of the State where such suit 
 or prosecution is pending, any right secured to him by any law providing 
 for the equal civil rights ... of all persons within the jurisdiction of the 
 United States." ^2 
 
 Finally, any person who can show a federal court under habeas 
 corpus that he is entitled to immunity under international law or 
 treaty may be released from the state court. ^^ 
 
 io6. Courts Apply International Law and Treaties as Part of the 
 Law of the Land. 
 
 The courts regard international law as part of the law of the 
 land and apply it in suitable cases. 
 
 " International law," said Justice Gray, " is a part of our law, and 
 must be ascertained and administered by the courts of justice of appropriate 
 jurisdiction, as often as questions of right depending upon it are duly pre- 
 sented for their determination. For this purpose, where there is no treaty, 
 and no controlling executive or legislative act or judicial decision, resort 
 must be had to the customs and usages of civilized nations ; and, as evidence 
 of these, to the works of jurists and commentators, who, by years of 
 labor, research, and experience, have made themselves peculiarly well ac- 
 quainted with the subjects of which they treat. Such words are resorted to 
 by judicial tribunals, not for the speculations of their authors concerning 
 what the law ought to be, but for trustworthy evidence of what the law 
 really is." '* 
 
 This principle has been applied in admiralty and prize cases ; ^^ in 
 cases involving the immunities of sovereigns, diplomatic officers, 
 
 5^ Ibid., sec. 28. 
 ^^2 Ibid., sec. 31. 
 ^'^ Supra, note i. 
 
 5* The Paquette Habana, 175 U. S. 677. See also Willoughby, op cit., 
 1014-1018. 
 
 ^^ Ibid., and also The Nereide, 9 Cranch 388.
 
 1~2 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 public vessels, military persons, consuls, etc. ; ^^ in cases involving 
 the limits of jurisdiction, especially in boundary rivers, bays, etc. ; ^'^ 
 in cases involving the status of aliens and especially alien enemies ; ^* 
 in cases involving the rights of persons in newly acquired terri- 
 tory ; ^^ and in cases involving the privileges and responsibilities of 
 neutrality, war and insurgency.^" Under the terms of Article VI 
 of the Constitution treaties are the supreme law of the land and 
 after proclamation are applicable by all courts, state and federal. 
 
 107. This Principle not Applicable to Political Questions. 
 
 The principle, however, that courts apply international law 
 and treaty in appropriate cases is subject to certain modifications. 
 Thus if the controversy involves "a political question" the courts 
 hold that they must follow the decision of the political organs, ir- 
 respective of international law and treaty. ^^ But no definite line 
 has ever been drawn between principles of international law and 
 treaty provisions which are of a political character and those which 
 are of a legal character. In such matters as the annexation 
 or cession of territory,"^ the recognition of insurgency,*'^ belliger- 
 ency,*'* new governments,^^ new states,*'^ the termination of treaties,®^ 
 
 5^ The Exchange v. McFaddon, 7 Cranch 116; Underhill v. Hernandez, 
 168 U. S. 250. 
 
 °^ The AppoUon, 9 Wheat'. 362. 
 
 58 McVeigh V. U. S., 11 Wall. 259, 1870; Watts v. Unione Austriaca de 
 Navigazione, 248 U, S. 9 (1918). 
 
 ^''U. S. V. Percheman, 7 Pet. 51; Villas v. City of Manila, 220 U. S. 345, 
 1911. 
 
 "o The Santissima Trinidad, 7 Wheat. 283; The Three Friends, 166 LI. S. 
 i; The Appam, 27 Sup. Ct. 337- 
 
 «i Crandall, op. cit., 364-370; Willoughby, op. cit., 999-1011; Moore, Di- 
 gest, 1 : 245, 744. 
 
 02 Jones V. U. S., 137 U. S. 202, 212-213, 1890; Williams z'. Suffolk In- 
 surance Co., 13 Pet. 415; Foster v. Neilson, 2 Pet. 253; In re Cooper, 138 
 U. S. 404; U. S. V. Reynes, 9 How. 127. 
 
 03 The Three Friends, 116 U. S. i, 63, 1897; Kennett v. Chambers, 14 
 How. 38. 
 
 «*U. S. V. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat'. 52; 
 The Santissima Trinidad, 7 Wheat. 283; The Prize Cases, 2 Black 635. 
 
 "^The Sapphire, 11 Wall. 164, 1870, Oetjen v. Central Leather Co., 246 
 U. S. 297, 1917, Ricaud v. American Metal Co., 246 U. S. 304, 1917. The 
 recognition of a particular person as diplomatic representative of a foreign 
 government is also a political question, Ex parte Baiz, 135 U. S. 403.
 
 OBSERVANCE OF INTERNATIONAL LAW. 173 
 
 and of war/^ the courts ordinarily follow the decisions of the politi- 
 cal organs. Sometimes, however, no definite decision has been 
 given by those organs. In such cases, the courts, holding that they 
 " have no more right to decline the jurisdiction which is given than 
 to usurp that which is not given," ^^ have investigated facts and 
 international law giving a decision thereon, always attempting, but 
 sometimes without complete success, to avoid decision on questions 
 of policy. Thus the Supreme Court decided upon the status of 
 Pine Island near Cuba and upon the status of Cuban insurgents in 
 1896 on the basis of international law, generally known facts and 
 various rather indefinite statements in executive proclamations and 
 correspondence.'''' Very often international law is utilized by the 
 courts to buttress opinions founded primarily on decisions by the 
 political organs of government. Thus the Supreme Court not only 
 held that the United States had taken possession of the island of 
 Navassa by executive proclamation under an act of Congress but that 
 under international law it was entitled to do so on the principle of dis- 
 covery and occupation.''^ Where international questions, even if of 
 political significance, are susceptible of exact determination by appli- 
 cation of international law the courts do not hesitate to settle them. 
 Prize cases are of this kind, so also arc cases involving the im- 
 munities of sovereigns, diplomatic officers and public vessels.''^ 
 
 ««The Nereide, 9 Cranch 388, 1815; Cherokee Nation v. Georgia, 5 Pet. 
 I ; Neeley v. Henkel, 180 U. S. 109, 1901. 
 
 67 Doe V. Braden, 16 How. 635; Terlinden v. Ames, 184 U. S. 270; 
 Willoughby, op. cit., 1007, infra, sec. 182. 
 
 68 The Protector, 12 Wall. 700, 1871. 
 
 69 /n re Cooper, 143 U. S. 472, 502-505, 1892; Moore, Digest, i : 744, infra, 
 sec. 247. 
 
 ' Pearcy v. Stranahan, 205 U. S. 257 (1907); The Three Friends, 166 
 
 U. S. I. 
 
 ^1 Jones V. U. S., 137 U. S. 202, 212. The British court of Queens Bench 
 (Mighell V. Sultan of Johore, 1894, i Q. B. 149, 158), however, thought the 
 opinion of the appropriate political department incapable of examination and 
 questioned the course pursued by Sir Robert Phillimore in the Charkieh 
 (L. R. 4 A. and E., 59, 1873), in examining the history of Egypt since A. D, 
 638 to determine its status. See A. D. McNair, Judicial Recognition of States 
 and Governments, British Year Book of International Law, 2 : 57, 66. 
 
 72 Supra, sec. 106.
 
 174 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 It seems that far from encroaching upon powers of the political 
 departments of government the courts have if anything been over- 
 cautious. It would seem that a decision founded squarely upon 
 international law might well have been given in the first Behring 
 Sea cases, and had such been done the United States might have 
 avoided the expense of a protracted litigation and arbitration where 
 from the first there was no reasonable legal defense. An act of 
 1868^^ had forbidden the killing of " otter, mink, marten, or fur- 
 seal, or other fur-bearing animal, within the limits of Alaska terri- 
 tory, or in the waters thereof." The Treasury Department in enforc- 
 ing this provision acted upon a claim asserted by Russia in 1821 to 
 a jurisdiction beyond the three-mile limit in Behring Sea,'^* but 
 when the question of definition came before Congress a bill de- 
 finitely approving the extended jurisdiction was not passed, the act 
 of 1889 merely asserting that the earlier statute should " include and 
 apply to all the dominions of the United States in the waters of 
 Behring Sea," thus leaving open the question of the extent of these 
 waters. '^^ The district court in Alaska, however, affirmed by the 
 Supreme Court, held that the political departments had decided for 
 the wider jurisdiction and that Canadian vessels captured while seal 
 fishing sixty miles from shore were liable.^" It would seem that 
 under the circumstances, the courts might well have held the 
 statutes to imply an invitation for judicial decision based on inter- 
 national law. After the arbitration of 1893 had declared unequivo- 
 cally for the three-mile limit, the Circuit Court of Appeals held that 
 the act of 1889 must be interpreted accordingly.'^^ 
 
 108. This Principle not Applicable to Cases Covered by Written 
 Law. 
 
 Apart from political questions courts are bound by plain terms 
 of the Constitution, by treaties, by acts of Congress, and by executive 
 
 73 Act June 17, 1868, Rev. Stat., sec. 1856. 
 
 7* Moore, Int. Arb., p. 769. 
 
 75 Act March 2, 1889, 25 Stat. 1099; Moore, Int. Arb., p. 765. 
 
 7« U. S. V. La Ninfa, 49 Fed. 575, 1891 ; In re Cooper, 143 U. S. 472, 
 502-505. 
 
 77 U. S. V. La Ninfa, 75 Fed. 513. As a result of the arbitration the 
 United States paid Great Britain $473,151.26 as indemnity for the seizures. 
 See Moore, Digest, i : 890-929, and Int. Arb., pp. 765-960.
 
 OBSERVANCE OF INTERNATIONAL LAW. 175 
 
 orders under autliority thereof, in spite of principles of interna- 
 tional law and earlier treaties. They, however, attempt to inter- 
 pret such documents in accord with international law, frequently 
 with success,^® and they refuse to apply state constitutions and 
 statutes in conflict with treaty .'^^ 
 
 In general the courts do apply international law and treaty, and 
 because of the opportunity for a careful consideration of the sources 
 and reason of that law which their deliberate methods afford, they 
 assure the application of international law in cases not covered by 
 written law. Through their powers of nullifying state laws in con- 
 flict with treaty and of interpreting acts of Congress and of the 
 President, they minimize the probability of disregard by other 
 organs of the government. 
 
 ■^8 Murray v. The Charming Betsey, 2 Cranch 64, and see Wright, Con- 
 flicts of International Law with National Laws and Ordinances, Am. Jl. 
 Int. Law, 11: I et seq. (Jan., 1917). 
 
 ''^ Ware v, Hylton, 3 Dall. 199, and supra, note 3.
 
 CHAPTER XII. 
 
 The Power to Meet International Responsibilities through 
 THE Enforcement of International Law. 
 
 109. "Due Diligence." 
 
 The responsibility of the nation for acts or omissions of individ- 
 uals within its jurisdiction requires all organs of government to use 
 " due diligence " to preserve order and to prevent violations of 
 international law and treaty by persons within its jurisdiction. 
 While the responsibility discussed in the preceding chapter relates 
 only to the conduct of public officials and hence will be met if 
 officials consistently observe the limitations prescribed for them 
 by international law and treaties in exercising their powers, this 
 responsibility relates primarily to the conduct of private individuals. 
 The conduct of public officials is, however, indirectly involved, inas- 
 much as the nation will be responsible if they neglect proper meas- 
 ures to compel individuals within their jurisdiction to observe these 
 limitations. The government is supposed to enforce law and main- 
 tain order with reasonable efficiency within its jurisdiction and is 
 responsible for failure to do so. A lack of "due diligence" is 
 the expression used to describe the degree of negligence which 
 justifies a claim founded on failure to meet this responsibility. 
 
 While it is the judicial and executive organs of government 
 which operate directly on individuals, often these organs must be 
 authorized to act by legislation or treaty. Consequently any of 
 the departments may be obliged to exercise their powers if this 
 responsibility is to be met. The decision of the Geneva Arbitra- 
 tion Tribunal in the Alabama Claims case made this point clear. 
 " The Government of Her Britannic Majesty," said the court, "can- 
 not justify itself for a failure in due diligence on pleas of in- 
 sufficiency of the legal means of action which it possesses."^ 
 
 1 Malloy, Treaties, p. 719. 
 
 176
 
 ENFORCEMENT OF INTERNATIONAL LAW. 177 
 
 Defining due diligence the Tribunal said : ^ 
 
 " The due diligence referred to in the first and third of the said rules (of 
 Article V of the Treaty of Washington) ought to be exercised by a neutral 
 government in exact proportion to the risks to which either of the belligerents 
 may be exposed from a failure to fulfill the obligations of neutrality on 
 their part." 
 
 The XIII Hague Convention of 1907 in Articles 8 and 25 practically' 
 repeated the first and third rules of the treaty of Washington but 
 substituted the phrase " means at its disposal " for "due diligence." 
 The drafting committee of the Hague Convention merely noted 
 that " The expression due diligence, which has become celebrated 
 by its obscurity, since its solemn interpretation, has been omitted." ' 
 Apparently no essential difference in meaning was intended. 
 " Means at its disposal " do not mean merely those provided by 
 existing legislation but those which the legislature ought to provide. 
 In spite of the committee's disparaging remark, the term " due 
 diligence " has continued in usage.* 
 
 no. Enforcement by the States. 
 
 The states retain full power of criminal legislation except as 
 expressly or impliedly limited by the federal Constitution. Before 
 the Constitution the states' powers in this regard were almost ex- 
 clusive and Congress urged them to provide for the punishment of 
 offenses against the law of nations. In 1784 the court of oyer and 
 terminer of Philadelphia found one DeLongchamps guilty of " a 
 crime against the whole world " for committing an assault upon the 
 Secretary of the French legation.^ The court declared the person 
 of a public minister and his " comites " or household " sacred and 
 inviolable." " Whoever," said the court, " offers any violence to 
 him not only affronts the sovereign he represents but also hurts 
 the common safety and well-being of nations." The court found 
 difficulty in awarding sentence and finally concluded " the defend- 
 ant cannot be imprisoned until his most Christian Majesty 
 
 ^ Ibid., p. 718; Moore, Int. Arb., p 4082. 
 
 3 Scott, ed., Reports of Hague Conferences, p. 845. 
 
 * Borchard, op. cit., p. 278. 
 
 '^ Res Publica v. DeLongchamps, i Dall. Ill ; Moore, Digest, 4 : 622.
 
 178 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 shall declare that the reparation is satisfactory." Apparently a de 
 facto incarceration without formal sentence of imprisonment, which 
 if given at all would have to be "certain and definite," seemed the 
 only way of satisfying the dilemma arising from the court's theory 
 that it was not only administering Pennsylvania law but also inter- 
 national law and that in this case the latter left determination of 
 the sentence to the offended king of France. This theory, derived 
 from the claim by France of a right herself to punish offenders 
 against her diplomatic representatives abroad, and supported by 
 a similar claim of the Czar in the case of his Ambassador in London 
 in 1708, is now obsolete. 
 
 Since adoption of the Constitution, the enforcement of inter- 
 national law has been largely undertaken by the national govern- 
 ment and, where undertaken, the jurisdiction of federal courts has 
 been made exclusive.^ This does not mean, however, that states 
 are prohibited from making acts, violative of international law or 
 treaty, offenses against their own sovereignty.'^ The grant of 
 powers of criminal legislation to the National government by the 
 Constitution or even the exercise of such powers by Congress does 
 not in itself divest the states of power to punish similar offenses. 
 States may cooperate with the United States in enforcing interna- 
 tional law and treaty within their own boundaries so far as such 
 action does not interfere with national action. They cannot, how- 
 ever, perfo'-m acts for this purpose, which will be effective out- 
 side their borders. Thus state authorities cannot extradite per- 
 sons to foreign governments on the basis of national treaties,* unless 
 expressly authorized thereto by the treaty.^ 
 
 A few offenses against international law and treaty are still un- 
 touched by national laws, and the states must be relied on. Thus 
 Secretary Bayard, after noting that national law did not punish 
 "treason and sedition against foreign sovereigns," said: 
 
 10 
 
 « Judicial Code of 191 1, sec. 256, pars. 1-4, 8. 
 
 7 Fox V. Ohio, 5 How. 416 (1847). 
 
 ^Holmes v. Jennison, 14 Pet. 540, 579 (1840); U. S. v. Rauscher, 119 
 U. S. 407, 414; Moore, Digest, 4: 240 et seq. 
 
 8 See Mexican treaty, 1899, art. 19; Moore, Digest, 4: 244. 
 1" Moore, Digest, 2: 432.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 179 
 
 "I may add, however, that if any persons in the State of Pennsylvania 
 take measures to perpetrate a crime in a foreign land, such an attempt, 
 coupled with preparations to effectuate it, though not cognizable in the federal 
 courts, is cognizable in the courts of the state of Pennsylvania." 
 
 Other powers of enforcement, still exclusively in state hands, no- 
 tably that of protecting resident aliens, will be considered later.^^ 
 
 111. Enforcement under the National Constitution. 
 
 The National Constitution confers certain independent powers 
 upon the executive and judicial branches for the enforcement of 
 international law and treaties, but these powers are insufficient. 
 The Constitution has, however, given Congress authority to provide 
 adequate means of enforcement, especially in the power " to define 
 and punish piracies and felonies committed on the high seas and 
 ofifenses against the law of nations " and in the power " to make all 
 laws which shall be necessary and proper for carrying into execu- 
 tion the foregoing powers and all other powers vested by the Con- 
 stitution in the Government of the United States or in any depart- 
 ment or officer thereof," thus including the treaty power.^^ 
 
 A. Enforcement by Legislative Action. 
 
 112. Congressional Resolutions before the Constitution. 
 
 Even before the adoption of the Constitution Congress realized 
 the necessity for legislation to prevent violations of international 
 law. It resolved on May 22, 1779, that the United States would 
 cause the " law of nations to be most strictly observed," and on 
 November 23, 1781, recommended that state legislatures provide for 
 the punishment of ofifenses relating to violation of safe conducts, 
 breaches of neutrality, assaults upon public ministers, infractions 
 of treaties, and " the preceding being only those offenses against the 
 law of nations which are most obvious, and public faith and safety 
 requiring that punishment should be coextensive with all crimes, 
 Resolved, that it be further recommended to the several states to 
 
 ^^ Supra, sec. 120. 
 
 12 U. S. Constitution, art. i, sec. 8, cl. 10, 18.
 
 180 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 erect tribunals in each state, or vest ones already existing with 
 power to decide on offenses against the law of nations not contained 
 in the foregoing enumeration." ^' 
 
 113. Offenses against Persons Protected by International Law. 
 By an act of September 24, 1789, the first Congress under the 
 
 Constitution gave district courts jurisdiction of suits brought by 
 aliens for torts "in violation of the law of nations or of a treaty 
 of the United States," and the Supreme Court was given exclusive 
 jurisdiction of suits against public ministers " as a court of law can 
 have consistently with the law of nations." These provisions re- 
 main unchanged in the present judicial code of 1911.^^ An act of 
 April 30, 1790, still in effect, prescribes criminal penalties for 
 assaulting or serving out process against public ministers or their 
 " domestics or domestic servants ... in violation of the law of 
 nations." ^^ 
 
 An act of August 29, 1842, passed after the McLeod case had 
 shown the inability of the national government to release persons 
 entitled to immunity under international law from state jurisdic- 
 tion, gives federal courts jurisdiction to release on habeas corpus, 
 persons claiming any right under treaty or a right " the validity 
 and effect of which depends upon the law of nations." ^^ 
 
 114. Offenses Committed on the High Seas. 
 
 The crimes act of April 30, 1790, provided for the punishment 
 of various crimes committed on the high seas but the courts inter- 
 preted this act in accord with international law, as confined to 
 crimes committed by American citizens or in American vessels in 
 all cases except piracy." The act was amended in 1819 so as to 
 punish all persons guilty of " piracy as defined by the law of na- 
 
 " Journ. Cong., 5: 161, 232; 7: 181, Ford ed., 14: 635, 914; 21: 1137. 
 
 1* I Stat. 76, sees. 9, 13 ; Rev. Stat., sec. 563, els. 16, 687 ; Jud. Code of 
 191 1, 36 Staf. 1087, sec. 24, els. 17, 233. 
 
 15 I Stat. 117, sees. 25, 28; Rev. Stat., sees. 4062, 4064. 
 
 "5 Stat. 539; Rev. Stat. 753. 
 
 "U. S. V. Palmer, 3 Wheat. 610; U. S. v. Klintoek, 5 Wheat. 144, 152; 
 Moore, Digest, 2: 956.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 181 
 
 tions." ^^ These laws are embodied in the present criminal code of 
 1910." 
 
 In the Scotia and other cases the court has recognized the inter- 
 national navigation regulations as obligatory,^" 
 
 " Undoubtedly," said Justice Strong, " no single nation can change the 
 law of the Sea. That law is of universal obligation, and no statute of one or 
 two nations can create obligations for the world. Like all the laws of na- 
 tions, it rests upon the common consent of civilized communities. It is of 
 force, not because it was prescribed by a superior power, but because it has 
 been generally accepted as a rule of conduct." 
 
 These rules were adopted by Congress in an act of 1864, With 
 modifications agreed upon in a conference of 1889, Congress again 
 adopted them by an act of August 19, 1890, subject to the action 
 of other powers. After protracted negotiations the rules were 
 finally put into operation July i, 1897. The act of Congress has 
 provided penalties against masters, pilots, and vessels in case of 
 violation.^^ 
 
 115. Offenses against Neutrality. 
 
 The first neutrality act was passed June 5, 1794, after it had 
 been discovered that the President and courts lacked power effec- 
 tively to enforce neutrality with their independent powers. The 
 act as amended in 1797 and 1818 is still in effect, and is included in 
 the criminal code of 1910.-^ Further amendments were made in 
 1915 and igiyP 
 
 These laws provide for punishment of American citizens accept- 
 ing commissions while the United States is neutral, and for punish- 
 
 es U. S. V. Smith, 5 Wheat. 153. 
 
 19 Criminal Code of 1910, sec. 290 et seq. 
 
 20 The Scotia, 14 Wall. 170, 1871. But see The Lottawanna, 21 Wall. 
 558, Willoughby, op. cit., pp. 1015-1017. 
 
 ^lAct Sept. 4, 1890, sees, i, 2, 26 Stat 423; Comp. Stat., sees. 7979, 7980; 
 June 7, 1897, sees. 3, 4, 30 Stat. 103; Comp. Stat. 7907, 7908; Moore, Digest, 
 2: 474. 
 
 -2 Criminal Code of 1910, sees. 9-18. See also Fenwick, The Neutrality 
 Laws of the United States, Washington, 1913, and Wright, The Enforcement 
 of International Law Through Municipal Law in the United States, 1915, 
 pp. 114 et seq. 
 
 23 Act March 4, 1915, 38 Stat. 1226; May 7, 1917, June IS, 1917, sees, i-io, 
 40 Stat. 221-223 ; Comp. Stat., sees. 10, 182.
 
 182 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ment of any one recruiting for foreign belligerents in American 
 territory. Persons with unneutral intent fitting out and arming or 
 augmenting the forces of vessels, or setting on foot military or 
 naval expeditions or enterprises in American territory are also 
 liable, as are persons taking out of the United States a vessel built 
 or converted as a war vessel with knowledge that it is likely to 
 reach the hands of a belligerent or aiding interned belligerent per- 
 sons to escape. 
 
 The acts give the President power to expel vessels from waters 
 in which " by the law of nations " they ought not to remain, and 
 to detain or prevent the departure of vessels " which by the law 
 of nations or the treaties of the United States " are not entitled 
 to depart. The President is authorized to use the land and naval 
 forces " as he may deem necessary to carry out the purposes " of 
 the neutrality laws. The acts provide for withholding the clearance 
 from vessels suspected of using the territory " in violation of the 
 laws, treaties or obligations of the United States under the law of 
 nations," for bonding armed merchant vessels using American ports 
 and for detention by customs officials of suspected vessels not 
 bonded. They give district courts jurisdiction to restore prizes 
 illegally taken in American waters, to decide proceedings for the 
 forfeiture of vessels violating neutrality and for enforcing the 
 criminal provisions of the act. It has been held that the law 
 applies not only to acts in behalf of belligerents but also to acts 
 in behalf of insurgents, though not to acts in behalf of recognized 
 governments operating against insurgents.^* 
 
 ii6. Offenses against Foreign Governments. 
 
 An act of May i6, 1884, provided punishment for forging or 
 
 counterfeiting foreign securities and the act was held to be within 
 
 the power of Congress to punish offenses against the law of nations, 
 
 though it contained no specific statement that the offense was of 
 
 that character.^^ The counterfeiting of foreign coins has been 
 
 made punishable by various acts since 1877.^^ 
 
 2* The Three Friends, 166 U. S. i (1897) ; U. S. v. Trumbull, 48 Fed. 99 
 (1891) ; Ex parte Toscano, 208 Fed. 938 (1913)- 
 
 25 Criminal Code of 1910, sees. 156-162; U. S. v. Arjona, 120 U. S. 479- 
 2« Ibid., sees. 162-173.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 183 
 
 By the act of August ii, 1848, superseded by the act of June 22, 
 i860, the American Minister, in countries permitting extraterritorial 
 jurisdiction by treaty, is authorized to try resident American citizens 
 for felonies or insurrection against the government of such states.^^ 
 An act of April 22, 1898, amended on March 14, 1912, provided for 
 the embargo of arms and munitions to American countries pro- 
 claimed by the President to be in a " condition of domestic vio- 
 lence " and for criminal punishment of persons violating such em- 
 bargo.^® As has been noticed the neutrahty laws have been utilized 
 to prevent the giving of aid to insurgents against friendly govern- 
 ments.^' 
 
 By the espionage act of June 15, 1917, conspiracy to destroy 
 specific property in foreign territory is made punishable, as is having 
 in possession property for use in aid of foreign governments " as 
 a means of violating any of the . . . obhgations of the United 
 States under any treaty or the law of nations." ^° 
 
 117. Offenses Relating to International Boundaries. 
 
 There appears to be a special responsibility to prevent acts near 
 a frontier likely to injure the adjacent state, such as interference 
 with running water, bounding or flowing into it, or the toleration of 
 marauders, conspirators, or insurgents with designs on adjacent 
 territory.^^ By an act of 1902 Congress recommended an interna- 
 tional commission to consider the use of Canadian boundary waters 
 and by act of 1906, provided that such waters should only be di- 
 verted on permits issued by the Secretary of War and that persons 
 violating this provision should be subject to criminal punishment. ^^ 
 By a treaty with Great Britain of 1909 (Art. VII), similar require- 
 ments are made and their supervision put in charge of an interna- 
 tional joint commission. A convention of 1889 with Mexico sev- 
 
 2TRev. Stat., sees. 4090, 4102; Comp. Stat. 7040, 7647; Moore, Digest, 
 1 : 613-616. 
 
 2830 Stat. 739; 27 Stat. 630; Comp. Stat. 7677-7(^^. 
 28 Supra, note 24. 
 
 30 40 Stat. 226, sec. 5 ; 230, sec. 22. 
 
 31 Moore, Digest, 2: 481. 
 
 82 32 Stat, 373 ; 34 Stat. 627 ; Comp. Stat., sees. 9984, 9989, a-c.
 
 184 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 eral times renewed, provided a commission for adjusting Rio 
 Grande boundary difficulties and a convention of 1906 provided 
 for the distribution of Rio Grande water for irrigation purposes.^' 
 Several protocols have been made for the suppression of 
 marauders on the Mexican border and legislation providing for the 
 embargo of arms to American countries in a condition of domestic 
 violence was passed with particular reference to Mexico.^* Doubt- 
 less under treaties and general laws, as well as the special acts 
 referred to, the President has adequate power to meet responsibil- 
 ities connected with international boundaries. 
 
 118. Offenses against Treaties. 
 
 A number of acts have been passed for preventing the violation 
 of treaties by private individuals. An act of 1847 provided for the 
 punishment of aliens committing piracy as defined by treaty. ^^ 
 Various acts passed since 1808 for the punishment of slave traders 
 seem to give adequate authority to prevent violation of the inter- 
 national Slave Trade Convention. Acts passed in 1828, 1842 and 
 1862 and on other occasions were designed to enforce particular 
 conventions for suppressing the slave trade and trade in liquor and 
 arms with natives."" 
 
 An act of August 12, 1848, amended on June 22, i860, and June 
 6, 1900, provides for the extradition of persons as required by 
 treaties." An act of March 2, 1829, amended in 1855, provided for 
 the return of deserting seamen as required by treaty on application 
 of foreign consuls.^® This act, however, terminated upon denuncia- 
 tion of the treaties as required by the La Follette Seaman's Act of 
 March 4, 1915.^^ An act of April 14, 1792, superseded by acts of 
 Augusts, 1846, and June 11, 1864, gives United States district Courts 
 and United States commissioners power to enforce the awards. 
 
 33 Moore, Digest, 2 : 434-445. 
 
 '* Supra, note 28, and Malloy, Treaties, etc., p. 1144 et seq. 
 
 '5 9 Stat. 17s; Rev. Stat. 5374; Criminal Code of 1910, sec. 305. 
 
 »«4 Stat. 276; 5 Stat. 623; Crandall, op. cit., p. 239. 
 
 "^ 9 Stat. 302; 12 Stat. 83; Rev. Stat., sees. 5270-5279; 31 Stat. 656. 
 
 "4 Stat. 359; 10 Stat. 614; Rev. Stat., sec. 280; Crandall, oP. cit., p. 233. 
 
 »»38 Stat. 1 184, sec. 17; Comp, Stat., sec, 8382b; 10129.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 185 
 
 arbitrations or decrees of foreign consuls exercising jurisdiction in 
 the United States as authorized by treaties.*** 
 
 Among other acts of Congress imposing criminal penalties for 
 infraction of treaties by individuals may be mentioned an act of 
 February 22, 1888, for enforcing the International Cable Conven- 
 tion of 1885; an act of January 5, 1905, amended in 1910 in pur- 
 suance of the Red Cross Conventions of 1864 (x^rts. 27-28) and 
 1906, and the X Hague Convention of 1907 (Art. 29) applying 
 them to naval warfare, providing punishment for use of the Red 
 Cross symbol in advertising or in other unauthorized manner ; an 
 act of August I, 1912, providing punishment for masters of vessels 
 failing to give reasonable assistance in case of maritime accident as 
 required by the general convention on salvage of 1910; an act of 
 August 24, 1912, providing punishment for persons taking seal in 
 the North Pacific in violation of the Behring Sea sealing convention 
 of 191 1 ; an act of August 13, 1912, for enforcing the international 
 radio convention of that year by providing punishment for per- 
 sons using radio without license and for operators wilfully inter- 
 fering with radio communication or otherwise violating the con- 
 vention, and an act of July 3, 1918, providing for enforcement of 
 the migratory bird treaty with Great Britain of that year.'*^ 
 
 In view of the abundance of congressional legislation giving 
 efifect to treaties and the apparently plain terms of the " necessary 
 and proper " clause of the Constitution there would seem no room 
 for questioning the power of Congress to pass such legislation. The 
 power has, however, been questioned when treaties have called for 
 legislation on subjects not otherwise within congressional power. 
 The Supreme Court has answered with no uncertain voice. Said 
 Justice Harlan in 1900: ^^ 
 
 " The power of Congress to make all laws necessary and proper for 
 carrying into execution as well the powers enumerated in Section 8 of Article 
 
 *° 13 Stat. 12; Rev. Stat., sec. 728; Jud. Code of 191 1, 36 Stat. 1163, sec. 
 27; Comp. Stat., sec. 1248; Crandall, op. cit., p. 234. 
 
 41 40 Stat., c. 128; Comp. Stat, sec. 8837 a-c. Congress has not suffi- 
 ciently legislated for the enforcement of all existing treaties, for example see 
 infra, note 67. 
 
 *2 Neeley v. Henkel, 180 U. S. 109.
 
 186 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 I of the Constitution, as all others vested in the Government of the United 
 States, or in any department or officers thereof, includes the power to enact 
 such legislation as is appropriate to give efficacy to any stipulations which it 
 is competent for the President, by and with the advice and consent of the 
 Senate, to insert in a treaty with a foreign power." 
 
 In the trademark cases, the Supreme Court held Congress incom- 
 petent to legislate on that subject, but, said Justice Miller : 
 
 43 
 
 "In what we have here said we wish to be understood as leaving un- 
 touched the whole question of the treaty-making power over trademarks and 
 of the duty of Congress to pass any laws necessary to carry treaties into 
 effect." 
 
 Finally in Missouri v. Holland the Supreme Court sustained the 
 migratory bird treaty with Great Britain and the act of Congress 
 to enforce it, although a similar act not based on treaty had shortly 
 before been held unconstitutional.^* 
 
 "If the treaty is valid," said Justice Holmes, "there can be no dispute 
 about the validity of the statute under Article i, sec. 8, as a necessary and 
 proper means to execute the powers of the government." 
 
 It is clear that by the multiplication of treaties the power of 
 Congress may be extended into fields of criminal jurisdiction, 
 heretofore entirely within state control. 
 
 119. General Empowering Statutes. 
 
 Most of the acts of Congress referred to confer power upon 
 the President or other executive authority to take preventive meas- 
 ures and to use the military forces, but in addition general acts 
 as early as 1792 have conferred on the President power to call 
 forth the militia or use the army and navy " to execute the laws of 
 the union, suppress insurrection and repel invasion." *^ 
 
 120. Sufficiency of Existing Legislation to Protect Resident Aliens. 
 It appears that Congress has enacted legislation to prevent: (i) 
 
 offenses against diplomatic officers and other persons especially pro- 
 
 *3 Trade Mark Cases, 100 U. S. 82 (1879). 
 
 ** Missouri v. Holland, 252 U. S. 416 (1920). 
 
 *5Acts May 2, 1792, Feb. 28, 1795, March 3, 1807, Jan. 21, 1903 (Dick 
 Act), and subsequent amendments, i Stat. 264, 424; 2 Stat. 443; 22 Stat. 776, 
 sec. 4; 35 Stat. 400; 38 Stat. 284. See also supra, sec. 125.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 187 
 
 tected by international law; (2) offenses committed on the high 
 seas, especially piracy and violations of the international rules of 
 navigation; (3) offenses against neutrality; (4) offenses against the 
 sovereignty or territory of foreign nations, especially the counter- 
 feiting of their securities, conspiracy to destroy property within 
 their territory, and insurrection against them; (5) offenses relatmg 
 to international boundaries and (6) offenses against treaties, espe- 
 cially those suppressing international nuisances such as the slave 
 trade, aiding the administration of justice as by extradition, pro- 
 tecting international resources such as fur seal and migratory birds, 
 protecting international services such as the Red Cross, Submarine 
 Cables, Radio Communication, etc. 
 
 This legislation does not appear fully adequate to meet all inter- 
 national responsibilities arising from the acts of individuals, the 
 most notable lacuna being in the protection of resident aliens. 
 Presidents Harrison, McKinley, Roosevelt and Taft each urged 
 legislation authorizing criminal prosecution in the federal courts of 
 persons violating the rights of aliens under treaties or international 
 law and adequate executive authority to take preventive measures, 
 but in view of the inroad such legislation would make upon the 
 police jurisdiction of the states it has not been passed.'*^ On sev- 
 eral occasions the United States has been obliged to pay indemnities 
 because of its inability under existing laws to exercise " due dili- 
 gence " in this respect.*' The power of Congress to pass such legis- 
 lation, at least for the protection of the rights of aliens guaranteed 
 by treaty, cannot be questioned,*^ and it would seem that an offense 
 against the rights of aliens under general international law would 
 be an " offense against the law of nations " and so within the power 
 of Congress. 
 
 121. Sufficiency of Existing Legislation for Punishing Offenses 
 Against Foreign Governments. 
 Offenses against the sovereignty and territory of foreign states 
 are not fully covered by national law. Libels upon foreign states 
 
 *6 Moore, Digest, 6 : 820 et seq. 
 *-! Ibid. 
 
 <8 Baldwin v. Franks, 120 U. S. 678; Corwin, National Supremacy, p. 286 
 et seq.; Taft, The United States and Peace, 40 et seq., supra, sec. 49.
 
 188 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 or sovereigns, conspiracy to promote insurrection or revolution in 
 foreign states, or to assassinate the ruler of a foreign state do not 
 appear to be punishable by national laws though they have been 
 made the subject of international discussion and are indictable 
 offenses in many countries. Some of these acts are punishable in 
 state courts.'*^ 
 
 It is not clear, however, just how far a nation is bound to sup- 
 press such acts in its territory. Field lays down in his Interna- 
 tional Code that : ^^ 
 
 " One who uses his asylum for prompting hostilities against a foreign 
 country may be proceeded against under the law of the nation of his asylum, 
 or may be surrendered to the nation aggrieved." 
 
 It does not appear, however, that American law recognizes an inter- 
 national responsibility either itself to punish such offenses or to 
 aid the foreign government in punishing them.^^ As has been no- 
 ticed very few offenses against foreign states are punishable in the 
 federal courts. The counterfeiting of foreign securities is the 
 most important exception. The statutes relating to insurrection 
 and conspiracy to destroy property abroad have been enacted for 
 national defense rather than for the enforcement of international 
 law. The same is true of the acts of Congress providing for the 
 exclusion and deportation of alien anarchists and for the punish- 
 ment of persons acting while the United States is at war so as " to 
 bring the form of government of the United States into contempt, 
 scorn, contumely and disrepute." Such alien, sedition, and espion- 
 age acts are for the protection of the United States rather than for 
 the suppression of anarchy or sedition as an international crime."* 
 President Roosevelt in 1901 urged that "anarchy be declared an 
 oflFense against the law of nations through treaties among all civi- 
 
 *^ Moore, Digest, 2: 430. 
 
 ^'^ Field, Int. Code, sec. 207, p. 86. 
 
 51 Moore, Digest, 2 : 430. 
 
 62 Alien Act, June 25, 1798 (for two years), i Stat. 570; Exclusion of 
 seditious aliens, act Feb. 5, 1917, and expulsion of such aliens, act Oct. 16, 
 1918. Sedition act, July 14, 1798 (for two years), i Stat. 596; June 15, 1917. 
 Title I, sec. 3, amended May 16, 1918, sec. i (for war period), 40 Stat. 353; 
 Comp. Stat., sec. I02iii. See Abrams v. U. S., 250 U. S. 616 (1919).
 
 ENFORCEMENT OF INTERNATIONAL LAW. 189 
 
 lized powers." This result has not been achieved, though a num- 
 ber of American extradition treaties, concluded thereafter, ex- 
 pressly exclude attempts against the life of the Head of a State 
 from the category of political ofifenses.^^ 
 
 122. Sufficiency of Existing Legislation in Aid of Foreign Criminal 
 Justice. 
 
 Nor has the United States held that there is any international 
 duty to aid foreign criminal justice. Although Congress has pro- 
 vided, in pursuance of a generally recognized duty of comity, for 
 the execution by Federal courts of letters rogatory from foreign 
 states requesting the taking of testimony in " suits for the recovery 
 of money or property," it has made no provision for the taking of 
 testimony in criminal cases.^'* The states also have generally re- 
 fused to compel testimony for foreign criminal trials.^' 
 
 "The taking of testimony," said the Attorney-General of Pennsylvania, 
 "by deposition for criminal cases is unknown to our system of jurisprudence, 
 and section 9 of Article I of the Declaration of Rights in our Constitution 
 provides that in all criminal prosecutions the accused hath the right to meet 
 the witnesses face to face. I am, therefore, of the opinion that the courts of 
 this Commonwealth are not competent to receive these letters rogatory and to 
 enforce the testimony of this witness by deposition or answers to interroga- 
 tories, to be used in the criminal cause." 
 
 The same distinction has been recognized in reference to the 
 execution of foreign judgments. In civil cases, the rule of reci- 
 procity has been established by international comity, thus the fed- 
 eral courts carry out the judgments of foreign courts which will 
 reciprocate.^*^ But not so with criminal judgments. The United 
 States has never itself enforced a criminal judgment of a foreign 
 state nor has it as a general practice turned over fugitives, accused 
 or convicted of crimes in foreign courts, except on the express 
 stipulation of treaty .^^ The only exception to the rule appears to 
 
 03 Moore, Digest, 2: 434. See Treaties, Brazil, 1897, ratified 1903; Den- 
 mark, 1902; Guatemala, 1903; Spain, 1904; Protocol, 1907; Cuba, 1904. 
 s* Moore, Digest, 2: no. 
 ^^ Ibid., 2: 112. 
 
 56 Hilton V. Guyot, 159 U. S. 113 (1895) > Moore, Digest, 2: 217-224. 
 '>'■ Moore, Digest, 2: no; 4: 245 et seq.
 
 190 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 be the case of Arguelles, who was extradited to Spain by President 
 Lincoln in 1864, although no treaty required such action.^* The 
 position of the United States has been that " both by the law and 
 practice of nations, without a treaty stipulation, one government is 
 not under any obligation to surrender a fugitive from justice to 
 another government for trial," ^^ and that " the President has no 
 power * to make the delivery ' unless under treaty or act of Con- 
 gress." ^° Congress has passed acts in pursuance of treaties of ex- 
 tradition, but the opinion has been expressed that Congress might 
 authorize extradition without treaty. "^^ Since such a law, with the 
 above stated theory, could not be justified as the " punishment of 
 an offense against the law of nations " it is difficult to see where 
 the power of Congress would come from. 
 
 It has been held that the federal Constitution prohibits extradi- 
 tion under state authority unless such procedure is expressly stipu- 
 lated in treaty or act of Congress. This is due to the express pro- 
 hibition of the states from treaty-making or agreement-making 
 without the consent of Congress.^^ 
 
 B. Enforcement by Action of the Treaty Power. 
 
 123, Treaties as a Basis for Executive and Judicial Action. 
 
 Treaties are the supreme law of the land and it might seem 
 that they would in themselves furnish sufficient authority for execu- 
 tive or judicial enforcement of the obligations they impose. This is 
 doubtless true of executive action. Courts have held that troops 
 may be interned and persons extradited by executive authority on 
 the basis of treaty alone. ^^ It has been held, however, that courts 
 
 58 Ihid., 4 : 249. 
 
 09 Mr. Buchanan, Sec. of State, to Mr. Wise, Sept. 27, 184S. Moore, 
 Digest, 4: 246. 
 
 60 Wirt, Att. Gen., i Op. 509, 521 ; Terlinden v. Ames, 184 U. S. 270, 289 
 (1902) ; Moore, Digest, 4: 248, 253. 
 
 «i Willoughby, op. cit., p. 479. 
 
 ^2 Supra, sec. 90. 
 
 «3£.r parte Toscano, 208 Fed. 938; U. S. v. Robbins. Fed. Cas. No. 16175; 
 In re Metzger, 5 How. 176, 188; Crandall, op. cit., 230 et seq.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 191 
 
 cannot exercise criminal jurisdiction or compel the extradition of 
 fugitives unless Congress has passed enabling legislation.^* 
 
 124. Treaties as a Basis for Congressional Action. 
 
 Treaty provisions requiring positive enforcement within Amer- 
 ican jurisdiction have been of three kinds. Sometimes they state 
 definite acts which the government must prevent. Thus the V 
 Hague Convention of 1907 says, " a neutral power must not allow 
 any of the acts referred to in articles 2 to 4 to occur on its terri- 
 tory." ^^ Sometimes treaties state the degree of diligence which the 
 government must exercise to achieve a given result leaving it dis- 
 cretion in determining the method to be used. Thus article III of 
 the Chinese treaty of 1880 affirmed by article IV of the treaty of 
 1894 requires the United States to " exert all its powers to devise 
 measures for the protection (of resident Chinese) and to secure to 
 them the same rights, privileges, immunities and exemptions as may 
 be enjoyed by the citizens or subjects of the most favored nation 
 and to which they are entitled by treaty." ^^ Finally, treaties some- 
 times merely require that the government endeavor to have legis- 
 lation passed. Thus by article 2y of the Geneva convention of 1906 :®^ 
 
 " The signatory powers whose legislation may not now be adequate engage 
 to take or recommend to their legislatures such measures as may be necessary 
 to prevent the use, by private persons or by societies other than those upon 
 which this convention confers the right thereto, of the emblem or name of 
 the Red Cross or Geneva Cross, particularly for commercial purposes by 
 means of trademarks or commercial labels. The prohibition of the use of 
 the emblem or name in question shall take effect from the time set in each 
 act of legislation, and at the latest five years after this convention goes into 
 effect. After such going into effect, it shall be unlawful to use a trademark 
 or commercial label contrary to such prohibition." 
 
 64 The Estrella, 4 Wheat. 298; The British Prisoners, i Wood, and Mm. 
 
 66 (1845). 
 
 65 See also Submarine Cable Convention, 1884, art. II. 
 
 66 See also XIII Hague Convention, 1907, sees. 8, 25. 
 
 6T See also African Slave Trade Convention, 1890, art. xii, and Treaty of 
 Peace with Great Britain, 1783, art. V. President Cleveland recommended 
 legislation prohibiting the sale of arms in central Africa as required by the 
 former, in his message of December 4, 1893, but Congress has not acted. 
 (Moore, Digest, 2: 471.)
 
 192 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 This has been the usual form in general international conventions. 
 Although the obligation of Congress to act is doubtless greater 
 under treaties of the first form than the last, it would appear that 
 the difference is wholly one of degree. Under any of the three 
 forms, the United States will be responsible if it fails to exert the 
 diligence required by the treaty, and in none of them is criminal 
 prosecution possible in the United States without enabling legislation. 
 
 C. Enforcement by the President. 
 
 125. Independent Powers of the President. 
 
 Although Congress has passed general laws giving the President 
 power to use the military and naval forces and the militia to enforce 
 the laws, suppress insurrection and repel invasion, and many special 
 laws giving him power to use the forces for particular purposes, 
 the President has always taken the view that these laws except as 
 applied to the militia were unnecessary, and that as commander-in- 
 chief and as chief executive, he has independent power to employ 
 the army and navy and direct the civil administration in order to 
 execute the laws and treaties of the United States. President Fill- 
 more in response to a resolution of inquiry called attention to the 
 different position occupied by the President with reference to the 
 militia, which may only be called out as Congress shall provide, and 
 to the army and navy of which the President is permanent com- 
 mander-in-chief. As to the latter, he said : ^^ 
 
 " Probably no legislation of Congress could add to or diminish the power 
 thus given, but by increasing or diminishing, or abolishing altogether the 
 army and navy." 
 
 By an act of June 18, 1878, Congress made it unlawful and a penal 
 offense :®® 
 
 " to employ any part of the Army of the United States as a posse comitatus 
 or otherwise, for the purpose of executing the laws, except in such cases and 
 under such circumstances as such employment of said force may be expressly 
 authorized by the Constitution or by act of Congress." 
 
 88 Richardson, Messages, 5: 105; Finley-Sanderson, The Executive, p. 
 214; supra, sec. 119. 
 
 8^20 Stat. 152, sec. 15; Comp. Stat, sec. 1902; Finley-Sanderson, op. cit., 
 p 270.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 193 
 
 This, however, does not affect President Fillmore's theory since he 
 claimed no power to use the army other than as " expressly author- 
 ized by the Constitution." The court held in Martin v. Mott^° that 
 the President could determine when the exigency existed for calling 
 forth the militia as specified by Congress, and no power could review 
 his action. It seems equally certain that he can determine when a 
 proper constitutional occasion for using the army has occurred and 
 is not limited by congressional expressions in this regard. Certainly 
 the opinions of the Supreme Court in the Debs and Neagle cases 
 support this theory. '^^ However, the issue is largely theoretic be- 
 cause the delegations of authority actually made by Congress seem 
 sufficiently broad to cover all probable exigencies. 
 
 126. President's Use of Military Forces. 
 
 In practice the President has used the military forces in Amer- 
 ican territory to enforce international law and treaty on many occa- 
 sions. He has thus used them to enforce the protocols with Mexico 
 requiring suppression of marauding Indians and others near the 
 border; to preserve order in case of mob violence as in the Chi- 
 cago strikes of 1894 giving rise to the Debs case, and to suppress 
 nuisances on the high seas or in neighboring territory. The sup- 
 pression of pirates in Amelia Island in 1817, of Indians in Florida 
 by Jackson in 1819, and the pursuit of Villa in Mexico by General 
 Pershing in 1916 are illustrations of action of the latter kind.'^^ 
 The most important executive use of military forces in American 
 territory is of course that by President Lincoln on the outbreak of 
 the Civil War. The militia were called out April 15, 1861, under 
 authority of general laws and the army and navy employed before 
 Congress had given express authorization.'^^ We may conclude that 
 
 ■^0 Martin v. Mott, 12 Wheat. 19. 
 
 ■^i/n re Neagle, 135 U. S. i ; In re Debs, 158 U. S. 564. See also Infra, 
 sec. 222. 
 
 72 Moore, Digest, 2: 41&-42S, 435-446; 402-408; Am. Year Book, 1916, 
 p. 79 et seq. For President's use of force to meet responsibilities outside 
 of the territory see infra, sec. 151, and for his power to use force in general, 
 infra, sees. 221-224. 
 
 ''^ Blockade was proclaimed April 19, 1861. The first act of Congress
 
 194 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 the President is endowed with sufficient power to employ the armed 
 forces, whenever he believes it necessary in order to enforce any 
 constitutional provision, treaty or act of Congress, or to suppress 
 mob violence or insurrection likely to obstruct national services. 
 
 127. President's Direction of Administrative Action. 
 
 Although the position of the President as chief executive does 
 not carry with it power to create agencies for enforcing international 
 law and treaties (though such a suggestion is contained in the 
 Neagle case), it has been held to confer a power of directing ad- 
 ministrative action of the agencies actually existing through instruc- 
 tions, practically enforceable by the removal power. '^* 
 
 Thus the President has been able to accord special police pro- 
 tection to diplomatic officers and other foreigners entitled to pro- 
 tection when necessary.'^ He has ordered the extradition of fugi- 
 tives when required by treaty and the courts have sustained the 
 action. Thus President John Adams extradited one Jonathan 
 Robbins under the Jay treaty and was eloquently sustained in this 
 action by Marshall, then in Congress. " The treaty," he said, " stip- 
 ulating that a murderer shall be delivered up to justice, is as ob- 
 ligatory as an act of Congress making the same declaration." The 
 President's power was sustained in the case of the British Prisoners 
 in 1845 ^nd in the Metzger case in 1847.'^^ But in the latter case 
 before the fugitive was delivered, the New York supreme court 
 intervened and released the prisoner on habeas corpus, on the theory 
 that the treaty was not executable without congressional legisla- 
 tion." This resulted in the act of 1848 providing for extradition.'^* 
 
 recognizing that war existed was on July 13, 1861. Willoughby, op. cit., pp. 
 88, 1209. 
 
 ''^ Infra, sees. 227, 230. 
 
 T5 Moore, Digest, 4: 622 et seq. 
 
 ■'SU. S. V. Robbins, Fed. Cas. No. 16175; The British Prisoners, i Wood, 
 and Minn. 66; In re Metzger, 5 How. 176; Taft, Our Chief Magistrate, p. 87; 
 Crandall, op. cit., p. 231. 
 
 "/n re Metzger, i Barb. 248 (N. Y., 1847)- 
 
 78 9 Stat. 302 ; Rev. Stat., sees. 5270-5279.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 195 
 
 A similar view was expressed by Justice Catron in 1852 '^^ but in 
 1893 the supreme court through Justice Gray sustained the early 
 position of Adams and Marshall. ^° 
 
 " The surrender, pursuant to treaty stipulations, of persons residing or 
 found in this country, and charged with crime in another, may be made by 
 the executive authority of the President alone, when no provision has been 
 made by treaty or by statute for an examination of the case by a judge or 
 magistrate. Such was the case of Jonathon Robbins, under article 27 of the 
 treaty with Great Britain of 1794, in which the President's power in this re- 
 gard was demonstrated in the masterly and conclusive argument of John 
 Marshall in the House of Representatives." 
 
 However, as statutes now make full provision for extradition, the 
 question of the President's independent power is of merely specu- 
 lative interest. The President has authorized the extradition of a 
 fugitive in the absence of treaty in only one case, that of Arguelles 
 extradited to Spain by President Lincoln in 1864, and the majority 
 of authorities hold that he here acted in excess of power. Wil- 
 loughby believes that Congress might authorize presidential extra- 
 dition in the absence of treaty, but since international law does not 
 require such extradition it is hard to locate the source of such a 
 power of Congress. ^^ 
 
 It was held by Justice Story that the President did not have 
 power to authorize the carrying out of awards of foreign consuls 
 based on treaty in the absence of congressional legislation.^^ It 
 would seem that by analogy to the case of extradition of fugitives, 
 the President might authorize the return of deserting seamen on 
 the basis of treaty provisions but no case involving the point seems 
 to have arisen and legislation was early provided. It has been stated 
 by Attorney General Gushing that there is no authority to return 
 deserting seamen in the absence of treaty. As has been noted the 
 statutes and treaties on this subject were both terminated by the 
 La Follette Seaman's Act of 1915.^' 
 
 ''^ In re Kaine, 14 How. 103, lii (1852). 
 
 80 Fong Yue Ting v. U. S., 149 U. S. 698, 714 (1893) 
 
 81 Supra, sec. 122. 
 
 82 Moore, Digest, 2 : 298 ; 5 : 223. 
 
 83 Gushing, Att. Gen., 6 Op. 148, 209; Moore, Digest, 4: 417-424; Crandall, 
 op. cit., p. 233; supra, sec. 118.
 
 196 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 On August 4, 1793, Hamilton issued instructions to customs 
 officials for the enforcement of neutrality and in the World War 
 instructions for the supervision and censorship of radio stations, the 
 detention of vessels suspected of carrying arms to belligerent war- 
 ships and of submarines intended for sale to belligerents were based 
 on independent executive authority.^* Subsequent statutes have 
 authorized most of these instructions.^^ In the case of Ex parte 
 Toscano®*' the Federal District Court held that insurgent Mexican 
 troops entering the territory and interned according to provisions of 
 the Vth Hague Convention, under executive authority, were entitled 
 to no relief under constitutional guarantees. " Due process of law" 
 had been given them through executive compliance with the treaty, 
 which was itself " supreme law of the land." It appears that the 
 President has considerable independent power to authorize military 
 and administrative action when necessary to enforce treaties or 
 statutes, but in view of the wide powers expressly conferred upon 
 him by acts of Congress it is now seldom necessary for him to go 
 outside of such express delegations. 
 
 D. Enforcement by the Courts. 
 
 128. Early Assumptions of Common Lazv Criminal Jurisdiction by 
 Federal Courts. 
 In his first neutrality proclamation of April 22, 1793, President 
 Washington stated that he had :^'^ 
 
 " given instructions to those officers to whom it belongs to cause prosecutions 
 to be instituted against all persons who shall within the cognizance of the 
 courts of the United States violate the law of nations with respect to the 
 powers at war or any of them." 
 
 On the basis of this proclamation prosecution was brought against 
 Gideon Henfield for aiding in fitting out and serving on a vessel 
 
 8* Am. State Pap., For. Rel. i: 140; Moore, Digest, 7: 891; Richardson, 
 Messages, 10: 86; Naval War College, International Law Topics, 1916, pp. 
 no, 115; Am. Jl. Int. Law, 9: 177; Wright, The Enforcement of International 
 Law, p. 122. 
 
 85 Supra, sec. 115. 
 
 ^^ Ex parte Toscano, 208 Fed. 938 (1913). 
 
 87 II Stat. 753; Richardson, Messages, i : 157.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 197 
 
 for the use of France then at war with Great Britain. The United 
 States circuit court of Pennsylvania, composed of Justices Wilson, 
 Iredell and Peters, asked the Grand Jury to return an indictment 
 against him for an offense against the law of nations. Although 
 the Grand Jury refused to indict, the opinion of the court was clear 
 that federal courts had jurisdiction to punish such offenses even 
 though no express statute defined the offense or conferred the juris- 
 diction. Justice Jay expressed a similar opinion in another charge 
 to the Grand Jury and Attorney General Randolph asserted it in 
 an official opinion.®* 
 
 Jurisdiction of crimes defined only by international law was also 
 asserted in the case of United States v. Ravara (1793) in which 
 the Genoese consul was indicted for sending threatening letters to 
 the British minister.*^ This act was considered in violation of the 
 diplomatic protection guaranteed to foreign ministers and hence a 
 breach of the law of nations. Although the accused was found 
 guilty, he was ultimately released on giving up his exequatur. In 
 this case, however, international law was appealed to merely for a 
 definition of the crime, since the circuit court had been given juris- 
 diction of cases against Consuls by act of Congress.®" 
 
 129. Federal Courts Have No Common Law Jurisdiction. 
 
 Soon after, however, in United States v. Worrall (1798), the 
 criminal jurisdiction of the federal courts was said to rest on stat- 
 ute alone and this opinion was repeated in the Supreme Court in 
 Ex parte Bollman (1807) and United States v. Hudson (1812).®^ 
 Four years later the question was raised in a slightly different form 
 in United States v. Coolidge (1816). In the circuit court Justice 
 Story had sustained an indictment for the forcible rescue by two 
 
 88 /m re Henfield, Fed. Cas. No. 6360, and ibid., p. 11 16; Am. State Pap., 
 For. Rel, i: 151. 
 
 89 U. S. V. Ravara, 2 Dall. 297; Fed. Cas. No. 6122; Moore, Digest, 5: 65. 
 
 ^'^ Infra, note 93. 
 
 91 U. S. V. Worrall, 2 Dall. 384; Ex parte Bollman. 4 Cranch 75 ; U. S. v. 
 Hudson, 7 Cranch 32; Willoughby, op. cit., p. 1031 ; J. B. Moore, Four Phases 
 of American Diplomacy, 1912, p. 64; Wharton, Criminal Law, i, sec. 254.
 
 198 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 
 American privateers of a prize on its way to Salem under a prize 
 master, although no such crime was specifically defined by statute. 
 Reasoning from the nth section of the judiciary act which gave 
 federal circuit courts "exclusive cognizance of crimes cognizable 
 under authority of the United States," he said : 
 
 "The jurisdiction is not as has sometimes been supposed in argument 
 over all crimes and offenses especially created and defined by statute. It is 
 of all crimes and offenses 'cognizable under the authority of the United 
 States,' that is, of all crimes and offenses to which, by the Constitution of 
 the United States, the judicial power extends. The jurisdiction could not, 
 therefore, have been given in more broad and comprehensive terms." 
 
 Story's opinion, however, was not supported by his brother justice 
 on circuit and on certification to the supreme court he was over- 
 ruled.^^ However, though federal courts cannot assume jurisdic- 
 tion either under common law or under such broad grants as that 
 here in question or it may be added under treaty, they may exer- 
 cise criminal jurisdiction over offenses not specified by statute where 
 jurisdiction has been expressly given them by act of Congress. Thus 
 they may have jurisdiction because of the nature of the parties, in 
 which case federal courts apply the criminal law of the state in 
 which they sit.^^ 
 
 130. Federal Courts Have No Criminal Jurisdiction from Treaties 
 Alone. 
 The federal courts have refused to exercise jurisdiction over 
 crimes defined by treaty until Congress has acted. They have fol- 
 lowed the same opinion with reference to extradition. In the case 
 of the British Prisoners,^* although asserting that where extradi- 
 
 °-V. S. V. Coolidge, Fed. Cas. 14857, and ibid., 1 Wheat. 415 (1816). 
 Ravvle supports Story's opinion with elaborate argument in A View of the 
 Constitution, 1825, pp. 250-265. 
 
 3'U. S. V. Ravara, 2 Dall. 297, Fed. Cas. No. 6122; Moore, 5 : 65 ; Tenn. 
 V. Davis, 100 U. S. 257; Duponceau, op. cit., p. 34; Willoughby, op. cit., p. 
 1020. In the case of an indictment against the Russian consul Kosloff in 1815 
 the Pennsylvania court refused jurisdiction (Comm. v. Kosloff, 5 Serg. and 
 Rawle 545), and no action was begun in the federal courts, although by 
 statute they then had exclusive jurisdiction in cases against consuls. Du- 
 ponceau, op. cit., p. 36; Moore, Digest 5: 66. 
 
 »*The British Prisoners, i Wood, and M. 66.
 
 ENFORCEMENT OF INTERNATIONAL LAW. 199 
 
 tion is required by " the supreme law of a treaty, the executive need 
 not wait . . . for acts of Congress to direct such duties to be done 
 and how," Justice Woodbury said for the circuit court : 
 
 "If a treaty stipulated for some act to be done, entirely judicial ... it 
 could hardly be done without the aid or preliminary direction of some act of 
 Congress prescribing the court to do it and the form." 
 
 At present the law is clear. The jurisdiction of federal courts, 
 with exception of the original jurisdiction of the Supreme Court de- 
 fined by the Constitution itself, is confined to that which Congress 
 has expressly conferred and the only offenses cognizable are those 
 defined by acts of Congress, or, in case jurisdiction exists because 
 of the nature of the parties, those defined by the law of the state 
 in which the court is sitting. It may be noted that extraterritorial 
 courts, authorized by treaty and established by act of Congress, 
 have been given jurisdiction over offenses committed by American 
 citizens within the country wherein the court exercises authority, if 
 the offense is one defined by act of Congress or by common law as 
 supplemented by regulations issued by the American minister in that 
 country.®^ 
 
 131. Statutory Criminal Jtirisdiction of Federal Courts. 
 
 However, as has been noted, a considerable number of offenses 
 against international law have been defined by Congress and the 
 federal courts have been given cognizance of them. The statutes 
 relating to the protection of diplomatic officers, to piracies and 
 offenses on the high seas, to offenses against foreign governments 
 or territory and to most offenses against treaties are always oper- 
 ative. Those punishing offenses against neutrality, however, are 
 operative only during the existence of foreign hostilities, the recog- 
 nition of which belongs to the President. The President has usually 
 issued a formal neutrality proclamation calling attention to the neu- 
 trality laws,®® but the courts have held that the neutrality laws may 
 
 95 Rev. Stat., sec. 4086; Moore, Digest, 2: 631. 
 
 98 Printed in Richardson, Messages, see index, " Neutrality," and Wright, 
 Enforcement of Int. Law, p. 115. For those of World War see Naval War 
 College, Int. Law Doc, 1916, p. 82,
 
 200 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 be applied against insurgents who have in fact been recognized as 
 such by the political departments of the government even if no 
 such formal proclamation has issued : 
 
 97 
 
 " The distinction," said the Supreme Court, " between recognition of 
 belligerency and recognition of a condition of political revolt, between recog- 
 nition of the existence of war in a material sense and of war in a legal sense, 
 is sharply illustrated by the case before us. For here the political department 
 has not recognized the existence of a de facto belligerent power engaged in 
 hostility with Spain, but has recognized the existence of insurrectionary war- 
 fare prevailing before, at the time and since this forfeiture is alleged to have 
 been incurred." 
 
 132. Admiralty Jurisdiction of Federal Courts. 
 
 Although criminal jurisdiction must be given very specifically, 
 by act of Congress, this is not true of admiralty jurisdiction. In 
 order to enforce neutrality the courts have assumed jurisdiction to 
 restore prizes in cases not covered by statute, and even before pas- 
 sage of the first neutrality act,^^ under the general grant of ad- 
 miralty jurisdiction. 
 
 " In the absence of every act of Congress in relation to this matter, tTie 
 court would feel no difficulty in pronouncing the conduct here complained of 
 an abuse of the neutrality of the United States, and although in such cases 
 the offender could not be punished, the former owner would, nevertheless, be 
 entitled to restitution." 
 
 So said the Supreme Court in 1819.®^ Almost one hundred years 
 later the same view was expressed by the Supreme Court in the case 
 of the Appam : ^°° 
 
 "The violation of American neutrality is the basis of jurisdiction, and 
 the admiralty courts may order restitution for a violation of such neutrality. 
 In each case the jurisdiction and order rests upon the authority of the courts 
 of the United States to make restitution to private owners for violations of 
 neutrality where offending vessels are within our jurisdiction, thus vindi- 
 cating our rights and obligations as a neutral people." 
 
 The federal courts also assume jurisdiction to enforce the gen- 
 eral maritime law through admiralty actions in rem, even when no 
 
 »TThe Three Friends, 166 U. S. (1897). 
 
 »8 Glass V. The Betsey, 3 Dall. 6; Talbot v. Jensen, 3 Dall. 133. 
 
 ""The Estrella, 4 Wheat. 298, 311. 
 
 JO" The Appam, 243 U. S. 124, 156 (1916).
 
 ENFORCEMENT OF INTERNATIONAL LAW. 201 
 
 statute specifically governs the case. Thus in the case of the Bel- 
 genland, the Supreme Court sustained the jurisdiction upon the libel 
 of a Belgian steamer for running into and sinking a Norwegian 
 barque in mid ocean.^°^ 
 
 "Although the courts will use a discretion about assuming jurisdiction 
 of controversies between foreigners in cases arising beyond the territorial 
 jurisdiction of the country to which the courts belong, yet where such con- 
 troversies are communis juris, that is, where they arise under the common 
 law of nations, special grounds should appear to induce the courts to deny 
 its aid to a foreign suitor when it has jurisdiction of the ship or party 
 charged. The existence of jurisdiction in all such cases is beyond dispute; 
 the only question will be, whether it is expedient to exercise it." 
 
 Although federal courts, under the general grant of admiralty 
 jurisdiction, may take cognizance of all cases against vessels alleged 
 to have violated international law, and decree confiscation, restora- 
 tion, salvage, or damages, this does not extend to criminal jurisdic- 
 tion against persons.^"^ As with offenses committed on land, so 
 offenses at sea are only cognizable when specifically defined by stat- 
 ute. The court has held, however, that the phrase " piracy as de- 
 fined by the law of nations," is sufficiently explicit to give jurisdic- 
 tion over this offense."^ 
 
 133. Civil Jurisdiction of Federal Courts in Cases Affecting Aliens. 
 Due diligence in the enforcement of international law requires 
 that justice be assured to aliens in their claims against private indi- 
 viduals arising within the jurisdiction whether resting on contract 
 or tort. This does not mean that aliens are exempt from the law 
 of the land with reference to such claims. It does mean, however, 
 that (i) the law shall not be unreasonably discriminatory against 
 them, (2) that courts exist and proceed in a manner to give them 
 reasonable assurance of an impartial application of the law, and (3) 
 that they are accorded opportunity to invoke the aid of the courts 
 in settlement of their controversies.'""* The constitutional guarantees 
 
 101 The Belgenland, 114 U. S. 355. 
 
 102 The Estrella. 4 Wheat. 298, 311. 
 "3U. S. V. Smith, 5 Wheat. 153 (1820). 
 
 10* Borchard, op. cit., pp. 330, 335 ; Moore, Digest, 6 : 267, 280.
 
 202 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of due process of law to all " persons " within the jurisdiction, aliens 
 as well as citizens, as judicially interpreted and enforced against both 
 state legislatures and Congress, seem to insure against unreasonably 
 discriminatory laws.^°^ These guarantees as well as the constitu- 
 tional provisions designed to assure the independence of the courts, 
 such as those giving security of tenure and compensation, together 
 with the respectable traditions of common law judicial procedure, 
 tend also to give confidence in a fair procedure.^"^ 
 
 By permitting aliens to bring their suits against individuals before 
 such courts, the United States will generally be exerting due dili- 
 gence and no international claim can be made, whatever the decision 
 of the court, unless the subject matter is controlled by international 
 law. The state courts usually have common law jurisdiction and 
 are open to both aliens and foreign states in all cases not made ex- 
 clusive in federal courts,"' but under constitutional and statutory 
 provisions, the federal courts are also available in most cases. 
 
 "The judicial power (of the United States) shall extend to all cases in 
 law and equity arising under this Constitution, the laws of the United States, 
 and treaties made, or which shall be made, under their authority; — to all 
 cases of ambassadors, other public ministers and consuls; — to all cases of 
 admiralty and maritime jurisdiction; — to controversies . . . between a state 
 or the citizens thereof, and foreign states, citizens or subjects. In all cases 
 affecting ambassadors, other public ministers and consuls . . . the Supreme 
 Court shall have original jurisdiction. In all other cases before mentioned 
 the Supreme Court shall have appellate jurisdiction, both as to law and fact, 
 with such exceptions, and under such regulations as the Congress shall 
 make."i<'8 
 
 Except for the original jurisdiction of the Supreme Court the federal 
 courts may only exercise this judicial power as expressly given by 
 act of Congress. ^°^ Under present statutes ambassadors, public min- 
 isters and consuls may bring any suit originally in the Supreme Court 
 though they may also sue in the state courts.^^° Foreign states and 
 
 "» U. S. Const. Am. V, XIV. 
 ^o^Ibid., Art. Ill, sec. i. 
 
 107 Mexico V. Arrangoiz, ii How. Prac. i (N. Y., 1855) ; Scott, Cases on 
 Int. Law, p. 170. 
 
 108 U. S. Const., Art. Ill, sec. 2. 
 
 lo^ Ex parte McCardle, 7 Wall. 506 ; Willoughby, op. cit., p. 976. 
 11° Judicial Code of 191 1, sec. 233, 36 Stat. 1156.
 
 .ENFORCEMENT OF INTERNATIONAL LAW. 203 
 
 aliens may bring suits against a citizen in the federal district court 
 if over $3,000 is in controversy or if " for a tort only, in violation 
 of the law of nations or of a treaty of the United States." "^ They 
 may also bring suits against citizens under many special types of 
 law^, whatever the matter in controversy, such as suits within the 
 admiralty and maritime jurisdiction, suits under the copyright, pat- 
 ent, trademark, commercial, bankruptcy', immigration laws, etc."^ 
 Also all suits in which a deprivation of constitutional right is 
 claimed.^" Even if they begin action in a state court, appeal lies 
 from the highest state court to the Supreme Court of the United 
 States if a right under the Constitution, an act of Congress, a treaty 
 or any authority under the United States is claimed. ^^* The courts 
 are not ordinarily open to civil suits by one alien against another,^^'^ 
 though in admiralty actions in rem arising under the general mari- 
 time law on the high seas, where the two aliens are of different 
 nationality, such cases will usually be heard.^^^ Cases against aliens 
 may in many cases be removed to federal courts by the defendant 
 if they are not brought there originally .^^'^ 
 
 134. Conclusion. 
 
 The enforcing of international law and treaty in the territory of 
 the United States requires executive and judicial action. The Pres- 
 ident must utilize the military and administrative forces to preserve 
 order and prevent violations of international law and treaty. The 
 criminal courts must punish offenders against international law and 
 treaty, and the civil courts must be prepared to afford relief to aliens 
 with just claims against individuals. Under the American consti- 
 tutional system the President has power to direct existing military 
 and civil administrations, to enforce the laws and treaties and pre- 
 
 m/ftjrf., sec. 24, pars, i, 17. 
 
 112 !i)i(i^ sec. 24, pars. 3, 7, 8, 19, 22. 
 
 113 Ibid., sec. 24, pars. 12-14. 
 
 ^^* Ibid., sec. 237, as amended Dec. 23, 1914, 38 Stat. 790, and Sept. 6, 
 1916, 39 Stat. 726. 
 
 11' Montalet v. Murray, 4 Cranch 46. 
 118 The Belgenland, 114 U. S. 355. 
 11^ Ibid., sees. 28, 31 ; supra, sec. 105.
 
 204 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 vent obstructions of national services. However, the tendency has 
 been to confine this action to circumstances in which it is author- 
 ized by specific legislation. 
 
 The state courts are bound to apply treaties and are open to 
 civil suits by aliens but federal courts are dependent on statute for 
 jurisdiction. The broad grants of jurisdiction in admiralty matters, 
 suits involving treaties, and the civil rights of aliens, give the fed- 
 eral courts an opportunity to afford relief in civil matters, but for 
 enforcing criminal penalties for violations of international law or 
 treaty, they must be endowed with specific power. Congress must 
 legislate or the United States may find itself without the means nec- 
 essary for exercising due diligence in enforcing international law 
 and treaties within its territory.
 
 CHAPTER XIII. 
 
 The Power to Meet International Responsibilities through 
 Performance of National Obligations. 
 
 135. Nature of this Responsibility. 
 
 The responsibility of the nation for the non-fulfillment of its 
 obligations requires, not only that each organ of the government 
 employ its powers to the fullest extent to perform all acts, which 
 are specifically required by treaty, agreement, contract, or the oper- 
 ation of international law, but also that organs exist with powers 
 sufificient to assure a full performance. For acts of government 
 organs, the responsibility of the nation is met if all organs confine 
 their exercises of power within the limits of international law and 
 treaty. For acts or omissions of individuals, the responsibility of 
 the nation is met if all organs employ " due diligence " to enforce 
 order and the observance of international law and treaty by persons 
 within their jurisdiction. The present responsibility can be met 
 only if organs exist competent and willing to execute specific obli- 
 gations. 
 
 136. Performance of Obligations by the States. 
 
 The states cannot perform national obligations. They cannot 
 themselves contract treaty or political obligations with foreign na- 
 tions. They may enter into contract with foreign individuals, or 
 nations, as by sale of bonds or other securities,^ but a failure to 
 pay these would not involve a national responsibility so long as the 
 foreign bondholder has as favorable an opportunity to collect as 
 the domestic.^ Some of the states have established courts of claims 
 in which they may be sued, though the general principle of the 
 non-suability of sovereigns applies to them.^ While under the Xlth 
 amendment states cannot be sued by foreign individuals in the fed- 
 
 1 Infra, sec. 157. 
 
 2 Supra, sec. 89, pars. 2, 3. 
 
 'Willoughby, op. cit., p. 1105; Wright, Enforcement of Int. Law, p. 103. 
 
 205
 
 206 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 eral courts, there seems to be no constitutional bar to such a suit 
 by foreign states. National statutes, however, have not provided 
 for such a jurisdiction and commentators doubt whether it could be 
 
 exercised.* 
 
 In case of mob violence in the states we have seen that the 
 national government is responsible for a lack of due diligence, and 
 this irrespective of remedies, such as action against counties or munic- 
 ipalities, which the state law may give.^ "The Italian Govern- 
 ment," wrote Baron Fava, Italian Ambassador, in reference to the 
 lynching of three Italians in Erwin, Mississippi, in 1901, and in re- 
 sponse to the American suggestion that Mississippi was responsible, 
 "will not cease to denounce the systematic impunity enjoyed by 
 crime, and to hold the federal government responsible therefor."* 
 
 A. The Nature of National Obligations. 
 
 137. Obligations Founded on International Agreement. 
 
 National obligations may arise either (i) from express agree- 
 ment or (2) from the operation of general international law. 
 
 Agreement of the nation may be evidenced by contracts with 
 individuals, by executive or military agreements, or by conventions 
 or treaties. Any of these instruments if made by competent author- 
 ity will bind the nation. Contracts or executive agreements usually 
 require the performance of definite acts such as the payment of 
 money, the movement of troops, the conclusion of a treaty, but con- 
 ventions and treaties often state general principles of law for the 
 guidance of individuals as well as specific obligations to be performed 
 by public authorities. During the nineteenth century treaties have 
 
 *Willoughby, op. cit., p. 1060. In Cherokee Nation v. Georgia (5 Pet. i, 
 1831) jurisdiction was refused on the ground that the Cherokees were not a 
 foreign nation, thus implying that if they had been jurisdiction would have 
 existed. The only case between a state and an undoubted foreign nation is 
 that of Cuba v. N. Car. (242 U. S. 665, 1917), but no opinion was given 
 because of dismissal on motion of the plaintiff. See Scott, Judicial Settle- 
 ment of Controversies between States of the American Union, 1919, pp. 
 105-106. 
 
 5 Supra, sec. 89, pars. 2, sec. 120. 
 
 8 Moore, Digest, 6 : 849.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 207 
 
 tended to be regulative, rather than political in character. Their 
 predominant character has changed from that of political contracts 
 to codes of law or administrative regulations providing for inter- 
 national administration in a smaller or wider circle.'^ 
 
 A similar distinction has been recognized by American courts, 
 in classifying certain treaty provisions as " self-executing." Prac- 
 tically this distinction depends upon whether or not the courts and 
 the executive are able to enforce the provision without enabling 
 legislation. Fundamentally it depends upon whether the obligation 
 is imposed on private individuals or on public authorities. 
 
 " A treaty," said Chief Justice Marshall, " is in its nature a contract be- 
 tween two nations, not a legislative act. ... In the United States a different 
 principle is established. Our Constitution declares a treaty to be the law of 
 the land. It is, consequently, to be regarded in courts of justice as equivalent 
 to an act of the legislature, zvhcnevcr it operates of itself, without the aid of 
 any legislative provision. But when the terms of the stipulation import a 
 contract, when either of the parties engages to perform a particular act, the 
 treaty addresses itself to the political, not the judicial, department; and the 
 legislature must execute the contract before it can become a rule for the 
 courts." 8 
 
 Treaty provisions which define the rights and obligations of 
 private individuals and lay down general principles for the guidance 
 of military, naval or administrative officials in relation thereto are 
 usually considered self-executing. Thus treaty provisions assuring 
 aliens equal civil rights with citizens, defining the limits of national 
 jurisdiction, and prescribing rules of prize, war and neutrality, have 
 been so considered.^ However, many treaty provisions are difficult 
 to classify. Thus a treaty regulating the taking of seal in a de- 
 fined area of Behring Sea and specifically enjoining the governments 
 concerned to enforce the regulation imposes a primary obligation 
 upon individuals and might seem self-executing. But it also imposes 
 
 ■f Wright, Am. Jl. Int. Law, 13 : 243, 245. 
 
 8 Foster v. Neilson, 2 Pet. 253, 314 (1829). See also infra, sec. 256. 
 
 »Hauenstein v. Lynham, 100 U. S. 483; La Ninfa, 75 Fed. 513; The 
 Phoebe Ann, 3 Dall. 319; Ex parte Toscano, 208 Fed. 938. There has been a 
 question in the United States whether treaties regulating commerce and 
 tariffs are of this kind. See infra, sec. 154.
 
 208 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 a responsibility upon the government to prevent infractions and pun- 
 ish violators. Extradition treaties are of similar character. They 
 affect primarily the individual fugitive from justice by withdrawing 
 his right of asylum, but they also specifically require the government, 
 to whose territory he has fled, to surrender him. In view of the 
 constitutional principle that federal courts can only punish crimes 
 defined by statute,^° such treaties are not self-executing in the 
 United States, except in so far as executive action is sufficient to 
 carry them out.^^ They ordinarily require legislation to be effec- 
 tively executed. In spite of this fact, the obligation of such treaties 
 rests primarily upon individuals and the responsibility of the govern- 
 ment is measured by the standard of " due diligence," whether or 
 not the treaty specifies the steps which are to be taken in prevention 
 and punishment.^^ Thus such treaty provisions have been consid- 
 ered in the preceding chapter. 
 
 On the other hand certain treaty obligations are addressed solely 
 to public authorities, of which may be mentioned those requiring 
 the payment of money, the cession of territory, the guarantee of 
 territory or independence, the conclusion of subsequent treaties on 
 described subjects, the participation in international organizations, 
 the collection and supplying of information, and direction of postal, 
 telegraphic or other services, the construction of buildings, bridges, 
 lighthouses, etc. It is with the power to perform such obligations 
 that we are here concerned. 
 
 138. Obligations Founded on General International Law. 
 
 Although all international law is said to rest ultimately upon the 
 agreement of states,^^ in fact this agreement is assumed of prin- 
 ciples established by long practice and custom or the concurrence of 
 authoritative writers." International law imposes few if in fact 
 
 ^'^ Supra, sec. 129. 
 
 11 Supra, sees. 125-127. 
 
 12 Supra, sec. 124. 
 
 13 The Exchange v. McFaddon, 7 Cranch 116. 
 
 1* The Paquette Habana, 175 U. S. 677. See for sources of international 
 law, Draft Code for an International Court, Art. 35, Am. Jl. Int. Law, Supp., 
 14 : 379, Oct. 1920, and Wright, Minn. Law Rev., 5 : 436.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 209 
 
 any obligations requiring specific performance. It requires that 
 states preserve order in their territory and exercise especial vigilance 
 in such matters as the protection of diplomatic officers, the preser- 
 vation of neutrality, the suppression of nuisances such as piracy. 
 But here the state's responsibility is indirect. The law of neutrality 
 requires that neutral states intern troops and vessels illegally in 
 their jurisdiction and restore prizes illegally captured or brought 
 within their jurisdiction, but these requirements are designed pri- 
 marily as means for the enforcement of law against individuals in 
 the neutral state's jurisdiction. Certain ceremonial observances such 
 as exchanging salutes by public vessels, though customary, are really 
 matters of courtesy rather than law. Doubtless good citizenship 
 in the family of nations requires that states exchange diplomatic 
 officers and cooperate in matters of world service ; that they aid each 
 other in the suppression of crime and administration of justice; that 
 they attempt to prevent war by offering mediation and suggesting 
 arbitration ; but except as provided in treaty, international law does 
 not require such acts.^" 
 
 However, in case international law or treaty is violated, inter- 
 national law imposes the obligation of reparation. This may take 
 the form of payment of money, cession of territory, the making of 
 formal amends such as apology or salute of flag. Sometimes a de- 
 mand has been made for the trial or delivery of a criminal in repa- 
 ration, but it has been generally held that international law does not 
 require such reparation.^^ It is with the power to meet " claims " 
 or demands for reparation and to perform specific obligations of 
 contract, agreement and treaty that we are at present concerned. 
 
 139. The Determination of Obligations. 
 
 The precise determination of national obligations, by the applica- 
 tion of the principles and rules of international law and treaty to 
 concrete facts, has always proved a difficult problem. It is a recog- 
 nized common law principle that no one should be judge in his own 
 
 ^"Hall, International Law (Higgins), pp. 56-60. 
 
 J« Wright, Enforcement of Int. Law, pp. 94-100, supra, sec. no.
 
 210 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 
 case, and there has been judicial opinion in England to the effect 
 that even an act of Parliament infringing this principle would be in 
 so far void/^ The same principle is recognized in the federal sys- 
 tem of the United States and a jurisdiction is established to try 
 cases between the states of the union.^* So also in international law 
 it has been recognized on occasion that treaties should be interpreted 
 not by each party according to its own opinion/^ but by judicial 
 process,^" arbitration,^^ or agreement of the parties.^^ 
 
 However, there is another common law principle, that the state 
 cannot be sued without its own consent. This principle is founded 
 not only on the historical tradition that "the king can do no wrong " 
 and on legal precedents, but also on practical grounds.^' 
 
 " A sovereign," said Justice Holmes for the Supreme Court, " is exempt 
 from suit not because of any formal conception or obsolete theory, but on 
 the logical and practical ground that there can be no legal right as against 
 the authority that makes the law on which the right depends." 
 
 This consideration has led Hobbes, John Austin and others to 
 conclude, starting from the premise that the state is the only source 
 of law, that the state cannot be subject to law and consequently in- 
 ternational law and treaties impose only moral obligations.^* Cer- 
 
 I'^Dr. Bonham's Case, 8 Co. Rep. 107a, 114a (1600); Day v. Savadge, 
 Hob. 85, 87 (1610) ; City of London v. Wood, 12 Mod. 669, 687 (1701); 
 Thayer, Cases on Const. Law, 47 et seq.; Hobbes, Leviathan, chap. 15, Every- 
 man ed., p. 81. 
 
 18 U. S. Const., Art. Ill, sec. 2. 
 
 1^ " Neither of the parties who have an interest in the contract or treaty 
 may interpret it after his own mind." Vattel, Le Droit des Gens, i : 2, c. 17, 
 sec. 265. See also Wright, Minn. Law Rev., 4: 29. 
 
 20 Wilson V. Wall, 7:i U. S. 83, 84 (1867) ; Moore, Digest, 5: 208; Cran- 
 dall, op. cit., p. 364. 
 
 21 I Hague Conventions, 1907, arts. 38, 82; Treaties concluded by United 
 States with Great Britain and other countries, 1908, art. i, Malloy, Treaties, 
 814; League of Nations Covenant, art. 13. 
 
 22CrandaIl, op. cit., pp. 225, 387; Dalloz, Juris. Gen., Supt., t. 17 (1896), 
 s. V. Traite Int. No. 14; Wright, Am. Jl. Int. Law, 12: 92. 
 
 23Kawananako v. Polyblank, 205 U. S. 349, 353 (1907). 
 
 2* Hobbes, Leviathan, chap. 26, 2; Austin, Lectures on Jurisprudence, 5th 
 ed., London, 191 1, i: 263, 278; Gray, Nature and Sources of the Law, 1909, 
 pp. 77-81; Holland, Jurisprudence, nth ed., pp. 53, 365.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 211 
 
 tainly an attempt to apply the two common law principles referred 
 to leads to an apparent contradiction. By the first the state must 
 submit to suit, by the second it cannot be sued. 
 
 140. Justiciable and Non-justiciable Questions. 
 
 In practice a partial reconciliation of the two principles has 
 been reached through the consent of states to be sued or to submit 
 to the decision of an international authority in certain types of 
 cases. The distinction has been made between justiciable and non- 
 justiciable questions. States have admitted that questions of the 
 former type ought to be settled by impartial external authority and 
 have actually so settled them, while in the latter type of questions, 
 they have tenaciously maintained the doctrine that the state cannot 
 be sued and each has acted as judge in its own case.^' 
 
 This distinction does not aid us to determine what questions are 
 actually justiciable nor does the similar distinction often made be- 
 tween legal and moral obligations. It is doubtless true, as President 
 Wilson and Vattel before him pointed out, that when the element 
 of judgment exists, the decision belongs to the conscience of the 
 party alone, the obligation is moral, and hence the question is non- 
 justiciable.-*' But this does not tell us in what cases the element of 
 judgment exists. Nor do we get farther along by the definition of 
 non-justiciable questions, attempted in many general arbitrations, as 
 questions involving " national honor, vital interests and independ- 
 ence." ^' These general terms can be made as broad or limited as 
 the inclination of the parties suggests in any particular case. 
 
 Attempts to define non-justiciable questions have proved unsuc- 
 cessful, but this does not mean that the distinction is worthless. The 
 truth is that with the theory of national sovereignty, all national 
 obligations, whether founded on treaty or general international law, 
 are presumed to be moral obligations and hence non-justiciable.^' 
 
 28 Crandall, op. cit., p. 358. 
 
 2« President Wilson, Statement to Senate For. Rel. Committee, Aug. 19, 
 1919, Hearings, 66th Cong., ist sess., Sen. Doc. No. 106, p. 515; Vattel, Le 
 Droit des Gens, Introduction, sec. 17. 
 
 2-? See Treaty U. S.-Great Britain, 1908, art. i, Malloy, Treaties, p. 814. 
 
 28 See Infra, sec. 142.
 
 212 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 But states have in the past consented to submit certain controversies 
 to legal decision and by classifying these controversies we can dis- 
 cover what types of dispute have actually been considered justiciable. 
 We can thus by induction arrive at a definition of justiciable ques- 
 tions and regard all others as non-justiciable. Such a definition of 
 justiciable questions has been attempted in Article XIII of the League 
 of Nations Covenant : 
 
 "Disputes as to the interpretation of a treaty, as to any question of inter- 
 national law, as to the existence of any fact which if established would con- 
 stitute a breach of any international obligation, or as to the extent and nature 
 of the reparation to be made for any such breach, are declared to be among 
 those which are generally suitable for submission to arbitration." ^sa 
 
 141. The Obligation of Treaties and International Law. 
 
 Treaties are presumably made to be kept. " It is an essential 
 principle of the law of nations," asserted the London protocol of 
 1871, "that no power can liberate itself from the engagements of 
 a treaty, nor modify the stipulations thereof, unless with the consent 
 of the contracting powers by means of an amicable arrangement." ^° 
 The same principle was emphasized by the scrap of paper incident 
 of 1914 and implies that treaties should be interpreted by impartial 
 authority. 
 
 Clearly if international law deserves the name, its obligations 
 must be of a legal character and controversies relating to them 
 must be justiciable.^" Most text-writers recognize the distinction be- 
 tween obligations of international law and requirements of interna- 
 tional courtesy and comity. ^^ In the latter, an element of judgment 
 is reserved, the obligation is "imperfect" or moral, and contro- 
 versies relating to them are non-justiciable, but not so with the 
 former. In practice this distinction necessarily exists, because by 
 definition, ^^ international law consists only of those rules and prin- 
 ciples for the infraction of which nations have been accustomed to 
 make formal international claim or protest, and hence for the settle- 
 
 2saAlso in State of Permanent Court of International Justice, art. 36. 
 2» Satow, Diplomatic Practice, 2: 131; Hall, op. cit., p. 365; Wright. 
 Minn. Law Rev., 5 : 441-443, sutra, sec. 33. 
 
 30 See J. B. Moore, Am. Pol. Sci. Rev., 9: 4-6. 
 
 31 Hall, op. cit., pp. 14, 56. 
 
 32 Supra, sec. 9.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 213 
 
 ment of which they are not content to rely on the conscience of 
 other states. 
 
 But though treaties and international law both impose obligations 
 of a theoretically legal character, yet their interpretation is generally 
 a question for determination by national organs in first instance. 
 According to our classification, international law and treaty impose 
 responsibilities which may require (i) mere observance by public 
 organs, (2) enforcement against individuals within the jurisdiction 
 or (3) the performance of specific acts by public organs. Now 
 primary decision upon the existence of and means of meeting re- 
 sponsibilities of the first two types belongs to national organs. No 
 international controversy can occur until a failure to meet the re- 
 sponsibility or at least definite authorization of a violation is al- 
 leged.^^ It is, therefore, only responsibilities of the third type, now 
 under consideration, which can raise a question for international 
 discussion, and such a question may be raised by a claim for (i) 
 specific performance or (2) reparation. These are the two types of 
 obligations imposed by international law.^* They imply " a tie ; 
 whereby one (state) is bound to perform some act for the benefit 
 of another " ^° and are thus to be distinguished from responsibilities, 
 almost synonymous with liabilities, which imply a situation in which 
 
 S3 Friendly controversies merely to ascertain rights, resulting in decisions 
 of the nature of declaratory judgments would be an exception. Boundary 
 controversies are sometimes of this character, though usually they are occa- 
 sioned by incidents alleged to constitute an encroachment. 
 
 3* These two obligations bear a certain resemblance to the two obligations 
 known in Roman law as obligationes ex contractu and ex delicto and in com- 
 mon law as contracts and torts. There is, however, a difference. The dis- 
 tinction between contracts and torts depends upon whether or not the obliga- 
 tion is founded on special agreement or on general law; whereas the distinc- 
 tion we here make depends upon whether or not the obligation can be carried 
 out or merely compensated for. In fact, however, practically the only inter- 
 national obligations which can furnish grounds for a demand for specific 
 carrying out are founded on special agreements. But on the other hand, 
 obligations which may furnish grounds for a claim for compensation may be 
 founded upon either general law or special agreement. See Salmond, Juris- 
 prudence, pp. 558-559- 
 
 3' Holland, Jurisprudence, p. 241.
 
 214 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 one state may suffer if it acts, permits action, or fails to act so as 
 to injure others.^^ 
 
 142. Practice in Submitting Disputes to Arbitration. 
 
 Although under the League of Nations Covenant, apparently any 
 question involving either of these obligations should be considered 
 justiciable, it appears that in the past states have been very reluctant 
 to consider disputes relating to the performance of political acts, 
 even when required by treaty, as fully justiciable. They have been 
 unwilling to be controlled by any authority other than their own 
 consciences in questions involving sovereignty, such as the method 
 by which guarantees are to be fulfilled or laws enforced within 
 their own territory. Thus Lord Derby said of the Luxemburg neu- 
 tralization guarantee : " We are bound in honor — you cannot put 
 a legal construction upon it — to see in concert with others that these 
 arrangements are maintained." ^^ And President Wilson said of 
 the guarantee in Article X of the League of Nations Covenant : ^^ 
 
 s«" Liability or responsibility is the bond of necessity that exists between 
 the wrongdoer and the remedy of the wrong." (Salmond, Jurisprudence, sec, 
 126.) In the terminology which has developed from discussion of Professor 
 Hohf eld's article on Fundamental Legal Conceptions {Yale L. J., 23: 16), we 
 say that B is under an obligation (or duty) when the services of organized 
 society can be enlisted against him by A and correlatively that A has a right. 
 On the other hand, B is under a liability (or responsibility) when organized 
 society permits A to act against him and correlatively A has a power. (See 
 addresses at meeting of Association of American Law Schools in Chicago, 
 Dec. 29, 1920, especially that by Kocourek. Am. Law School Rev., 4: 615.) 
 
 Rights and obligations imply a society organized to the extent of provid- 
 ing agencies for authoritatively judging justiciable controversies between its 
 members. There are no true rights or obligations where each man is judge 
 of the merits of his own case. {Supra, sec. 139.) Powers and liabilities, 
 however, may exist in a society organized only to the extent of refusing to 
 permit self help in certain cases. There are no true powers or liabilities 
 where each man is judge of the limits of his own competence. Moral rights 
 and duties may exist in a society not organized at all. {Supra, sec. 140.) 
 The family of nations has passed from the last to the second stage and is 
 slowly advancing to the first. {Infra, sec. 142; Wright, Col. Law Rev., 20: 
 147-148.) 
 
 3' Hansard, Debates. 3d Ser., 187: 1922; Hall, op. cit., p. 355. 
 
 38 Statement to Senate For. Rel. Committee, Aug. 19, 1919, 66th Cong., 
 1st sess.. Sen. Doc. 106, p. 502.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 215 
 
 " It is a moral, not a legal, obligation, and leaves our Congress absolutely 
 free to put its own interpretation upon it in all cases that call for action. It 
 is binding in -conscience only, not in law." 
 
 The North Atlantic Fisheries arbitration court seemed to sanc- 
 tion the same view when it refused to hold that Great Britain was 
 bound to gain American assent to fishery regulations within those 
 territorial waters in which the United States claimed a treaty- 
 servitude : ^^ 
 
 " The right to regulate the liberties conferred by the treaty of 1817 is an 
 attribute of sovereignty, and as such must be held to reside in the territorial 
 sovereign unless the contrary be provided." 
 
 In practice claims for reparation have been the type most 
 frequently submitted to arbitration, though cases involving the 
 limits of jurisdiction such as boundaries, public vessels, etc., have 
 occasionally been so settled. 
 
 B. Power to Interpret National Obligations. 
 
 143. By National Political Organs: Congress. 
 
 The agencies competent to interpret and apply international law 
 and treaty, and thereby to decide upon the existence of national 
 obligations, may be classified as (i) national political organs, (2) 
 international political organs, (3) national judicial organs and (4) 
 international judicial or quasi-judicial organs. 
 
 Political questions according to the courts are beyond their 
 competence and must be left to the political departments. Thus 
 they have held that it belongs to the political departments to decide 
 whether or not a treaty has been terminated and until such decision 
 is given the courts will continue to apply it as municipal law.'*" The 
 principle has been, that the organ with power to fulfill an alleged 
 political obligation is competent to decide whether the obligation 
 really exists. 
 
 " Where the construction of a treaty is a matter of national policy," wrote 
 Secretary of State Bayard, " the authoritative construction is that of the 
 
 39 Wilson, The Hague Arbitration Cases, Boston, 1915, p. 154. 
 *^ Infra, sec. 182.
 
 216 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 political branch of the government. It is the function of the Executive or 
 of Congress, as the case may be." *^ 
 
 So Congress has asserted that it alone can interpret responsibihties 
 claimed to oblige an appropriation of money, a declaration of war 
 or other act exclusively within its control. As has been pointed 
 out, if the President as the representative organ should interpret 
 such a responsibility, his interpretation would bind the United 
 States under international law/^ but in recognition of the con- 
 stitutional principle he has not usually done so. Thus Secretary 
 of State Bayard refused to authorize an unconditional signature 
 of a declaration interpreting the Submarine Cable Convention of 
 1884:*' 
 
 " It is to be observed," he wrote, " in this connection that the treaty in 
 question is not self-executing, and that it requires appropriate legislation to 
 give it effect. If, under these circumstances, the Executive should now as- 
 sume to interpret the force and effect of the convention, we might hereafter 
 have the spectacle, when Congress acted, of an Executive interpretation of 
 one purport and a different congressional interpretation, and this in a matter 
 not of Executive cognizance." 
 
 144. By National Political Organs: The Senate. 
 
 The Senate, in consenting to the ratification of treaties, has 
 decided upon the action necessary to meet responsibilities created 
 by preliminaries of peace, protocols and other agreements requiring 
 the negotiation of subsequent treaties. So the Senate assumed the 
 right to decide whether or not ratification of the Treaty of Ver- 
 sailles was required in fulfillment of the responsibilities under- 
 taken by the President's exchange of notes with the Allied powers 
 of November 5, 1918, and the armistice with Germany of Novem- 
 ber 1 1." So also the Senate has asserted its right to decide 
 whether a particular controversy is within the scope of a general 
 arbitration treaty, and has therefore insisted upon a voice in the 
 
 <i Mr. Bayard, Sec. of State, to Mr. McLane, Min. to France, Nov. 24, 
 1888, Moore, Digest, 5: 209. See Martin v. Mott, 12 Wheat. 19, infra, sec. 
 223, note 97. 
 
 *2 Supra, sees. 34, 38. 
 
 *3 Note cited, supra, note 41. 
 
 ** Supra, sec. 30, note 53.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 217 
 
 conclusion of the compromis submitting a particular case to 
 arbitration. The latter claim has not been admitted by Presidents 
 or supported by the better authorities, who have held that the 
 power to apply a general treaty to particular cases is not a political 
 question and may be delegated.'*^ With reference to general and 
 permanent interpretations of treaties or agreements, however, the 
 President has admitted the Senate's claim. 
 
 " Had the protocol varied the treaty, as amended by the Senate of the 
 United States," wrote President Polk in reference to a protocol explaining 
 the treaty of Guadaloupe Hidalgo with Mexico, " it would have no binding 
 effect." *6 
 
 Apparently the presumption that the President speaks for the 
 nation would generally be superseded in such a case by the duty 
 of foreign nations to acquaint themselves with the authority in the 
 United States competent to make international agreements, and 
 the United States would not be bound by such general interpreta- 
 tion unless the foreign nation had reason to suppose it had been 
 consented to by the proper authorities.*^ 
 
 145. By National Political Organs: The President. 
 
 Where power to fulfill responsibilities is vested in the Pres- 
 ident, he may decide what action is necessary. Thus Presidents 
 have often decided when the circumstances contemplated by 
 treaties or agreements of guarantee and protection, such as those 
 with Colombia (1846), Mexico (1882-1894), Cuba (1903) and 
 Hayti (1916), exist, and on their own responsibility have moved 
 troops or war vessels.*^ In his message of December 7, 1903, 
 President Roosevelt explained at length his interpretation of the 
 treaty of 1846 with Colombia. By Article 35 of this treaty the 
 United States had "guaranteed, positively and efficaciously to 
 New Granada, (Colombia) ... the perfect neutrality of the . . . 
 Isthmus, with the view that the free transit from the one to the 
 
 45 Supra, sec. 62. 
 
 46 Moore, Digest, 5: 208; see also supra, sees. 2^, 28, 38, and infra, sec. 
 
 177. 
 
 *T Supra, sec. 24. 
 
 48 Taft, Our Chief Magistrate, pp. 85-87.
 
 218 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 other sea may not be interrupted or embarrassed in any future 
 time while this treaty exists; and, in consequence, the United 
 States also guarantee, in the same manner, the rights of 
 sovereignty and property which New Granada has and possesses 
 over the said territory." In fulfillment of this guarantee Pres- 
 ident Roosevelt had ordered the war vessel Nashville to Colon, 
 with instructions : *^ 
 
 " In the interests of peace make every eflfort to prevent Government 
 troops at Colon from proceeding to Panama. The transit of the Isthmus 
 must be kept open and order maintained." 
 
 With this action, the insurrection soon ended in success, and 
 President Roosevelt promptly recognized the New Republic of 
 Panama. In the message he called attention to previous occasions 
 from 1856 to 1902, in which the United States had been obliged 
 to exercise a " police power " in connection with this guarantee 
 and the President had ordered sailors and marines to land and to 
 patrol the Isthmus. ^° 
 
 146. By International Political Organs. 
 
 A political interpretation of national obligations is not neces- 
 sarily unilateral. Undoubtedly agreement is a more satisfactory 
 method of reaching a decision and has been judicially approved. 
 Thus said Justice Story for the Supreme Court : ^^ 
 
 " The parties who formed this treaty, and they alone, have a right to 
 annex the form of a passport. It is a high act of. sovereignty, as high as the 
 formation of any other stipulation of a treaty. It is matter of negotiation 
 between the governments. The treaty does not leave it to the discretion of 
 either party to annex the form of the passport; it requires it to be the joint 
 act of both." 
 
 " The interpretation of a treaty in case of difficulty," said the French 
 Court of Cassation, " can result only from a reciprocal agreement of the two 
 governments." ^^ 
 
 *® Richardson, Messages, 10: 566. 
 
 B0/&1U, 10: 664. 
 
 51 The Amiable Isabella, 6 Wheat, i, 71-73 (1821). 
 
 esDalloz, Juris, Gen., Supt., t. 17 (1896), s. v. Traite, Int., No. 14.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 219 
 
 An interpretation by political agreement would ordinarily re- 
 quire negotiation through the Department of State, acting either 
 through the Secretary of State at Washington or through a dip- 
 lomatic officer in the foreign capital. All claims must be presented 
 to the Department of State, not to the President direct or to 
 Congress.-" If claims of American citizens upon foreign govern- 
 ments, they must be presented in proper form and with ample evi- 
 dence, but the department reserves full discretion to refuse to 
 press them.^* If claims from foreign citizens or governments 
 against the United States, they must be presented ofificially as from 
 the government of the claimant's state. The Department of State 
 will not consider claims from foreign individuals, only from rec- 
 ognized governments.^' 
 
 However, the department is free to accept an dlTer of mediation 
 by a foreign government, or to submit the controversy to a council 
 of conciliation, commission of inquiry or other body set up to 
 discover facts and agree on recommendations.^" Such recommen- 
 dations are not binding upon the political organs of the government 
 but are often accepted. Under the Bryan Peace treaties con- 
 cluded with twenty states in 1914 and 191 5, controversies not 
 otherwise settled must be submitted to a joint commission before 
 force is resorted to. Similar provision is made in the League of 
 Nations Covenant (Article XV)." 
 
 The controversy may be settled by the conclusion of a treaty 
 which is of course binding on the United States. Many claims 
 have been thus settled. The claims of the United States on 
 account of spoliations by French vessels before 1800 and the 
 claims of France for reparation on account of the alleged non- 
 fulfillment of the alliance treaty of 1778 were balanced oflf by the 
 treaty of i8or. Claims against France were liquidated by a 
 
 53 Borchard, op. cit., pp. 355, 653 ; Moore, Digest, 4 : 687, 781 ; supra, sec. 
 12, note 22. 
 
 '•* Moore, Digest, 6: 609 et seq. 
 
 ^^ Ibid., 6: 607-609; 4: 694. 
 
 ^^ Ibid., 6: 1012 et seq.; Borchard, op. cit., p. 366 ct seq. 
 
 5^ Canadian Boundary controversies must be submitted to a commission 
 by art. viii of the treaty of 191 1, Charles, Treaties, p. 42.
 
 220 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 treaty concluded in 1831. Treaties of peace usually liquidate pre- 
 war claims. This was true of the treaties of Guadaloupe Hidalgo 
 and Paris. By article VII of the latter: 
 
 " The United States and Spain mutually relinquish all claims for indem- 
 nity, national and individual, of every kind, of either Government, or of its 
 citizens or subjects, against the other Government, that may have arisen since 
 the beginning of the late insurrection in Cuba and prior to the exchange of 
 ratifications of the present treaty, including all claims for indemnity for the 
 cost of the war." 
 
 Often such a treaty liquidation will involve an obligation of the 
 Government to compensate its own citizens. ^^ This was true of 
 the provision just stated, which was followed by the statement that : 
 
 "The United States will adjudicate and settle the claims of its citizens 
 against Spain relinquished in this article." 
 
 Boundary questions have often been settled by treaty, as was the 
 Maine Boundary by the Webster-Ashburton treaty of 1842 and the 
 Oregon boundary by a treaty of 1846. 
 
 The power to settle claims against the government by agree- 
 ment has sometimes been delegated to officers other than the Secre- 
 tary of State. Thus an act of March 2, 1919, provided : '^* 
 
 " The Secretary of War, through such agency as he may designate or 
 establish, is empowered, upon such terms as he or it may determine to be in 
 the interest of the United States, to make equitable and fair adjustments and 
 agreements, upon the termination or in settlement or readjustment of agree- 
 ments or arrangements entered into with any foreign government or govern- 
 ments or national thereof, prior to November twelfth, nineteen hundred and 
 eighteen, for the furnishing to the American Expeditionary Forces or other- 
 wise for war purposes of supplies, materials, facilities, services, or the use of 
 property, etc." 
 
 147. By National Courts. 
 
 The interpretation and application to concrete circumstances of 
 international law and treaty is not in essence a political or legislative 
 act and undoubtedly the political organs may delegate power to 
 make such interpretation to other organs. This power is essen- 
 
 "sBorchard, op. cit., p. 379; Moore, Digest, 6: 1025. 
 "40 Stat., c. 94, sec. 3, Comp. Stat., 3115, l4/i5c.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 221 
 
 tially judicial in character and has often been delegated to the 
 courts. 
 
 Certain claims virtually against the government may be decided 
 by prize courts. Such courts may decree restitution of captured 
 vessels, compensation if the vessel has been requisitioned or de- 
 stroyed, or damages if the capture has been illegal. Damages are 
 in theory awarded against the officer making the capture, but in 
 fact such awards are usually paid by the government.®" Federal 
 District Courts have been given exclusive jurisdiction in prize 
 matters with appeal to the Supreme Court.®^ They are free to 
 apply international law and treaty and hold it their duty to do so 
 except as expressly modified by act of Congress.®^ Both neutral 
 and enemy persons are entitled to present claims in such courts.®' 
 It has been held that prize courts may be constituted by Congress 
 alone. Courts set up under authority of the President in occupied 
 territory cannot exercise prize jurisdiction.®* 
 
 Congress has also established a Court of Claims from which 
 appeal may be taken to the Supreme Court. Its jurisdiction ex- 
 tends to claims presented by aliens whose governments will recipro- 
 cate, not founded on tort, or treaty.®^ The decisions of this court 
 or of the Supreme Court, if appeal is taken, are considered final and 
 Congress always appropriates therefor.®® The Court of Claims may 
 also consider any claim presented to it by Congress and make a 
 report thereon, which however is not binding.®^ Under the Tucker 
 Act of 1887 and subsequent amendments the Federal District Courts 
 
 «o Moore, Digest, 7: 593-597- 
 
 «i Judicial Code of 191 1, sec. 24, par. 3; sec. 250, par. 2. 
 
 62 The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677, 
 supra, sec. 106. 
 
 63 The claimant in the Paquette Habana, supra, was an enemy subject. 
 See British case, The Mowe, L. J. (1915), P- 57, Am. Jl. Int. Law, 9: 547- 
 
 6* Jecker v. Montgomery, 13 How. 498. 
 
 68 Judicial Code of ipn, sees. 136, 145, I53, I55; 36 Stat. 1135, Willoughby, 
 op. cit., p. 982. 
 
 66 U. S. V. New York, 160 U. S. 615 ; In re Sanborn, 148 U. S. 226 ; Wil- 
 loughby, p. 1275. 
 
 s'^ Judicial Code of 1911, sec. 151.
 
 222 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 enjoy concurrent jurisdiction with the Court of Claims in claims 
 not exceeding $10,000.®^ 
 
 Congress has often set up special courts or commissions to 
 settle claims of individuals. Of this character may be mentioned 
 commissions to liquidate the claims settled by the treaty with Spain 
 of 1819, claims settled by the Alabama Arbitration of 1871, and 
 claims settled by the Spanish treaty of 1898. Sometimes special 
 jurisdiction is conferred to settle particular claims. So the Court 
 of Claims was given jurisdiction to settle the French Spoliation 
 claims, the courts were given jurisdiction to settle various specified 
 types of claims arising out of the Civil War, and by an act of i860 
 the federal courts were given jurisdiction to settle the claim of one 
 Repentigny to a tract of land in Michigan founded on an ancient 
 French grant. The act expressly provided in this case that the 
 decision should be based on " (i) the law of nations, (2) the laws 
 of the country from which the title was derived, (3) the principles 
 of justice, and (4) the stipulations of treaties," "' 
 
 148. By International Courts. 
 
 National courts are bound by national law if expressed in un- 
 mistakable form, and may not be free to apply international law 
 and treaty. All international claims, whether decided upon by 
 national courts or not, if not satisfactorily settled, may be presented 
 to the President through the Department of State.''" As we have 
 seen they may then be settled by political negotiation and agree- 
 ment or submission to a political body such as a council of con- 
 ciliation. However, the department may submit them to arbitra- 
 tion or an international court and under the provisions of certain 
 treaties it is bound to so submit certain types of controversies. By 
 a treaty with various American states adopted at the Fourth Inter- 
 national American Congress in 1910:^^ 
 
 " The High Contracting Parties agree to submit to arbitration all claims 
 for pecuniary loss or damage which may be presented by their respective citi- 
 zens and which cannot be amicably adjusted through diplomatic channels, 
 
 ^^ Ibid., sec. 24, par. 20. 
 
 60 U. S. V. Repentigny, 5 Wall. 211 (1866). 
 
 ^0 Supra, sec. 12. 
 
 ^1 Charles, Treaties, etc., p. 346.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 223 
 
 when said claims are of sufficient importance to warrant the expense of 
 arbitration." 
 
 "The decision shall be rendered in accordance with the principles of 
 international law." 
 
 By the II Hague Convention of 1907 armed force cannot be used 
 for the recovery of contract debts between governments unless an 
 offer of arbitration has been refused, and by a large number of 
 treaties concluded in 1908 for five years, most of which have since 
 been renewed, the United States has agreed to submit to arbitra- 
 tion " Differences which may arise of a legal nature or relating to 
 the interpretation of treaties existing between the two contracting 
 parties and which it may not have been possible to settle by di- 
 plomacy " and which " do not affect the vital interests, the inde- 
 pendence, or the honor of the two Contracting States, and do not 
 concern the interests of third parties." "^^ The League of Nations 
 Covenant (\vt. XIII) recommends the submission of specified 
 types of cases to arbitration or to the proposed International Court 
 of Justice but does not require it. 
 
 In making such submissions, if no general treaty exists, a special 
 treaty to which the Senate has consented is necessary for the sub- 
 mission to arbitration of national claims or claims by foreign states 
 or individuals against the United States.'^^ Claims of American 
 citizens against foreign states may be submitted on the basis of a 
 compromis under authority of the President or Secretary of State, 
 since it is within the discretion of these officials to decide whether 
 such claims shall be pressed at all.''* Even if an arbitration of such 
 claims results successfully for the United States the government 
 may withhold the money from the individual claimant if it discovers 
 fraud. Thus claimants in the L'Abra and Wyle claims against 
 Mexico were unable to compel the Secretary of State by manda- 
 mus to turn over to them the money paid by Mexico to the United 
 States as a result of the arbitration.^' The United States govern- 
 
 72 Malloy, Treaties, p. 814. 
 
 T3 Foster, Yale L. J., 11 : 77; Moore, Digest 5: 211. 
 
 ■^^J. B. Moore, Pol. Set. Quar., 20: 403; Willoughby, op. eit., p. 475; 
 Moore, Digest, 5: 211. 
 
 -5 L'Abra Silver Mining Co. v. U. S., 175 U. S. 423 (1899) ; Foster, The 
 Practice of Diplomacy, 374-377-
 
 224 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ment had discovered fraud after the arbitration and ultimately 
 returned the money to Mexico. Where a general arbitration treaty 
 exists, the better authorities hold that the President may submit 
 claims falling within it on his own authority, unless the general 
 treaty requires otherwise. The Senate however has taken a dif- 
 ferent view.''* 
 
 Arbitration awards are considered final and obligatory and have 
 practically always been met by the United States.'''^ In the few 
 cases where they have not, the United States has contended that 
 the arbitration court exceeded or abused its powers.'^^ Unless 
 such exception is taken at once by the political organs, the courts 
 hold arbitration awards authorized by treaty the supreme law of the 
 land.^» 
 
 Although often recommended, no international court of justice 
 was established until 1921, The International Prize Court to be set 
 up by the XII Hague Convention of 1907 never came into being. 
 Such a court, authorized by Article XIV of the League of Nations 
 Covenant, was established by action of the Second Assembly of the 
 League, September, 1921, on the basis of a code prepared by a com- 
 mission of jurists in 1920 and approved with modifications by the 
 council and by the First Assembly and ratified at that time by 29 
 members of the League.^** An international court of claims before 
 
 ■^8 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The Anglo- 
 American claims treaty of 1910, differing from those of 1853 and 1871, re- 
 quires that each schedule of claims under the treaty be approved by the 
 Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in 
 British Year Book of International Law, 2: 193). 
 
 '''' I Hague Conventions, 1907, pp. 81-83. 
 
 '8 Moore, Digest, 7 : 59-62 ; Darby, International Tribunals, 1904, p. 785, 
 No. 46. 
 
 ■'^Comegys v. Vasse, i Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); 
 Moore, Digest, 7: 55. 
 
 80 For draft plan of organization by Root et al. see Am. Jl. Int. Law, 
 Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 
 4: 281 et seq. 13 additional states had signed but not ratified the code in 
 September 1921 and 13 states had accepted the clause providing for com- 
 pulsory jurisdiction, ibid., 278, 291.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 225 
 
 which private individuals might bring cases against governments has 
 also been suggested. With reference to such a court Borchard says : ^'• 
 
 "The divorce of pecuniary claims from political considerations a union, 
 which now not only results in inexact justice, but often gross injustice, and 
 the submission of such claims to the determination of an independent tribunal, 
 must make a universal appeal to man's sentiment for justice." 
 
 C. Power to Perform National Obligations. 
 
 149. Appropriations. 
 
 A decision having been made as to what action is required in 
 order to meet the obligation, it becomes the duty of organs em- 
 powered thereto by the Constitution to perform those acts. 
 
 Under the power to raise taxes for the general welfare. Congress 
 undoubtedly has power to make appropriations for this purpose. 
 Where Congress itself has decided that the obligation is due it will 
 of course make the appropriation. Where a decision by a na- 
 tional court acting within its jurisdiction or an international arbitra- 
 tion court has been given, appropriations have been made as a 
 matter of course. Where the Department of State has admitted 
 the validity of a claim Congress has generally made the appropria- 
 tion. Thus on January 30, 1896, Secretary of State Olney, after 
 discussion with the Italian Ambassador with reference to the lynch- 
 ing of three Italian citizens in Colorado, reported to the President: 
 
 " The facts are without dispute and no comment or argument can add to the 
 force of their appeal to the generous consideration of Congress." ^2 
 
 President Cleveland said in his message to Congress of February 
 3, 1896 :«3 
 
 "Without discussing the question of the liability of the United States for 
 these results, either by reason of treaty obligations or under the general rules 
 of international law, I venture to urge upon the Congress the propriety of 
 making from the public Treasury prompt and reasonable pecuniary provision 
 for those injured and for the families of those who were killed." 
 
 81 Borchard, op. cit., p. 864. See also pp. 328, 373. 443- 
 
 82 U. S. For. Rel., 1895, 2: 938; Moore, Digest, 6: 842. 
 
 83 Richardson, Messages, 9; 664; Moore, Digest, 6: 843.
 
 226 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 By an act of June 30, 1896, Congress provided:®* 
 
 "To the Italian Government for full indemnity to the heirs of three of its 
 subjects who were riotously killed, and to two others who were injured 
 in the State of Colorado by residents of that State, ten thousand dollars." 
 
 Where appropriation has been required for the execution of 
 treaties, Congress has never failed to act*^ but has asserted a right 
 to exercise discretion. Thus a house resolution of 1796 relating 
 to the Jay treaty states : ^^ 
 
 "When a treaty stipulates regulations on any of the subjects submitted 
 by the Constitution to the power of Congress, it must depend for its execution 
 as to such stipulations on a law or laws to be passed by Congress ; and it is 
 the constitutional right and duty of the House of Representatives in all such 
 cases to deliberate on the expediency or inexpediency of carrying such treaty 
 into effect and to determine and act thereon as in their judgment may be 
 most conducive to the public good." 
 
 This attitude though virtually repeated on several later occasions 
 has not been generally approved outside of the House of Rep- 
 resentatives and undoubtedly a moral obligation to make the appro- 
 priation exists. ^^ 
 
 150. Cession of Territory. 
 
 Treaties or arbitration awards may require a cession of ter- 
 ritory. Such provisions affecting small tracts of territory in 
 boundary settlements have been considered self-executing.^^ The 
 
 s* Moore, Digest, 6: 843. In later appropriation acts for similar claims 
 Congress paid " out of humane considerations and without reference to the 
 question of liability, therefor," ibid., 6: 845, 849. See also report of Senator 
 Lodge, 1901, ibid., 6: 852. 
 
 ^5 Appropriation acts for this purpose are listed, Crandall, op. cit., p. 179. 
 
 8^ Annals, 4th Cong., ist sess., p. 771. The resolution was affirmed with- 
 out debate in 1871. Cong. Globe, 426. Cong., ist sess., p. 835; Wharton, 2: 19; 
 Moore, Digest, 5: 224; Crandall, 165 et seq.; Wright, Am. Jl. Int. Law, 12: 
 66. See also Gallatin to Everett, Jan., 1835, Moore, Digest, 5 : 232. 
 
 s^ Crandall, op. cit., p. 177; Willoughby, op. cit., p. 483; Dana's Wheaton, 
 sec. 543; Wharton, Digest, 2: 67-68; supra, ■sec. 59; infra, sec. 256. 
 
 s^The Webster-Ashburton treaty adjusting the Maine Boundary was con- 
 sidered self-executing with respect to territory claimed by Maine, but given
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 227 
 
 same view would probably be taken of a large cession if condi- 
 tions were such that it could be considered constitutional.^® 
 
 151. Guarantees and Use of Military Force. 
 
 Treaties of guarantee, or requiring the employment of force 
 in policing or other operations have usually been carried out by the 
 President. Thus on many occasions the President has dispatched 
 troops to Panama in maintenance of the guarantee in the Colombia 
 treaty of 1846 and Presidents have also dispatched troops to Cuba, 
 Hayti and China in pursuance of treaties and protocols requiring 
 protection.®" Congressional legislation has often provided expressly 
 for the use of force in pursuance of treaty. Article 8 of the 
 Webster-Ashburton treaty of 1842 required that the contracting 
 powers keep naval forces of specified size ofif the coast of Africa 
 for the suppression of the slave trade. Congress passed an act 
 authorizing the President to dispatch vessels for this purpose, and 
 the President so acted."^ 
 
 If a guarantee treaty requires a declaration of war, Congress 
 alone can carry it out, although its discretion ought to be confined 
 to consideration of whether the contemplated circumstances exist 
 and whether war is the most effective means of carrying out the 
 guarantee.®^ 
 
 152. Conclusion of Subsequent Treaties. 
 
 Protocols and preliminaries of peace may require the conclusion 
 
 to Canada by the treaty. Little v. Watson, 32 Maine 214, 224 (1850) ; Cran- 
 dall, op. cit., p. 223. The Supreme Court of the United States has recognized 
 boundary settlements between states of the Union. Va. v. Tenn., 148 U. S. 
 503. See also La Ninfa, 75 Fed. 513, in which the arbitration award fixing 
 jurisdictional limits in Behring Sea was held self -executing. 
 
 8»Willoughby, op. cit., p. 512; Crandall, op. cit., p. 220 et seq.; supra, 
 sec. so. 
 
 ^^ Supra, sees. 126, 145; infra, sees. 221-224. 
 
 91 Moore, Digest, 2: 939. See also ibid., 2: 941; Rev. Stat, sec. 5557; 
 Criminal Code of 1910, sec. 260, 35 Stat., 1140, Comp. Stat., sees. 10, 433. In 
 reference to Slave trade treaty of 1862, see Moore, Digest, 2 : 946. In refer- 
 ence to General act of Brussels for suppression of the slave trade, ibid., 
 2 : 949. 
 
 ^"^ Supra, sec. 27, infra, sec. 211. See also Wright, Am. Jl. Int. Law, 12: 
 72-79.
 
 228 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of definitive treaties along prescribed lines. Such provisions can 
 only be carried out by the treaty power. A protocol calling for 
 conclusion of a treaty for arbitration of the Behring Sea contro- 
 versy was carried out by a treaty in 1891. Spain objected to the 
 definitive treaty of peace as insisted upon by the United States 
 in 1898 on the ground that it was in violation of the preliminaries 
 of peace in some respects. Treaties often require the conclusion 
 of subsequent treaties. This has been true of many general arbitra- 
 tion treaties specifically requiring special treaties submitting cases 
 within the scope of the general treaty. The League of Nations 
 Covenant contemplates treaties on many subjects in which interna- 
 tional cooperation is urged. In such cases the treaty power may act 
 within the discretion allowed it by the general treaty.*^ 
 
 153. Participation in International Organisation. 
 
 Treaties requiring the appointment of officers for participating 
 in international organizations, such as the permanent Court of Ar- 
 bitration and Bureau established by the I Hague Convention of 
 1899, ^nd 1907. a^d for putting administrative regulations into 
 efiFect such as the Behring Sea seal fisheries treaty, the international 
 radio treaty, etc., can be carried out by the President, though 
 Congress has often passed acts expressly authorizing participation 
 in such organizations and enforcement of such regulations.'* If 
 permanent offices with a fixed salary are required, an act of 
 Congress would be essential for the execution of such provisions.^' 
 
 154. Commerce and Revenue Laws. 
 
 Treaties requiring a modification of the tarifif system might seem 
 self-executing and have been held so in dicta by the courts.^® On 
 at least one occasion a foreign state has been given reduced rates 
 
 ^^ Supra, sec. 144. 
 
 8* The President is authorized to use naval vessels to enforce the Sub- 
 marine cable treaty of 1885, by act of Feb. 27, 1888, 25 Stat. 41, Comp. Stat., 
 sec. 10087. He is authorized to enforce the Behring Sea Seal fisheries treaty 
 of 191 1 by act of Aug. 24, 1912, 37 Stat. 499, Comp. Stat., sec. 8838. For acts 
 authorizing participation in various international organizations, see infra, 
 sec. 242. 
 
 ^0 Infra, sec. 242. 
 
 »«Bartram v. Robertson, 122 U. S. 116; Whitney v. Robertson, 124 U. S. 
 190; Willoughby, op. cit., p. 492.
 
 PERFORMANCE OF NATIONAL OBLIGATIONS. 229 
 
 on the basis of treaty without congressional authorization.®^ 
 Congress, however, has insisted that such treaties are not self- 
 executing but require express congressional action for execution. 
 This practice has generally been acquiesced in by the other organs 
 of government."* 
 
 155. Formal Amends in Reparation. 
 
 Satisfactory reparation may sometimes require acts other than 
 the payment of money or cession of territory. Formal amends 
 such as the firing of salutes or sending of apologies may be au- 
 thorized by the President.*® Sometimes states have demanded that 
 individuals be criminally punished or turned over to them for 
 punishment by way of reparation. Thus, aside from indemnity, 
 Italy demanded as reparation for the New Orleans lynching of 
 1891 : " The official assurance by the Federal government that the 
 guilty parties should be brought to trial." ^°° In his next message 
 to Congress President Harrison asked for legislation giving federal 
 courts jurisdiction in such cases but without success. Doubtless 
 such legislation is expedient for meeting the international respon- 
 sibility of enforcing international law and treaty within the juris- 
 diction but it cannot be said that this particular form of reparation 
 is required. ^"^^ The release of prisoners held in custody in violation 
 of international law is however a form of reparation which may be 
 demanded. Such a reparation was demanded by Great Britain in 
 the McLeod case in 1842. "^ At present legislation provides for 
 release in such cases on habeas corpus to the federal courts.^"* 
 
 *'' Switzerland on application of Alost-favored-nation clause of treaty of 
 1850, in 1899. Moore, Digest, 5 : 283-284. See also report of Ambassador 
 Bryce to British Government, Jan. 31, 1912. Pari. Pap., Misc., No. 5 (1912), 
 No. 23, quoted in Ponsonby, Democracy and Diplomacy, p. 154. 
 
 98Crandall, op. cit., pp. 195-200; Wright, Am. Jl. Int. Law, 12: 68. 
 
 »9 Moore, Digest, 6: 1034-1037. 
 
 100 Ibid., 6 : 838. 
 
 101 Supra, sec. 138. 
 
 102 Moore, Digest, 2 : 24-30. 
 
 103 Rev. Stat., sec. 753 ; Comp. Stat., sec. 1281.
 
 CHAPTER XIV. 
 The Power to Make International Agreements, 
 
 156. Power of the States to Make Agreements with Consent of 
 Congress. 
 
 The courts have never pointed out the exact distinction between 
 " Treaties, AUiances, and Confederations," which the states cannot 
 make at all and "compacts and agreements," which they can make 
 with the consent of Congress,^ though Professor Hall has suggested 
 that the latter refers to " trifling and temporary arrangements be- 
 tween States and foreign powers without substantial political and 
 economic efifect." ^ In 1842, Chief Justice Taney held, in an evenly 
 divided court, that the extradition of a criminal, by the governor 
 of Vermont to Canada, would be an " agreement " with Canada, 
 which the state could not make without consent of Congress. The 
 term, "agreement," he thought must be construed so as "to pro- 
 hibit (without consent of Congress) every agreement, written or 
 verbal, formal or informal, positive or implied, by the natural under- 
 standing of the parties." ^ Taney's view was endorsed by the full 
 court forty-four years later in United States v. Rauscher.'' 
 
 There do not appear to have been any " agreements or com- 
 pacts " made with consent of Congress, by states of the Union 
 with foreign states, though following the " Aroostook War," in 
 1839, on authority of the Secretary of State, the Governor of 
 Maine, and the Lieutenant-Governor of New Brunswick concurred 
 in a modus vivendi, pending settlement of the boundary contro- 
 versy,^ and the consent of Maine and of Massachusetts was gained 
 by the National Government during negotiation of the Webster- 
 
 ^ U. S. Const., Art. I, sec. 10, cl. i, 3. 
 ^ Proc. Acad, of Pol. Sci., 7: 555. 
 3 Holmes v. Jennison, 14 Pet. 540. 
 ■* U. S. V. Rauscher, 119 U. S. 407. 
 " Crandall, op. cit., p. 144. 
 
 230
 
 INTERNATIONAL AGREEMENTS. 231 
 
 Ashburton treaty of 1842, which finally settled the boundary.* 
 " Agreements or compacts " with other states of the Union have 
 often been made by states with the consent of Congress'^ and there 
 is no doubt but that the same power applies to foreign states as 
 was, in fact, admitted by Chief Justice Taney in the case referred 
 to. 
 
 157. Power of the States to Make Agreements Independently. 
 
 Although dicta in the Rauscher case asserted that " There is 
 no necessity for the States to enter upon the relations with foreign 
 nations which are necessarily implied in the extradition of fugitives," 
 and that " at this time of day, and after the repeated examinations 
 which have been made by this court, into the powers of the Federal 
 Government, to deal with all such international questions exclu- 
 sively," such a state power cannot be admitted, yet it appears that 
 there may be a small field within which states can agree with for- 
 eign nations even without consent of Congress. Such a field exists 
 in relations between the states of the Union. 
 
 " There are many matters," said the Supreme Court, " upon which 
 different States may agree, that can, in no respect, concern the United 
 States. If, for example, Virginia should come into possession and ownership 
 of a small parcel of land in New York, which the latter State might desire 
 to acquire as a site for a public building, it would hardly be deemed essen- 
 tial for the latter state to obtain the consent of Congress before it could 
 make a valid agreement with Virginia for the purchase of the land. If 
 Massachusetts, in forwarding its exhibits to the World's Fair at Chicago, 
 should desire to transport them a part of the distance over the Erie Canal, 
 it would hardly be deemed essential for that State to obtain the consent of 
 Congress before it could contract with New York for the transportation of 
 the exhibits through the State in that way. If the bordering line of the 
 two States should cross some malarious and disease producing district, there 
 could be no possible reason, on any conceivable grounds, to obtain the 
 consent of Congress for the bordering States to agree to unite in removing 
 the cause of the disease. So, in the case of threatened invasion of cholera, 
 plague or other causes of sickness and death, it would be the height of 
 absurdity to hold that the threatened States could not unite in providing 
 means to prevent and repel the invasion of the pestilence without obtaining 
 the consent of Congress, which might not be in session. 
 
 * Infra, sec. 50. 
 
 7 Green v. Biddle, 8 Wheat i ; Crandall, 0/), cit,, p. 14S ; Willoughby, 
 op. cit., p. 235.
 
 2S2 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "If, then, the terms 'compact' or 'agreement' in the Constitution do 
 not apply to every possible compact or agreement between one State and 
 another, for the validity of which the consent of Congress must be obtained, 
 to what compacts or agreements does the Constitution apply? Looking at 
 the clause in which the terms 'compact' or 'agreement' appear, it is 
 evident that the prohibition is directed to the formation of any combination 
 tending to the increase of political power in the States, which may en- 
 croach upon or interfere with the just supremacy of the United States." * 
 
 As the constitutional clause seems to place agreements with 
 foreign states in exactly the same class as agreements with other 
 states of the Union, it would seem that states might agree with for- 
 eign nations for the purchase of land, for the transit of exhibits, for 
 the removal of sources of disease, or, as in the case cited, for the 
 exact demarkation of a boundary, without congressional consent.* 
 Such agreements would have to be entirely devoid of political 
 significance, and Congress would doubtless be the ultimate judge on 
 that point. Acquiescence by Congress in such a compact would 
 be considered tacit consent, as was explained in the case just quoted, 
 but if Congress subsequently denied the validity of a compact, 
 thereby indicating its belief that the compact was one to which its 
 consent was necessary, the courts would undoubtedly follow its 
 interpretation of a " political question " and hold such compact void. 
 Contracts of a purely business character between a state and a 
 foreign government, such as are involved in the sale of state bonds 
 to a foreign government, do not require the consent of Congress any 
 
 8 Va. V. Tenn., 148 U. S. 503 ; Willoughby, loc. cit. 
 
 ^The Supreme Court said in Fort Leavenworth R. R. v. Lowe (114 
 U. S. 541) : "It is undoubtedly true that the State, whether represented by 
 her legislature, or through a convention specially called for that purpose, is 
 incompetent to cede her political jurisdiction and legislative authority over 
 any part of her territory to a foreign country, without the concurrence of 
 the General Government," though according to this opinion she may cede 
 it to the general government itself. Willoughby (op. cit., 508, note 23) 
 suggests a possible exception " with reference to such an unimportant matter 
 as the administration of fishing upon boundary waters." Barnett (Yale 
 L. /., 13, 23, 27) suggests that there may " properly be an autonomy in local 
 external affairs, at least as to the States bordering on Canada or Mexico, 
 just as there is a local autonomy in matters purely domestic." Butler, 
 however, doubts it. (Op. cit., I, sec. 123.) See Mathews, The States 
 and Foreign Relations, Mich. L. R., 19: 692.
 
 INTERNATIONAL AGREEMENTS. 233 
 
 more than do such contracts between states of the union. ^° Agree- 
 ments and contracts of the kind here referred to do not involve a 
 national responsibility.^^ 
 
 158. Power of the National Government to Make Agreements. 
 Thus with limited exceptions, the power to make agreements is 
 
 vested exclusively in the national government, and apparently the 
 Constitution vests it in two authorities, the President acting alone, 
 and the President acting with advice and consent of two-thirds of 
 the Senate. President Washington pointed out in his message on 
 the Jay treaty that the House of Representatives had no part in 
 treaty-making.^- The House has several times asserted, by resolu- 
 tion, its power to exercise a free discretion as to the execution of 
 treaties requiring an appropriation or other legislation. This has 
 never extended to a claim to participation in treaty-making, and 
 with its more limited interpretation has never been accepted by 
 other branches of the government. ^^ 
 
 159. Congress cannot Make International Agreements. 
 
 It is true that Congress has sometimes passed legislation which 
 by its terms is to go into effect as to any foreign nation, upon proc- 
 lamation by the President, that such nation offers a specified reci- 
 procity, but such arangements are not agreements, since either 
 party is entitled to discontinue them at its own discretion.^* Some- 
 times Congress has delegated authority to the President to make 
 agreements with foreign nations upon subjects within its powers, 
 but here, also, the arrangement seems to be terminable at discre- 
 tion of Congress and is, in fact, an agreement made by the Pres- 
 ident.^^ Congressional resolutions may suggest the making of a 
 treaty on a specified subject, or the modification by negotiation of an 
 
 10 S. Dak. V. N. Car., 192 U. S. 286 (1904). 
 
 11 Supra, sec. 136. 
 
 12 Richardson, Messages, i : 195. 
 
 13 Supra, sec. 149, note 82. 
 
 1* Field V. Clark, 143 U. S. 649; Taft, Our Chief Magistrate, p. iii. 
 15 Supra, sec. 61 ; Moore, Digest, 5 : 362.
 
 234 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 existing treaty, but such resolutions may be ignored by the Pres- 
 ident.^® 
 
 1 60. The Courts cannot Make International Agreements. 
 
 The courts, also, are devoid of treaty-making power : ^^ 
 
 " This court," said Justice Story, " does not possess any treaty-making 
 power. That power belongs, by the Constitution, to another department of 
 the government ; and to alter, amend, or add to any treaty, by inserting any 
 clause, whether small or great, important or trivial, would be on our part 
 an usurpation of power, and not an exercise of judicial functions." 
 
 Courts must construe and interpret treaties in applying them to 
 cases, but such constructions cannot apply to political question or 
 supply omissions." 
 
 A. The Power to Make Executive Agreements. 
 
 161. The Obligation of Executive Agreements. 
 
 The President with advice and consent of two-thirds of the 
 Senate may make any agreement whatever, on a subject suitable 
 for international negotiation and not violative of constitutional 
 limitations. This treaty-making power is not limited by the Pres- 
 ident's independent power of making agreements, but the latter power 
 unquestionably exists. With respect to such Presidential agreements, 
 the questions arise: (i) What subject matter may they cover? 
 
 18 Infra, sec. 203. Congress has undertaken regulation of Indian affairs 
 formerly vested in the treaty-making power. " During the first eighty 
 years of government under the Constitution, agreements with the Indian 
 Tribes were made exclusively by the President and the Senate, in the 
 exercise of the treaty-making power. The passage of the act of 1871 was 
 strongly opposed by certain members of the House as well as of the Senate, 
 on the groimd that it involved an infringement of the treaty-making power 
 vested in the President and the latter body. It was admitted that if the 
 President should undertake to make a treaty with the Indians, Congress 
 could not interfere with his so-doing, by and with the advice and consent of 
 the Senate, but it was, on the other hand, maintained that Congress had the 
 power to declare whether the tribes were independent nations for the 
 purposes of treaty-making, and to render its declaration effective by refusing 
 to recognize any subsequent treaties with them ; and this view prevailed. 
 (See especially, Cong. Globe, 41st Cong., 3d Sess., 1870-1871, part i, pp. 
 763-765; part 3. pp. 1821-1825.) " Moore, Digest, 5: 220. 
 
 17^ The Amiable Isabella, 6 Wheat, i, 71-73. 
 
 IS Ibid., and supra, sec. 107.
 
 INTERNATIONAL AGREEMENTS. 235 
 
 (2) What sort of an obligation do they impose? No general answer 
 can be given to the latter question. An executive agreement may 
 impose an absolute obligation as would be true of the executive 
 settlement of a claim oy an American citizen against a foreign gov- 
 * ernment. After the President has agreed to a settlement, the 
 claim becomes res adjudicata and if against the American citizen, 
 cannot be raised by a subsequent administration against the foreign 
 government. If injustice has been done the American citizen, it 
 is a moral duty of the United States itself to compensate him.^* 
 On the other hand, an executive agreement may impose an obliga- 
 tion strictly binding only the President, who makes it, as would 
 be true of an exchange of notes over foreign policy, such as the 
 Root-Takahira agreement, or the Lansing-Ishii agreement. 
 
 In general, the President can bind only himself and his succes- 
 sors in office by executive agreements, but in certain cases, executive 
 agreements may impose a strong moral obligation upon the treaty- 
 making power and Congress, and they may even be cognizable in 
 the courts. The form of the obligation does not affect its obligatory 
 character. Executive agreements may be by exchange of notes, 
 protocols, cartels, modi vivendl, etc., but in any case the obligation 
 depends upon the subject matter.^" 
 
 162. Administrative Agreements under Authority of Act of 
 Congress. 
 
 To discover the subjects on which the President may make 
 international agreements, we must examine his constitutional powers. 
 For this purpose we may distinguish his powers as (i) head of the 
 administration, (2) as commander-in-chief, (3) as the represen- 
 tative organ in international relations. The President is Chief 
 Executive and head of the Federal administration with power to 
 direct and remove officials and the duty to " take care that the 
 laws be faithfully executed." But the exercise of these powers, 
 and the meeting of this responsibility is dependent upon the laws 
 which Congress may pass, organizing the administration and defin- 
 
 19 Meade v. U. S., 9 Wall. 691; Borchard, op. cit., p. 379; Comegys r. 
 Vasse, I Pet. 193, 212. 
 
 20 See also infra, sec. 166.
 
 236 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ing the powers and responsibilities of ofifice. In this capacity, 
 therefore, the President may only make international agreements, 
 under authority expressly delegated to him by Congress, or the treaty 
 power, or agreements of a nature which he can carry out within 
 the scope of existing legislation. Congress has often delegated 
 power to the President to make agreements within the scope of a 
 policy defined by statute, on such subjects as postal service, patents, 
 trademarks, copyrights and commerce.^^ Such agreements appear 
 to be dependent for their efifectiveness upon the authorizing legis- 
 lation, and are terminable, both nationally and internationally, at 
 the discretion of Congress. 
 
 " It cannot be supposed," wrote Secretary of State Gresham, " that it 
 was intended, by the simple exchange of notes on January 31, 1891, to bind 
 our governments, as by a treaty, to certain duties or remissions of duty 
 on the specified articles, beyond the time when the Congress of the United 
 States might, in the exercise of its constitutional powers, repeal the legisla- 
 tion under which the arrangement was concluded." 22 
 
 While in effect, however, they are binding on the courts,^^ and the 
 President, through his control of the administration, can usually 
 see that they are observed. 
 
 163. Administrative Agreements under Authority of Treaty. 
 
 The administrative powers of the President permit him to carry 
 out treaties, which are the supreme law of the land, so far as 
 Congress has supplied him with the necessary administrative ma- 
 chinery and supplies. International agreements for this purpose, 
 and under express authority of treaty, have been made with ref- 
 erence to the definite marking and mapping of boundaries.^* 
 Under authority of the treaty with Cuba (1903), as well as of 
 congressional legislation, President Roosevelt acquired a lease at 
 Guantanamo, Cuba, for a naval base.^^ The first Hague Conven- 
 tion of 1899 apparently gave the President power to conclude com- 
 promis for submitting cases to arbitration, but the Senate has since 
 
 21 Supra, sec. 61 ; Taft, op. cit., p. 135. 
 
 22 Moore, Digest, 5 : 362. 
 
 23 Field V. Clark, 143 U. S. 649. 
 2*Crandall, op. cit., pp. 117-118. 
 ^^ Ihid., p. 139.
 
 INTERNATIONAL AGREEMENTS. 237 
 
 refused to consent to treaties delegating this power to the Pres- 
 ident." 
 
 164. Independent Administrative Agreements. 
 
 The President, as head of the administration, may also make 
 international agreements, without express authority of statute or 
 treaty, though it would seem that such agreements should not go 
 beyond his own powers of execution. In 1850, however. President 
 Fillmore authorized an agreement, whereby Great Britain ceded 
 Horseshoe Reef, near the outlet of Lake Erie, on condition that 
 the United States erect a lighthouse thereon, and refrain from 
 fortifying it. The execution of this agreement required congres- 
 sional appropriation and permanent abstention of Congress from 
 authorizing fortification of this island. It would seem properly 
 a subject for treaty, rather than executive agreement, but Congress 
 had already made the necessary appropriation in 1849. This was 
 reenacted in 1854.^^ 
 
 In 1864, President Lincoln agreed to extradite Arguelles to Spain, 
 though no treaty required such action. It has generally been held 
 since, that he exceeded his powers in thus making an agreement for 
 extradition, yet on September 23, 1913, the President entered into 
 an agreement with Great Britain for extradition between the Philip- 
 pine Islands or Guam and British North Borneo, of fugitives for 
 oflFenses specified in existing treaties.^* 
 
 165. Recent Practice. 
 
 Perhaps the most remarkable example of such agreements is 
 that made by President Roosevelt in 1905 for administering the 
 customs houses of San Domingo : ^" 
 
 "The Constitution," writes President Roosevelt in his Autobiography, 
 " did not explicitly give me power to bring about the necessary agreement 
 with Santo Domingo. But the Constitution did not forbid my doing what I 
 did. I put the agreement into effect, and I continued its execution for two 
 
 2«Willoughby, op. at., p. 473; Crandall, op. cit., pp. 1 19-120, supra. 
 sec. 62. 
 
 27MalIoy, treaties, etc., p. 663, 9 Stat. 380, 627; 10 Stat. 343- 
 
 28 Crandall, op. cit., p. 117; Corwin, The President's Control of Foreign 
 Relations, p. 125. 
 
 29 Roosevelt, Autobiography, pp. 551-552.
 
 238 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 years before the Senate acted ; and I would have continued it until the end of 
 my term, if necessary, without any action by Congress. But it was far 
 preferable that there should be action by Congress, so that we might be pro- 
 ceeding under a treaty which was the law of the land, and not merely by 
 a direction of the Chief Executive, which would lapse when that particular 
 Executive left office. I, therefore, did my best to get the Senate to ratify 
 what I had done. There was a good deal of difficulty about it. Enough 
 Republicans were absent to prevent the securing of a two-thirds vote for 
 the treaty, and the Senate adjourned without any action at all, and with 
 the feeling of entire self-satisfaction at having left the country in the po- 
 sition of assuming a responsibility and then failing to fulfill it. Apparently 
 the Senators in question felt that in some way they had upheld their dignity. 
 All that they had really done was to shirk their duty. Somebody had to 
 do that duty, so accordingly I did it. I went ahead and administered the 
 proposed treaty anyhow, considering it as a simple agreement on the 
 part of the Executive which would be converted into a treaty whenever the 
 Senate acted. After a couple of years, the Senate did act, having previously 
 made some utterly unimportant changes, which I ratified and persuaded 
 Santo Domingo to ratify." 
 
 This statement indicates that agreements of considerable political 
 importance may be made by the President and that they cannot be 
 prevented by the Senate, when the President controls the necessary 
 means of execution. It is to be noted, however, that in President 
 Roosevelt's opinion, they are binding only on the President that 
 makes them. The latter limitation often does not apply in practice, 
 though presumably the foreign government would have no ground 
 for objection if a subsequent President discontinued such an execu- 
 tive agreement. President Taft describes the executive agreement 
 made by him as Secretary of War, under authority of President 
 Roosevelt, for defining the relative jurisdictions of the United States 
 and Panama in the cities of Colon and Panama at either end of 
 the Canal."** 
 
 " The plan contained a great many different provisions. I had no 
 power to make a treaty with Panama, but I did have, with the authority 
 of the President, the right to make rules equivalent to law in the Zone. I 
 therefore issued an order directing the carrying out of the plan agreed upon 
 in so far as it was necessary to carry it out on our side of the line, on 
 conditions that, and as long as, the regulations to be made by Panama were 
 enforced by that government. This was approved by Secretary Hay, and the 
 President, and has constituted down until the present day, I believe, the 
 basis upon which the two governments are carried on in this close proximity. 
 
 3" Taft, op. cit., p. 112.
 
 INTERNATIONAL AGREEMENTS. 239 
 
 It was attacked vigorously in the Senate as a usurpation of the treaty- 
 making power of the Senate and I was summoned before a committee in 
 the Senate to justify what had been done. There was a great deal of 
 eloquence over this usurpation of the Senate's prerogative by Mr. Morgan and 
 other Senators, but the modus vivendi continued as the practical agreement 
 between the nations for certainly more than seven years, and my impression is 
 that it is still in force in most of its provisions." 
 
 A similar agreement with Panama was made in October, 1914, for 
 enforcing the neutraHty of the Canal during the European war.'^ 
 
 166. The Validity of Administrative Agreements. 
 
 Other modi vivendi made by the President have related to fisher- 
 ies and boundary lines, pending permanent settlement by treaty or 
 arbitration.'^ With reference to a modus vivendi made in 1859 for 
 joint occupation of the Island of San Juan, pending decision of the 
 Fuca sound boundary question, the court said : '^ 
 
 " The power to make and enforce such a temporary convention re- 
 specting its own territory is a necessary incident to every national govern- 
 ment, and adheres where the executive power is vested. Such conventions 
 are not treaties within the meaning of the Constitution, and, as treaties su- 
 preme law of the land, conclusive on the courts, but they are provisional ar- 
 rangements, rendered necessary by national differences involving the faith of 
 the nation and entitled to the respect of the courts. They are not a casting 
 of the national will into the firm and permanent condition of law, and yet 
 in some sort they are for the occasion an expression of the will of the 
 people through their political organ, touching the matters affected; and to 
 avoid unhappy collision between the political and judicial branches of the 
 government, both which are in theory inseparably all one, such an ex- 
 pression to a reasonable limit should be followed by the courts and not 
 opposed, though extending to the temporary restraint or modification of 
 the operation of existing statutes. Just as here, we think, this particular 
 convention respecting San Juan should be allowed to modify for the time 
 being the operation of the organic act of this Territory (Washington) so far 
 forth as to exclude to the extent demanded by the political branch of the 
 government of the United States, in the interest of peace, all territorial 
 interference for the government of that island." 
 
 In this case the court had refused to take jurisdiction of a murder 
 committed on the island. Thus the island claimed by the United 
 States, and justly so according to the final arbitration, was removed 
 
 31 Naval War College, Inf. Law. Docs., 1916, p. 94. 
 
 szCrandall, op. cit., p. 113. 
 
 33 Watts V. U. S., I Wash. Terr. 288, 294 (1870) ; Crandall, op. cit., p. 107.
 
 240 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 from the jurisdiction of the territory by executive agreement. 
 Although in theory only temporary, in fact the arbitration was not 
 held until 1871 and the joint occupation continued until 1873, a 
 period of fourteen years. ^* Even longer, however, was the opera- 
 tion of the North Atlantic fisheries modus vivendi of 1885, which 
 practically continued until the arbitration of 1909. 
 
 After considering such agreements as these. Professor Corwin 
 gives his " final verdict " that " the President's prerogative in the 
 making of international compacts of a temporary nature and not 
 demanding enforcement by the courts, is one that is likely to become 
 larger before it begins to shrink." ^° 
 
 167. The Power to Make Military Agreements. 
 
 As Commander-in-Chief, the President undoubtedly has power 
 to make Cartels for exchange of prisoners of war, suspensions of 
 arms, capitulations and armistices with the enemy. Such agree- 
 ments may be made by commanding officers in the field if of a local 
 and temporary efifect such as a suspension of arms, but if of a 
 general effect such as an armistice, they must be by authority of 
 the Commander-in-Chief.^* Thus, President Lincoln was justified 
 in repudiating the armistice made by General Sherman with Gen- 
 eral Johnston in 1865 on the ground that a general armistice was 
 within the President's power alone and General Sherman had ex- 
 ceeded his powers.'^ The same is usually true of licenses to trade. 
 The President was expressly authorized by act of Congress in 1861 
 to license trade with the enemy. The court held that the power 
 was his alone and condemned a vessel running the blockade to New 
 Orleans with a license from the Collector of Customs in New Or- 
 leans authorized by General Banks and approved by Rear Admiral 
 Farragut. 
 
 SB 
 
 '* Moore, Int. Arljitrations, p. 222. 
 3'^ Corwin, op. cit., p. 112. 
 
 s'Lieber's Instructions, Gen. Ord. 100, 1863, Art's. 135, 140; Halleck, 
 Int. Law, 4th ed. (Baker), 2: 346-347. 
 '^ Ibid., 2 : 356, supra, sec. 26. 
 "The Sea Lion, 5 Wall. 630 (1866); Moore, Digest, 7: 255.
 
 INTERNATIONAL AGREEMENTS. 241 
 
 168. Armistices and Preliminaries of Peace. 
 
 But if it is difficult to draw the line separating the power of 
 the President and that of field officers and admirals, it is equally 
 difficult to draw the line between the power of the President as 
 Commander-in-Chief and the treaty-making power. An armistice 
 ending hostilities necessarily contains certain preliminaries of peace. 
 This was true of the preliminaries of peace with Spain of August 
 12, 1898, and the preliminaries of peace and armistice with Ger- 
 many of November 5 and 11, 1918. In each, the general condi- 
 tions of peace were outlined, and in each the defeated enemy alleged 
 that the conditions on which it had agreed to end hostilities were 
 not carried out in the definitive treaty.^* But though a defeated 
 enemy may have little recourse in such circumstances, a more dif- 
 ficult question is raised, with reference to the obligation of the 
 Senate to consent to the ratification of a treaty in accord with 
 the terms of the armistice-. Can the President by ratification of 
 an armistice, containing political terms of peace, oblige the full 
 treaty-power to ratify the same terms in the final treaty ? This issue 
 was raised with reference to Article X of the League of Nations 
 Covenant, which though included in the President's XlVth point, 
 and formally agreed to by the allies and Germany in the exchange 
 of notes of November 5, 1918, on the basis of which the armistice 
 of November 11 was made, was rejected by the Senate when it 
 appeared in the final treaty.*" Clearly an armistice ought not to 
 affect the political terms of peace beyond the minimum necessary to 
 bring hostilities to an end. Within this minimum, however, the 
 President, as Commander-in-Chief, is competent to conclude armi- 
 stices, and his agreement ought to be observed by the Senate in 
 consenting to the definitive peace treaty. In the protocol of 1901 
 ending the Boxer uprising in China, the President not only agreed 
 to a termination of military operations, but also to the indemnity 
 which China should pay and other conditions, such as razing forts, 
 and improving watercourses in which she would cooperate." 
 
 '^ On the obligation of armistices see Moore, 7 : 336, supra, sec. 30, 
 
 note 54- 
 
 *^ Supra, sec. 30 ; Wright, Minn. Law Rev., 4 : 35. 
 *^ Crandall, op. cit., p. 104, infra, sec. 251.
 
 242 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 169. Validity of Military Agreements. 
 
 The President's power as Commander-in-Chief permits him to 
 conclude agreements in time of peace as well as war. So President 
 Monroe agreed to a delimitation of armaments on the Great Lakes 
 in 1817, which, however, he submitted a year later to the Senate, 
 where it received ratification as a treaty. A series of agreements 
 were made with Mexico between 1882 and 1896 for the mutual 
 pursuit of border Indians and the President has often authorized 
 the transit of foreign troops across the territory, a power thus 
 justified by the Supreme Court : *^ 
 
 " While no act of Congress authorizes the executive department to 
 permit the introduction of foreign troops, the power to give such permis- 
 sion without legislative assent was probably assumed to exist from the 
 authority of the President as Commander-in-Chief of the military and 
 naval forces of the United States." 
 
 In a dissenting opinion in this case. Justice Gray thought that for- 
 eign troops could be admitted only by express consent of the nation 
 which " must rest upon express treaty or statute." " It is not 
 necessary," he added, " to consider the full extent of the power of 
 the President in such matters." In spite of this dissent the power 
 has been exercised by the President on many occasions and is cog- 
 nizable in the courts because it brings into operation the accepted 
 principle of international law, that armed troops and public vessels 
 of foreign powers, within the territory by permission, are exempt 
 from jurisdiction.*^ An anology may be made between the power 
 of the President as Commander-in-Chief to permit the entry of for- 
 eign military forces, and his power as the representative organ 
 to receive foreign diplomatic officers. In both cases, the Pres- 
 ident's act entitles the foreign agency to exemprion from juris- 
 diction.** 
 
 Most military agreements have been temporary in duration and 
 of a character to be fulfilled by the President in the exercise of his 
 independent power as Commander-in-Chief. The power of ad- 
 mitting troops may, however, require cooperation of the courts and 
 
 *2 Tucker 7'. Alexandroff, 183 U. S. 424, 435. 
 "The Exchange 7'. McFaddon, 7 Cranch 116, 139. 
 **/h re Baiz, 135 U. S. 403.
 
 INTERNATIONAL AGREEMENTS. 243 
 
 the power to make armistices and preliminaries of peace may re- 
 quire cooperation of the treaty power. An agreement of permanent 
 character, and limiting Congress as well as the President ought, 
 doubtless, to be by treaty, as was ultimately decided of the Great 
 Lakes disarmament agreement of 1817. 
 
 170. Power to Make Diplomatic Agreements. 
 
 Because of his power to " receive ambassadors and other public 
 ministers " and to negotiate treaties, the President is the repre- 
 sentative organ of the government and the sole organ of foreign 
 communication. As such he has certain powers of agreement mak- 
 ing. Thus agreements, usually by exchange of notes, defining ex- 
 ecutive policy have often been concluded. The Hay open door 
 policy of 1899-1900, the Root-Takahira and Lansing-Ishii agree- 
 ments of 1908 and 1917, defining American policy in the Far East, 
 and the Gentlemen's agreement of 1907, relating to Japanese im- 
 migration, are of this character. Such agreements are in strictness 
 binding only on the President under whose authority they are made, 
 but if not repudiated would be presumed to have been accepted by a 
 succeeding President. Thus Secretary Lansing in publishing the 
 Lansing-Ishii agreement stated that it was a reafifirmation of the 
 "open door" policy.'*'* 
 
 Of similar character are agreements to conclude treaties. We 
 have referred to preliminaries of peace made under the President's 
 power as Commander-in-Chief. From his power as representative 
 organ, the President has agreed to negotiate treaties on specified 
 subjects. Thus an agreement preliminary to the treaty submitting 
 the Behring Sea case to arbitration and agreements for negotiating 
 canal treaties with Costa Rica and Nicaragua have been made.** 
 Such agreements merely require that treaty negotiations be at- 
 tempted. They would seem to impose no obligation upon the 
 Senate to accept the treaty or at most an extremely attenuated obli- 
 gation. 
 
 *' League of Nations (World Peace Foundation, Boston), I, No. 8, p. 
 
 459. 
 
 ^•Crandall, op. cif., p. iii.
 
 244 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 171. Diplomatic Agreements Settling Controversies. 
 
 The most frequent types of agreement made under the Pres- 
 ident's representative powers are those settling international contro- 
 versies. Unless authorized by express treaty or act of Congress this 
 power is confined to the settlement of claims by American citizens 
 against foreign governments. Such settlement of individual claims 
 may be made either by direct negotiation, or by submission of the 
 case to a conciliation commission or to arbitration. J. B. Moore 
 states that thirty-one cases have been settled directly by formal 
 executive agreement, and twenty-seven by arbitration based on ex- 
 ecutive agreement. In nineteen such cases formal treaties have 
 been made for submitting the case to arbitration.*^ 
 
 The settlement of foreign claims against the United States or of 
 national claims involving territory, maritime jurisdiction, bellig- 
 erent and neutral rights, etc., has generally been by treaty, or by 
 arbitration authorized by treaty.** In a few cases of foreign 
 pecuniary claims, the President through the Secretary of State 
 has agreed to urge upon Congress the justice of the claim, but he 
 has never assumed to bind the United States to pay such a claim 
 without a treaty.*^ Should he do so, doubtless the foreign gov- 
 ernment would be entitled to hold the United States bound, since 
 in reference to the meeting of international responsibilities, the rep- 
 resentative organ speaks for the nation under international law.""* 
 
 " In two instances claims of foreigners against the United States were 
 submitted to arbitral tribunals by executive agreement, but in both in- 
 stances it was expressly provided that any awards that might be made 
 should be a claim, not against the United States, but solely against the 
 estates of certain American citizens, whose estates were to be adjusted be- 
 fore the same arbitral tribunal." ^^ 
 
 *^ Moort, Pol. Sci. Quar., 20: 414. 
 
 *8 Foster, Yale Law Jl., ii: 77 (Dec, 1901) ; Moore, Digest, 5: 211; 
 Willoughby, op. cit., p. 469. 
 
 " See attitude of the Executive in Chinese and Italian Lynching cases, 
 1890-1901, Moore, Digest, 6: 834, 842. 
 
 ^'^ Supra, sec. 34, 
 
 " C. C. Hyde, " Agreements of the United States other than Treaties," 
 Greenbag, 17: 233, cited Willoughby, op. cit., p. 469.
 
 INTERNATIONAL AGREEMENTS. 246 
 
 172, Validity of Diplomatic Agreements. 
 
 The President may and must interpret treaties and international 
 law in applying their rules and principles for the settlement of 
 claims of American citizens but he has no power to make general 
 interpretations of treaty, or of international law. In fact, how- 
 ever, his decisions establish precedents, which his successors will 
 find it difficult to avoid. Thus the agreement of President Mc- 
 Kinley to accept the last three principles of the Declaration of Paris, 
 during the Spanish war, would doubtless go far toward establishing 
 these principles as international law obligatory upon the United 
 States in future wars.^- The President has no authority to agree 
 to general interpretations or reservations to treaties. Such docu- 
 ments are not valid unless consented to by the Senate.^^ But the 
 precedents established by presidential interpretation in particular 
 cases may amount to an authoritative interpretation. Thus the 
 Spanish Treaty Claims Commission felt justified in applying Article 
 VII of the treaty with Spain of 1795, which forbade the "embargo 
 or detention" of "vessels or effects" of subjects or citizens of the 
 other contracting power, to detention of goods on land. The 
 negotiators of the treaty appear to have intended application only 
 to property at sea. No question was raised for over seventy years, 
 after which the American Secretary of State consistently maintained 
 the broad interpretation.^* 
 
 " Whether or not," said the court, " the clause was originally intended 
 to embrace real estate and personal property on land as well as vessels 
 and their cargoes, the same has been so construed by the United States and 
 this construction has been concurred in by Spain; and therefore the com- 
 mission will adhere to such construction in making its decisions." 
 
 "There is," says President Taft, "much practical framing of our 
 foreign policies in the executive conduct of our foreign relations." 
 
 55 
 
 52 Proclamations and Decrees during the war with Spain, p. 77. 
 
 '^3 Supra, sees. 27, 28. 
 
 5* General Principles adopted April 28, 1903, No. 10, Special Report, 
 Wm. E. Fuller, Washington, 1907, p. 23; Crandall, op. cit., p. 384. Executive 
 interpretation of the Alaska Purchase treaty was followed by the court 
 in determining the extent of jurisdiction in Behring Sea prior to the arbitra- 
 tion, and in general the court follows executive interpretation of political 
 questions (supra, sec. 107). 
 
 55 Taft, op. cit., p. 113; supra, sec. 38.
 
 246 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Though in theory the President's independent power is confined to 
 making agreements of temporary effect, confined to particular cases 
 or binding the Executive alone, yet in practice and by the operation 
 of precedents he may, by such agreements, bind other departments 
 and through interpretations of treaties and international law bind 
 the state as a whole. 
 
 B. The Power to Make Treaties. 
 
 173. The Subject Matter of Treaties. 
 
 The framers of the American Constitution did not anticipate or 
 desire the conclusion of many treaties.^'' For this reason they made 
 the process of treaty conclusion difficult, requiring that the President 
 act only with the advice and consent of two-thirds of the Senators 
 present,^^ some even wishing to require adhesion of the House of 
 Representatives^^ or two-thirds majority of the entire Senate.^® 
 This hope, however, has scarcely been realized. With a total of 
 595 treaties from its foundation to August, 1914, the United States 
 
 56 In the Federal Convention, Gouverneur Morris " was not solicitous 
 to multiply and facilitate treaties," and Madison " observed that it had been 
 too easy in the present Congress to make treaties, although nine States were 
 required for that purpose." Farrand, Records of the Federal Convention, 2: 
 393. 548- See also Jefferson, Manual of Congressional Practice, sec. 52, and 
 letter to Madison, March 23, 1815, Moore, Int. Law Digest, S: 162, 310. 
 
 57 Under the Articles of Confederation, the treaty-making power was 
 vested in nine States in Congress (Art. IX), and in some of the early 
 drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later 
 in the Senate (ibid., 2: 169, 183), and the President was finally added on 
 the argument that treaty-making was properly an executive function (ibid., 
 2: 297), and that a national agency was necessary as an offset to the special 
 State interest of the Senate. (Ibid., 2: 392.) 
 
 53 Pennsylvania especially desired this. G. Morris, of that State, wanted 
 to add " but no treaty shall be binding on the LTnited States which is not 
 ratified by a law" (Farrand, 2: 297, 392). Later, Wilson, of Pennsylvania, 
 proposed to add " and House of Representatives," saying that " as treaties 
 are to have the operation of laws they ought to have the sanction of laws 
 also." On vote, Pennsylvania alone supported the motion. (Ibid., 2 : 538.) 
 This is the vote referred to by Washington in his celebrated message on 
 the Jay Treaty where he refused to recognize the claim of the Llouse of 
 Representatives to participate in treaty-making. (Ibid., 3 : 371 ; Annals of 
 Congress, 4th Cong., ist Sess., p. 761, Richardson, Messages, i: 195.) 
 
 59 Farrand, 2 : 549.
 
 INTERNATIONAL AGREEMENTS. 247 
 
 has averaged more than four a year, and for the twentieth century, 
 fifteen a year, or a treaty ratified every three weeks.®" And this, 
 in spite of the frequent differences between the President and the 
 Senate often resulting in the failure to ratify.®^ 
 
 These treaties have been on a very wide variety of subjects. 
 The United States has ratified treaties politically organizing inter- 
 national society. Such have been alliances, as that with France in 
 1778; guarantees of territory or neutrality as in the French treaty 
 of 1778 (Art. XI), the treaty with New Granada or Colombia of 
 1846 (Art. XXXV), with Panama in 1903 (Art. I), and with Haiti 
 in 1916 (Art. XIV) ; limitations of the power to declare war by re- 
 quiring delay as in the twenty Bryan treaties of 19 14 or by limiting 
 the objects for which force maybe used as in the II Hague Conven- 
 tion of 1907 ; and limitations of armament as in the Great Lakes agree- 
 ment of 1817. The United States has also ratified many treaties 
 administratively organizing international society, such as postal, 
 telegraphic, cable, radio, sanitary, slave trade, fishery, migratory 
 bird and other conventions. It has become a party to treaties 
 legally organizing international society through the definition of 
 principles of international law as in the Geneva and Hague Conven- 
 tions, through the establishment of international courts and arbitra- 
 tion tribunals and through the agreement to submit certain types of 
 cases to arbitration. Finally there have been treaties of annexation 
 and boundary, treaties settling claims, treaties of commerce and navi- 
 gation, consular and extradition conventions, and conventions de- 
 fining the rights of aliens.®^ 
 
 No treaty has ever been declared unconstitutional.®^ Bv prac- 
 tice, by the terms in which the power is granted in the Constitution, 
 
 60 By 25-year periods, treaties have been concluded as follows : I778-I799. 
 21; 1800-1824, 20; 1825-1849, 63; 1850-1874, 141; 1875-1899, 142; 1900-1914, 
 208. This is in accord with the official enumeration of treaties (excluding In- 
 dian treaties), begun by the Department of State on January 29, 1908, with 
 Treaty Series, No. 489. (See Check-list of U. S. Public Documents, 1911, 
 p. 978.) Including the protocols and modi vivendi printed in Malloy and 
 Charles' Collections, the total for the period would be 633. 
 
 ^"^ Infra, sec. 177. 
 
 82 See Foster, Practice of Diplomacy, pp. 243-244. 
 
 63 Corwin, National Supremacy, p. s; Anderson, Am, Jl. Ini. Law, i: 
 647; Willoughby, op. cit,, p, 493, supra, sec. 46,
 
 248 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 and by direct statement of the supreme court/* we may be certain 
 that the power extends to " any matter which is properly the sub- 
 ject of negotiations with a foreign country," hmited only by express 
 or implied constitutional prohibitions the effect of which is in the 
 main confined to the means through which the purposes of the treaty 
 may be attained.^^ 
 
 174. The Initiation of Treaties. 
 
 Treaties may of course be initiated or suggested by a foreign 
 power, but if by the United States, the initiative has ordinarily been 
 taken by the President. Congress has sometimes suggested nego- 
 tiations by joint or concurrent resolutions originating in the House 
 of Representatives as well as the Senate. Thus resolutions of 1890, 
 1897, and 1910 suggested the negotiation of arbitration treaties and 
 acts of 1916 and 1921, negotiations for general disarmament. A 
 resolution of 1904 suggested the negotiation of a treaty for protecting 
 the Behring Sea seals and one of 1909 the protection of American 
 citizens in Russia. In most of these cases, negotiations were at- 
 tempted, not always with success (at least once, success was frus- 
 trated by the Senate veto), but says Crandall 
 
 66 
 
 "Although it is not to be doubted that the President will always give 
 careful consideration to the views of Congress, deliberately expressed as to 
 instituting negotiations, he cannot be compelled to exercise a power en- 
 trusted to him under the Constitution by a resolution of either house or 
 of both houses of Congress." 
 
 The reason was pointed out in a report of the Senate foreign rela- 
 tions committee in 1815: 
 
 " Since the President conducts correspondence with foreign nations, he 
 would be more competent to determine when, how and upon what subjects 
 negotiations could be urged with the greatest prospect of success." ^^ 
 
 «*Geofroy v. Riggs, 133 U. S. 258 (1890) ; Wright, The Constitutionality 
 of Treaties, Am. Jl. Int. Law, 13: 262. 
 
 ^5 Supra, sees. 67-69. 
 
 ^« Crandall, op. cit., p. 74. 
 
 ^^ Compilation of Reports of the Senate Committee on Foreign Relations, 
 Sen. Doc, No. 231, 56th Cong., 2d Sess., 8: 22; Crandall, op. cit., p. 75; 
 Hayden, op. cit., p. 206, infra, sec. 203.
 
 INTERNATIONAL AGREEMENTS. 249 
 
 175. The Appointment of Negotiators. 
 
 Before 181 5, special missions, appointed by the President with 
 advice and consent of the Senate, were sent to conclude the most 
 important treaties, although a number of less important missions, 
 such as that of John Paul Jones to Algeria in 1792, were commis- 
 sioned by the President alone. Since 1815 "treaties have, with few 
 exceptions, been negotiated through the Secretary of State, the regu- 
 lar diplomatic representatives and consular officers, or special agents, 
 empowered and commissioned to negotiate the treaty by the Pres- 
 ident without special confirmation for this purpose by the Senate." " 
 Commissioners to the Panama Congress of 1826, to negotiate the 
 treaty of Washington with Great Britain in 1871, and to negotiate 
 with China in 1880 appear to be the only special missions consented 
 to by the Senate since the war of 1812. Possibly the difficulty which 
 President Madison encountered in getting the Senate to consent to 
 the appointments of commissioners for concluding the treaty of 
 Ghent ending that war, accounts in part for this fact. Over four 
 hundred commissioners and agents have been authorized to nego- 
 tiate by the President alone, including the important missions ending 
 the Mexican, Spanish and World Wars, and the missions represent- 
 ing the United States at the two Hague, the Algeciras, the Versailles 
 and the limitation of armament conferences. The Senate objected 
 to this practice of negotiating through presidential agents in the case 
 of the Korean treaty of 1882, but in 1888 and in 1893 the Senate 
 Foreign Relations Committee recognized the legitimacy of the prac- 
 tice.^^ 
 
 "The President of the United States," said Senator Sherman, Chairman 
 of the Committee in 1888, "has the power to propose treaties subject to 
 ratification by the Senate, and he may use such agencies as he chooses to 
 employ, except that he cannot take any money from the treasury to pay these 
 agents without an appropriation by law. He can use such instruments as he 
 pleases." 
 
 176. The Negotiation and Signature of Treaties. 
 
 Negotiation and signature have usually been under authority of 
 the President alone. He has usually prepared the instructions and 
 
 ^8 Crandall, op. cit., p. 76. 
 
 ^9 Cong. Rec, Aug. 7, 1888, p. 7285. See also infra, sees. 239, 240.
 
 250 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 full powers of the negotiators. Not since the first few years of the 
 Republic have these been submitted to the Senate. In about eighteen 
 instances the advice of the Senate has been sought by the President 
 prior to signature of the treaty and almost half of these cases oc- 
 curred in the administration of Washington, prior to the negotia- 
 tion of the Jay treaty (1794) which established the precedent of 
 Presidential independence in negotiation.'*^ Only once was advice 
 sought by the President in person and on that occasion, a few months 
 after the Constitution went into operation, President Washington's 
 experiences were such that an eye witness described his departure 
 from the Senate chamber as " with sullen dignity " and " a discon- 
 solate air." '^^ On the few occasions since this experience when 
 Senate advice has been sought before signature, it has been by mes- 
 sage responded to by Senate resolution. Thus in 1830 President 
 Jackson sought the advice of the Senate on an Indian treaty prior 
 to signature, but in doing so apologized " for departing from a long 
 and for many years an unbroken usage in similar cases," which de- 
 parture he thought justified by distinctive considerations applicable 
 to Indian treaties. In only ten later cases has such prior advice 
 been sought, though informal conferences with individual senators 
 or with the Senate Foreign Relations Committee have been more 
 frequent.'^^ 
 
 "The fact," said Senator Bacon in 1906, "that he (Washington) con- 
 ferred personally with the Senate as to the propriety of making treaties 
 before attempting to negotiate them, shows what he understood to be the 
 intention of the Convention — that the Senate should be not simply the body 
 to say yes or no to the President when he proposed a treaty, but that the 
 Senate should be the advisor of the President whether he should attempt 
 to negotiate a treaty. What possible doubt can there be under such cir- 
 cumstances as to what was his understanding of the purpose and intention 
 of those who framed the Constitution? And what possible doubt can 
 there be that his understanding was correct? ... It is true that that practice 
 
 70 Hayden, op. cit., p. 80. 
 
 ''I Maclay, Sketches of Debates in the First Senate of the United States, 
 G. W. Harris, ed., p. 125. See also Crandall, op. cit., 67-68; Hayden, op. cit., 
 18-27, and infra, sec. 260. 
 
 ■^2 Senate debate, Feb. 6, 1906, cited supra, sec. 76, note 16. See also 
 Richardson, Messages, 2: 478. See also Senator Lodge, Scrihners, 31: 
 .33. Sen. Doc. 104, 57th Cong., 1st Sess.; and Crandall, op. cit., pp. 68-72, 75.
 
 INTERNATIONAL AGREEMENTS. 251 
 
 has been abandoned, so far as concerns the President coming in person to 
 sit in a chair on the right of the presiding officer to confer with members of 
 the Senate, as our rules still provide he shall do should he come here per- 
 sonally, showing we recognize the propriety of his coming and his right to 
 comeJ^ But nevertheless during my official term it has been the practice of 
 Presidents and Secretaries of State to confer with Senators as to the 
 propriety of negotiating or attempting to negotiate a treaty. 
 
 " I know in my own experience that it was the frequent practice of 
 Secretary Hay, not simply after a proposed treaty had been negotiated, but 
 before he had ever conferred with the representatives of the foreign power, 
 to seek to have conferences with Senators to know what they thought 
 of such and such a proposition; and if the subject-matter was a proper 
 matter for negotiation, what Senators thought as to certain provisions; 
 and he advised with them as fo what provisions should be incorporated. 
 
 " I recollect two treaties in particular. One is the general arbitration 
 treaty. I do not know whether he conferred with all Senators, but I think 
 he did. I think he conferred with every Senator in this Chamber, either in 
 writing or in person, as to the general arbitration treaty. He certainly con- 
 ferred with me." 
 
 Such informal conferences clearly lack legal significance. They do 
 not bind the Senate in any way.^* The practice, however, indicates 
 the development of an important constitutional understanding.'^^ 
 
 On some occasions, notably for concluding the Treaty of Paris 
 ending the Spanish war, Senators have been appointed as commis- 
 sioners to negotiate, a practice deplored by Senator Hoar on the 
 grounds that it prevents an independent consideration of the treaty 
 by the Senate.'^® 
 
 Signature of treaties has, since very early times, been under the 
 authority of the President alone. On several occasions the Amer- 
 ican negotiators have appended reservations to their signatures of 
 multilateral treaties such as the Hague Conventions." 
 
 '3 But see opinion of Senator Lodge, infra, sec. 266, note 35- 
 
 ■'^See Senator Spooner's suggestion following Senator Bacon's remarks, 
 and Corwin, op. cit., p. 188, footnote. 
 
 ''^ Infra, sec. 266, par. 4. 
 
 78 Cong. Rec, 57th Cong., 2d Sess., p. 2695 ; Senator Hoar, Autobiography, 
 2: 50; Crandall, op. cit., p. 78; Corwin, op. cit., p. 66. Senators Lodge and 
 Underwood were appointed delegates to the conference on limitation of 
 armament, 1921. 
 
 -7 Crandall, op. cit., pp. 76, 93; Scott, ed.. Reports of the Hague 
 Conferences, Introduction, pp. xxv et seq.; A. D. White, Autobiography, 2: 
 339-341.
 
 262 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 177. Consent to the Ratification of Treaties. 
 
 The need of Senate consent to treaties is absolute, consequently 
 the Senate may reject a treaty altogether, though, according to Jay, 
 such action would be improper if it had consented to the full powers 
 and instructions of the negotiators and these instructions had been 
 faithfully observed.'^ But with the present practice of presidential 
 negotiation and signature, this limitation is unimportant. Of about 
 650 signed treaties the Senate has refused consent to ratification of 
 about twenty.'^^ Among the more important treaties thus vetoed 
 may be mentioned commercial and reciprocity treaties with Switzer- 
 land, 1835; with the German Zollverein, 1844; with Great Britain 
 for Canada in settlement of the fisheries question, 1888; and the 
 Kasson reciprocity treaties of 1899; annexation treaties with Texas, 
 1844; Hawaii, 1855; San Domingo, 1869; and Denmark for the 
 Virgin Islands, 1868; arbitration and claims treaties including the 
 Johnson-Clarendon treaty for settlement of the Alabama claims, 
 1868; and the Olney-Pauncefote general arbitration treaty with 
 Great Britain, 1897; canal treaties with Colombia, 1869 and 1870; 
 the Knox financial administration treaties with Nicaragua and Hon- 
 duras, 191 1 ; and the Treaty of Versailles, 1920. It is to be noticed 
 that in most of these cases, the end sought was eventually achieved, 
 though in the cases of annexation of Hawaii and the Virgin Islands, 
 and settlement of the Canadian fisheries question, not until many 
 years later. This practice appears to conflict with the assertion of 
 John Quincy Adams as Secretary of State, that the King of Spain 
 was under an absolute obligation to ratify the Florida purchase 
 treaty of 1819 on failure of which the United States would be 
 entitled " to compel the performance of the engagement as far as 
 compulsion can accomplish it." *° Other Secretaries of State have 
 
 ^^ Crandall, op. cit., p. 79, supra, sec. 25. 
 
 ■^8 Crandall, op. cit., p. 82; Moore, Digest, 3: 26; Latane, U. S. and Latin 
 America, N. Y., 1920, p. 283; Jones, Caribbean Interests of the U. S., N. Y., 
 1916, pp. 170, 179. For resolution rejecting Treaty of Versailles, see Cong. 
 Rec, March 19, 1920, 59: 4916. For summary of Senate Proceedings on this 
 treaty see League of Nations (World Peace Foundation), vol. 3, No. 4. For 
 Proceedings in cases of treaties rejected by the Senate see 66th Cong., ist 
 Sess., Sen. Doc. No. 26, pp. 80 et seq. 
 
 ^^ Moore, Digest, 5 : 189-190,
 
 INTERNATIONAL AGREEMENTS. 253 
 
 explained, however, that the United States is under no similar obli- 
 gation to ratify negotiated treaties, because the other party is pre- 
 sumed to understand the lack of identity between the negotiating 
 and ratifying authorities under our Constitution, even when the 
 right of reservation has not, as it has in most cases, been expressly 
 reserved in the full powers of the negotiators.®^ 
 
 The Senate's right to qualify its consent to ratification by reser- 
 vations, amendments and interpretations was established through a 
 reservation to the Jay treaty of 1794,®^ has been exercised in about 
 seventy cases,®^ and has been judicially recognized.** 
 
 " In this country a treaty is something more than a contract, for the 
 Federal Constitution declares it to be the law of the land. If so, before 
 it can become a law, the Senate, in whom rests the authority to ratify or 
 approve it, must agree to it. But the Senate are not required to adopt 
 or reject it as a whole, but may modify or amend it." 
 
 A refusal of the Senate either to reject or consent to ratification is 
 of questionable propriety. Senator Sumner of Massachusetts, as 
 Chairman of the Senate Foreign Relations Committee, succeeded in 
 keeping the treaty for cession of the Virgin Islands by Denmark, 
 submitted to it on December 3, 1867, pigeon-holed for over two 
 years, when it was finally rejected.*" 
 
 The Senate may suggest interpretations or pass resolutions not 
 qualifying its consent to a treaty, as it did in the case of the Treaty 
 of Paris ending the Spanish war. A majority of the Senate passed 
 a resolution favoring the ultimate independence of the Philippines 
 but the court held that such resolutions are legally of no effect. 
 
 81 ^M/ra, sec. 26; Moore, Digest, 5: 200; Crandall, op. cit., p. 94. 
 
 82 Hayden, op. cit., p. 75. 
 
 83 Senator Lodge, lac. cit., supra, note 67 ; Crandall, op. cit., pp. 7ch8i I 
 Treaty Reservations by Foreign Powers and the United States, Sen. Doc. 72, 
 67th Cong., 1st Sess.. 1921 ; David Hunter Miller, Reservations to Treaties, N. 
 Y., 1919; Q. Wrightt, Amendments and Reservations to the Treaty, Minn. 
 L. R., 4: 14. 
 
 8* Haver v. Yaker, 9 Wall. t,^. See also Brown, J., in Fourteen Diamond 
 Rings V. U. S., 183 U. S. 176 (1901) ; Willoughby, op. cit., p. 462. 
 
 83 Moore, Digest, i : 610. The French guarantee treaty, signed at the 
 same time as the treaty of Versailles, appears to have been reposing in the 
 archives of the Senate Foreign Relations Committee since its submission to the 
 Senate by President Wilson in 1919.
 
 254 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " The meaning of the treaty," said the Supreme Court, " cannot be 
 controlled by subsequent explanations of some of those who may 
 have voted to ratify it," 
 
 86 
 
 178. The Ratification of Treaties. 
 
 The final act of ratification belongs to the President.®'^ He may 
 refuse to submit a treaty to the Senate altogether as he has done in 
 nine instances ; he may submit it with recommendations for amend- 
 ment as he has done in eleven cases ; he may withdraw it from the 
 Senate before that body has voted on it, illustrated by ten cases; 
 and he may refuse to ratify a treaty consented to by the Senate 
 with or without reservations as he has done in fifteen cases. ^^ Thus 
 Presidents Roosevelt and Taft each abandoned arbitration treaties 
 when it appeared that the Senate was prepared to insist upon es- 
 sential alterations.^^ As he is the best judge of the advisability of 
 initiating negotiations on a given subject, so he is the best judge 
 of the probability of a foreign nation accepting reservations or 
 amendments. Foreign nations sometimes regard it as a discourtesy 
 to have modifications of a negotiated treaty presented to them as 
 an ultimatum, without their having had an opportunity to discuss 
 them.^° It is therefore often advisable for the President to aban- 
 don a treaty which he thinks will probably be unacceptable to the 
 other signatory. 
 
 179. The Exchange of Ratifications. 
 
 The exchange of ratifications is performed under authority of 
 the President and makes the treaty internationally binding."^ The 
 other party to the treaty may refuse to accept Senate amendments 
 
 86 Fourteen Diamond Rings v. U. S., 183 U. S. 176. See also N. Y. 
 Indians v. U. S., 170 U. S. i (1898); Moore, Digest, 5: 210; Crandall, 
 op. cit., p. 88; supra, sec. 27. 
 
 87 Shepherd v. Insurance Co., 40 Fed. 341, 347; Willoughby, op. cit., 
 p. 466; Crandall, op. cit., pp. 81, 94, 97; Taft, op. cit., p. 106; Black, Con- 
 stitutional Law, p. 124; Foster, op. cit., p. 274; Senator Spooner of Wis., 
 debate referred to supra, sec. 76, note 16; Moore, Digest, 5: 202, 
 
 88 Crandall, op. cit., pp. 95, 99. 
 
 ^° Ibid., p. 98; Taft, op. cit., p. 106; Charles, Treaties, etc., p. 380. 
 
 80 Willoughby, op. cit., p. 464, and supra, sec. 26. 
 
 81 Crandall, op. cit., p. 93, and supra, sec. 29.
 
 INTERNATIONAL AGREEMENTS. 255 
 
 or reservations in which case the treaty fails. Thus Great Britain 
 rejected, after Senate alteration, a boundary settlement treaty in 
 1803, a slave trade convention in 1824 and the first Hay-Pauncefote 
 Canal treaty in 1900.^- During exchange of ratifications, however, 
 no new interpretations or reservations should be made. The Presi- 
 dent's representatives exchanged explanations to the Mexican peace 
 treaty of 1848 and Clayton-Bulwer canal treaty with Great Britain 
 of 1850 on exchange of ratifications, but, not having been submitted 
 to the Senate, these explanations were of doubtful validity. Napo- 
 leon reserved on the treaty of 1801, at exchange of ratifications, but 
 President Jeflferson promptly resubmitted the treaty to the Senate 
 which consented to the new reservation. This has been the usual 
 practice.®^ 
 
 180. The Proclamation of Treaties. 
 
 After ratifications have been exchanged, the treaty must be pro- 
 claimed to have validity as the law of the land and this act is in 
 the power of the President alone.°* As an international obligation 
 the treaty is binding from exchange of ratifications and such obliga- 
 tion is held to date back to the time of signature.^" As a law bind- 
 ing individuals, however, the rule is different : ^^ 
 
 " As the individual citizen, on whose rights of property it operates, has 
 no means of knowing anything of it while before the Senate, it would be 
 wrong in principle to hold him bound by it, as the law of the land, until it 
 was ratified and proclaimed. And to construe the law, so as to make the 
 ratification of the treaty relate back to its signing, thereby divesting a 
 title already vested, would be manifestly unjust, and cannot be sanctioned." 
 
 Thus a secret treaty might be internationally binding in the United 
 States but it could not be the supreme law of the land. We must, 
 therefore, regard proclamation as the first step in the execution of 
 a treaty rather than the last step in its making. A treaty which 
 is not self-executing may require legislation in addition to procla- 
 
 92 Moore, Digest, 5: 199-200; Hayden, op. cit., p. 145; supra, sec. 26. 
 
 93 Crandall, op. cit., pp. 85-92 ; and supra, sec. 27. 
 
 9* Crandall, op. cit., pp. 94-95 ; Moore, Digest, 5 : 210. 
 
 95 Haver 7-. Yaker, 9 Wall. 32, supra, sees. 15, 29. 
 
 96/5/(/. See also Rev. Stat., sec. 210; Comp. Stat., sec. 308, and supra, 
 
 sec. 15, note 14.
 
 256 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 mation to be executable. The power to perform such acts has been 
 considered elsewhere.*^ 
 
 C. The Power to Terminate Treaties. 
 
 181. Change in Conditions. 
 
 Certain provisions of treaty may be terminated by war. The 
 courts have power, in controversies coming before them, to dis- 
 tinguish, on the basis of international law, those provisions of 
 treaty thus affected, from those which are unaffected or merely 
 suspended during the war, in case the political organs of the gov- 
 ernment have made no decision.^® In controversies with foreign 
 governments, the President may recognize these distinctions. Cer- 
 tain provisions may become obsolete by a change of material con- 
 ditions, through operation of the implied clause " rebus sic stan- 
 tibus." It belongs to the President as the representative organ to 
 decide when treaty provisions are thus terminated.^" 
 
 182. Violation of Treaty by One Party. 
 
 Treaties may become voidable by reason of violation by the 
 other party and question has been raised whether the power to de- 
 clare such a treaty void rests with Congress or the treaty-making 
 power."" Justice Iredell thought the power belonged to Congress^°^ 
 and on July 7, 1798, Congress held that it had the power when it 
 declared that : ^*' 
 
 " Whereas the treaties concluded between the United States and France 
 have been repeatedly violated on the part of the French government; and 
 the just claims of the United States for reparation of the injuries so com- 
 mitted have been refused, and their attempts to negotiate an amicable ad- 
 justment of all complaints between the two nations have been repelled with 
 indignity, etc.," therefore, " Be it enacted . . . That the United States are 
 of right freed and exonerated from the stipulations of the treaties and of the 
 
 8T Supra, chap, x and sec. 137. 
 
 "s Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 
 464, 494 (1823), Moore, Digest, 5: 372-386. 
 
 «» Moore, Digest, 3: 190; 5: 335-341 ; supra, sec. 107, note 63. 
 
 100 Mr. Madison to Mr. Pendleton, Jan. 2, 1791, ibid., 5 : 321. 
 
 ioi\Yare v. Hylton, 3 Dall. 199, 261 (1796). Infra, sec. 187. 
 
 i°2 1 Stat., 578; Moore, Digest, 5: 356; Richardson, Messages, 7: 518.
 
 INTERNATIONAL AGREEMENTS. i267 
 
 consular convention, heretofore concluded between the United States and 
 France ; and that the same shall not henceforth be regarded as legally 
 obligatory on the Government or citizens of the United States." 
 
 This appears to be the only case of the kind. The courts have 
 repeatedly held that until the political departments have acted they 
 are bound to apply voidable treaties.^ 
 
 103 
 
 " If the attitude of Italy was, as contended, a violation of the obligation 
 of the treaty, which in international law would have justified the United 
 States in denouncing the treaty as no longer obligatory, it did not auto- 
 matically have that effect. If the United States elected not to declare its 
 abrogation, or come to a rupture, the treaty would remain in force. It was 
 only voidable, not void ; and if the United States should prefer, it might 
 waive any breach which in its judgment had occurred and conform to its 
 own obligations as if there had been no such breach, i Kent's Comm., p. 
 175." 
 
 183. Conclusion of New Treaty. 
 
 Treaties may be terminated by negotiation of a new treaty by 
 the same parties, for which the treaty power alone is competent. 
 Thus in vetoing the Chinese exclusion act of 1879 President Hayes 
 wrote : "* 
 
 " The bill before me does not enjoin upon the President the abrogation 
 of the entire Burlingame treaty, much less of the principal treaty of which 
 it is the supplement. As the power of modifying an existing treaty, whether 
 by adding or striking out provisions, is a part of the treaty-making power 
 under the Constitution, its exercise is not competent for Congress, nor 
 would the assent of China to this partial abrogation of the treaty make the 
 action of Congress in thus procuring an amendment of a treaty a competent 
 exercise of authority under the Constitution." 
 
 Provisions of an earlier treaty will of course be superseded by con- 
 flicting provisions of a later treaty between the same parties/" but 
 in order to terminate the earlier treaty as a whole the intention so 
 to do must be clearly expressed, as was indicated by the controversy 
 over effect of the proposed Hay-Pauncefote canal treaty of 1900 
 
 103 Charlton v. Kelly, 229 U. S. 447 ; Ware v. Hylton, 3 Dall. 199, 261 
 (1796); In re Thomas, 12 Blatch 370; Terlinden v. Ames, 184 U. S. 270, 
 288 (1902); Doe V. Braden, 16 How. 638; Jones v. Walker, 2 Paine 688; 
 Moore, Digest, 5: 320; Willoughby, op. cit., p. 1007, supra, sec. 107, note 63. 
 
 lo* Richardson, Messages, 7: 5I9- 
 
 i"5 Gushing, Aft. Gen., 6 Op. 291; Wright, Am. Jl. Int. Law, 11: 576; 
 Moore, Digest, 5: 363-4-
 
 258 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 and the actual treaty of 1901 upon the Clayton-Bulwer treaty of 
 i85o.^°« 
 
 184. Denunciation by Congress. 
 
 Finally a treaty may be terminated by denunciation, according 
 to its own terms. A period of six months' to a year's notice is 
 usually required. There has been question whether notice should 
 be given by Congress, by the treaty-making power or by the Presi- 
 dent, and examples can be found of each practice. Congress has 
 frequently passed resolutions of denunciation as it did of the Brit- 
 ish treaties of 1827 in 1846; of 1854 in 1866; and of 1871 in 1885 
 as to certain articles. The President has usually carried out such 
 resolutions, but in 1865, even though he had signed a congressional 
 resolution which " adopted " and " ratified " his notice for termi- 
 nating the Great Lakes disarmament agreement of 181 7, President 
 Lincoln withdrew the notice and the treaty continued effective.^'*^ 
 President Hayes doubted the competence of Congress to direct the 
 President to negotiate modifications of an existing treaty and pointed 
 out that unless a treaty expressly provided for partial denuncia- 
 tion such a step would be impossible.^"^ 
 
 " As the other high contracting party has entered into no treaty obli- 
 gations except such as include the part denounced, the denunciation by one 
 party of the part necessarily liberates the other party from the whole 
 treaty." 
 
 President Wilson, however, conducted negotiations for modifica- 
 tion of all treaty provisions in conflict with the La Follette Sea- 
 man's Act of March 191 5 as directed by Section 16 of that Act. He, 
 however, refused to act under the like direction of Article 34 of the 
 Jones Merchant Marine Act of June 5, 1920. It would seem, there- 
 fore, that the President is the final authority to denounce a treaty, 
 
 1°" Moore, Digest, 3: 212 et seq. Sir Edward Grey, British Sec. of 
 State for Foreign Affairs, to British Ambassador Bryce, Nov. 14, 1912, Diplo- 
 matic History of the Panama Canal, 63d Cong., 2d Sess., Sen. Doc. 474, 
 pp. 85-86. 
 
 107 Fifty-sixth Cong., 1st Sess., House Doc, No. 471, pp. 32-34; Crandall, 
 op. cit., p. 462. 
 
 i^^ Richardson, Messages, 7: 519.
 
 INTERNATIONAL AGREEMENTS. 259 
 
 and while he may not be able to give notice without consent of Con- 
 gress or other authority, he cannot be compelled to act by Congress. 
 This would be in accord with the general practice of presidential 
 independence in conducting foreign relations."^ 
 
 185. Denunciation by the Treaty-Making Power. 
 
 The Senate has contended that consent of the House of Repre- 
 sentatives to the denunciation of a treaty is not necessary and the 
 Danish treaty of 1826 was denounced by the President with con- 
 sent of the Senate alone. This method was questioned by Senator 
 Sumner on the ground that it was the repeal of a law to which 
 Congress must assent, but was sustained by the Foreign Relations 
 Committee : ^^° 
 
 " As to this convention, and all others of like character, the com- 
 mittee are clear in the opinion that it is competent for the President and 
 Senate, acting together, to terminate it in the manner prescribed by the 
 nth article (of the treaty) without the aid or intervention of legislation 
 by Congress, and that when so terminated it is at an end to every extent, 
 both as a contract between the governments and as a law of the land." 
 
 186. Denunciation by the President. 
 
 Finally there have been several examples of denunciation by the 
 President alone. President Taft tells of his denunciation of the 
 Russian treaty of 1832 in 191 1. The issue had arisen over Russian 
 persecution of American Jews : ^^^ 
 
 " The resolution of the House of Representatives was drawn in lan- 
 guage which would have given offense to Russia, as doubtless its framers 
 intended to do. With the responsibility of maintaining as friendly relations 
 as possible with all the world, it seemed to me that if the treaty had to be 
 abrogated, it ought to be done as politely as possible, with the hope of 
 negotiating a new treaty less subject to dispute, and giving more satisfactory 
 results. With the knowledge that the resolution was sure to pass the Senate, 
 I took the step of annulling the treaty myself and giving a j-ear's notice 
 to Russia of the annulment in proper and courteous expressions, on the 
 ground that we had differed so radically as to its construction and the 
 treaty was so old that it would be wiser to make a new treaty more 
 
 109 See infra, sees. 174, 202, 203. 
 
 110 Thirty-fourth Cong., ist Sess., Senate Report, No. 97, reprinted in 
 Cong. Rec, Nov. 8, 1919, 58: 8605. See also Message of Pres. Pierce, Dec. 
 3, 1855, Richardson, Messages, 3: 334; Crandall, op. cit., p. 459. 
 
 m Taft, op. cit., pp. 116-117.
 
 260 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 definite and satisfactory. I sent notice of this annulment at once to the 
 Senate, and in this way succeeded in having the Senate substitute a resolu- 
 tion approving my action for the resolution which came over from the 
 House. The House was thus induced to approve my action and the inci- 
 dent was closed for the time." 
 
 The Swiss treaty of 1850 appears to have been denounced by the 
 President alone in 1899."^ Willoughby approves this method of 
 denunciation, but thinks " in important cases the President wuuld 
 undoubtedly seek senatorial approval before taking action.""^ 
 Although the power may seem sustainable by analogy to the Presi- 
 dent's power of removal without consent of the Senate, admitted 
 since the first Congress, even when the appointment requires such 
 consent, yet it has seldom been practised and has been often 
 doubted."* It would appear that the final act of sending notice is 
 at the President's discretion and when he gives notice the treaty is 
 terminated under international law but he ought not to act without 
 consent either of Congress or of the Senate, except in extraordinary 
 circumstances. 
 
 187. Legislative Abrogation. 
 
 A treaty may be abrogated as " the law of the land " by resolu- 
 tion of Congress or by the passage of conflicting legislation. It is 
 somewhat difficult to locate the constitutional power for such legis- 
 lation when terminating treaties on subjects not within the legis- 
 lative competence of Congress. Rawle considers it " an incident to 
 the right of declaring war." At any rate it has been sustained in 
 many cases.^^^ 
 
 "It must be conceded," said the Supreme Court in the Chinese Ex- 
 clusion Case, " that the act of 1888 is in contravention of express stipulations 
 of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on 
 that account invalid or to be restricted in its enforcement. The treaties were 
 of no greater obligation than the act of Congress. By the Constitution, 
 laws made in pursuance thereof and treaties made under the authority of 
 
 112 Crandall, op. cit., pp. 116-117. 
 
 113 Willoughby, op. cit., p. 518. 
 
 11* See remarks of Senator Walsh, of Mont'., Cong. Rec, Nov. 8, 1919, 
 58: 8608-8609. 
 
 115 The Chinese Exclusion Case, 130 U. S. 581 ; The Cherokee Tobacco 
 Case, II Wall. 616; The Head Money Cases, 112 U. S. 580; Moore, Digest, 
 S: 356-370. Rawle, A View of the Constitution, 1825, p. 61.
 
 INTERNATIONAL AGREEMENTS. 261 
 
 the United States are both declared to be the supreme law of the land, and 
 no paramount authority is given to one over the other. ... It can be deemed 
 only the equivalent of a legislative act, to be repealed or modified at the 
 pleasure of Congress. In either case the last expression of the sovereign 
 virill must control. . . . The question whether our government was justified 
 in disregarding its engagements with another nation is not one for the de- 
 termination of the courts. . . . The court is not the censor of the morals 
 of the other departments of the Government." 
 
 However, as the court noticed, such legislation does not affect the 
 international obligation of the treaty. President Arthur in veto- 
 ing the Chinese exclusion bill of 1882 said : ^^® 
 
 " A nation is justified in repudiating its treaty obligations only when 
 they are in conflict with great paramount interests. Even then all possible 
 reasonable means for modifying or changing these obligations by mutual 
 agreement should be exhausted before resorting to the supreme right of 
 refusal to comply with them." 
 
 President Hayes's veto of a similar bill in 1879 though based partly on 
 constitutional grounds referred to " the more general considerations 
 of interest and duty which sacredly guard the faith of the nation, 
 in whatever form of obligation it may have been given." ^^^ To 
 make " a scrap of paper" of a treaty by legislation will at once give 
 basis for international demands. Thus France refused to recog- 
 nize the legitimacy of American abrogation of her treaties in 179^ 
 and compensation was made by sacrifice of the spoliation claims by 
 the treaty of 1800.^^^ China has consistently protested against the 
 disregard of her treaties by various exclusion acts.^^® 
 
 188. Conclusion. 
 
 We conclude that the power of making international agreements 
 is largely vested in the President. The states' power in this respect 
 is practically nil. Though the Senate has an absolute veto on 
 treaties, and Congress may suggest the opening of negotiations, may 
 authorize executive agreements and may refuse to execute treaties, 
 yet the real initiative, the negotiation and the final decision to ratify 
 
 118 Richardson, Messages, 8: 112. 
 
 ^'^T Ibid., 7: 520. See also Message of Pres. Harrison, Dec, 1890, in re- 
 ferring to violation of Hawaiian Reciprocity Treaty by the tariff act, Richard- 
 son, 9: no; Moore, Digest, 5: 368, and supra, sec. loi. 
 
 "8 Moore, Digest, 5: 357. 609-612. 
 
 119 See references to U. S. Foreign Relations, Moore, Digest, 4: 198, 202.
 
 262 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 jre all at the discretion of the President. Furthermore, many agree- 
 ments of a temporary or purely executive or military character may 
 be made by him without consulting the Senate at all. 
 
 While executive agreements usually terminate with the passing 
 from office of the President under whose authority they were nego- 
 tiated, or the repeal of the statute on which they were founded, this 
 would not be true of agreements transferring a lease or other title 
 to territory for a term of years or permanently. Treaties may be 
 terminated as municipal law by legislative abrogation or judicial 
 recognition of their obsolescence under principles of international 
 law, but the international obligation may be ended only by operation 
 of international law recognized by the President, by legislative de- 
 nunciation of a voidable treaty, or by denunciation under the terms 
 of the treaty itself by the President acting ordinarily with consent 
 of the Senate or Congress.
 
 CHAPTER XV. 
 
 The Power to Make Political Decisions in Foreign Affairs, 
 
 Recognition, Annexation, Citizenship and the 
 
 Determination of Policy. 
 
 189. Distinction Between Domestic and Foreign Affairs. 
 
 The meeting of international responsibilities and the making of 
 international agreements do not include all matters which have to 
 do with the conduct of foreign relations. Many decisions which 
 may be made by nations without the consent of other states and 
 practically without limitation by international law and treaty, affect 
 foreign nations very closely. The recognition of foreign states and 
 governments, the declaration of war and the proclamation of neu- 
 trality are examples which at once spring to the mind. This field 
 is, however, difificult accurately to define. There is hardly a law 
 passed by even a state legislature which may not affect a resident 
 alien and so under conceivable circumstances become a subject of 
 international discussion. Such matters, however, as the regulation 
 of foreign commerce, the control of immigration, the raising of 
 armies, the development of a navy and the building of fortifications 
 within its territory, are of very 'direct interest to foreign nations. 
 Yet, except so far as regulated by treaties, they are considered 
 domestic questions. 
 
 Arbitration treaties have often excepted questions affecting na- 
 tional " independence " from compulsory submission and the League 
 of Nations Covenant (Art. XV) recognizes that disputes between 
 nations may " arise out of a matter which by international law is 
 solely within the domestic jurisdiction " of one party, and in such 
 disputes the Council of the League is incompetent to make a recom- 
 mendation. The United States Supreme Court has similarly recog- 
 nized certain questions undoubtedly interesting to foreign nations 
 as within the "independence" of the nation.^ 
 
 iThe Chinese Exclusion Case, 130 U. S. 581 (1889). 
 
 263
 
 264 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " That the government of the United States, through the action of the 
 legislative department, can exclude aliens from its territory is a proposition 
 which we do not think open to controversy. Jurisdiction over its own terri- 
 tory to that extent is an incident of every independent nation. It is a part 
 of its independence." 
 
 Writers on international law have usually drawn the line be- 
 tween foreign affairs and domestic affairs according to the line of 
 territorial jurisdiction.^ 
 
 "It being a necessary result of independence that the will of the state 
 shall be exclusive over its territory, it also asserts authority as a general rule 
 over all persons and things, and decides what acts shall or shall not be done 
 within its dominion. It consequently exercises jurisdiction there, not only 
 with respect to the members of its own community and their property, but 
 with respect to foreign persons and property." 
 
 Although in practice states are internationally responsible for many 
 events which occur or acts which take effect entirely within their 
 borders,^ yet territorial autonomy is generally recognized by inter- 
 national law and we will confine attention to those political decisions 
 directly affecting matters beyond national boundaries. 
 
 190. State Power to Make Political Decisions in Foreign Affairs. 
 The states have been deprived of almost all power to make polit- 
 ical decisions in foreign affairs. Their war power is confined to the 
 maintenance of a militia for domestic use or to ward off an actual 
 or imminent invasion, 
 
 " No state," says the Constitution, " shall grant letters of marque and 
 reprisal, ... or without the consent of Congress keep troops or ships of war 
 in time of peace or engage in war unless actually invaded or in such imminent 
 danger as will not admit of delay." * 
 
 They have no powers dependent upon war and treaty-making such 
 as that of annexing territory, nor upon diplomatic and representative 
 powers such as those of recognizing new states and governments, 
 
 2 Hall, Int. Law, p. 49. 
 
 3 Supra, sec. 89. 
 
 *U. S. Const., Art. I, sec. 10, cl. 3.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 265 
 
 though state legislatures have sometimes passed resolutions recom- 
 mending national action in these matters." 
 
 In political matters even indirectly affecting foreign relations the 
 states are excluded. They cannot lay export or import duties ex- 
 cept to enforce inspection laws; they cannot lay tonnage duties; 
 regulate immigration or foreign commerce except necessary local 
 regulations upon which Congress has not acted, nor naturalize 
 aliens.^ The intention of the Constitution is undoubtedly to render 
 the states incompetent to make political decisions which affect for- 
 eign nations in more than the most remote degree, yet state laws 
 have occasionally given rise to international controversy, especially 
 where discrimination against resident aliens is alleged. The San 
 Francisco ordinance of 1906 segregating Japanese school children 
 and the California laws of 1913 and 1920 forbidding landholding 
 to certain classes of aliens are in point."^ 
 
 " Even a state of the Union," said a Senate report of 1897, " although 
 having admittedly no power whatever in foreign relations, may take action 
 uncontrollable by the Federal Government, and which, if not properly a 
 casus belli, might nevertheless as a practical matter afford to some foreign 
 nation the excuse of a declaration of war. We may instance the action which 
 might have been taken by the State of Wyoming in relation to the Chinese 
 massacres, or by the State of Louisiana in relation to the Italian lynchings, 
 or by the State of New York in its recent controversy with German insurance 
 companies with relation to the treatment of its own insurance companies by 
 Germany." ^ 
 
 191. National Power to Make Political Decisions in Foreign Affairs. 
 The national government is given by the Constitution political 
 powers, not only directly affecting foreign relations, such as the war 
 power, the treaty-making power, and the power to send and receive 
 diplomatic officers ; but also most powers which might indirectly 
 
 5 In 1897 Nebraska adopted a resolution extending to Cuba their sym- 
 pathy. Sen. Doc. 82, 54th Cong., 2d sess. For state resolutions favoring 
 recognition of Ireland. Armenia, Jewish State, the League of Nations, etc., 
 see Cong. Rec, 57: 3866; 58: 43, 48-51, 54, 6859; 59: 75io. 
 
 ^U. S. Const., art. i, sec. 10, cl. 3. The Passenger Cases, 7 How. 283; 
 Cooley V. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. 
 
 ''Supra, sec. 15, note 10; sec. 50, note 83. 
 
 ' Sen. Doc. No. 56, 54th Cong., 2d sess., p. 5.
 
 266 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 affect them, such as the powers to regulate foreign commerce, to 
 levy customs duties, and to naturalize aliens. So extensive are 
 these powers that the court has construed them as together con- 
 ferring upon the national government all the powers in foreign rela- 
 tions enjoyed by other sovereign nations.® 
 
 "The United States are a sovereign and independent nation, and are 
 vested by the Constitution with the entire control of international relations, 
 and with all the powers of government necessary to maintain that control and 
 make it effective." 
 
 How are these powers distributed among the departments of 
 government ? 
 
 " It is clear all through the Constitution, and has never been disputed, 
 that the intention was to distribute the powers of the Government between 
 its three branches, subject to such checks as the veto of the President or 
 advice and consent of the Senate ; and not to place any given power in two 
 or all three branches of the Government concurrently. 
 
 "The existence of the same power for the same purposes in both the 
 legislative and executive branches of the Government might lead to most un- 
 fortunate results. For instance, if the legislative and executive branches both 
 possessed the power of recognizing the independence of a foreign nation, and 
 one branch should declare it independent while the other denied its inde- 
 pendence, then, since they are coordinate, how could the problem be solved 
 by the judicial branch? 
 
 "The distinction must be borne in mind between the existence of a con- 
 stitutional power and the existence of an ability to effect certain results. For 
 instance, Congress alone has the power to declare war. The Executive, how- 
 ever, can do many acts which would constitute a casus belli, and thus indi- 
 rectly result in war ; but this does not imply in the Executive a concurrent 
 power to declare war, and the war which would result would be one declared 
 by a foreign power. It is possible even that the judiciary, by declaring some 
 act of Congress at an inopportune moment to be unconstitutional or otherwise 
 incapable of execution according to its intent, or by some decision in a prize 
 cause or otherwise, could give rise to a war with a foreign power, yet no one 
 would claim that the judiciary had the power to declare war." lo 
 
 Though the constitutional fathers doubtless had the purpose as- 
 cribed to them in this Senate report, yet it is by no means true that 
 they succeeded in keeping the powers of the various departments 
 from overlapping in the field of foreign affairs. An illustration is 
 
 »Fong Yue Ting v. U. S., 149 U. S. 698 (1893). Supra, sees. 7^-73- 
 1'^ Sen. Doc. No. 56 (cited supra, note 7), p. 4.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 267 
 
 furnished by the power to regulate the landing of submarine cables." 
 
 "I am of the opinion," wrote the Acting Attorney General in 1898, "that 
 the President has the power, in the absence of legislative enactment, to con- 
 trol the landing of foreign submarine cables." But "the Executive permis- 
 sion to land a cable is, of course, subject to subsequent congressional action." 
 
 The President as Chief Executive, Commander-in-Chief and the "~^ 
 representative organ, seems to have sufficient power to make all L 
 political decisions in foreign affairs not exclusively vested in j 
 Congress or the treaty-making power and not conflicting with in-^/ ' 
 ternational law, treaty or existing act of Congress. 
 
 Congress, on the other hand, can make political decisions in for- 
 eign affairs so far as it can bring them under its express, implied 
 or resultant powers, the most important of which in this connection 
 are the powers to declare war, to annex territory, to naturalize 
 aliens, to regulate commerce and means of conveyance and com- 
 munication with foreign nations, and to regulate immigration and 
 exclude or expel aliens. When Congress has validly acted, its act \ 
 binds the President except in so far as it encroaches upon his con- 
 stitutional discretion to receive and commission diplomatic officers 
 and to act as Commander-in-Chief. 
 
 The courts have no power to make political decisions whatever. 
 Their functions are purely judicial and when confronted with a 
 political question they accept the decision of the political depart- 
 ments of the government. ^^ It results that judicial precedents are 
 not of great assistance in determining the constitutional line separat- 
 ing the powers of the President from those of Congress in this 
 field. 
 
 It must be added that the distinction between " constitutional 
 power " and " ability to effect certain results " is one often dif- 
 ficult to draw in practice, though doubtless valid in theory. If, for 
 instance, the President has the " ability to effect certain results " 
 for which Congress is given express power, through the exercise 
 of his own undoubted constitutional powers, it would not seem far 
 
 ^1 Moore, Digest, 2: 463; infra, sec. 219. See also infra, sees. 245-248. 
 12 Supra, sec. 107.
 
 268 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 from the truth to state that the constitutional powers of Congress 
 and the President overlap. The same end may often be attained by 
 different means. 
 
 A. The Power to Recognize Foreign States, Governments, and 
 
 Belligerency. 
 
 192. The Power of Recognition. 
 
 The President as the representative organ has the power to rec- 
 ognize facts in international relations. He has recognized foreign 
 states by receiving diplomatic officers or granting exequators to 
 consuls from them, and by sending diplomatic officers or commis- 
 sioners to them.^^ He has, by diplomatic correspondence through 
 the Department of State, recognized acquisitions of territory and 
 the establishment of protectorates by existing states.^* Likewise, 
 beginning with the recognition of the French revolutionary gov- 
 ernment through reception of Citizen Genet in 1793, the President 
 has recognized new governments and he has refused to recognize 
 de facto governments, thereby contributing to their ultimate down- 
 fall, as was the case with the Huerta government in Mexico and the 
 Tinoco government in Costa Rica.^^ The President has recognized 
 the existence of foreign war through proclamation of neutrality. 
 Though the first such proclamation, issued in 1793 by Washington, 
 was vigorously attacked by Jefferson and Madison, who considered 
 it beyond his powers and contrary to the French alliance treaty of 
 1778, the precedent has been followed in all subsequent foreign 
 wars, both international and civil. ^^ The President has also held 
 himself competent to recognize the termination of foreign wars and 
 the consequent termination of American neutrality.^^ He has rec- 
 ognized the existence of insurgency and domestic violence in foreign 
 
 i» Moore, Digest, i: 74-119. 
 
 1* Williams v. Suffolk Ins. Co., 13 Pet. -415. 
 
 15 Moore, Digest, i: 164; Moore, Principles of Am. Diplomacy, 213-225. 
 
 16 Moore, Digest, i: 164; Corwin, op. cit., pp. 7-28. 
 
 1' Mr. Seward, Sec. of State, to Mr. Goni, Spanish Minister, July 22, 
 18^, Moore, Digest, 7: 337, supra sec. 213.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 269 
 
 countries by proclamation and by diplomatic correspondence through 
 the Department of State, and the courts have held that such action 
 creates a status covered by special principles of international law. 
 Thus in the case of the Three Friends the court distinguished be- 
 tween " war in the material sense " and " war in the legal sense."^* 
 
 " Here," it said, " the political department has not recognized the existence 
 of a de facto belligerent power engaged in hostility with Spain, but has recog- 
 nized the existence of insurrectionary warfare prevailing before, at the time 
 and since this forfeiture is alleged to have been incurred." 
 
 After describing two presidential proclamations calling attention 
 to " serious civil disturbances " and " insurrection " in Cuba, the 
 court continues : 
 
 " We are thus judicially informed of the existence of an actual conflict 
 of arms in resistance of the authority of a government with which the 
 United States are on terms of peace and amity, although acknowledgment of 
 the insurgents as belligerents by the political department has not taken place." 
 
 With respect to the President's power of recognition, two ques- 
 tions have been raised: What are its limits? and, Is it exclusive? 
 
 193. Limits of Recognition Power. 
 
 The courts have taken cognizance of the President's recognition 
 of states, governments, belligerency, insurgency and foreign ac- 
 quisitions of territory on numerous occasions and they have never 
 held that the President exceeded his powers." It is clear, how- 
 ever, that if unlimited, the power of recognition could be used to 
 usurp the power to declare war. Thus recognition of a foreign 
 revolting state, if premature, would furnish a casus belli. This 
 possibility was envisaged by Secretary of State Adams when occasionj 
 arose for recognizing the revolting South American Republics and 
 he stated :==" 
 
 "/fcid.. i: 242; The Three Friends, 166 U. S. 62,-66 (1897). 
 
 i» Ibid., 1 : 247. 
 
 20 Mr. Adams, Sec. of State, to the President, Aug. 24, 1818, ihid., i : 78. 
 For discussion of circumstances justifying recognition, see Dana, Notes to 
 Wheaton, Elements of International Law, pp. 35, 4,1.
 
 270 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "There is a stage in such contests when the parties struggling for inde- 
 pendence have, as I conceive, a right to demand its acknowledgment by neu- 
 tral parties, and when the acknowledgment may be granted without departure 
 from the obligations of neutrality. It is the stage, when independence is 
 established as a matter of fact so as to leave the chances of the opposite 
 party to recover their dominion utterly desperate. The neutral nation must, 
 of course, judge for itself when this period has arrived ; and as the belligerent 
 nation has the same right to judge for itself, it is very likely to judge differ- 
 ently from the neutral and to make it a cause or pretext for w^ar, as Great 
 Britain did expressly against France in our Revolution, and substantially 
 against Holland." 
 
 Secretary Adams' distinction seems to indicate the limits of the 
 President's power. He may recognize a fact. To do so is not a 
 just cause of war. A recognition before the fact is, however, inter- 
 vention and practically war, the declaration of which belongs to 
 Congress. Thus when the line has been close, as in the recognitions 
 of the South American Republics and Texas, the President has " in- 
 voked the judgment and cooperation of Congress " before recog- 
 nition^^ and where " recognition " would clearly be premature, the 
 President has not acted at all but has turned the question over to 
 Congress. Thus President McKinley, in his message of April 
 II, 1898, turned over the "solemn responsibilty " of the Cuban 
 question to Congress with a recommendation for intervention.^^ 
 
 194. Exclusiveness of President's Recognition Power. 
 
 In practice, recognition has always been by authority of the 
 President, though in a few cases the President has gained the ap- 
 proval of Congress or the Senate before acting.^* 
 
 " In the preceding review," writes Moore, " of the recognition, respec- 
 tively, of new states, new governments and belligerency, there has been made 
 in each case a precise statement of facts, showing how and by whom the 
 recognition was accorded. In every case, as it appears, of a new government 
 and of belligerency the question of recognition was determined solely by the 
 Executive. In the case of the Spanish-American republics, of Texas, of 
 Hayti, and of Liberia, the President, before recognizing the new state, in- 
 voked the judgment and cooperation of Congress; and in each of these cases 
 provision was made for the appointment of a minister, which, when made in 
 
 21 Infra, sec. 194. 
 
 22 Richardson, Messages, 10: 67. 
 2s Moore, Digest, i : 244.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 271 
 
 due form, constitutes, as has been seen, according to the rules of international 
 law, a formal recognition. In numerous other cases the recognition was 
 given by the Executive solely on his own responsibility." 
 
 The Congressional Resolution of April 20, 1898, which asserted 
 that " the people of the Island of Cuba are and of right ought to 
 be free and independent" has been cited as an exception but the 
 resolution went on to " direct and empower " the President to use 
 the army, navy and militia to " carry these resolutions into effect." 
 It was in fact and was understood at the time to be a declaration 
 of intervention and not a recognition.^* As Senator Alorgan of 
 Alabama said, it was "not a historical declaration of the existing 
 facts or situation, but it is a high political decree, ... a basis of 
 political action." ^' 
 
 195. Claim of Congress to Recognition Power. 
 
 On several occasions, the power of recognition has been claimed 
 for Congress. Thus said Henry Clay in the House of Represen- 
 tatives : ^' 
 
 " There are three modes under our Constitution in which a nation may 
 be recognized: By the Executive receiving a mmister ; secondly, by its send- 
 ing one thither; and, thirdly, this House unquestionably has the right to 
 recognize in the exercise of the constitutional power of Congress to regulate 
 foreign commerce. . . . Suppose, for example, we passed an act to regulate 
 trade between the United States and Buenos Ayres ; the existence of the 
 nation would be thereby recognized, as we could not regulate trade with a 
 nation which does not exist." 
 
 However, Clay's original motion which provided salary for a 
 minister to the " independent provinces of the River Plata in South 
 America " was withdrawn and even his substitute, omitting the term 
 " independent " and adding that the salary was to commence " when- 
 
 2* Richardson, Messages, 10: 72. See also Latane, Am. Jl. Int. Law, 12: 
 899 (Oct.. 1918). criticizing statement in Corwin, op. clt., p. 80. 
 
 25 Cony. Rcc, S5th Cong., 2d sess., Appdx.. p. 290; Corwin, op. cit., p. 81. 
 
 26 Sen. Doc. 56 (cited supra, note 8), p. 32; Corwin, p. 76. See also 
 notes of Secretaries of State Buchanan and Clay, Moore, Digest, i : 245-246.
 
 272 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 ever the President shall deem it expedient to send a minister to 
 the said United Provinces," failed to pass.^^ 
 
 On this occasion, as later, the better opinion held that the power 
 to recognize was vested exclusively in the Executive. Thus John 
 Quincy Adams, then Secretary of State, writes of a meeting of 
 President Monroe's cabinet, on January i, 1819.^^ 
 
 "As to impeachment, I was willing to take my share of risk of it for 
 this measure whenever the Executive should deem it proper. And, instead 
 of admitting the Senate or House of Representatives to any share in the act 
 of recognition, I would expressly avoid that form of doing it which would 
 require the concurrence of those bodies. It was, I had no doubt, by our 
 Constitution an act of the Executive authority. General Washington had 
 exercised it in recognizing the French Republic by the reception of Genet. 
 Mr. Madison had exercised it by declining several years to receive, and by 
 finally receiving Mr. Onis; and in this instance I thought the Executive ought 
 carefully to preserve entire the authority given him by the Constitution, and 
 not weaken it by setting the precedent of making either House or Congress 
 a party to an act which it was his exclusive right and duty to perform. Mr. 
 Crawford said . . . that there was a difference between the recognition of a 
 change of government in a nation already acknowledged as sovereign, and 
 the recognition of a new nation itself. He did not, however, deny, but ad- 
 mitted, that the recognition was strictly within the powers of the Executive 
 alone, and I did not press the discussion further." 
 
 The same position has been taken by Mr. Seward and other 
 Secretaries of State,^^ by the Senate on several occasions^" and by 
 the Supreme Court.'^ 
 
 " The Executive," said the latter, " having recognized the existence of a 
 state of war between Spain and her South American colonies, the courts of the 
 union are bound to consider as lawful those acts which war authorized and 
 which the new Governments in South America may direct against their 
 enemy." 
 
 ^■^ Moore, Digest, 1 : 82. A later resolution passed the House of Repre- 
 sentatives, ibid., 1 : 84. 
 
 28 Memoirs of J. Q. Adams, 4: 205-206; Moore, Digest, i: 244. 
 
 2» Mr. Seward, Sec. of State, to Mr. Dayton, Minister to France, Apr. 7. 
 1864, Moore, Digest, i : 246. 
 
 '" Memorandum on the method of " Recognition " of foreign govern- 
 ments and foreign states by the Government of the United States, 1789-1897, 
 Sen. Doc. No. 40, 54th Cong., 2d sess. ; memorandum upon the power to 
 recognize the independence of a new foreign state. Sen. Doc. No. 56, 54th 
 Cong., 2d sess. 
 
 »iThe Divina Pastora, 4 Wheat. 32; Moore, Digest, i: 247.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 273 
 
 Although the President may seek the opinion of Congress before 
 recognition; and doubtless should do so if the state or government 
 or war in question does not have a clear de facto existence, yet the 
 law is that stated by the Senate Foreign Relations Committee in 
 1897:" 
 
 \ 
 
 "The executive branch is the sole mouthpiece of the nation in communi- 
 cation with foreign sovereignties. Foreign nations communicate only through 
 their respective executive departments. Resolutions of their legislative de- 
 partments upon diplomatic matters have no status in international law. In 
 the department of international law, therefore, properly speaking, a congrcs-/ 
 sional recognition of belligerency or independence would be a nullity." 
 
 Finally we may notice a practical consideration adverted to by 
 Professor Corwin after a comprehensive survey of the subject. 
 Concluding that " recognition, as it is known to international law, 
 belongs to the President alone, or to the President in conjunction 
 with the Senate " he adds: ^' 
 
 " Even if we should admit that Congress, incidentally to discharging 
 some legislative function like that of regulating commerce, might in some 
 sense 'recognize' a new state or government, the question still remains how 
 it would communicate its recognition, having the power neither to dispatch 
 nor to receive diplomatic agents. As was said of the States of the Confed- 
 eration, Congress is as to other governments 'both deaf and dumb.' Why, 
 then, claim for it a power which it could not possibly use save in some 
 roundabout and inconclusive fashion?" 
 
 B. The Power to Determine National Territory and Citizenship. 
 
 196. Judicial Recognition of Territorial Limits. 
 
 International law recognizes that territory may be acquired by 
 accretion and prescription; discovery and occupation; cession and 
 conquest." The courts in applying international law recognize 
 small acquisitions by accretion and prescription. Thus mud islands 
 formed at the mouths of rivers and gradual changes in boundary 
 
 32 Sen. Doc. 56, 54th Cong., 2d Sess., p. 22. 
 
 " Corwin, op. cit., p. 82. 
 
 »* Wilson and Tucker, International Law, 7th ed., p. 108.
 
 274 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 river courses have been recognized as extending the jurisdiction.^^ 
 The courts have held general acceptance of certain marks as the 
 boundary for a long space of time will establish it, even though such 
 marks are ascertained to be incorrect by later surveys,^" and they have 
 also recognized bays with headlands more than six miles apart, such 
 as Chesapeake and Delaware bays, as territorial waters from long 
 assertion by the United States and tacit acceptance by other powers 
 of that status. ^^ In general, however, the courts regard the deter- 
 mination of boundaries as a political question.^^ 
 
 197. Recognition of Territorial Limits by the President. 
 
 The President is competent to recognize the acquisition of ter- 
 ritory by discovery and occupation. Thus shall uninhabited islands 
 in the Pacific have been taken possession of by naval commanders.** 
 The President has also applied the Guano Island act passed by 
 Congress in 1856 and as therein provided has registered islands, 
 discovered and worked by American citizens, as within American 
 jurisdiction and protection. In Jones v. United States the Su- 
 preme Court held that the jurisdiction of the United States was 
 thus legally extended.*" 
 
 198. Power to Annex Territory by Treaty and Executive Agree- 
 ment. 
 
 Most of the acquisitions of territory have been by cession, though 
 the competence of the treaty-making power was at first ques- 
 ts Cushmg, Att. Gen., 8 Op. 175 (1856); Ocean City Assoc, v. Shriver, 
 46 Atl. 690 (N. J., 1900), and English case, The Anna, 5 Rob. 373 (1805); 
 Moore, Digest, i : 269-273, 747. 
 
 36 As to interstate boundaries, R. I. v. Mass., 4 How. 591, 639 (1846); 
 Ind. V. Ky., 136 U. S. 479 (1890) ; Va. v. Tenn., 148 U. S. 503 (1893) ; Moore, 
 Digest, 1 : 295, 747. 
 
 "The Grange, Randolph, Att. Gen., i Op. 2,2; Manchester v. Mass., I39 
 U. S. 240; Moore, Digest, i : 735-743; The Alleganean, Alabama Claims Com- 
 mission, 1885, 32 Albany L. J. 484; Moore, Int. Arb. 4333> 467 5 ; Scott, Cases 
 on Int. Law, p. 143. 
 
 S8 Foster v. Neilson, 2 Pet. 253 ; Moore, Digest, i : 743-745, supra, sec. 107. 
 
 3^ For acquisition of Midway and Wake Islands, see Moore, Digest, i : 
 555- 
 
 *o Jones V. U. S., 137 U. S. 202 (1S90) ; Moore, Digest, i : 556-580.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 275 
 
 tioned.'*^ Louisiana, Florida, Oregon, California and New Mexico, 
 the Messila \'alley, Tutuila in the Samoan group, Porto Rico, the 
 PhiHppines, Guam, and the \^irgin Islands have been thus acquired, 
 as has the permanent lease of the Panama Canal Zone, and of 
 a naval base on the Gulf of Fonseca. Reef Island near the outlet 
 of Lake Erie and a lease of a naval base at Guantanamo, Cuba, were 
 acquired by executive agreement.^ 
 
 42 
 
 199. Power of Congress to Annex Territory. 
 
 Texas and Hawaii were acquired by joint resolution of Congress. 
 Commentators have had difficulty in locating the clause on which the 
 power of Congress to annex territory is founded. Chief Justice 
 Marshall implied the power to annex territory from the powers to 
 make treaties and to declare war," but the former does not apply 
 to Congress nor the latter to these cases, and as Willoughby com- 
 ments after citing the cases:** 
 
 't3 
 
 "It is to be observed that in none of these cases is there any argument 
 to show just why, and in what manner, the acquiring of the foreign territory 
 is a necessary or proper means by which war may be carried on, or treaties 
 entered into. In fact, it will be seen that the acquiring of foreign territory 
 has been treated as a result incidental to, rather than as a means for, the 
 carrying on of war and the conducting of foreign relations." 
 
 It has been argued that the power to annex territory is implied in 
 the powers to admit new states to the Union.*' That clause might 
 apply to Texas which was immediately admitted as a state but hardly 
 to Hawaii ; and Gouverneur Morris who drafted the Constitution, 
 replied to Livingston's query, " whether Congress can admit as a 
 new state territory which did not belong to the United States when 
 the Constitution was made " : *^ 
 
 <i Willoughby, op. cit., pp. 328 et seq. See also Wright, Columbia Law 
 Rev., 20: 141, note 100. 
 
 <2 Moore, Digest, i : 433-554- 
 
 *sAm. Ins. Co. v. Canter, i Pet. 511. 
 
 ■»* Willoughby, pp. cit., p. 340. 
 
 45 55th Cong., 2d sess.. Sen. Report, No. 681 ; Willoughby, op. cit., p. 346. 
 
 *6 Morris, Life and Writings (Sparks), 3: 185, 192; Willoughby, op. cit., 
 p. 328.
 
 276 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " In my opinion they cannot. I always thought, when we should acquire 
 Canada and Louisiana, it would be proper to govern them as provinces and 
 allow them no voice in our councils. In wording the third section of the 
 fourth article, I went as far as circumstances would permit to establish the 
 exclusion. Candor obliges me to add my belief that had it been more point- 
 edly expressed, a strong opposition would have been made." 
 
 If Congress has the power at all, as it doubtless has, it has it as a 
 resultant of the various powers connected with foreign relations 
 which together confer all sovereign powers necessary for national 
 defense.*^ 
 
 The Supreme Court has admitted the power of Congress to 
 acquire territory by conquest but has denied such power to the 
 President : *^ 
 
 "The genius and character of our institutions are peaceful, and the 
 power to declare war was not conferred upon Congress for the purposes of 
 aggression or aggrandizement, but to enable the general government to vindi- 
 cate by arms, if it should become necessary, its own lights and the rights of 
 its citizens. A war, therefore, declared by Congress, can never be presumed 
 to be waged for the purpose of conquest or the acquisition of territory; nor 
 does the law declaring the war imply an authority to the President to enlarge 
 the limits of the United States by subjugating the enemy's country. The 
 United States, it is true, may extend its boundaries by conquest or treaty, and 
 may demand the cession of territory as the condition of peace, in order to 
 indem.nify its citizens for the injuries they have suffered, or to reimburse the 
 government for the expenses of the war. But this can only be done by the 
 treaty-making power or the legislative authority, and is not a part of the 
 power conferred upon the President by the declaration of war." 
 
 We conclude that the courts in applying international law and 
 the President in the exercise of his diplomatic powers may recognize 
 minor acquisitions of territory by operation of international law, 
 and that more considerable bodies of territory may be acquired by 
 treaty or by joint resolution of Congress. 
 
 200. Power of Congress to Naturalize Aliens and Establish 
 Criteria of Citizenship. 
 The Constitution provides that " all persons born or naturalized 
 in the United States, and subject to the jurisdiction thereof, are 
 
 *'' Willoughby, op. cii., p. 340. 
 *8 Fleming v. Page, 9 How. 603. .
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 277 
 
 citizens of the United States." *» Congress has exclusive power 
 "to establish an uniform rule of naturalization,"^" and it has by 
 implication the power to determine, within the constitutional pro- 
 vision, who are natural born citizens. Thus it has provided that : " 
 
 "All children heretofore born or hereafter born out of the limits and 
 jurisdiction of the United States, whose fathers were or may be at the time 
 of their birth citizens thereof, are declared to be citizens of the United States; 
 but the rights of citizenship shall not descend to children whose fathers never 
 resided in the United States." 
 
 Congress may also naturalize persons by special act, as it has many 
 Indian tribes" and the Porto Ricans." 
 
 From its power to naturalize is deduced the power to determine 
 criteria of expatriation. An act of 1868 " recognizes the natural 
 and inherent right of expatriation" and enacts that: 
 
 54 
 
 " Any declaration, instruction, opinion, order, or decision of any officers 
 of this Government which denies, restricts, impairs, or questions their right 
 of expatriation is hereby declared inconsistent with the fundamental prin- 
 ciples of this Government." 
 
 Laws have also stated presumptions of expatriation of naturalized 
 citizens, such as two years residence in the country of origin or five 
 years residence in other foreign country.*^ 
 
 201. Power of Executive to Recognize Citizenship. 
 
 Within the limits of these laws, the Executive, actually the De- 
 partment of State, must recognize the citizenship or alienage of per- 
 sons, in offering protection or responding to claims of foreign gov- 
 ernments in behalf of their citizens. The Executive may make 
 requirements with reference to passports and registration at con- 
 
 <»U. S. Constitution, Amendment XIV; U. S. v. Wong Kim Ark, 169 
 
 U. S. 649. 
 
 ^° Ibid, Art. I, sec. 8, cl. 4; Chirac v. Chirac, 2 Wheat. 259. 
 
 01 Rev. Stat., sec. 1993 ; Comp. Stat., 3947. 
 
 52 Rev. Stat., sec. 2312. Act Feb. 8, 1887, sec. 6, 24 Stat. 390, as amended 
 in 1901 and 1906; Comp. Stat., sec. 3951. 
 
 =3 Act March 2, 1917, sec. 5, 39 Stat. 953 ; Comp. Stat., sec. 38o3bb. 
 
 "Rev. Stat., sec. 1999; Comp. Stat., sec. 3955. 
 
 55 Act March 2, 1907, sec. 2, 34 Stat. :228.
 
 278 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 sulates in the place of residence and the evidence necessary to prove 
 citizenship.^^ Within the United States the question of citizenship 
 is ordinarily one for judicial determination, but immigrants claim- 
 ing citizenship may, under i)rcsent laws, have the fact of 
 citizenship decided adversely and finally by administrative officials 
 without appeal to the courts. According to the Ju Toy case 
 these laws do not violate constitutional guarantees.^^ 
 
 C. Pozvcr to Determine Foreign Policy. 
 
 202. Congressional Resolutions on Incidents in Foreign Affairs. 
 
 Declarations of foreign policy may be made by Congress in the 
 form of joint resolutions, but such resolutions are not binding on 
 the President. They merely indicate a sentiment which he is free 
 to follow or ignore. Yet they are often couched in mandatory 
 terms and in defense of his independence the President has fre- 
 quently vetoed them. Thus in 1877, President Grant vetoed two 
 resolutions extending appreciation to Pretoria and Argentine Re- 
 public for the " complimentary terms in which they had referred 
 to the first centennial " : ^^ 
 
 " Sympathizing as I do in the spirit of courtesy and friendly recognition 
 which has prompted the passage of these resolutions, I cannot escape the 
 conviction that their adoption has inadvertently involved the exercise of a 
 power which infringes upon the constitutional rights of the Executive. . . . 
 The Constitution of the United States, following the established usage of 
 nations, has indicated the President as the agent to represent the national 
 sovereignty in its intercourse with foreign powers, and to receive all official 
 
 06 Borchard, op. cit., p. 488. 
 
 " U. S. V. Ju Toy, 198 U. S. 253 ; Willoughby, op. cit., p. 1290. 
 
 "8 Richardson, Messages, 7: 431. See also Sen. Rep., quoted supra, sec. 
 191. President Harding is reported to have opposed Senator Borah's amend- 
 ment to the naval appropriation bill of 1921, authorizing a conference on dis- 
 armament with Great Britain and Japan, on the ground that it "might embar- 
 rass executive action, or appear to carry a congressional recommendation on 
 international policies within the jurisdiction of the executive." (Press Re- 
 port, May 3, 1921, Cong. Rec, May 17, 27, 1921, 61 : 1508, 1857.) These ob- 
 jections were, however, later withdrawn (Letter to Representative Mondell, 
 June 25, 1921), and the bill with the amendment was approved July 12, 1921, 
 two days after Presidenlt Harding had announced his intention to call a 
 conference on limitation of armament.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 279 
 
 communications from them, . . . making him, in the language of one of the 
 most eminent writers on constitutional law, ' the constitutional organ of com- 
 munication with foreign states.' If Congress can direct the correspondence 
 of the Secretary of State with foreign governments, a case very different 
 from that now under consideration might arise, when that officer might be 
 directed to present to the same foreign government entirely different and 
 antagonistic views or statements." 
 
 Similar objection has sometimes been raised in Congress itself. 
 Thus Webster said of an item in the appropriation bill for the 
 Panama mission of 1826, which attempted to attach conditions : ^^ 
 
 "He would recapitulate only his objections to this amendment. It was 
 unprecedented, nothing of the kind having been attempted before. It was, 
 in his opinion, unconstitutional, as it was taking the proper responsibility 
 from the Executive and exercising, ourselves, a power which, from its nature, 
 belongs to the Executive, and not to us. It was prescribing, by the House, 
 the instructions for a Minister abroad. It was nugatory, as it attached con- 
 ditions wliich might be complied with, or might not. And lastly, if gentlemen 
 thought it important to express the sense of the House on these subjects, or 
 any of them, the regular and customary way was by resolution. At present 
 it seemed to him that we must make the appropriation without conditions, or 
 refuse it. The President had laid the case before us. If our opinion of the 
 character of the meeting, or its objects, led us to withhold the appropriation, 
 we had the power to do so. If we had not so much confidence in the Execu- 
 tive as to render us willing to trust to the constitutional exercise of the 
 Executive power, we have power to refuse the money. It is a direct question 
 of aye or no. If the Ministers to be sent to Panama may not be trusted to 
 act, like other Ministers, under the instructions of the Executive, they ought 
 not to go at all." 
 
 203. President Not Bound by Congressional Resolutions on Foreign 
 Affairs. 
 
 The Executive has never hesitated to ignore resolutions or acts 
 
 "9 Benton, Abridgment of Debates in Congress, 9: 91. Congressional 
 resolutions on incidents in the control of foreign affairs have sometimes been 
 defeated in Congress from an apprehension that they might be unconstitu- 
 tional encroachments upon the President's powers. See Clay's resolution of 
 1818 for recognition of United Province of Rio de la Plata (Moore, Digest, 
 1 : 182) ; Benton's resolution of 1844 criticizing President Tyler's treaty for 
 annexation of Texas (Cong. Globe, 13, Appdx., 474) ; Sumner's resolut'on of 
 1871 criticizing President Grant's effort to annex Santo Domingo (Cong. 
 Globe, 42d Cong., ist sess., pt. i, p. 294) ; McLemore's resolution of March, 
 1916, "to warn all citizens of the United States to refrain from traveling on 
 armed vessels" (Cong. Rec, 1916, pp. 3700-4).
 
 280 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of this kind, even when passed. Thus a resolution of 1864 declared, 
 with reference to the Maximillian Government of Mexico, that: 
 
 " It does not accord with the policy of the United States to acknowledge 
 a monarchical government, erected on the ruins of any republican government 
 in America, under the auspices of any European power." 
 
 Secretary of State Sev^^ard explained to the minister in France: 
 
 "This is a practical and purely Executive question, and the decision of 
 its constitutionality belongs not to the House of Representatives nor even to 
 Congress, but to the President of the United States. . . . While the President 
 receives the declaration of the House of Representatives with the profound 
 respect to which it is entitled, as an exposition of its sentiments upon a grave 
 and important subject, he directs that you inform the Government of France 
 that he does not at the present contemplate any departure from the policy 
 which this Government has hitherto pursued in regard to the war which exists 
 between France and Mexico. It is hardly necessary to say that the proceed- 
 ing of the House of Representatives was adopted upon suggestions arising 
 within itself, and that the French Government would be seasonably apprised 
 of any change of policy upon this subject which the President might at any 
 future time think it proper to adopt." 
 
 Congress promptly resolved upon receipt of this communication 
 that: 
 
 " Congress has a constitutional right to an authoritative voice in declaring 
 and prescribing the foreign policy of the United States, as well in the recog- 
 nition of new powers as in other matters, and it is the constitutional duty of 
 the President to respect that policy, not less in diplomatic negotiations than 
 in the use of the national forces when authorized by law; and the propriety 
 of any declaration of foreign policy by Congress is sufficiently proved by the 
 vote which pronounces it; and such proposition, while pending and undeter- 
 mined, is not a fit topic of diplomatic explanation with any foreign power." 
 
 Mr. Blaine criticized this resolution in the House: 
 
 " To adopt this principle is to start out with a new theory in the adminis- 
 tration of our foreign affairs, and I think the House has justified its sense 
 of self-respect and its just appreciation of the spheres of the coordinate 
 departments of government by promptly laying the resolution on the table." 
 
 But after changing the term " President " to " Executive Depart- 
 ment" the House passed the resolution, which, however, failed to 
 come to a vote in the Senate.^" 
 
 «oMcPherson, History of the Rebellion, pp. 34^354; Sen. Doc. No. 56 
 (cited supra, note 30), p. 47. See also President Wilson's refusal to carry
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS. 281 
 
 Though congressional resolutions on concrete incidents are en- 
 croachments upon the power of the Executive Department and are 
 of no legal effect, yet they may be of value as an index of national 
 sentiment. 
 
 " They have," says Professor Corwin, " often furnished the President 
 valuable guidance in the shaping of his foreign policy in conformity with 
 public opinion. Thus the resolutions which were passed by the Senate and 
 House separately in the second session of the Fifty-third Congress, warning 
 the President against the employment of forces to restore the monarchy of 
 Hawaii, probably saved the administration from a fatal error. Again, the 
 notorious McLemore resolution, requesting the President ' to warn all citi- 
 zens of the United States to refrain from traveling on armed merchant 
 vessels,' though ill-judged enough as to content, did nevertheless furnish the 
 administration a valuable hint as to the state of the public mind, and one 
 which it was quick to take. For the President, even in the exercise of his 
 most unquestioned powers, cannot act in a vacuum. He must ultimately have 
 the support of public sentiment." ^^ 
 
 204. Congressional Declarations of General Policy. 
 
 Congressional resolutions on foreign relations have often been 
 of a more general character, avoiding reference to specific incidents, 
 though doubtless suggested by such incidents. Thus a Senate reso- 
 lution of 1858 asserted that American vessels on the high seas are 
 not subject to visit and search in time of peace,"^ a law of 1868 
 asserted the right of expatriation to be "a natural and inherent 
 right of all people " '^ and resolutions at various times have sug- 
 gested the negotiation of arbitration treaties.®* A section of the 
 naval appropriation act of 1916 declared it to be : *' 
 
 out provisions of the Jones Merchant Marine Act of June 5, 1920, directing 
 the termination of certain treaty provisions, and President Lincoln's failure 
 to terminate the Great Lakes disarmament agreement of 1817 in accord with 
 a resolution of 1865, supra, sees. 174, 184. 
 «i Corwin, op. cit., p. 45. 
 
 62 Moore, Digest, 2 : 946. 
 
 63 Rev. Stat., sec. 1999; Comp. Stat., sec. 3955. 
 
 «* See A League of Nations (World Peace Foundation), I, No. i (Oct., 
 
 1917). 
 
 65 Act Aug. 29, 1916, 39 Stat. 618; Comp. Stat. 7686b. In the Spring of 
 1921 President Harding is reported to have opposed the Borah amendment on 
 disarmament {supra, sec. 56). In his message to Congress of April 12, 1921,
 
 282 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "The policy of the United States to adjust and settle its international 
 disputes through mediation or arbitration, to the end that war may be hon- 
 orably avoided. It looks with apprehension and disfavor upon a general 
 increase of armament throughout the world, but it realizes that no single 
 nation can disarm, and that without common agreement upon the subject 
 every considerable power must maintain a relative standing in military 
 strength." 
 
 Negotiation of reciprocal agreements with Canada on the use of 
 boundary waters has also been suggested.®" A Senate resolution 
 of 1912, though suggested by the Magdalena Bay incident, was ex- 
 pressed as a general policy related to the ATonroe Doctrine.'^ 
 Treaty reservations have sometimes offered the Senate an opportunity 
 for the expression of general policies. The Hague Conventions on 
 the Pacific settlement of international disputes were signed with a 
 reservation : *'^ 
 
 " Nothing contained in this convention shall be so construed as to require 
 the United States of America to depart from its traditional policy of not 
 intruding upon, interfering with, or entangling itself in the political questions 
 of policy or internal administration of any foreign state; nor shall anything 
 contained in the said convention be construed to imply a relinquishment of the 
 United States of America of its traditional attitude toward purely American 
 questions." 
 
 The Senate appended a similar reservation to the Algeciras Conven- 
 tion of 1906.®^ 
 
 205. Power of President to Determine Foreign Policy. 
 
 It is believed that resolutions expressing general policies or 
 principles on most subjects connected with foreign relations may be 
 
 he said with reference to the proposed peace resolution : " It would be unwise 
 to undertake to make a statement of future policy with respect to European 
 afifairs in such a declaration of a state of peace (with Germany). In correct- 
 ing the failure of the Executive, in negotiating the most important treaty in 
 the history of the nation, to recognize the constitutional powers of the Senate, 
 we would go to the other extreme, equally objectionable, if Congress should 
 assume the functions of the Executive. {Cong. Rec, 61 : 95. See also re- 
 marks of Senator Hitchcock, April 29, 1921, ibid., 61 : 745.) 
 
 ««Act June 13, 1902, 32 Stat. 373, Comp. Stat. 9984; Act June 29, 1906, 
 34 Stat. 628, Comp. Stat. 9989d. 
 
 ^'' Cong. Rec, Aug. 2, 1912, 48: 10046, A League of Nations, I, No. 5, 
 p. 298 (June, 1918) ; Hart, The Monroe Doctrine, p. 235. 
 
 ^8 Malloy, Treaties, etc., pp. 2032, 2047. 
 
 «» Ibid., p. 2183.
 
 POLITICAL DECISIONS IN FOREIGN AFFAIRS 283 
 
 constitutionally passed by Congress,'" and may furnish useful guides 
 to the President. Congressional expressions of opinion on partic- 
 ular issues, however, and attempts to direct the President thereon 
 encroach upon the executive field and may embarrass the President's 
 action/^ In practice foreign policy has developed by executive prec- 
 edent, practice and declaration. The farewell address of Wash- 
 ington and the Monroe Doctrine, both purely executive in origin 
 and future interpretation, have been the most important expressions 
 of foreign policy.'^- In recent years, however, Congress and es- 
 pecially the Senate have tended to express permanent policies more 
 freely, by resolution. Though the Monroe Doctrine was stated in 
 1823 and on several occasions efforts were made to gain for it legis- 
 lative endorsement, the first statement referring to it, accepted by 
 either House of Congress, appears to be the reservation to the 
 Hague Convention of 1899 accepted by the Senate, and on this 
 occasion the doctrine was not referred to by name.''^ 
 
 '■"The constitutional authority of Congress may be traced to the power 
 to declare war. According to Rawle, " the right to qualify, alter or annul a 
 treaty being of a tendency to produce war, is an incident to the right of de- 
 claring war." (Supra, sec. 187.) The declaration of a foreign policy doubt- 
 less has a similar tendency toward the production or avoidance of war. 
 
 "1 The power of Congress to declare general foreign policies does not con- 
 fer a power to direct the details of their execution any more than the power 
 to declare war confers a power to direct the details of military campaigns 
 {infra, sec. 221), or the power to make laws on certain subjects confers a 
 power to direct their administration (infra, sec. 230). The first would en- 
 croach upon the President's power to receive and commission diplomatic offi- 
 cers and to negotiate treaties, as the second would upon his power as com- 
 mander-in-chief and the third upon his power as chief executive. 
 
 "-Richardson, Messages, i: 221-224; 2: 209, 218-219; Moore, Digest, 6: 
 370, 401; see also Taft, op. cit., p. 113; Foster, Century of Am. Diplomacy, p. 
 438. 
 
 '^ Supra, note 6. The joint resolution of Feb. 20, 1895, endorsing the 
 suggestion in President Cleveland's annual message that the British-Vene- 
 zuelan boundary dispute be submitted to arbitration (28 stat. 971) and the 
 act authorizing and appropriating for a commission to investigate this dis- 
 pute in accordance with the recommendation of his special message of Dec. 
 17. 1895 (29 stat. i), are considered "by J. \V. Foster to evidence "formal ap- 
 proval" of the Monroe Doctrine by Congress (op. cit., p. 477). These Con- 
 gressional acts refer to a particular situation rather than to the Monroe Doc- 
 trine as a whole though doubtless they implied an endorsement of that 
 Doctrine since it had been put forth as the grounds for action in President 
 Oeveland's messages.
 
 CHAPTER XVI. 
 
 The Power to Make Political Decisions in Foreign Affairs: 
 War and the Use of Force. 
 
 A. The Power to Make War. 
 
 206. The Power to Make War. 
 
 Congress is given power " to declare war, grant letters of marque 
 and reprisal and make rules concerning captures on land and water," 
 and " to provide for calling forth the militia to execute the laws of 
 the union, suppress insurrection and repel invasions." " The Pres- 
 ident shall be commander-in-chief of the army and navy of the 
 United States and of the militia of the several states, when called 
 into the actual service of the United States " and " he shall take 
 care that the laws be faithfully executed." ^ 
 
 War has been defined as " the relation which exists between 
 states when there may lawfully be a properly conducted contest of 
 armed public forces." ^ It is thus to be distinguished from the use 
 of military force. Battles may be fought, vessels captured and 
 commerce embargoed without war, and on the other hand war may 
 exist without a gun fired or a vessel captured or a trade 
 route disturbed. The Supreme Court has distinguished the recog- 
 nition of "war in the material sense" from "war in the legal 
 sense." ^ We may thus regard war as a definite period of time 
 within which the abnormal international law of war and neutrality 
 has superseded normal international law. What authority in 
 the United States has power to begin and end this period of time? 
 
 207. The Causation of War. 
 
 We have noticed the distinction between " the existence of a con- 
 stitutional power and the existence of an ability to eflfect certain 
 
 lU. S. Const., I, sec. 8, cl. 11, 15; II, sec. 2, cl. i, sec. 3. 
 
 2 Wilson and Tucker, op. cit., p. 233. See also Grotius, De lure Belli 
 ac Pacis, liv. I, c. i, par. 2; Vattel, Droit' des gens, liv. Ill, c. i, sec. i. 
 
 3 The Three Friends, 166 U. S. I, supra, sec. 192, and Nelson, J., dissent 
 in the Prize Cases, 2 Black 635, 690. 
 
 284'
 
 WAR AND THE USE OF FORCE. 285 
 
 results." * Now the ultimate causation of war may have nothing 
 
 to do with the war powers of organs of the government. An act 
 
 of a state legislature discriminating against aliens or a judicial 
 
 decision depriving foreign nations of rights under international 
 
 law may be a casus belli. Yet neither states nor courts have any 
 
 war powers at all. The President especially is endowed with 
 
 powers which in their exercise may lead to war. 
 
 " The President," says Pomeroy, " cannot declare war ; Congress alone 
 possesses this attribute. But the President may, without any possibility of 
 hindrance from the legislature, so conduct the foreign intercourse, the diplo- 
 matic negotiations with other governments, as to force a war, as to compel 
 another nation to take the initiative; and that step once taken, the challenge 
 cannot be refused. How easily might the Executive have plunged us into 
 a war with Great Britain by a single dispatch in answer to the affair of the 
 Trent. How easily might he have provoked a condition of active hostilities 
 with France by the form and character of the reclamations made in regard 
 to the occupation of Mexico." ^ 
 
 But the President's powers go even beyond this. As Commander- 
 in-Chief, he may employ the armed forces in defense of American 
 citizens abroad, as he did in the bombardment of Greytown, the 
 Koszta case and the Boxer rebellion, and thereby commit acts of 
 war, which the government they offend may consider the initiation 
 of a state of war. Thus on April 23, 1914, after the occupation of 
 Vera Cruz by American marines, the Huerta government handed 
 Charge d'affaires O'Shaughnessy his passports with the comment : ® 
 
 " According to international law, the acts of the armed forces of the 
 United States, which I do not care to qualify in this note out of deference 
 to the fact that your honor personally has observed toward the Mexican 
 people and Government a most strictly correct conduct, so far as has been 
 possible to you in your character as the representative of a government with 
 which such serious difficulties as those existing have arisen, must be 
 considered as an initiation of war against Mexico." 
 
 Such presidential acts, though perhaps a casus belli, do not necessarily 
 initiate a state of war, as the intention to do so does not exist.'' Tf 
 war results it is one recognized or declared by the foreign power, 
 though in the absence of a treaty requiring a formal declaration of 
 war, it may antedate to the first act of war. 
 
 * Supra, sec. 191. 
 
 •5 Pomeroy, Constitutional Law, p. 65. 
 « Am. Year Book, 1914, p. 235. 
 '' Supra, sec. 210, note 20.
 
 286 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 208. TJie Recognition of War by Congress. 
 
 Suppose a foreign government commits such acts against the 
 United States. What authority can recognize them as in fact the 
 initiation of war? The power of Congress to declare war unques- 
 tionably embraces the power to recognize war. In fact all of the 
 foreign wars to which the United States has been a party have 
 been not declarations of war, but recognitions of war, if we are to 
 judge by the terms of the initiating act of Congress. Thus on June 
 18, 1812,^ Congress enacted "that war be and the same is hereby 
 declared to exist between the United Kingdom of Great Britain and 
 Ireland and the dependencies, thereof, and the United States of 
 America and their territories." The act of May 13, 1846, recited:* 
 
 "Whereas, by the act of the Republic of Mexico, a state of war exists 
 between that Government and the United States : Be it enacted by the 
 Senate and the House of Representatives of the United States of America 
 in Congress assembled, That, for the purpose of enabling the government of 
 the United States to prosecute said war to a speedy and successful termina- 
 tion, the President be, and he is hereby, authorized to employ the militia, 
 naval and military forces of the United States, etc." 
 
 War resolutions of April 25, 1898, April 6, 1917, and December 7, 
 191 7, were of similar character.^" 
 
 209. The Recognition of War by the President. 
 
 But does the President also have power to recognize war? 
 
 President Jefferson thought not in 1801 but was not deterred from 
 
 authorizing defensive measures. Read his message of December 8, 
 
 1 801 : 11 
 
 "Tripoli, the least considerable of the Barbary States, had come for- 
 ward with demands unfounded either in right or in compact, and had per- 
 mitted itself to denounce war on our failure to comply before a given day. 
 The style of tne demand admitted but one answer. I sent a small squadron 
 
 8 2 Stat. 755. A declaration that war " exists " is the usual form in all 
 countries. See British Proclamation of War, August 4, IPM, Naval War 
 College, Int. Law Docs., 1917, p. 117, and other declarations in that volume. 
 According to J. B. Moore, "the co-existence of the two phrases may be as- 
 cribed to motives of political strategy rather than to any belief or supposition 
 that they denoted different legal conceptions." Proc. Am, Phil. Soc, Min- 
 utes, 60: xvii. 
 
 99 Stat. 9. 
 
 ^° Infra, notes 18, 19. 
 
 11 Richardson, Messages, i : 326.
 
 WAR AND THE USE OF FORCE. 287 
 
 of frigates into the Mediterranean, with assurances to that power of our 
 sincere desire to remain in peace, but' with orders to protect our com- 
 merce against the threatened attack. The measure was seasonable and 
 salutary. The Bey had already declared war. His cruisers were out. . . . 
 One of the Tripohtan cruisers having fallen in with and engaged the small 
 schooner Enterprise, commanded by Lieutenant Sterret, which had gone as 
 a tender to our larger vessels, was captured, after a heavy slaughter of her 
 men, without the loss of a single one on our part. . . . unauthorized by the 
 Constitution, without the sanction of Congress, to go beyond the line of 
 Defense, the vessel, being disabled from committing further hostilities, was 
 liberated with its crew. The legislature will doubtless consider whether, by 
 authorizing measures of offense also, they will place our force on an equal 
 footing with that of our adversaries." 
 
 Congress made the requisite authorization by resolution of Febru- 
 ary 6, 1802,^2 but Hamihon, as " Lucius Crassus," could not restrain 
 a comment on the message : ^^ 
 
 " The first thing in it, which excites our surprise, is the very extra- 
 ordinary position, that though Tripoli had declared war in form against the 
 United States, and had enforced it by actual hostility, yet that there was not 
 power, for want of the sanction of Congress, to capture and detain her 
 crews. . . . When analyzed it amounts to nothing less than this, that 
 between two nations there may exist a state of complete war on the one 
 side — of peace on the other. . . . 
 
 " The principle avowed in the Message would authorize our troops to 
 kill those of the invader, if they should come within reach of their bayonets, 
 perhaps to drive them into the sea, and drown them; but not to disable them 
 from doing harm, by the milder process of making them prisoners, and 
 sending them into confinement. Perhaps it may be replied, that the same 
 end would be answered by disarming, and leaving them to starve. The 
 merit of such an argument would be complete by adding, that should they 
 not be famished, before the arrival of their ships with a fresh supply of 
 arms, we might then, if able, disarm them a second time, and send them 
 on board their fleet, to return safely home. . . . 
 
 " Who could restrain the laugh of derision at positions so preposterous, 
 were it not for the reflection that in the first magistrate of our country, 
 they cast a blemish on our national character? What will the world think 
 of the fold when such is the shepherd?" 
 
 President Polk approached the position of Hamilton when he 
 met the Mexican " invasion " of disputed American territory by 
 authorizing the battles of Palo Alto and Resaca de la Palma. Fol- 
 lowing these engagements he said in his message of May 11, 1846: 
 
 12 2 Stat. 129. 
 
 13 Hamilton, Works, Hamilton, ed., 7 : 745-748.
 
 288 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "After reiterated menaces, Mexico has passed the boundary of the 
 United States, has invaded our territory and shed American blood upon the 
 American soil. She has proclaimed that hostilities have commenced and that 
 the two nations are now at war. 
 
 "As war exists, and, notwithstanding all our efforts to avoid it, exists 
 by the act of Mexico herself, we are called upon by every consideration of 
 duty and patriotism to vindicate with decision the honor, the rights and the 
 interests of our country. 
 
 " In further vindication of our rights and defense of our territory, 
 I invoke the prompt action of Congress to recognize the existence of the 
 war, and to place at the disposition of the Executive the means of prose- 
 cuting the war with vigor, and thus hastening the restoration of peace." ^* 
 
 The Supreme Court accepted the views of Hamilton and Polk, when 
 in the prize cases, it held that President Lincoln had properly 
 recognized the southern rebellion as war.^^ 
 
 "If a war be made by invasion of a foreign nation, the President is 
 not only authorized but bound to resist force by force. He does not initiate 
 the war, but is bound to accept the challenge without waiting for any 
 special legislative authority. And whether the hostile party be a foreign 
 invader, or States organized in rebellion, it is none the less a war, although 
 the declaration of it be 'unilateral.' Lord Stowell (i Dodson 247) ob- 
 serves, ' It is not the less a war on that account, for war may exist without 
 a declaration on either side. It is so laid down by the best writers on the 
 law of nations. A declaration of war by one country only is not a mere 
 challenge to be accepted or refused at pleasure by the other.' . . . 
 
 " This greatest of civil wars was not gradually developed by popular 
 commotion, tumultuous assemblies, or local unorganized insurrections. How- 
 ever long may have been its previous conception, it nevertheless sprung forth 
 suddenly from the parent brain, a Minerva in the full panoply of war. The 
 President was bound to meet it in the shape it presents itself, without wait- 
 ing for Congress to baptize it with a name; and no name given to it by him 
 or them could change the fact. . . . 
 
 " Whether the President, in fulfilling his duties as Commander-in-Chief 
 in suppressing an insurrection, has met with such armed hostile resistance, 
 and a civil war of such alarming proportions, as will compel him to accord 
 to them the character of belligerents, is a question to be decided by him, 
 and this Court must be governed by the decision and acts of the political 
 department of the government to which this power was intrusted. ' He 
 must determine what degree of force the crisis demands.' The Proclamation 
 of blockade is itself official and conclusive evidence to the Court that a 
 state of war existed which demanded and authorized a recourse to such a 
 measure, under the circumstances peculiar to the case." 
 
 1* Richardson, Messages, 4: 442-443. 
 
 15 The Prize Cases, 2 Black 635, 638. Approved Matthews v McStea, 
 91 U. S. 7 (1875).
 
 WAR AND THE USE OF FORCE. 289 
 
 President McKinley accepted this opinion and applied it to foreign 
 war when on April 22, 1898, he recognized the Spanish rejection of 
 the congressional ultimatum of April 20/^ as a declaration of war 
 and authorized a blockade of Cuba.^^ Three days later, on April 
 25, Congress passed a resolution declaring :^^ 
 
 " That war be, and the same is hereby, declared to exist, and that war 
 has existed since the twenty-first day of April, Anno Domini eighteen hun- 
 dred and ninety-eight, including said day, between the United States of 
 America and the Kingdom of Spain." 
 
 In his war message of April 2, 1917, President Wilson asked 
 " Congress to declare the recent course of the German government 
 to be in fact nothing less than war against the United States." 
 Nevertheless, he admitted that it belonged to Congress to " formally 
 accept the status of belligerent which has thus been thrust upon 
 it." Congress did so by a resolution signed by the President i :i8 
 p.m., April 6, 1917, which asserted "that the state of war between 
 the United States and the Imperial German Government which has 
 thus been thrust upon the United States is hereby formally de- 
 clared." 1^ 
 
 210. The Power to Recognise War. 
 
 Practice and opinion indicate that the President concurrently with 
 Congress has power to recognize the existence of civil or foreign war 
 against the United States. It is believed, however, that such power 
 could not properly be exercised unless the fact of war against the 
 United States was so patent as to leave no doubt. Acts of war, 
 such as those committed by Germany from 1915 to 1917, would not 
 justify presidential recognition of war. In fact it is believed that 
 with the general acceptance of the III Hague Convention of 1907, 
 
 18 30 Stat. 738; Moore, Digest, 6: 226. 
 
 17 Message April 25, 1898, Moore, Digest, 6: 229. 
 
 18 30 Stat. 364. 
 
 laComp. Stat., p. 17, Naval War College, Int. Law Doc, 1917, P- 225. 
 A resolution of Dec. 7, 1917, stated: "Whereas the Imperial and Royal 
 Austro-Hungarian Government has committed repeated acts of war against 
 the Government and the people of the United States of America: Therefore 
 be it Resolved . . . That a state of war is hereby declared to exist between, 
 etc." Ibid.. 19 1 7. P- 230.
 
 290 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 by which " the contracting powers recognize that hostiUties between 
 themselves must not commence without previous and expHcit warn- 
 ing, in the form either of a declaration of war, giving reasons, or of 
 an ultimatum with conditional declaration of war," the President could 
 not consider any act by a foreign power, short of such declaration or 
 ultimatum, as a justification for recognition of war on his own re- 
 sponsibility. The commencement of war implies not only "acts of 
 war " but also the intention to make war.-** Thus where acts of 
 violence or reprisal alone are in question. Congress is the only au- 
 thority that can put the country in a state of war, though the President 
 may take defensive measures, and doubtless with a wider scope than 
 President Jefferson's message of 1801 indicated. 
 
 211. The Power to Declare War. 
 
 Where no war exists in fact. Congress is the only authority in 
 the United States that can declare one, and Congress cannot dele- 
 gate this power. 
 
 " The Constitution," said Senator Stone, of Missouri, " vests the war- 
 making power alone in the Congress. It is a power that Congress is not 
 at liberty to delegate. Moreover, I am personally unwilling to part with 
 my constitutional responsibility as a Senator to express my judgment upon 
 the issue of war, whenever and however it may be presented." 21 
 
 However, this does not mean, as Senator Stone was contending 
 when he made this unimpeachable statement, that Congress cannot 
 delegate power to the President to use force for protective pur- 
 poses.^^ Nor does it mean that the treaty-making power may not 
 create an obligation upon Congress to declare war or to refrain from 
 declaring it under given circumstances.^' 
 
 212. The Power to Terminate War. 
 
 Though war may be begun by one nation, it takes two to end it. 
 The President can make an armistice which suspends or terminates 
 
 20 The Ekaterinoslav, The Argun, Takahashi, International Law Ap- 
 plied to the Russo-Japanese War, pp. 573, 761 ; Cobbett, Leading Cases on 
 International Law, pp. 78. 
 
 21 Cong. Rec, 64th Cong., 2d Sess., p. 5895 ; Corwin, op. cit., p. 153. 
 
 22 In the Federal Convention, Aug. 17, 1787, "declare" war was sub- 
 stituted for " make " war on motion of Madison and Gerry so as to " leave 
 the executive the power to repel sudden attacks." Farrand, op. cit., 2: 318. 
 
 2^ Supra, sees. 37, 59, 151, 173.
 
 WAR AND THE USE OF FORCE. 291 
 
 hostilities but the treaty-making power must ordinarily act to ter- 
 minate the war. 
 
 " I have yet to learn," wrote Secretary of State Bayard, " that a war 
 in which the belligerents, as was the case with the late Civil War, are 
 persistent and determined, can be said to have closed until peace is con- 
 clusively established, either by treaty when the war is foreign, or when civil 
 by proclamation of the termination of hostilities on one side and the ac- 
 ceptance of such proclamation on the other. The surrender of the main 
 armies of one of the belligerents does not of itself work such termination." ^* 
 
 However, as the quotation suggests, war may be terminated in two 
 other ways, by complete conquest, causing annihilation of one bel- 
 ligerent, or by cessation of hostilities and tacit acceptance of peace 
 by both parties. ^° The South African and American civil wars 
 illustrate the first method ; the wars between Spain and her revolt- 
 ing American colonies the second. 
 
 213. The Power to Recognize the Termination of War. 
 
 What authority in the United States can determine the exact 
 date at which a war terminates in these circumstances? The ques- 
 tion is one of fact and the recognition of facts in international rela- 
 tions is normally a function of the President. Thus President 
 Johnson proclaimed the end of the Civil War and the courts recog- 
 nized these proclamations as authoritative.^^ Secretary of State 
 Seward seems to have assumed likewise that the Executive could 
 recognize the end of a war between two foreign states, when in 1868 
 he informed the Spanish minister that "the United States may find 
 itself obliged to decide the question whether the war still exists be- 
 tween Spain and Peru, or whether that war has come to an end." " 
 
 The question of terminating a war by proclamation, made by 
 one side and acquiesced in by the other, was raised by the Knox 
 
 2* Moore, Digest, 7 : 337. Jefferson thought " general letters of mark 
 and reprisal " might be preferred to a formal declaration of war, " be- 
 cause, on a repeal of their edicts by the belligerent, a revocation of the 
 letters of mark restores peace without the delay, difficulties and ceremonies 
 of a treaty." Letter to Mr. Lincoln, 1808, ibid., 7: 123, 
 
 25 Wilson and Tucker, op. cit., pp. 281-282. 
 
 2«i4 Stat. 811, 13 Stat. 814, The Protector, 12 Wall. 700. 
 
 " Moore, Digest, 7 : 237-
 
 292 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 resolution of May 21, 1920, for repealing the declarations of war 
 against Germany and Austria. This resolution was vetoed by 
 President Wilson on May 27,^^ because it " does not seek to accom- 
 plish any of these objects" for which the United States entered the 
 war, but when again introduced by the Senate Foreign Relations 
 Committee, April 25, 192 1, it passed both Houses and was signed by 
 President Harding, July 2, 1921. The Resolution was defended on 
 the ground that what Congress could pass it could repeal. This 
 assumption fails to recognize the distinction between an act of legis- 
 lation and a resolution creating a status or condition. Congress can- 
 not, in general, repeal resolutions of the latter class, of which resolu- 
 tions admitting states to the Union, incorporating territory, admitting 
 nationals to citizenship, etc., are examples. An act of Congress can 
 undoubtedly terminate war legislation and bring war to an end so far 
 as domestic law is concerned,-*'' but its international effect, whatever 
 its wording, depends upon the attitude of the enemy. This was 
 recognized by President Harding when he submitted to the Senate 
 draft treaties by which the enemy powers accepted the resolution of 
 July 2, 1 92 1 -.^^^ 
 
 "Formal Peace," he wrote to Senator Lodge on September 21, 1921, "has 
 been so long delayed that there is no need now to emphasize the desirability 
 of early action on the part of the Senate. It will be most gratifying if you and 
 your colleagues will find it consistent to act promptly so that we may put 
 aside the last remnant of war relationship and hasten our return to the 
 fortunate relations of peace." 
 
 We have noticed that the power of recognizing foreign states, 
 governments and belligerency is vested exclusively in the Presi- 
 
 28 See note by C. P. Anderson, Am. Jl. Int. Law, 14: 384 (July, 1920). 
 Text of Resolution, ibid., p. 419; legislative history, ibid., p. 438; veto mes- 
 sage, Cong. Rec, 59: 7747. See also Corwin, Mich. Law Rev., 18: 669 (May, 
 1920). 
 
 28a This was accomplished in part by a Resolution of March 3, 1921 (41 
 Stat. 1359), and in full by that of July 2, 1921. See remarks of Senator 
 Lodge, Cong. Rec, Sept. 24, 1921, 61 : 6434. 
 
 28b Cong. Rec, Sept. 24, 1921, 61 : 6434. In presenting the treaties from 
 the Committee on Foreign Relations Senator Lodge remarked: "Where 
 would the failure to ratify leave us? It would leave us where we are today — 
 in a technical state of war with Germany, Austria, and Hungary." Ibid., Sep- 
 tember 26, 1921, 61 : 6458.
 
 WAR AND THE USE OF FORCE. 293 
 
 dent.^^ The power to recognize the existence of war to which the 
 United States is a party is vested concurrently in the President and 
 Congress, the latter having the power by implication from its ex- 
 press power to declare war.^*' No constitutional clause has been 
 cited from which congressional power to recognize the termination 
 of war can be implied. On the contrary a resolution vesting 
 Congress with power to " make peace " was voted down in the Fed- 
 eral Convention of 1787.^^ 
 
 The President's power to recognize the termination of war may 
 be clearly deduced from his power as the representative organ and 
 has been admitted by the Supreme Court in the case of the Civil 
 War.^- His proclamation or his reception or dispatch of diplomatic 
 representatives from or to a former enemy therefore seems the proper 
 method for recognizing peace in the absence of treaty, though, as in 
 the case of recognizing new states, he is of course free to solicit the 
 advice of Congress, which action would usually be desirable. This 
 was the course actually followed in terminating the wars with Ger- 
 many, Austria, and Hungary. By his proclamation, issued on No- 
 vember 14, 1921,^^^ after exchange of ratifications of the treaty with 
 Germany of August 25 (and similar treaties with the other powers) 
 President Harding recognized that the war terminated on July 2, 
 1921, the date on which Congress had passed a resolution declaring 
 the war " at an end." The antedating of the proclamation indi- 
 cates that the war terminated, not by express treaty, but by tacit 
 agreement, recognized in the United States by the President, when, 
 in his opinion, there was sufficient evidence that Germany had con- 
 curred in the opinion expressed by the United States on July 2. 
 
 B. The Power to Use Force in Foreign Affairs. 
 
 214. Diplomatic Pressure. 
 
 Force, coercion, or pressure may assume a number of forms in 
 the conduct of foreign relations. The sending of notes, the making 
 
 29 Supra, sec. 194. 
 
 30 Supra, sec. 210, 
 
 31 Debate, Aug. 17, 1787, Farrand, op. cit., 2: 319. 
 
 32 The Protector, 12 Wall. 700. 
 32a Treaty Series No. 658.
 
 294 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 of formal protest, the withdrawal of a minister or ambassador, or 
 the complete severance of diplomatic relations are milder forms of 
 pressure, although all may carry implications of more serious action, 
 and the last is seldom resorted to except as a preliminary to war. 
 These acts are within the exclusive power of the President. 
 
 33 
 
 215. Display of Force. 
 
 A more material means of bringing pressure is the display of 
 force. This measure may be designed to bring pressure upon a 
 foreign government by intimidation ; to bring protection to mer- 
 chant vessels on the high seas ; or to bring order on the high seas 
 through the intimidation of pirates, slave traders, etc. The Pres- 
 ident as Commander-in-Chief has power to move the navy. 
 President Roosevelt's dispatch of a naval vessel to Colon, Panama, 
 in 1903 illustrates the effectiveness of such methods. His dis- 
 patch of the fleet around the world in 1903 furnishes another illus- 
 tration.^* Display of force is useless as an agency of intimidation 
 unless the party to be intimidated believes the force has power to 
 act. Hence this method of bringing pressure can hardly be sep- 
 arated from such methods as the occupation of territory, reprisals, 
 and the seizure of private property. Consequently the use of the 
 navy for intimidation should be authorized by the President only 
 after due consideration and never by a subordinate except in extreme 
 emergency. Thus in 1887 Secretary of State Bayard wrote the 
 Charge in Peru : " 
 
 " It is always expected that the agents of this Department abroad will 
 exercise extreme caution in summoning national war vessels to their aid 
 at critical junctures, especially if there be no practical purpose to be sub- 
 served by their presence." 
 
 Congress has on several occasions authorized the display of 
 force for protecting merchant vessels. Such authority was given 
 by several acts of 1798 to defend them against French privateers. 
 On February 25, 1917, President Wilson asked Congress to authorize 
 
 33 Moore, Digest, 7 : 103. 
 
 ^* Supra, sec. 145, Thayer, Life of John Hay, 2: 351. President Roose- 
 velt's threat to employ force if Germany refused to arbitrate the Venezuela 
 question in 1904, may also be mentioned, Ibid., 2 : 287. 
 
 35 Moore, Digest, 7: 109, see also Mr. Adee to Mr. Sill, 1895, ibid.. 2: 401.
 
 WAR AND THE USE OF FORCE. 296 
 
 the arming of merchant vessels as a defense against German sub- 
 marines but added : ^® 
 
 " No doubt I already possess that authority without special warrant of 
 law, by the plain implication of my constitutional duties and powers, but I 
 prefer in the present circumstances not to act upon general implication. 1 
 wish to feel that the authority and the power of the Congress are behind me 
 in whatever it may become necessary for me to do." 
 
 The proposed measure passed the House of Representatives but 
 was defeated by a Senate fiHbuster. Several Senators attacked it 
 as an unconstitutional delegation of the power to declare war. 
 However, on March 12th, Secretary of State Lansing gave out a 
 statement to the foreign legations in Washington that : ^^ 
 
 " The government of the United States has determined to place upon all 
 American merchant vessels sailing through the barred areas, an armed 
 guard for the protection of the vessels and the lives of the persons on 
 board." 
 
 President John Adams had no doubt of his power to authorize the 
 arming of merchant vessels, although he asked Congress to make 
 detailed regulations for this purpose as it did in 1798.^^ The neu- 
 trality laws appear expressly to recognize the President's power by 
 requiring armed merchant vessels leaving American ports to give 
 bond "until the decision of the President is had thereon."^® It 
 should be noticed, however, that international law, as interpreted 
 in American courts, authorizes the condemnation by a belligerent 
 of merchant vessels resisting visit and search,*" and an act of 1819, 
 still in effect, expressly prohibits resistance to " a public armed 
 vessel of some nation in amity with the United States."*^ The 
 President's power to authorize arming is, however, clear, as is 
 his power to authorize protection by naval convoys.* 
 
 42 
 
 a« Corwin, op. cit., p. 152. 
 
 37 Naval War College, Int. Law Docs., 1917, P- 225. 
 
 38 Message, May 16, 1797, Richardson, Messages, i : 237. 
 
 39 Criminal Code of 1910, sec. 17. 
 
 40 The Bermuda, 3 Wall. 514; The Jane, 37 Ct. CI. 24; The Rose, 37 Ct. 
 CI. 240; Moore. Digest, 7- 485-487; Naval War College, Int. Law Topics, 
 1903, p. no; 1907, p. 61. 
 
 " Act March 3, 1819, 3 Stat. 513, made permanent Jan. 30, 1823, 3 Stat. 
 721. See also remarks of J. Q. Adams, Moore, Digest, 7- 492. 
 *2 Ibid., 7: 492; Corwin, op. cit., p. 156,
 
 296 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Congress has sometimes authorized the use of the navy for police 
 purposes on the high seas, as to enforce neutrahty and the suppres- 
 sion of piracy and the slave trade as required by treaty, but the 
 President would seem to have power even in the absence of such acts, 
 though seizures could not be made except of American vessels, 
 pirates, or vessels liable under treaties.*^ 
 
 Forces may also be displayed on land frontiers by authority of 
 the President as a defensive measure. An illustration is furnished 
 by the mobilization on the Mexican border in 1914.^* 
 
 216. Occupation and Administration of Territory. 
 
 The President doubtless has power to order the occupation of 
 foreign territory to defend the territory of the United States 
 against an " instant and overwhelming " menace.*^ Thus the Amelia 
 Island pirates were destroyed in 1817 and General Pershing's ex- 
 pedition was sent into Mexico in pursuit of Villa in 1916."*"^ An 
 "instant and overwhelming" menace to American citizens abroad 
 would give similar justification. The bombardment of Greytown, 
 Nicaragua, in 1852 and the dispatch of troops to Peking in 1901 are 
 illustrations.*^ The President may similarly dispatch troops in fulfil- 
 ment of treaty guarantees. Thus several Presidents dispatched 
 troops to Panama in pursuance of the guarantee treaty of 1846 and 
 President Roosevelt sent troops to Cuba in 1906 in pursuance of the 
 treaty of 1903.*® 
 
 Where foreign territory is occupied in order to bring pressure 
 upon a foreign government, the action is very likely to lead to war 
 and an authorizing resolution of Congress would seem necessary. 
 However, such occupations have occurred without express authoriza- 
 tion, as for example President Taft's dispatch of troops to Nicara- 
 gua and San Domingo, and President Wilson's dispatch of troops to 
 
 *^ Supra, sees. 125, 126, 151. 
 
 **Am. Year Book, 1914, p. 303. 
 
 4^ The legitimacy of self-help in the j)resence of "a necessity of self- 
 defense, instant, overwhelming and leaving no choice of means and no 
 moment for deliberation" was recognized in the Caroline controversy of 
 1840, Moore, Digest, 2: 412. 
 
 *^ For other instances see Moore, 2 : 402-408. 
 
 *'' Ibid., 2: 400-402, 414-418; 5: 476-493. 
 
 *t> Supra, sec. 145, Taft, op. cit.. p. 87.
 
 WAR AND THE USE OF FORCE. 297 
 
 San Domingo, Haiti, and Vera Cruz, Mexico."* In such cases ratify- 
 ing resolutions have frequently been passed after the act, or treaties 
 have been made with the occupied state.^*' 
 
 Occupation of enemy territory is, of course, a legitimate method 
 of warfare, and a declaration of war, ex propria vigore, authorizes 
 the President to both occupy and militarily govern enemy territory, 
 although it does not authorize him to annex it.^^ 
 
 217. Capture and Destruction of Foreign Military Forces. 
 
 The dispatch of military or naval forces to capture or destroy 
 the forces of a foreign government would seem to bear such a close 
 resemblance to war that it could hardly be authorized by the Pres- 
 ident alone. However, as we have seen in the case of the Tripolitan 
 "war" of 1801, President Jefferson took such action, which was 
 subsequently ratified by Congress. President Polk did the same in 
 the Mexican war, though according to his theory the battles of 
 Palo Alto and Resaca de la Palma were fought on United States 
 territory in repelling invasion. Commodore Perry seems to have 
 been authorized to use force to open Japan in 1852 and the Wyoming 
 had similar authority to aid in the opening of the Straits of Shi- 
 minoseki, Japan, in 1864.^- In fact in most cases of display of 
 force, undoubtedly an ultimate use of force was authorized. Naval 
 officers have often been sent on diplomatic missions by authority 
 of the President alone, to semi-civilized states, with the evident 
 intention that force should not only be displayed but used if nec- 
 essary.^^ 
 
 Use of military force against foreign powers has often been 
 authorized by Congress without declaration of war. This was 
 true of resolutions relating to France in 1798, to Tripoli in 1801, 
 
 *9 Corwin, op. cit., p. 162, supra, sec. 207. 
 
 50 Thus a ratifying resolution was passed after the Vera Cruz incident 
 of 1914, and a treaty authorizing the exercise of a police power by the 
 United States was made with Haiti after the intervention had begun. 
 
 °i Cross V. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 
 260; Fleming v. Page, 9 How. 603. 
 
 52 Moore, Digest, 7: 112-118. 
 
 ^^ Infra, sec. 239. See also Paullin, Diplomatic Negotiations of Ameri- 
 can Naval Officers, Baltimore, 1912.
 
 298 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 to Algiers in 1816, to Paraguay in the Water Witch incident of 
 1858, to Venezuela in 1890.^* 
 
 A declaration or recognition of war of course automatically 
 gives full power to the President to authorize an attack upon the 
 military forces of the enemy, 
 
 218. Seizure and Destruction of Private Property. 
 
 Congress is expressly given power to " grant letters of marque 
 and reprisal, and make rules concerning captures on land and 
 water." ^'^ The President has no power to direct the capture of 
 private property without express authorization of statute, treaty, 
 or international law. Congress may authorize the grant of letters of 
 marque and reprisal in time of peace, but has never done so."* 
 During the war of 1812 privateering commissions were issued and 
 in the Civil War they were authorized but not issued. Privateering 
 is prohibited by the Declaration of Paris of 1856, and though the 
 United States has never acceded, yet it has not resorted to the 
 practice in subsequent wars.^^ Congress may authorize naval 
 forces to make reprisal upon private property at sea in time of 
 peace. Thus President Jackson asked Congress to authorize him 
 to make reprisals against French vessels in view of the non-execu- 
 tion of the claims treaty of 1831:^^ 
 
 " The laws of nations," said President Jackson, " provide a remedy for 
 such occasions. It is a well settled principle of the international code that 
 where one nation owes another a liquidated debt, which it refuses or 
 neglects to pay, the aggrieved party may seize on the property belonging to 
 the other, its citizens or subjects, sufficient to pay the debt, without giving 
 just cause of war. This remedy has been repeatedly resorted to, and 
 recently by France herself towards Portugal, under circumstances less un- 
 questionable." 
 
 Clay, in his report from the Senate Committee on Foreign Relations, 
 
 wrote : °® 
 
 " Reprisals do not of themselves produce a state of public war but they 
 are not unfrequently the immediate precursor of it. . . . The authority 
 
 ■>* Moore, Digest, 7: 109-112. 
 
 °'U. S. Constitution, I, sec. 8, cl. 11. 
 
 "•Mr. Sanford to Mr. Cass, Aug. 16, 1857, Moore, Digest, 7: 122. 
 
 " Ibid.. 7 : 544, 558, 558. 
 
 '-^Ibid., 7: 124. 
 
 ^^ Ibid., 7: 126-127.
 
 WAR AND THE USE OF FORCE. 299 
 
 to grant letters of marque and reprisal being specially delegated to Congress, 
 Congress ought to retain to itself the right of judging of the time when they 
 are proposed to be actually issued. The committee are not satisfied that 
 Congress can, constitutionally, delegate this right." 
 
 Congress has, in fact, never authorized reprisals upon private prop- 
 erty in time of peace, though reprisals and military expeditions 
 against foreign territory both with and without congressional au- 
 thorization have often resulted in the destruction of private prop- 
 erty, as did the Greytown, Nicaragua, bombardment of 1852, and 
 the Vera Cruz occupation of 1914. By a declaration of war, 
 Congress authorizes general reprisals against enemy property at 
 sea so far as permitted by international law. 
 
 Treaties may provide for making captures of private property, 
 as in suppressing the slave trade and seal poaching. The President 
 has power to employ the navy and revenue cutter service to enforce 
 treaties without other authority, though Congress has usually given 
 him express authority .®° 
 
 International law authorizes the capture on the high seas of 
 pirates at all times and of enemy and certain neutral private propi- 
 erty in time of war. The President's powers in this regard derive 
 from international law and are limited by it. He can authorize the 
 capture of enemy and neutral private property at sea only as 
 permitted by that law, which is enforced by prize courts before 
 which captures must be brought for condemnation. Before the 
 courts, an order of the President contrary to international law, 
 unless authorized by express statute, will not justify the captor.*^ 
 
 Private property on land, even of the enemy, is exempt from 
 seizure under international law, except when " military necessity " 
 permits its requisition, sequestration, contribution, or destruction.*' 
 The President, it has been held, cannot authorize a general con- 
 fiscation of enemy property. Thus, said the Supreme Court in 
 Mitchell V. Harmony : ^^ 
 
 ^^ Supra, sees. 118, 119, 125, 126. 
 
 *i Little V. Barreme, 2 Cranch 170. 
 
 62 IV Hague Conventions, 1907, Arts. 46-56. 
 
 "'Mitchell V, Harmony, 13 How. 115 (1851).
 
 300 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " There are, without doubt, occasions in which private property may 
 lawfully be taken possession of or destroyed to prevent it from falling into 
 the hands of the public enemy; and also where a military officer, charged 
 with a particular duty, may impress private property into the public service 
 or take it for public use. Unquestionably, in such cases, the government is 
 bound to make full compensation to the owner; but the officer is not a 
 trespasser. 
 
 " But we are clearly of opinion, that in all of these cases the danger 
 must be immediate and impending; or the necessity urgent for the public 
 service, such as will not admit of delay, and where the action of the civil 
 authority would be too late in providing the means which the occasion 
 calls for. It is impossible to define the particular circumstances of danger 
 or necessity in which this power may be lawfully exercised. Every case must 
 depend on its own circumstances. It is the emergency that gives the right, 
 and the emergency must be shown to exist before the taking can be 
 justified." 
 
 Congress, however, under its power to make rules concerning 
 capture on land and water may authorize seizures contrary to inter- 
 national law.®* In Brown v. United States, during the War of 1812, 
 Chief Justice Marshall refused to permit the confiscation of British 
 property on land since Congress had not expressly acted.®^ 
 
 "Does that declaration (of war), by its own operation, so vest the 
 property of the enemy in the government, as to support proceedings for 
 its seizure and confiscation, or does it vest only a right, the assertion of 
 which depends on the will of the sovereign power? The universal practice 
 of forbearing to seize and confiscate debts and credits, the principle uni- 
 versally received, that the right to them revives on the restoration of peace, 
 would seem to prove that war is not an absolute confiscation of this property, 
 but simply confers the right of confiscation. ... It appears to the court, that 
 the power of confiscating enemy property is in the legislature, and that 
 the legislature has not yet declared its will to confiscate property which was 
 within our territory at the declaration of war." 
 
 In view of these decisions, and considering the Emancipation 
 Proclamation of January i, 1863, as a general confiscation of a par- 
 ticular type of enemy property by proclamation of the President, 
 there is serious ground for doubting the constitutionality of that 
 proclamation.®^ The doubt, however, was very soon, removed 
 
 «* Miller v. U. S., n Wall. 268; Willoughby, op. cit., p. 1220. 
 
 «5 Brown v. U. S., 8 Cranch no (1814). It is doubtful whether inter- 
 national law at present confers a " right of confiscation " even upon the sov- 
 ereign authority. Supra, note 62. 
 
 "'Richardson, Messages, 6: 85, 96, 157; Burgess, Civil War and Re- 
 construction, 2: 117; Rhodes, History of U. S., 4: 70, supra, sec. 47, note 59.
 
 WAR AND THE USE OF FORCE. 301 
 
 by passage of the thirteenth amendment. During the Civil War, 
 Congress authorized the confiscation of many kinds of enemy prop- 
 erty on land, and during the World War it authorized sequestration 
 of such property in the United States by an alien property custo- 
 dian.®^ 
 
 219. Commercial Pressure and Retaliation. 
 
 Through its power to regulate foreign commerce, the postal serv- 
 ice and by implication all means of conveyance and transmission 
 of intelligence with foreign nations, Congress may bring pressure by 
 means of retorsion, retaliation, non-intercourse and embargoes. 
 
 Measures of retorsion and retaliation have been frequent. Thus 
 by an act of 1818, " the ports of the United States were closed, after 
 September 30, 1818, against British vessels arriving from a British 
 colony which, by the ordinary laws, v/as closed against American 
 vessels.""^ The general revenue act of September 8, 1916, pro- 
 vides for retaliation against British commercial restrictions, the 
 black list and mail seizures although that country was not spe- 
 cifically referred to.®® An act to protect American oil investors 
 abroad by retorsion was thus referred to in a note of November 10, 
 1920, protesting against the Allied policy in Asia Minor : ''^ 
 
 "The General leasing law of February 25, 1920, has not always been 
 thoroughly understood. It proposes to treat the citizens of any foreign coun- 
 try precisely as that foreign country treats our citizens. It is no more re- 
 strictive than the golden rule. It is a purely defensive provision. ... At the 
 same time the United States must be prepared to meet promptly and effec- 
 tively any unwelcome developments or any kind of competition that may fall 
 to our lot with the purpose of safeguarding, so far as may be in our power, 
 the future security of this country." 
 
 Non-intercourse measures and general embargoes were used 
 
 during the French Revolutionary and Napoleonic wars to bring 
 
 pressure upon the belligerents and on March 14, 1912, an act was 
 
 «T Supra, note 64. Trading with the Enemy Act, Oct. 6, 1917, sees. 6, 
 7, 40 Stat. 415-416; Comp. Stat., sec. 3ii53^cc, d. 
 
 ^83 Stat. 432; Moore, Digest, 7: 106. 
 
 ^^39 Stat. 799, sees. 805, 806; Comp. Stat'., sec. 8830qr; Am. Year Book, 
 1916, pp. 68, 69, 73- 
 
 ^° This act (Feb. 25, 1920, sec. i) was also referred to in a note to the 
 Netherlands government on April 19, 1921, protesting against exclusion of 
 American interests from oil development in the Djambi fields in the Dutch 
 East Indies.
 
 302 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 passed authorizing the President to embargo arms and munitions 
 bound to American countries in a condition of domestic violence.''^ 
 In all of these acts power has been delegated to the President to 
 decide when the circumstances contemplated by the act exist and by 
 proclamation to put it into effect. This delegation has been justified 
 on the same theory as delegation in reciprocity acts, that it is 
 delegation to find on a fact and not to determine a policy .'^^ The 
 general power of Congress to prohibit importations or exportations 
 has been sustained under the commerce clause.''^ Congress also has 
 power under this clause to regulate cables, radio and telegraph used 
 in foreign commerce^* but in this field the President has been held 
 to have concurrent powers : '^^ 
 
 "The President has charge of our relations with foreign powers. It is 
 his duty to see that, in the exchange of commodities among nations, we get 
 as much as we give. He ought not to stand by and permit a cable to land on 
 our shores under a concession from a foreign power which does not permit 
 our cables to land on its shores and enjoy there facilities equal to those ac- 
 corded its cable here. For this reason President Grant insisted on the first 
 point in his message of 1875. 
 
 "The President is not only the head of the diplomatic service, but com- 
 mander in chief of the Army and Navy. A submarine cable is of inestimable 
 service to the Government in communicating with its officers in the diplomatic 
 and consular service, and in the Army and Navy when abroad. The Presi- 
 dent should, therefore, demand that the Government have precedence in the 
 use of the line, and this was done by President Grant in the third point of 
 his message. 
 
 "Treating a cable simply as an instrument of commerce, it is the duty 
 of the President, pending legislation by Congress, to impose such restrictions 
 as will forbid unjust discriminations, prevent monopolies, promote competi- 
 tion, and secure reasonable rates. These were the objects of the second and 
 fourth points in President Grant's message. 
 
 " The President's authority to control the landing of a foreign cable does 
 not flow from his right to permit it in the sense of granting a franchise, but 
 
 "1 Moore, Digest, 7: 142-151 ; 37 Stat. 630; Comp. Stat., sec. 7677. 
 
 ■^2 The Brig Aurora, 7 Cranch 382, 388, approved in Field v. Clark, 143 
 U. S. 649 (1892) ; supra, sec. 60. 
 
 7'U. S. V. The William, 28 Fed. 614 (1808). 
 
 7*Pensacola Tele. Co. v. Western Union, 96 U. S. i (1878). 
 
 ■^Richards, Acting Att. Gen., 22 Op. 13; Moore, Digest, 2: 462. An act 
 of May 27, 1921, requires Presidential license for the landing and operation 
 of cables connectmg the United States with foreign countries and authorizes 
 the President to withhold or revoke licenses in pursuance of stated objects 
 similar to those referred to in this opinion. See Wilson, Am. Jl. Int. Lavv', 
 16: 78.
 
 WAR AND THE USE OF FORCE. 303 
 
 from his power to prohibit it should he deem it an encroachment on our 
 rights or prejudicial to our interests. ... I am of the opinion, therefore, that 
 the President has the power, in the absence of legislative enactment, to con- 
 trol the landing of foreign cables." 
 
 Prohibition by Congress of the importation of particular goods, 
 such as lottery tickets, obscene literature, low grade teas, prize 
 fight films, etc., has also been resorted to as a protective measure and 
 has been sustained by the courts.'''^ Similarly the XVIII Amend- 
 ment has provided for the prohibition of the import or export of 
 alcoholic beverages. 
 
 Treaties may require the prohibition of commerce in certain 
 articles but ordinarily legislation is necessary to execute such pro- 
 visions.'^^ Thus the commerce in opium with Corea is prohibited 
 by article VII of the treaty of 1882 but express provision is made 
 that it " shall be enforced by appropriate legislation on the part of 
 the United States and of Chosen." 
 
 According to international law, as applied by American courts, 
 trading with the enemy automatically becomes illegal by the dec- 
 laration of war, unless licensed by authority of Congress or the 
 President. Congress has, however, usually passed express acts pro- 
 hibiting such trade.'^^ 
 
 220. Exclusion, Expulsion and Internment of Aliens. 
 
 Finally as a defensive measure Congress has authorized the 
 exclusion and internment of alien enemies in time of war and the 
 exclusion and expulsion of aliens of defined classes and nationalities 
 in time of peace."^^ The power of Congress to pass such acts has 
 
 "Buttfield V. Stranahan, 192 U. S. 470 (1904); Weber v. Freed, 239 
 
 U. S. 325. 
 
 ''''Supra, sec. 59; infra, sec. 256. 
 
 78 Trading with the Enemy Act, Oct. 6, 1917, 40 Stat. 411; Comp. Stat. 
 3ii5J^a. 
 
 79 Alien enemies, Rev. Stat., 4067, amended April 16, 1918; Comp. Staf., 
 sec. 7615; Chinese Exclusion and Expulsion, May 6, 1882, 22 Stat. 58, amended 
 1884, Comp. Stat., sec. 4290, and act Sept. 13, 1888, 25 Stat. 479, Comp. Stat., 
 4313; exclusion and expulsion of undesirable aliens, act Feb. 5, ^9^7, sees. 3. 
 18, 19, 39 Stat. 875, 887, 889, and act Oct. 16, 1918, 40 Stat., c. 186, sec. i, 
 Comp. Stat, 4289I4 amended May 10 "and June 5. 1920, 41 stat. 593, 1009. An 
 act of May 19, 1921, excluded all aliens beyond 3 per cent, of the number from 
 that country resident in the United States.
 
 304 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 been sustained, in part under the commerce clause^" and in part 
 as resulting from numerous powers in foreign relations which to- 
 gether constituted the usual powers of " sovereign and independent 
 states." ^^ These laws have delegated wide powers of enforce- 
 ment, often with a minimum of judicial review, to executive officers 
 but this delegation has been sustained.^- The temporary alien act of 
 June 25, 1798, provided :^^ 
 
 "That it shall be lawful for the President of the United States at any 
 time during the continuance of this act to order all such aliens as he shall 
 judge dangerous to the peace and safety of the United States, or shall have 
 reasonable grounds to suspect are concerned in any treasonable or secret 
 machinations against the government thereof, to depart out of the territory 
 of the United States within such time as shall be expressed in such order." 
 
 Hardly less broad is the act of October 16, 1918, providing that: 
 
 "Aliens who are anarchists, . . . who are members of or affiliated with 
 any organization that entertains a belief in, teaches or advocates the over- 
 throw by force or violence of the government of the United States or of all 
 forms of law, or that entertains or teaches disbelief in or opposition to all 
 organized governments . . . shall be excluded from the United States," and 
 if such alien is found in the United States, he " shall upon the warrant of 
 the Secretary of Labor be taken into custody and deported." 
 
 During the World War many alien enemies were interned by 
 order of the President under authority of the alien enemy act of 
 July 6, 1798, as amended to include women in April, 1918.^* 
 221. Pozver to Employ Various Methods of Coercion. 
 
 Of the seven types of measures discussed, the President can, 
 in pursuance of his constitutional duties, authorize diplomatic pres- 
 sure, or display of force on national territory or on the high seas 
 without express authority of Congress. He has, in pursuance of 
 such duties, authorized the occupation of foreign territory and the 
 capture and destruction of foreign military forces without express 
 authority, though generally Congress has ratified his act by later 
 resolution. It would seem. that the President in such cases ought 
 to await an authorizing resolution unless an immediate necessity de- 
 mands promptness. Finally authority to seize or destroy private 
 
 8° Head Money Cases, 112 U. S. 580. 
 
 "1 Chinese Exclusion Cases, 130 U. S. 581 ; Pong Yue Ting v. U. S., 149 
 U. S. 398. 
 
 82 U. S. V. Ju Toy, 198 U. S. 253. 
 
 83 I Stat. 576. Limited to two years by its own terms. 
 ^* Supra, note 77.
 
 WAR AND THE USE OF FORCE. 305 
 
 property, to enforce commercial discriminations, restrictions or pro- 
 hibitions and to exclude, expel or intern aliens must be given by act 
 of Congress, treaty or international law, but much discretion may 
 be delegated the President. The existence of war, whether by 
 declaration of Congress or recognition by the President, ex propria 
 vigore, authorizes the President, as Commander-in-Chief, to enforce 
 such of these measures of coercion as are permitted by the inter- 
 national law of war, and Congress cannot interfere with him in the 
 direction of military and naval forces : 
 
 " Congress," said the Supreme Court, " has the power not only to raise 
 and support and govern armies but to declare war. It has, therefore, the 
 power to provide by law for carrying on war. This power necessarily ex- 
 tends to all legislation essential to the prosecution of war with vigor and 
 success, except such as interferes with the command of forces and the con- 
 duct of campaigns. That power and duty belong to the President as com- 
 mander-in-chief. Both these powers are derived from the Constitution, but 
 neither is defined by that instrument. Their extent must be determined by 
 their nature, and by the principles of our institutions. The power to make 
 the necessary laws is in Congress, the power to execute in the President. 
 Both powers imply many subordinate and auxiliary powers. Each includes 
 all authority essential to its due exercise. But neither can the President, in 
 war more than in peace, intrude upon the proper authority of Congress, nor 
 Congress upon the proper authority of the President. Both are servants of 
 the people, whose will is expressed in the fundamental law. Congress can 
 not direct the conduct of campaigns." ^** 
 
 222. Purposes for Which the President May Employ Force under 
 the Constitution. 
 However, we cannot distinguish the respective powers of the 
 President and Congress merely by considering the method of 
 coercion. The purposes or ends in view are even more important. 
 The Constitution requires the President to " take care that the laws 
 be faithfully executed."^^ Though this imposes a responsibility and 
 is not a grant of power, yet it indicates certain purposes for which 
 the President must use the constitutional powers elsewhere granted. 
 What does the term "laws" embrace? In the Neagle case, the 
 court held that it should be broadly interpreted.^" 
 
 84a £;r parte Milligan, 4 Wall. 2 (1866). See also Willoughby, op. cit., 2; 
 1207; Taft. op. cit., pp 94-99; Wright, Col. Law Rev., 20: I34- 
 «»U. S. Constitution, II, sec. 3; supra, sec. 93. 
 8«/n re Neagle, 135 U. S. i ; Willoughby, op. cit., p. ii35-
 
 306 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "Is this duty limited to the enforcement of Acts of Congress or of 
 treaties of the United States according to their express terms, or does it 
 include the rights, duties and obligations growing out of the Constitution 
 itself, our international relations and the protection implied by the nature of 
 the government under the Constitution?" 
 
 The Constitution guarantees the " privileges and immunities of 
 citizens of the United States " and these were held in the Slaughter 
 House cases to include the right to protection abroad.^^ Conse- 
 quently the President's duty to execute the laws includes a duty to 
 protect citizens abroad and in pursuance of this duty he may utilize 
 his powers as Commander-in-Chief. Thus the court justified the 
 President in authorizing the bombardment of Greytown, Nicaragua, 
 in 1854:^® 
 
 " As respects the interposition of the Executive abroad, for the protection 
 of the lives or property of the citizen, the duty must, of necessity, rest in 
 the discretion of the President'. Acts of lawless violence to the citizen or 
 his property cannot be anticipated and provided for ; and the protection, to 
 be effectual or of any avail, may, not unfrequently, require the most prompt 
 and decided action. Under our system of Government, the citizen abroad is 
 as much entitled to protection as the citizen at home. The great object and 
 duty of Government is the protection of the lives, liberty, and property of 
 the people composing it, whether abroad or at home; and any Government 
 failing in the accomplishment of the object, or the performance of the duty, 
 is not worth the preserving." 
 
 In the Neagle case the Supreme Court referred to and endorsed 
 executive action in 1853 i^ protecting Martin Koszta, a Hungarian 
 revolutionist who had not completed his American naturalization. 
 Captain Ingraham, in command of the American sloop-of-war St. 
 Louis arrived in Smyrna as Koszta was being abducted, " de- 
 manded his surrender to him, and was compelled to train his guns 
 upon the Austrian vessel before his demands were complied with." 
 The court notes that Secretary of State Marcy's defense of this 
 action and insistence upon the liberation of Koszta who had been 
 
 '^U. S. Constitution, Amendment XIV; Slaughter House Cases, 16 
 Wall. 36. 
 
 ssDurand v. Hollins, 4 Blatch 451, 454; Corwin, op. cit., p. 144. J. B. 
 Moore notes that President Pierce and Secretary Marcy justified this action 
 on the ground that " Greytown was a community claiming to exist outside 
 the bounds of any recognized state or political entity." (Proc. Am. Phil. 
 Soc, Minutes, 60: xvii.) This, however, does not apply to many other in- 
 stances in which force has been used abroad under authority of the Presi- 
 dent and in this case the court rests the power on broader grounds.
 
 WAR AND THE USE OF FORCE. 307 
 
 placed in charge of the French consul at Smyrna "met the ap- 
 proval of the country and Congress, who voted a gold medal to Cap- 
 tain Ingraham for his conduct of the affair." Yet says the court, 
 "upon what act of Congress then existing can any one lay his 
 finger in support of the action of the government in this matter." *" 
 In view of these incidents and judicial endorsements, we may accept 
 Borchard's statement ; with the sole qualification that " the manner " 
 must not amount to a making of war : ""^ 
 
 " Inasmuch as the Constitution vests in Congress authority ' to declare 
 war ' and does not empower Congress to direct the President to perform his 
 constitutional duties of protecting American citizens on foreign soil, it is 
 believed that the Executive has unlimited authority to use the armed forces 
 of the United States for protective purposes abroad in any manner and on 
 any occasion he considers expedient." 
 
 The Constitution also guarantees the States a Republican form 
 
 of government and protection against invasion.^^ Furthermore the 
 
 right of national self-defense is recognized at international law and 
 
 the corresponding duty of the government has been asserted by the 
 
 Supreme Court : ^^ \ 
 
 " To preserve its independence and give security against foreign aggres- 7 
 sion and encroachment is the highest duty of every nation, and to attain these / 
 ends nearly all other considerations are to be subordinated." 
 
 Thus, if he considers such action essential for the enforcement of 
 acts of Congress and treaties and for the protection of the citizens 
 and territory of the United States, the President is obliged by the 
 Constitution itself to use his power as commander-in-chief to direct 
 the forces abroad, and this duty resting on the Constitution itself can- 
 not be taken away by act of Congress. Thus says President Taft : ^^ 
 
 89 In re Neagle, 135 U. S. i. 
 
 »o Borchard, op. cit., p. 452. See also Root, address in Senate, Aug. 14, 
 1912, Cong. Rec, 48: 10929; Military and Colonial Policy of the United 
 States, 1916, p. 157. 
 
 91 U. S. Constitution, Art. IV, sec. 4. 
 
 92 Chinese Exclusion Cases, 130 U. S. 581 (1889). < 
 
 93 Taft, op. cit., pp. 128-129. See also Wright, Col. Law Rev., 20: 135- \ 
 136, and Am. Jl. Int. Law, 12: 77; supra, sees. 125, 126, 151. By reduction 
 of the army and navy or refusal of supplies, Congress might seriously 
 impair the de facto power of the President to perform these duties, but it can 
 not limit his legal power as Commander-in-Chief to employ the means at his 
 disposal for these purposes. See Ex parte Milligan, 4 Wall. 2, supra, sec. 221. 
 
 /
 
 308 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "The President is made Commander-in-Chief of the Army and Navy by 
 the Constitution, evidently for the purpose of enabhng him to defend the 
 country against invasion, to suppress insurrection and to take care that the 
 laws be faithfully executed. If Congress were to attempt to prevent his use 
 of the army for any of these purposes, the action would be void." 
 
 223. Purposes for Which the President May Employ Force under 
 Statute. 
 
 Aside from the purposes defined by the Constitution itself, for 
 which the President may utiUze the forces, other purposes have 
 been defined by act of Congress. It is true, the general delegations 
 of power to use the militia and the similar delegation to use the 
 army and navy " to execute the laws of the union, suppress insur- 
 rection and repel invasions " have been given an interpretation con- 
 fining such use to the territory.^* Laws in this phrase has been 
 held to mean laws of territorial application and says Pomeroy : ®^ 
 
 " Insurrection and invasion must be internal. We do not repel an in- 
 vasion by attacking the invading nation upon its own soil. Still there can be 
 no question that the militia may be called out before the invaders set foot 
 upon our territory. It is a fair construction of language to say that one 
 means of 'repelling* an invasion is to have a force ready to receive the 
 threatened invaders when they shall arrive." 
 
 Attorney-General Wickersham, however, makes the qualification : 
 
 96 
 
 "If the militia were called into the service of the General government 
 to repel an invasion, it would not be necessary to discontinue their use at the 
 boundary line, but they might (within certain limits, at least) pursue and 
 capture the invading force, even beyond that line. . . . This may well be held 
 to be within the meaning of the term ' to repel invasion.' " 
 
 The expatriation act of July 2y, 1868, however, authorizes the 
 President to demand the release of American citizens unjustly de- 
 prived of liberty and : ®^ 
 
 »*Act of Jan. 21, 1913 (Dick Act), 32 Stat., 776, sec. 4; 35 Stat. 400; 
 38 Stat. 284. based on Acts of May 2. 1794, and Feb. 28, 1795, i Stat. 264, 424. 
 Judge Ad. Gen. Davis held in 1908 that the term " laws " might apply to any 
 congressional resolution of extraterritorial effect {Cong. Rec, 42: 6943), but 
 this was not sustained by the Attorney General, infra, note 96. 
 
 »5 Pomeroy, Constitutional Law, 9th ed., p. 387. 
 
 »8 Wickersham, Att. Gen., 29 Op. 322 (1912). 
 
 "^ Rev. Stat., sec. 2001 ; Comp. Stat., sec. 3957.
 
 WAR AND THE USE OF FORCE. 309 
 
 "If unreasonably delayed or refused, the President shall use such means, 
 not amounting to acts of war, as he may think necessary and proper to obtain 
 or effectuate the release." 
 
 Aside from such general acts,"® Congress may authorize a broad 
 use of force by acts or resolutions applying to particular incidents 
 and by declarations of war.^® 
 
 According to Justice Story in Martin v. Mott, it belongs to the 
 President himself to interpret the exigencies in which a use of force 
 is justifiable: ^°° 
 
 "He is necessarily constituted the judge of the existence of the exigency 
 in the first instance and is bound to act according to his belief of the facts. 
 . . . Whenever a statute gives a discretionary power to any person, to be 
 exercised by him upon his own opinion of certain facts, it is a sound rule of 
 construction that the statute constitutes him the sole and exclusive judge of 
 the existence of those facts." 
 
 This case applied to the act of 1795 delegating the President power 
 to call forth the militia, but the same principle would seem valid 
 whatever the source of his authority, whether statute, treaty or 
 the Constitution itself. 
 
 224. Conclusion. 
 
 Thus in practice the President has an exceedingly broad discre- 
 tion to authorize the use of the forces. Under the Constitution 
 he can use the military and naval forces to defend the territory and 
 to protect American citizens abroad and on the high seas. The use 
 of force to protect inchoate citizens, such as Martin Koszta, and 
 inchoate territority such as San Domingo in 1871 is more question- 
 able.i'^^ Pqj. the meeting of responsibilities under international 
 law and treaty the President likewise has authority to use the army 
 and navy on the high seas and in foreign territory ."^ To meet 
 responsibilities under inchoate international law, such as the Monroe 
 
 »8For legislation authorizing the use of force to meet international re- 
 sponsibilities, see Chap. XH, A. 
 
 »9 Moore, Digest, 7: 109, 155; Wright, Am. Jl. Int. Law, 12: 77. 
 
 100 Martin v. Mott, 12 Wheat. 19. 
 
 101 Corwin, op. cit., pp. 142, 158, and debate there quoted from Cong. 
 Globe, 42 Cong., ist sess., pt. i, p. 294. 
 
 io^ Supra, Chap. XH, A.
 
 310 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Doctrine, the power, though often exercised, is more questionable,^"^ 
 and for the use of forces within the territory, even to meet inter- 
 national responsibilities, statutory authorization is generally advis- 
 able, though apparently not strictly necessary.^"* Finally, for the 
 purpose of bringing pressure upon foreign governments for polit- 
 ical objects, it is doubtful whether the President has constitutional 
 power to use force, although he may bring diplomatic pressure. For 
 political intervention, authorization by special resolution of Congress 
 seems proper and has been the usual practice. 
 
 i°3 Corwin, op. cit., p. i6a. 
 
 1"* Supra, sec. 126. l -^ . "> 

 
 CHAPTER XVII. 
 
 The Power to Establish Instrumentalities for Conducting 
 
 Foreign Relations. 
 
 A. Constitutional Principles. 
 
 225. The Pozver of Congress to Create Offices and Agencies. 
 
 The establishment of an instrumentality for conducting public 
 affairs involves two processes, ( i ) the creation of an office or 
 agency, by definition of its functions, procedure and privileges, (2) 
 the nomination, appointment and commissioning of a person or per- 
 sons to fill such office or agency. Since Chief Justice Marshall's 
 decision in McCulloch v. Maryland there has been no question but 
 that Congress has power to create instrumentalities " necessary and 
 proper " to give full efifect to the powers delegated to any of the 
 departments of the government.^ 
 
 " Let the end be legitimate, let it be within the scope of the Constitution, 
 and all means which are appropriate, which are plainly adapted to that end, 
 which are not prohibited, but consist with the letter and spirit of the Consti- 
 tution, are constitutional." 
 
 This power extends not only to the creation of corporations but 
 also to the organization of the executive and judicial departments 
 of government. Congress has exclusive power to create "offices" 
 under the United States aside from those established by the Con- 
 stitution itself, " to raise and support armies " and " to provide and 
 maintain a navy." ^ It also has power, concurrent in part with that 
 of the President, " to make rules for the government and regulation 
 of the land and naval forces " ; ^ and power, concurrent in part with 
 that of the states, though supreme when exercised, to organize the 
 
 1 McCulloch V. Md., 4 Wheat. 316. 
 
 2U. S. Constitution, Art. II, sec. 2, cl. 2; I, sec. 8, cl. 12, 13. 
 3/fciU, I, sec, 8, cl. 14; Ex parte Milligan, 4 Wall, 2, 
 
 311
 
 312 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 militia.* Thus Congress has adequate power to create any instru- 
 mentality which may be " necessary and proper " for the exercise 
 of executive power. 
 
 Hardly less complete is its power to create courts. It may " con- 
 stitute tribunals inferior to the Supreme Court " for exercising the 
 judicial power of the United States outlined in Article III of the 
 Constitution and may regulate their jurisdiction and the appellate 
 jurisdiction of the Supreme Court.^ But it may also organize courts 
 in the territories'' or abroad^ and administrative courts in the United 
 States which hear and decide cases but do not exercise the judicial 
 power described in Article III.^ 
 
 Practically the only legal limitation upon the power of Congress 
 to create and organize instrumentalities not defined by the Consti- 
 tution itself, for the exercise of national powers, is (i) that it may 
 not itself exercise judicial or executive power, (2) that it may not 
 delegate legislative power, (3) that it may not vest non-judicial 
 power in the federal courts, though it may in administrative courts, 
 and (4) that it may not burden state officers, though it may vest 
 in them powers exercisable at discretion.^ 
 
 226. The Power to Create Offices and Agencies by Treaty. 
 
 The treaty-making power may provide instrumentalities conven- 
 ient for carrying out powers in the legitimate scope of treaties, 
 such as diplomatic and consular offices, consular courts for exer- 
 cising American jurisdiction abroad or foreign jurisdiction in the 
 United States, and international courts, councils, and administrative 
 unions. Doubtless in many cases Congress would have to create 
 and provide for the necessary " offices " under the United States 
 before such treaty-established organs could become effective, but 
 such a need of congressional cooperation is not a legal limitation 
 
 * Ibid., I, sec. 8, cl. 16; Houston v. Moore, 5 Wheat, i. 
 '^Ibid., I, sec. 8, cl. 9; III, sec. 2, cl. 2; Ex parte McCardle, 7 Wall. 506. 
 *Am. Ins. Co. v. Canter, i Pet. 511. 
 ' In re Ross, 140 U. S. 453. 
 
 8 Gordon v. U. S., 2 Wall. 561 ; Willoughby, op. cit., p. 1277. 
 ^ Supra, sec. 60 ; Gordon v. U. S., 2 Wall. 561 ; Ky. v. Dennison, 24 How. 
 66; Willoughby, Am. Constitutional System, p. 123,
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 313 
 
 upon the treaty power. Legally the treaty power seems to be lim- 
 ited in its power to create and organize instrumentalities not defined 
 by the Constitution itself, only by the condition that the instrumen- 
 tality be bona fide of international interest and by the conditions 
 stated above applicable to the power of Congress.^** 
 
 227. The Power of the President to Create Offices and Agencies. 
 
 The President and the courts are not specifically endowed with 
 power to create new instrumentalities for exercising national powers. 
 In the Neagle case, the Supreme Court went far toward recognizing 
 a power in the President to delegate executive authority to persons 
 not occupying a congressionally established " office." This, how- 
 ever, should probably be interpreted no farther than a recognition 
 that the President may create subordinate agencies, not strictly 
 " offices " necessary for performing executive functions.^^ The 
 President's authorization of personal " agents " for conducting diplo- 
 matic negotiations and representing the United States in interna- 
 tional conferences is justified under the same inherent power. Leg- 
 islative bodies and courts seem to have a similar inherent power to 
 create subordinate positions by merely making appointments thereto. 
 In most cases the nature and necessity of such subordinate positions 
 has been estabUshed by practice and tradition, the issue being raised 
 rather as to the inherent power to make appointments thereto, than 
 as to the inherent power to create the position.^^ 
 
 In addition to such essential subordinate positions, the President, 
 as representative authority of the nation, has recognized and applied 
 international law to determine the grades of " ambassadors, public 
 ministers and consuls" to be sent by the United States. These 
 offices being established by the Constitution itself, congressional 
 action is not necessary.^^ As Commander-in-Chief, the President 
 has exercised much discretion in organizing the Army and Navy. 
 He may provide administrative agencies and courts for governing 
 
 10 /n re Ross, 140 U. S. 453. 
 
 11 /n re Neagle, 135 U. S. i ; Willoughby, Constitutional Law, 1155. 
 
 ^^ Infra, sec. 228 (3). 
 
 13 Infra, sec. 236.
 
 314 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 territory under military occupation, even after conclusion of war 
 and annexation of the territory/* but he cannot vest such courts 
 with prize jurisdiction.^^ This power is, of course, superseded by 
 acts of Congress organizing the territory, 
 
 228. The Appointment of Officers and Agents. 
 
 Quite different is the situation with reference to the filling of 
 such offices or agencies once created. It is often said that the ap- 
 pointing power is essentially executive in character, and doubtless con- 
 stitutional understandings have tended toward presidential dominance 
 in this field, but as a matter of federal constitutional law, it seems 
 that the President has no more inherent power in this regard than 
 do the other departments. All power to make appointments seems 
 to be derivable (i) from express delegation by the Constitution, 
 (2) from act of Congress, (3) from inherent powers of the depart- 
 ments under the principle of separation of powers. Strictly speak- 
 ing, the making of an appointment involves three processes : nomi- 
 nation, appointment and commissioning. The first and last have for 
 the most part been vested in the President alone, and undoubtedly 
 the sole power of initiation and absolute veto upon appointments 
 thus implied makes his will paramount in appointments. It should 
 be noticed that the courts have held that the granting of a commis- 
 sion is a ministerial duty after the Appointment has been made but 
 they admit there is no power to compel the President to sign a 
 commission (except threat of impeachment) and without the com- 
 mission no person is an "officer" with legal powers.^® 
 
 I. The Constitution provides that the President " shall nominate, 
 and by and with the advice and consent of the Senate, shall appoint 
 Ambassadors, other public Ministers and Consuls, Judges of the 
 
 ^* Cross V. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260- 
 ifs Jecker v. Montgomery, 13 How. 498, but Congress may retroactively 
 
 confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall'. 129. 
 16 Marbury v. Madison, i Cranch 137. If a commission has been signed 
 
 and is in the hands of an officer, other than the President, its delivery may 
 
 be mandamused, ibid.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 315 
 
 Supreme Court, and all other officers of the United States, whose 
 appointments are not herein otherwise provided for, and which shall 
 be established by law." " The President shall have power to fill 
 up all vacancies that may happen during the recess of the Senate, 
 by granting commissions which shall expire at the end of their next 
 session." To the states is " reserved . . . respectively, the appoint- 
 ment of the officers" of the militia even when called forth into na- 
 tional service.^^ 
 
 2. " But the Congress may by law vest the appointment of such 
 inferior officers, as they think proper, in the President alone, in the 
 courts of law, or in the heads of departments." ^* 
 
 3. Finally, an inherent power of appointment exists in each of the 
 departments as an implication of the doctrine of separation of 
 powers. "If any one of the departments," says Goodnow, "is to 
 be expected to be independent of the others, it must have the power 
 to appoint its subordinates. The legislature may thus appoint all its 
 subordinate officers, while courts may appoint such officers as criers 
 and others who are necessary in order that the courts may perform 
 their duties properly." ^^ It may be added that the President exer- 
 cises such an inherent power in appointing personal agents for con- 
 ducting diplomatic intercourse without congressional authorization 
 and without consent of the Senate, a practice which the Senate has 
 often objected to but never with success.^" It may also be noticed 
 that in the National Government Congress has in fact conferred 
 power on the courts to appoint such essential subordinates as clerks, 
 criers, reporters, etc., under the constitutional clause referred to, but 
 doubtless in the absence of such statutes the courts could make such 
 appointments as they have done in the states. 
 
 229. Limitations upon the Appointing Power. 
 
 Apparently the only constitutional limitation upon the appoint- 
 ing power is that which provides : ^^ 
 
 17 U. S. Constitution, II, sec. 2, cl. 2, 3; I, sec. 8, cl, 16. 
 ^^Ibid., II, sec. 2, cl. 2. 
 
 18 Goodnow, op. cit., pp. 37-38. 
 '^'^ Infra, sees. 238-240.
 
 316 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 " No Senator or Representative shall, during the time for which he was 
 elected, be appointed to any civil office under the authority of the United 
 States which shall have been created or the emoluments whereof shall have 
 been increased during such time ; and no person holding any office under the 
 United States shall be a member of either House during his continuance in 
 office." 
 
 It should be noticed, however, that the incompatibility of congres- 
 sional membership w^ith the holding of an " office " does not apply 
 to service as an agent. Senators have often been sent on special 
 diplomatic missions, under presidential appointment. The occu- 
 pancy of a judicial office is not incompatible with the holding of 
 another office. John Jay and Oliver Ellsworth were each sent on 
 diplomatic missions by appointment of the President, consented to 
 by the Senate, while justices of the Supreme Court, and on other 
 occasions justices have been appointed by the President to serve on 
 courts of arbitration.-^ The Senate held that Gallatin's position 
 as Secretary of the Treasury was incompatible with his appoint- 
 ment as commissioner to conclude the Peace Treaty of Ghent and 
 forced his withdrawal from the former position. The grounds of 
 this incompatibility, however, were never precisely stated and do not 
 seem to be sustained by analogy or subsequent practice. Thus 
 while Civil Governor of the Philippines, Mr. Taft was appointed on 
 a special mission to the Pope, and while Secretary of State, Mr. 
 Lansing was appointed upon the mission to conclude the Peace 
 Treaty of Versailles. In neither of these cases, however, was the 
 appointment to a regular office, nor was it submitted to the Senate.^^ 
 
 230. Powers of Removing and of Directing Officers and Agents. 
 
 In the United States Government, though not in the states, the re- 
 moval power seems to belong inherently to the Chief Executive. This 
 was decided in the debate of the first Congress on a bill for organ- 
 izing the Department of State and has been consistently admitted 
 since, with exception of the period of the tenure of office acts, 1867- 
 
 21 U. S. Constitution, I, sec. 6, cl. 2. 
 
 22 Corwin, op. cit., p. 66 ; supra, sec. 176. 
 
 23 Moore, Digest, 4: 447. For facsimile reproduction of Mr. Lansing's 
 commission, see Lansing, The Peace Negotiations, 1921, p. 28,
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 317 
 
 1887. These acts, originating in political hostility to President 
 Johnson, were virtually held to have been unconstitutional by the 
 Supreme Court after their repeal.^* 
 
 Through the power of removal the President has the power to 
 direct administrative officials with no practical restraint, as was illus- 
 trated by President Jackson's action in the bank controversy. By 
 successive removals of Secretaries of the Treasury, he was able to 
 direct the removal of government deposits from the Second United 
 States Bank, although by law discretion in this matter belonged to 
 the Secretary .^^ 
 
 " I think," wrote Attorney General Gushing in 1855, " the general rule to 
 be . . . that the head of department is subject to the direction of the 
 President. (This was said in relation to duties imposed by statute upon a 
 head of a department.) I hold that no head of department can lawfully 
 perform an official act against the will of che President and that will is, by 
 the Constitution, to govern the performance of all such acts." 26 
 
 As Commander-in-Chief, the President has complete power of di- 
 recting the military and naval services of the national government,^'' 
 
 B. Application of Principles to Foreign Affairs. 
 
 231. The Types of Agencies Conducting Foreign Relations. 
 
 The instruments used for conducting foreign relations may be 
 classified as (i) national, military, naval, administrative, and judi- 
 
 2* Parsons v. U. S., 167 U. S. 324. The power to remove has usually 
 been considered an implication of the power to appoint. (Ex parte Hennen, 
 13 Pet. 230, 1839; U. S. V. Perkins, 116 U. S. 143; Shurtleff v. U. S., 189 
 U. S. 311; President Wilson's veto of National Budget Bill, June 4. 1920.) 
 This derivation of the power, however, would seem to leave Congress dis- 
 cretion to determine the authority to remove "inferior officers" for whose 
 appointment they may provide, a discretion it has never successfully exercised 
 as to executive and administrative officers and which is inconsistent with the 
 recognized practice whereby the President alone removes, even when the 
 appointing power is the President acting with advice and consent of the 
 Senate. See Powell, National Municipal Review, 9: 53^545, and supra, sees. 
 
 52, 53- 
 
 25 Goodnow, op. cit., pp. 77-82. 
 
 26 Gushing, Att. Gen., 7 Op. 453, 470. 
 
 27 Ex parte Milligan, 4 Wall. 2, supra, sec. 221.
 
 318 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 cial officers; (2) national and international political officers and 
 agents; (3) international administrative and judicial agencies. 
 Officers of the first kind are clearly national. They are the product 
 of national law alone and are accountable to national law alone. 
 Agencies of the last kind are just as clearly international. They 
 can be founded only by the agreement of nations, and can exercise 
 authority only in matters, as to which nations have agreed to be 
 bound by them. Officers and agencies of the second class, how- 
 ever, occupy a twilight zone. We may distinguish the offices in 
 the group which are primarily national from the agencies primarily 
 international. Thus a diplomatic officer or consul, though enjoying 
 certain rights, privileges and powers under international law, is 
 primarily a national officer, bound primarily by his national law 
 and policy. He can act only under express instructions. He is in 
 fact a delegate. On the other hand, the representative of a nation 
 sitting in a general congress or conference, such as the Hague or 
 Algeciras conferences, the Berlin or Versailles congresses or the 
 Assembly of the League of Nations, though theoretically occupying 
 a status similar to that of a diplomatic officer,"^ bound by his na- 
 tional laws and subject to instructions, tends to be in fact a repre- 
 sentative rather than a delegate. His judgments tend to be founded 
 upon an international point of view, developed by the discussions 
 of the conference itself, rather than by the instructions of his home 
 state. In the Senate discussion upon the character of the repre- 
 sentatives to the Panama congress in 1825, Senator Benton recog- 
 nized this distinction.^^ 
 
 "The Ambassadors and Ministers here intended (that is, by the Con- 
 stitution) are such only as are known to the law of nations. Their names, 
 grades, rights, privileges, and immunities are perfectly defined in the 
 books which treat of them, and were thoroughly understood by the framers 
 of our Constitution. They are, Ambassadors — Envoys — Envoys Extraordi- 
 nary — Ministers — Ministers Plenipotentiary — Ministers Resident. . . . Tried by 
 these tests, and the diplomatic qualities of our intended Ministers fail at 
 
 28 Scott, ed., Reports to the Hague Conferences, Intro., XIX. 
 
 20 Benton, Abridgment of Debates, 8 : 463-464. We do not intend to en- 
 dorse Senator Benton's implication with reference to the power of the 
 Senate to consent to the appointment of such representatives.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 319 
 
 every attribute of the character. Spite of the names which are imposed upon 
 them, they turn out to be a sort of Deputies with full powers for un- 
 definable objects. They are unknown to the law of nations, unknown to 
 our Constitution; and the combined powers of the Federal Goveinment are 
 incompetent to create them. Nothing less than an original act, from the 
 people of the States, in their sovereign capacity, is equal to the task. 
 Had these gentlemen been nominated to us as Deputies to a Congress, would 
 not the nominations have been instantly and unanimously rejected? And 
 shall their fate be different under a different name? The delicacy of this 
 position was seen and felt by the administration. The terms 'Deputy' and 
 'Commissioner' were used in the official correspondence up to near the 
 date of the nomination, but as these names could not pass the Senate, a 
 resort to others became indispensable. The invitations and acceptance were 
 in express terms, for 'Deputies and Representatives' to a Congress." The 
 nominations to the Senate are wholly different." 
 
 It is true, Senator Benton's view did not prevail in the Senate, and, 
 according to American constitutional theory as well as to the theory 
 of international law, representatives in an international conference 
 or congress are no different from diplomatic officers.^'' The distinc- 
 tion has existed, however, as a psychological fact and will necessarily 
 be emphasized if such conferences or congresses sit periodically. 
 
 Count Beust remarked in 1870, upon finding it impossible to call 
 together the Concert of Europe to prevent the Russian violation of 
 the Treaty of Paris and the impending Franco-Prussian War, " II 
 ne vois pas d'Europe." ^^ He thus emphasized that by its periodic 
 meetings before that time, the Concert had in fact constituted a 
 European organ and not a mere group of national delegates. It 
 was because of its confidence in this psychological effect of periodic 
 conferences that the Hague Conference of 1907 recommended a 
 third conference^- and the actual play of this psychological factor 
 is emphasized by the remarks of M. Nelidow of Russia, president 
 of the conference, in his closing remarks : ^^ 
 
 " We are the agents of our governments and act by virtue of special 
 instructions, based before all other considerations upon the interests of our 
 respective countries. The higher considerations of the good of mankind in 
 
 so Corwin, op. cit., p. 57 ; supra, note 28. 
 
 31 Von Beust, Memoires, Trans. H. de Worms, London, 1887, 2: 222. 
 
 32 Scott, ed., Reports to Hague Conferences, pp. 216, 222. See also In- 
 struction of Secretary of State Root to American delegates to the Second 
 Hague Conference, 1907, Scott ed., Instructions to the American Delegates to 
 the Hague Conferences and their Official Reports, 1916, p. 72. 
 
 ^' Ibid., p. 200.
 
 320 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 general should no doubt guide us, but in applying them we must have upper- 
 most in our minds the intentions of those who direct our Governments. But 
 the direct interests of different States are often diametrically opposed. It 
 was in endeavoring to bring them into agreement with the theoretical re- 
 quirements of absolute law and justice, that the spirit of good understanding, 
 which I have just mentioned, came into play." 
 
 A similar thought in the Congress of Versailles led to the establish- 
 ment of the League of Nations and in this institution the problem 
 of, to a certain extent, merging national official delegates w^ith true 
 representatives in an international institution was consciously con- 
 fronted. Thus said President Wilson in presenting the first draft 
 of the Covenant to the Peace Conference on February 14, 1919:^* 
 
 " When it came to the question of determining the character of the 
 representation in the Body of Delegates (Assembly), we were all aware of 
 a feeling which is current throughout the world. Inasmuch as I am stating 
 it in the presence of the official representatives of the various governments 
 here present, including myself, I may say that there is a universal feeling 
 that the world can not rest satisfied with merely official guidance. There 
 has reached us through many channels the feeling that if the deliberating body 
 of the League of Nations was merely to be a body of officials representing 
 the various Governments, the peoples of the world would not be sure that 
 some of the mistakes which preoccupied officials had admittedly made, might 
 not be repeated." 
 
 232. National Military, Naval and Administrative Offices. 
 
 From the standpoint of foreign relations the most important 
 national agencies are the Army, Navy and Department of State. The 
 Constitution puts the organization of the Army, Navy and militia in 
 the hands of Congress. The President, however, exercises con- 
 siderable independent power as Commander-in-Chief in the detailed 
 organization of the military forces and in the organization of mili- 
 tary governments for occupied territory, and territory annexed by 
 treaty but not yet organized by Congress.^® 
 
 " Theoretically," said the Supreme Court, " Congress might prepare and 
 enact a scheme of civil government to take effect immediately upon the 
 
 "League of Nations, II, special No., p. 17. 
 ^' Santiago v. Nogueras, 214 U. S. 260.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 321 
 
 cession, but practically, there always have been delays and always will be. 
 Time is required for the maturing and enacting of an adequate scheme of 
 civil government. In the meantime, pending the action of Congress, there 
 is no civil power under our system of government, not even that of the 
 President as civil executive, which can take the place of the government 
 which has ceased to exist by the cession. Is it possible that, under such cir- 
 cumstances, there must be an interregnum? We think clearly not. The 
 authority to govern such ceded territory is found in the laws applicable to 
 conquest and cession. That authority is the military power, under the 
 control of the President as Commander-in-Chief, . . . But whatever may 
 be the limits of the military power, it certainly must include the authority 
 to establish courts of justice which are so essential a part of the government." 
 
 The authority of such officers and courts is, however, confined to 
 the locality. They cannot exercise a prize jurisdiction. 
 
 36 
 
 ii33. Appointment of Military and Civil Officers. 
 
 The states are guaranteed the privilege of appointing militia 
 ofificers, but the President may delegate his authority as Commander- 
 in-Chief of the militia when " in the actual service of the United 
 States " to an officer of his own appointment.^^ The appointment 
 of army and navy officers, as well as of civil officers, is vested in 
 the President acting by and with the advice and consent of the 
 Senate, except insofar as Congress may have vested the appoint- 
 ment of inferior officers " in the President alone, in the courts of 
 law, or in the heads of departments." The President may make 
 interim appointments during a recess of the Senate. ^^ 
 
 Congress has actually vested the appointment of warrant officers 
 of the Navy and Marine Corps in the President alone and tem- 
 porarily in the Secretary of the Navy.^^ Petty officers in the Navy 
 and non-commissioned officers in the Army are appointed by com- 
 missioned officers. Commissioned officers are generally appointed 
 by the President with the advice and consent of the Senate but 
 
 88 Supra, sec. 227. 
 
 37 Secretary of War Monroe, 1812, Am. State Pap., Mil. Aff., i: 604; 
 Att. Gen. Butler, 2 op. 711 (1835). 
 
 *' Supra, sec. 228. 
 
 »»Rev. Stat., sec. 1405, Act May 22, 1917, sec. 5, 40 Stat. 86; Comp. Stat., 
 sees. 2554, 2555.
 
 322 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 
 emergency appointments below the rank of colonel have been vested 
 in the President alone. ^° Promotion and retirement are provided 
 for by detailed acts of Congress. All military officers are commis- 
 sioned by the President and he has the power of removal, though 
 in the Army and Navy this power is exercised only through courts- 
 martial. As Commander-in-Chief, the President exercises the power 
 of directing all the military and naval services. 
 
 41 
 
 234. Organization of the Department of State. 
 
 The Department of State is peculiarly under control of the 
 President. It was organized by an act of 1789 and, differing from 
 other departments, is not required to make any reports to Congress. 
 
 " It is," says Senator Spooner, of Wisconsin, " a department which from 
 the beginning the Senate has never assumed the right to direct or control, 
 except as to clearly defined matters relating to duties imposed by statute and 
 not connected with the conduct of foreign relations. We direct all the 
 other heads of departments to transmit to the Senate designated papers or 
 information. We do not address directions to the Secretary of State, nor 
 do we direct requests, even to the Secretary of State. We direct requests to 
 the real head of that department, the President of the United States, and, 
 as a matter of courtesy, we add the qualifying words : ' if in his judgment 
 not incompatible with the public interest.' " <2 
 
 Though Senate confirmation of the appointment of the Secretary 
 of State is required, yet, as in the case of other cabinet officers, it 
 is never withheld. As " real head of that department " the Presi- 
 dent has never tolerated a lack of political harmony with the Secre- 
 tary of State. Thus in 1800 after President Adams had requested 
 Timothy Pickering to tender his resignation and no response had 
 been forthcoming he addressed him a note which " discharged him 
 from any further service as Secretary of State." President Wil- 
 son promptly accepted Secretary of State Lansing's resignation in 
 1920 when a divergence in policy became evident.*^ 
 
 *o Act May 18, 1917, sec. 8, 40 Stat. 81, as amended April 20, 1918; Comp. 
 Stat., sec. 2044b. 
 
 *i Ex parte Milligan, 4 Wall. 2. 
 
 *2 Senate Debate, Feb. 6, 1906, Cong. Rec., 40: 1419; Reinsch, Readings 
 in Am. Fed. Govt., p. 85; Corwin, op. ctt., p. 176; Hunt, The Department of 
 State of the United States, 1914, pp. 84, 105. 
 
 *3 Foster, A Century of Am. Diplomacy, p. 180; Lansing, The Peace Ne- 
 gotiations, 1921, p. 3,
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 323 
 
 Negotiations are ordinarily conducted primarily by the Secretary 
 of State, but the President may act personally. Thayer, in his 
 Life of Hay, thus indicates the relation between Presidents and Sec- 
 retaries of State : " 
 
 " Mr. Hay used to tell his friends that often President McKinley did 
 not send for him once a month on business, but that he saw President 
 Roosevelt every day. That statement illustrates the difference in initiative 
 between the two Presidents ; or, at least, the ratio of their interest in foreign 
 relations. From the moment of Mr. Roosevelt's accession, the State De- 
 partment felt a new impelling force behind it. The Secretary still con- 
 ducted the negotiations, but the origination and decisions of policy came to 
 rest more and more with the President. In no other case was this so true as 
 in that of the Panama Canal. In the earlier stages Mr. Roosevelt gave 
 directions which Mr. Hay carried out; before the end, however, the Presi- 
 dent took the business into his own hands; and has always frankly assumed 
 entire responsibility for the decisive stroke." 
 
 235. National and International Political Officers and Agents. 
 
 The Constitution itself recognizes the offices of " ambassadors, 
 other public ministers and consuls " and specifically vests power to 
 appoint their occupants in the President acting with advice and con- 
 sent of the Senate. The exact definition of the grades, powers and 
 privileges of these officers is determined by international law and 
 treaty. As has been noticed, each of the three departments of gov- 
 ernment is held to have inherent power to appoint subordinates nec- 
 essary for carrying out its functions. The President's power to 
 negotiate, implied from his power to receive foreign ambassadors 
 and ministers, and from his power in the making of treaties, un- 
 doubtedly makes it necessary for him to employ special, sometimes 
 secret, agents to conduct negotiations. These powers, however, 
 have given rise to controversy. 
 
 Congress, and particularly the Senate, has questioned the power 
 of the President (a) to interpret international law and treaty with 
 reference to the grades, functions and privileges of diplomatic 
 officers, (b) to decide when and where occasion has arisen for dis- 
 patching such officers, and (c) to act through agents appointed by 
 himself alone and holding no "office " established either by the Con- 
 stitution or by act of Congress. 
 
 *4 Thayer, Life of John Hay, 2: 297. See also Hunt, op. cit., p. 91.
 
 324 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 236, Power to Determine Grades in Foreign Service. 
 
 Until 1855 there appears to have been no question but that the 
 President had exclusive power to decide, according to international 
 law and treaty, upon the grades of diplomatic and consular officers." 
 Jefferson, as Secretary of State, expressed the opinion that the Sen- 
 ate had " no right to negative the grade " in advising and consenting 
 to appointments.^*' Congress passed no laws on the subject, and 
 appropriation acts were drawn so as to impose no limitations upon 
 the President's discretion in this respect.^'^ 
 
 By an act of March i, 1855, Congress provided: 
 
 " From and after the 30th of June, next, the President of the United 
 States shall, by and with the advice and consent of the Senate, appoint 
 representatives of the grade of envoys extraordinary and ministers pleni- 
 potentiary," with a specified annual compensation for each, " to the follow- 
 ing countries, etc. . . . The President shall appoint no other than citizens of 
 the United States who are residents thereof, or abroad in the employment 
 of the Government, at the time of their appointment." 
 
 Attorney-General Gushing held that the provisions of this act 
 " must be deemed directory or recommendatory only, and not man- 
 datory." *« 
 
 " The limit of the range of selection," he continued, " for the appoint- 
 ment of constitutional officers depends on the Constitution. Congress may 
 refuse to make appropriations to pay a person unless appointed from this 
 or that category; but the President may, in my judgment, employ him, if the 
 public interest requires it, whether he be a citizen or not, and whether or 
 not at the time of the appointment he be actually within the United States. 
 . . . For Congress can not by law constitutionally require the President to 
 make removals or appointments of public ministers on a given day, or to 
 make such appointments of prescribed rank, or to make or not make them 
 at this or that place. He, with the advice of the Senate, enters into treaties; 
 he, with the advice of the Senate, appoints ambassadors and other public min- 
 isters. It is a constitutional power to appoint to a constitutional office, not 
 a statute power nor a statute office. Like the power to pardon, it is not 
 limit'able by Congress." 
 
 *5The rules of the Treaty of Vienna, 1815, with reference to the grades 
 of diplomatic officers have been applied as international law, Moore, Digest, 
 4: 430. 
 
 ^''' Ibid., 4: 450; Jefferson, Writings (Ford, ed.), 5: 161; Hunt, op. cit., 
 p. 105. 
 
 *7 Madison to Monroe, 1822, Ibid., 4: 451; Corwin, op. cit., p. 67. 
 
 *8 Gushing, Att. Gen., 7 Op. 214.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 325 
 
 In spite of this reasoning, Congress has continued such legislation. 
 The revised statutes specified the salaries of diplomatic officers at 
 various countries but did not specify the grade individually except 
 for a few of the less important countries such as Hayti, Liberia, 
 Egypt, etc.^'^ They refused compensation to diplomatic and con- 
 sular officers not citizens of the United States and provided that they 
 take bonds for good behavior.^'' The latter provision has been sus- 
 tained in the Court of Claims.^^ An act of March 3, 1893, " author- 
 ized " the President to appoint " ambassadors " in certain cases, and 
 an act of March 2, 1909, provided " hereafter no new ambassador- 
 ship shall be created unless the same shall be provided for by an 
 act of Congress." ^^ Since then Congress has specifically authorized 
 new grades as an Ambassador to Spain, 1913; to Argentine, 1914; 
 to Chile, 1914; an Envoy Extraordinary and Minister Plenipoten- 
 tiary to Paraguay, 1913; and to Uruguay, 1913.^^ An act of 1915 
 provided grades and salaries for secretaries of legation, consuls- 
 general and consuls, and provided that appointments be hereafter to 
 the grade and not to a specific country. The consular service was 
 reorganized in detail by an act of April 5, 1906.^* 
 
 Thus Congress has, in fact, organized the permanent diplomatic 
 and consular services and through its control of appropriations it 
 seems able to compel acceptance of its organization. It has not 
 usually authorized special or temporary missions or representation 
 on international conferences and congresses. The President him- 
 self has designated the grade of such officers, and provided com- 
 pensation from the contingent fund at his own disposal. However, 
 Congress has recently attempted to prevent such action.^^ 
 
 49 Rev. Stat., sec. 1675; Comp. Stat., sec. 31 17. 
 
 50 Rev. Stat., sees. 1744, 1697; Comp. Stat., sees. 3149. 3i50. 
 
 51 Williams v. U. S., 23 Ct. CI. 46; Moore, Digest, A: 457- 
 5227 Stat. 496; 35 Stat. 672; Comp. Stat., 3121. 
 
 5338 Stat, no, 241, 378. 
 
 =* 34 Stat. 99 ; 38 Stat. 805. 
 
 "Act March 4, 1913, 37 Stat. 913; Comp. Stat., sec. 7686. See Report 
 on the Foreign Service, National Civil Service Reform League, N. Y., 191 1, p. 
 65. As to the value of legislation on the subject, see Ibid., 220-223, and as 
 to methods of Congressional control. Ibid., 227-228.
 
 326 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 237. Power to Determine Occasion for Appointments in Foreign 
 Service. 
 
 During the early days of the government it was customary to 
 send special missions for the conclusion of treaties and on several 
 of these occasions the President appointed commissioners without 
 consulting the Senate. On other occasions, as in the appointment 
 of John Jay to negotiate a treaty with Great Britain and later in 
 the appointment of two successive missions of three commissioners 
 sent to negotiate with France, he consulted the Senate and they did 
 not question his authority to decide that the occasion required a 
 diplomatic mission. °^ 
 
 In March, 181 3, during the recess of the Senate, President Madi- 
 son appointed Gallatin, J. Q. Adams, and Bayard as " Envoys Ex- 
 traordinary and Ministers Plenipotentiary " to negotiate a treaty of 
 peace with Great Britain. When the Senate reassembled. Senator 
 Gore, of Massachusetts, introduced a resolution. It recited the 
 constitutional provision authorizing the President " to fill up all 
 vacancies that may happen during the recess of the Senate by grant- 
 ing commissions which shall expire at the end of the next session " 
 and then asserted that "no such vacancy can happen in any office 
 not before full " and consequently the President's act was not 
 " authorized by the Constitution, inasmuch as a vacancy in that 
 office did not happen during such recess of the Senate and as the 
 Senate had not advised and consented to their appointment." 
 
 Senator Gore assumed that the existence of an " office " in the 
 foreign service could only be determined by the President acting 
 with the Senate and consequently there having been no ''office" 
 there was no " vacancy." Senator Bibb, of Georgia, however, took 
 the position in reply that the President alone decided whether an 
 " office " in the foreign service existed and might decide that it did 
 during a recess in which case he could fill the vacancy."'^ 
 
 " Sir," he said, " there are two descriptions of offices altogether diflferent 
 in their nature, authorized by the Constitution — one to be created by law, 
 and the other depending for their existence and continuance upon con- 
 
 5' Crandall, op cit., pp. 75-76. 
 s^ Benton Abridgment, 5: 86, 91.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 327 
 
 tingencies. Of the first kind are judicial, revenue, and similar offices. 
 Of the second are Ambassadors, other public Ministers and Consuls. . . . 
 They depend for their original existence upon the law, but are the offspring 
 of the state of our relations with foreign nations, and must necessarily 
 be governed by distinct rules. ... I say, then, that whether the office of a 
 Minister exists or does not — how and when it exists are questions not par- 
 ticularly and precisely settled by the Constitxition ; but that the Executive 
 authority to nominate to the Senate foreign Ministers and Consuls, and to 
 fill vacancies happening during the recess, necessarily includes the power of 
 determining those questions." 
 
 The Senate ultimately ratified all of these appointments and those 
 of two additional commissioners, Clay and Russel, though it in- 
 sisted that Gallatin should first resign the office of Secretary of 
 the Treasury. 
 
 On December 25, 1825, President J. Q. Adams sent to the Sen- 
 ate the names of three men " to be envoys extraordinary and min- 
 isters plenipotentiary to the assembly of American Nations at Pan- 
 ama." Senator Benton, of Missouri, contended that these persons 
 were in reality " Deputies and Representatives to a Congress " and 
 were not Ambassadors and Public Ministers in the meaning of the 
 Constitution at all. However, his view did not prevail and the ap- 
 pointments were eventually ratified though the appointees arrived 
 at Panama too late to take part in the Congress.^* 
 
 In result, these two cases seem to demonstrate the power of the 
 President to decide when occasion for appointment to an office in 
 the foreign service exists and this has been since sustained in the 
 opinions of many Attorneys-General.^® In spite of this admission 
 of his power, on subsequent occasions, the President has usually 
 sent special missions without reference to the Senate at all, perhaps 
 because recollection of the Senate opposition in these two instances 
 lurked in his mind. In this way, peace missions following the Mex- 
 ican, Spanish and World Wars and the American representation 
 at the Hague, Algeciras and other international conferences were 
 constituted. The President alone has decided that the occasion 
 existed, sent the mission and compensated it out of the contingent 
 
 58 Ibid., 8 : 463-464- 
 
 5»i Op. 631; 2 Op. 535; 3 Op. 673; 4 Op. 532; 7 Op. 190, 223; 10 Op. 
 357; II Op. 179; 12 Op. 32; 19 Op. 261; Corwin, op. cit., p. 55.
 
 328 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 fund or relied upon a subsequent appropriation.^" Here also the 
 Congress has sought to intervene, though its power is less than in 
 the case of permanent missions, requiring steady appropriations. 
 By an act of March 4, 1913, it provided :^^ 
 
 " Hereafter the Executive shall not extend or acceprt: any invitation to 
 participate in any international congress, conference, or like event without 
 first having specific authority of law to do so." 
 
 Congress has undoubtedly gone beyond its powers in thus at- 
 tempting to control the President's foreign negotiations and the 
 President has ignored the act, notably at the Versailles Peace Con- 
 gress. The actual influence of Congress in this field depends upon 
 the necessity for appropriations. If international conferences be- 
 come frequent, this necessity would doubtless be controlling.^^ 
 
 238. Power of President to Appoint Diplomatic Agents. 
 
 Finally, the Senate has often criticized the President's practice 
 of appointing agents, sometimes with the titles of diplomatic 
 officers, without gaining its consent. This practice began almost 
 immediately after ratification of the Constitution when President 
 Washington by a letter of October 13, 1789, requested Gouverneur 
 Morris, then in Paris, to go to London as private agent, and " on 
 the authority and credit" of the letter to "converse with His Bri- 
 tannic Majesty's Ministers as to certain matters affecting the rela- 
 tions between the two countries." In 1792 John Paul Jones, then 
 an admiral in the United States Navy, was appointed as commis- 
 sioner to treat with Algiers. In 1816 President Monroe sent three 
 commissioners to investigate affairs in the revolting Spanish-Amer- 
 ican colonies and in the same year he sent Isaac Chauncey, a naval 
 captain, to act with Consul William Shaler to negotiate a treaty 
 with Algiers. 
 
 63 
 
 ^0 Crandall, op. cit., p. 76. This was also true of the conference on 
 limitation of armament, 1921, though provisions in the Naval appropriation 
 acts of 1916 and 1921 authorized the calling of such a conference, supra, sec. 
 204. 
 
 •137 Stat. 913; Comp. Stat, 7686. 
 
 "2 Report on Foreign Service, supra, note 55, pp. 225-228 
 
 9» Moore, Digest, 4 : 452-453.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 329 
 
 239. Practice of Sending Presidential Agents. 
 
 Since that time the practice has become exceedingly common. 
 Among the more notable appointments have been Charles Rhind, 
 Commodore Biddle, and Consul David Offley to negotiate a treaty 
 with Turkey in 1829; Colonel Roberts, special agent to China, Siam 
 and other eastern states in 1832; A. Dudley Mann, special agent to 
 various German states in 1846, confidential agent to revolting Hun- 
 gary in 1849, and special agent to Switzerland in 1850; Nicholas 
 Trist, commissioner to conclude a treaty of peace with Mexico in 
 1847; Commodore Perry, commissioner to conclude a treaty with 
 Japan in 1852. During the Civil War a number of special and con- 
 fidential agents were sent to England for purposes of investigation 
 and propaganda as well as negotiation. Commodore R. W. Shu- 
 feldt was sent as special envoy to conclude a treaty with Corea in 
 1 881 ; Secretary of State Bayard with William Putnam of Maine 
 and J. B. Angell of Michigan were vested with power to treat with 
 Great Britain on the North East Fisheries question in 1887. James 
 H. Blount was sent as special commissioner to Hawaii in 1893. 
 Secretary of State Day and Whitelaw Reid, associated with Sen- 
 ators Cushman K. Davis, William P. Frye and George Gray, were 
 sent to Paris to conclude a treaty of peace with Spain in 1898. 
 Missions were sent to the Hague conferences in 1899 and 1907 and 
 W. W. Rockhill was sent as " commissioner of the United States 
 to China with diplomatic privileges and immunities " in 1900. Henry 
 White and Samuel R. Gummere were commissioned by President 
 Roosevelt to represent the United States at the Algeciras confer- 
 ence of 1906. Governor Taft, of the Philippines Commission, was 
 sent to negotiate with the Pope in 1902. John Lind was sent as 
 confidential agent to Mexico in 191 3, Colonel House was sent to 
 Germany in 191 6 and to France in 191 7, and Elihu Root at the head 
 of a special mission of nine was sent to Russia in 191 7, with the title 
 of Ambassador Extraordinary. President Wilson constituted him- 
 self, with Secretary of State Lansing, Colonel House, Henry White 
 and General Tasker Bliss, a commission to conclude a treaty of peace 
 with Germany in 191 9, and in 1921, after failure of the Senate to 
 consent to the ratification of the treaty of Versailles, President Hard-
 
 330 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 
 ing authorized Ellis Loring Dresel to negotiate a separate peace treaty 
 with Germany. In the same year President Harding appointed Sec- 
 retary of State Hughes, Elihu Root, Senators Lodge and Underwood 
 American delegates to the Conference on Limitation of Armament.^* 
 A minority of the Senate Foreign Relations Committee reported 
 in 1888: ''^ 
 
 " The whole number of persons appointed or recognized by the Presi- 
 dent, without the concurrence or advice of the Senate, or the express au- 
 thority of Congress, as agents to conduct negotiations and conclude treaties 
 (prior to June 25, 1887) is four hundred and thirty-eight. Three have been 
 appointed by the Secretary of State and thirty-two have been appointed by 
 the President with the advice and consent of the Senate." 
 
 Apparently the only appointments to special missions which have 
 been confirmed by the Senate since 181 5 are the commissioners to 
 the Panama Congress of 1825, those to negotiate with China in 
 1880, and the five commissioners to negotiate the Treaty of Wash- 
 ington with Great Britain in iSyi.^^ 
 
 240. Controversies with Respect to Presidential Agents. 
 
 In spite of the habitual practice, the Senate has often protested. 
 Its objection to the interim appointments by President Madison in 
 1 81 3 would extend a fortiori to purely presidential commissioners. 
 President Jackson's mission appointed to treat with Turkey in 1829 
 was criticized in the Senate in 1831, though Senator Tazewell, of 
 Virginia, the principal critic, admitted "the power of the President 
 to appoint secret agents when and how he pleases." ' 
 
 67 
 
 " But," he continued, " as a Senator, I do claim for the Senate, in the 
 language of the Constitution, the right of advising and consenting to the 
 appointment of any and every officer of the United States, no matter what 
 
 ^^ Ibid., 4: 440, 446, 456; Crandall, op. cit., p. 78; Foster, Diplomatic 
 Practice, chap. X; Corwin, op. cit., pp. 62, 64; Henry Adams, Education, 
 p. 146; J. M. Forbes, Letters and Recollections, 1899, 2: 32; Paullin, Diplo- 
 matic Negotiation of American Naval Officers, passim; Gerard, My Four 
 Years in Germany, p. 197; Lansing, The Peace Negotiations, Chap. II; Root, 
 The United States and the War, 1918, p. 92; Lodge, Remarks in the Senate, 
 September 26, 1921, Cong. Rec, 61 : 6458. 
 
 •'^ Fiftieth Cong., 2d Sess., Sen. Doc. No. 231, VIII, 332. 
 
 '"' Crandall, op. cit., p. 77. 
 
 ''^Benton, Abridgment, 11: 207.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 331 
 
 may be his name, what his duties, or how he may be instructed to perform 
 them. And it is only because secret agents are not officers of the United 
 States, but the mere agents of the President or of his Secretaries, or of his 
 military or naval commanders, that I disclaim all participation in this ap- 
 pointment." 
 
 Senator Livingston answered : ^^ 
 
 " Sir, there are grades in diplomacy which give different ranks and 
 privileges — from an ambassador to a secret agent. . . . Ambassadors and 
 other public Ministers are directed to be appointed by the President by and 
 with the advice and consent of the Senate; because public missions re- 
 quired no secrecy, although their instructions might. But the framers of the 
 Constitution knew the necessity of missions, of which not only the object 
 but the existence should be kept secret. They therefore wisely made co- 
 operation of the Senate ultimately necessary in the first instance, but left 
 the appointment solely to the President in the last. . . . On the 30th March, 
 1795, in the recess of the Senate, by letters patent under the great broad 
 seal of the United States, and the signature of their President (that Presi- 
 dent being George Washington), countersigned by the Secretary of State, 
 David Humphreys was appointed commissioner plenipotentiary for negoti- 
 ating a treaty of peace with Algiers. . . . 
 
 " I call the attention of the Senate to all the facts of this case with 
 the previous remark, that the construction which it gives to the Constitu- 
 tion was made in the earliest years of the Federal Government, by the 
 man who presided in the convention which made that Constitution, acting 
 with the advice and assistance of the leading members of that body, all 
 fresh from its discussion ; men who had taken prominent parts in every 
 question that arose. . . . 
 
 " By those men, with this perfect and recent knowledge of the Con- 
 stitution, acting under the solemn obligation to preserve it inviolate and with- 
 out any possible motive to make them forget their duty, was this first 
 precedent set; without a single doubt on the mind that it was correct; with- 
 out protest, without even remark. A precedent going the full length of that 
 which is now unhesitatingly called a lawless, unconstitutional usurpation; 
 bearing the present act out in all its parts, and in some points going much 
 beyond it." 
 
 Although futilely, the Senate continued to protest. In 1882, in con- 
 senting to ratification of the treaty with Corea it resolved that it : 
 
 69 
 
 " does not admit or acquiesce in any right or constitutional power in the 
 President to authorize or empower any person to negotiate treaties or carry 
 on diplomatic negotiations with any foreign power, unless such person shall 
 have been appointed for such purpose or clothed with such power by and 
 
 ^^ Ibid., 1 1 : 220-222. 
 
 69 Malloy, Treaties, etc., p. 340.
 
 332 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 with the advice and consent of the Senate, except in the case of a Secretary 
 of State or diplomatic officer appointed by the President to fill a vacancy 
 occurring during the recess of the Senate, and it makes the declaration in 
 order that the means employed in the negotiation of said treaty (with Corea) 
 be not drawn into precedent." 
 
 In 1888 the Senate Foreign Relations Committee in reporting ad- 
 versely upon the proposed fisheries treaty with Great Britain held 
 in " reserve, for the time being, those grave questions touching usur- 
 pations of unconstitutional powers or the abuse of those that may 
 be thought to exist on the part of the Executive." The minority 
 report, however, sustained the President's appointments in this case 
 by citation of precedents, and in the debate Senator Sherman, chair- 
 man of the Foreign Relations Committee, who had concurred in the 
 majority report, admitted : '^° 
 
 " The President of the United States has the power to propose treaties, 
 subject to ratification by the Senate, and he may use such agencies as he 
 chooses to employ, except that he can not take any money from the 
 Treasury to pay those agents without an appropriation by law. He can 
 use such instruments as he pleases. ... I suppose precedents have been 
 quoted by the Senator from Alabama (Mr. Morgan, who prepared the 
 minority report) to sustain that position. I do not disagree with him, nor 
 does this controversy turn upon that point." 
 
 Senate criticism was directed against the commissioning of J. 
 H. Blount to Hawaii in 1893 with "paramount" authority in 
 all matters afifecting the relationship of the United States to the 
 Islands. The majority report of the Foreign Relations Committee, 
 however, held : '^^ 
 
 " Many precedents could be quoted to show that such power has been 
 exercised by the President on various occasions, without dissent on the 
 part of Congress. These precedents also show that the Senate of the 
 United States, though in session, need not' be consulted as to the appoint- 
 ment of such agents." 
 
 This position was endorsed by Senator Lodge in presenting the Ger- 
 man peace treaty to the Senate in 192 1 : '^^^ 
 
 " It is the unquestioned right of the President to appoint personal agents 
 to gather information for him, as was done in a rather famous case when 
 Ambrose Dudley-Mann was sent to Hungary at the time of Kossuth's rebel- 
 
 " Moore, Digest, 4: 455; Cong. Rec, Aug. 7, 1888, pp. 7285, 7287. 
 ^1 Cong. Rec, 53d Cong., 2d Sess., p. 127; Corwin, 0/'. cit., p. 64. 
 ^la Cong. Rec, September 26, 1921, 61 : 6458.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 333 
 
 lion, or the President, of course, can appoint anyone he chooses to represent 
 him in a negotiation, because the power of initiating and negotiating a treaty 
 is in his hands. 
 
 " We have an example at this moment in the treaty with Germany now 
 before us. As I stated on Saturday, the Gentleman who represented us in 
 Berlin had been sent there by President Wilson, taken from the diplomatic 
 service and charged to represent the United States as far as it could be 
 done as a commissioner. He was simply a personal agent of the President. 
 He could not officially represent the United States. We could not have 
 an ambassador because we were technically at war with Germany. Therefore 
 he was sent there, and he represented the President in negotiating the treaty 
 with Germany now before us and signed it." 
 
 Finally notice may be taken of the 7th proposed Senate reserva- 
 tion to the Treaty of Versailles. As considered on November 19, 
 
 1919, it provided: 
 
 " No citizen of the United States shall be selected or appointed as a 
 member of said commisssions, committees, tribunals, courts, councils, or 
 conferences except with the approval of the Senate of the United States." 
 
 Later this sentence was omitted, and, as considered on March 19, 
 
 1920, reservation seven retained merely the requirement that the 
 United States should only be represented in the League of Nations, 
 and, on the agencies established by the treaty, by persons author- 
 ized thereto by " an act of the Congress of the United States pro- 
 viding for his appointment and defining his pov^^ers and duties." ''^ 
 
 241. Presidential Agent Not an Officer. 
 
 The power of the President independently to dispatch diplomatic 
 agents seems to be considered a proper implication from the Presi- 
 dent's diplomatic powers and is well established in practice. Such an 
 agent, however, is not an officer of the United States. This is 
 evidenced by the fact that Senators who, according to the Consti- 
 tution, cannot at the same time hold offices under the United States, 
 have occasionally served on special missions and also by express 
 statement of the Attorney-General. He is not, under the law, en- 
 
 72 The League of Nations, III, no. 4, pp. 179, 196 (Aug., 1920). A reser- 
 vation of similar effect was made by the Senate in consenting to ratification of 
 the German peace treaty of August 25, 1921, Cong. Rec, Oct. 18, 1921, 
 61 : 7194.
 
 334 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 titled to compensation. Thus the President is limited in the use of 
 such missions by the size of the contingent fund.''^ 
 
 242. International Administrative and Judicial Agencies. 
 
 The third class of instrumentalities for conducting foreign re- 
 lations are international in character and rest on treaty or agree- 
 ment alone. Arbitration courts for hearing particular questions 
 have been set up by executive agreement alone, by executive agree- 
 ment authorized by general treaties and by treaties. The Bureau 
 of the Universal Postal Union is authorized, so far as the United 
 States is concerned, by executive agreement under an act of 
 Congress. The Bureau of other international unions and of the 
 Hague Permanent Court of Arbitration as well as the panel of 
 arbitrators of the court are set up by treaty. International courts 
 were established for trial of slave traders by the treaty of 1863-1870 
 with Great Britain and by the XII Hague Convention of 1907 an 
 international prize court was provided for, but the latter treaty, 
 though consented to by the Senate, has never been ratified. 
 
 The President has usually appointed representatives in such 
 bodies on the authority of the agreement or treaty alone, though if 
 the body is permanent, the need of appropriation makes congres- 
 sional action necessary. Congress has provided by law for partici- 
 pation of the United States in the Pan-American Union,''* the 
 Bureau of the Hague Permanent Court of Arbitration,'^^ the Inter- 
 national Prison Commission,''^ and other organs. It has not at- 
 tempted to control the organization or method of appointing rep- 
 resentatives on such bodies, though the proposed seventh reser- 
 vation to the Peace Treaty of Versailles would have done so for 
 organs set up by that treaty. In general the congressional acts 
 seem to have assumed that the power to appoint commissioners to 
 such bodies is vested in the President alone, and that such com- 
 missioners are not " officers " of the United States, since Senators 
 
 73 The U. S. Constitution, I, sec. 6, cl. 2; Knox, Att. Gen., 23 Op. 533 
 (1901) ; Moore, Digest, 4: 440; Corwin, op. cit., pp. 65-66. 
 
 ■^4 Act July 14, 1890, 26 Stat. 275. 
 
 ^5 Act March 22, 1902, 32 Stat. 81. 
 
 ■^^ Act Feb. 22, 1913, 37 Stat. 692; Act re International Waterways 
 Commission, June 13, 1902, 42 Stat. 373; Comp. Stat., sec. 4984.
 
 INSTRUMENTALITIES FOR FOREIGN RELATIONS. 335 
 
 have frequently served, especially on courts of arbitration. In 1913, 
 however. Congress attempted to forbid presidential participation in 
 any " international congress, conference or like event, without first 
 having specific authority of law to do so." ^^ 
 
 Congress through its control of appropriations has been gaining 
 an increasing influence in regulating the grade, location and number 
 of offices in the permanent foreign service, and the President's 
 constitutional discretion in these matters has been seriously impaired. 
 The President has, however, retained his independence both of 
 Congress and of the Senate in the sending of special missions, and 
 the appointment of representatives on international organs. Al- 
 though the consular service has to a considerable extent been 
 brought under civil service regulations, the diplomatic service has 
 not for positions above that of Secretary. Appointments are re- 
 garded as political and the President exercises discretion, limited 
 by the legislation establishing the office and the need of senatorial 
 advice and consent. These services are subject to the direction of 
 the President, enforceable through his independent removal power.''* 
 
 243. Conclusion on Power to Conduct Foreign Relations. 
 
 We conclude that under the Constitution the control of foreign 
 relations is given almost exclusively to the national government, 
 but it extends only so far as expressly or impliedly delegated. In 
 fact, this delegation has been almost, if not entirely complete, and 
 the constitutional limitations upon its exercise in defense of indi- 
 vidual rights, states rights and the rights and privileges of na- 
 tional organs of government are comparatively unimportant. Ad- 
 equate powers exist in the President, the treaty-making power, 
 Congress and the courts to meet all international responsibilities, to 
 make agreements of a genuinely international character, to make 
 decisions of international importance, and to carry out national 
 policies. But these powers have been distributed among independ- 
 ent organs. Is there a single principle underlying this distribution? 
 We believe there is. The President initiates, controls and con- 
 cludes, checked by the possibility of a Senate veto on permanent 
 
 '''' Supra, notes 61, 72. 
 
 78 Report on the Foreign Service, supra, note 55, pp. 21-31, 45, 65; 
 supra, sec. 230.
 
 336 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 international agreements and by a congressional veto upon national 
 decisions calling for positive action. 
 
 For meeting the ordinary responsibilities and exercising the 
 ordinary powers of states in the family of nations, guided by inter- 
 national law, the President alone is competent, and his powers, being 
 in the main derived from the Constitution itself, he is not subject 
 to the detailed direction of Congress, as he is in exercising his 
 powers in domestic administration. For departures from the nor- 
 mal, whether by way of international agreement or national policy, 
 though the President initiates, the Senate or Congress must consent. 
 While the powers upon which these organs are able to insist go little 
 beyond a discretionary veto upon consummations, yet the Pres- 
 ident ought to understand that to avoid the possibility of this contin- 
 gency he should consider their advice during the course of nego- 
 tiations and diplomacy. 
 
 The dominating position of tlie President in foreign relations 
 results from his initiative, and this is a necessary consequence of 
 the position he occupies as the representative authority of the United 
 States under international law. His office is the only door through 
 which foreign nations can approach the United States. His voice 
 is the only medium through which the United States can speak to 
 foreign nations. Moreover the fathers appear to have intended him 
 to occupy this position and subsequent history has shown his exer- 
 cise of the initiative and essential control. On occasions when 
 foreign affairs have not pressed he has subordinated his initiative 
 to congressional policies but always when crises have arisen he has 
 met them with a prompt decision and adequate resources of power. 
 Only rarely has the veto of coordinate departments destroyed his 
 achievements.
 
 PART V. 
 The Understandings of the Constitution.
 
 CHAPTER XVIII. 
 
 Understandings Concerning the Relations of the 
 
 Independent Departments. 
 
 244. Reason for Constitutional Understandings. 
 
 The various organs of the national government are together 
 vested with sufficient power to conduct foreign affairs and meet in- 
 ternational responsibilities, but, according to the doctrine of separa- 
 tion of powers, each of the three departments of government exer- 
 cises an independent discretion, legally uncontrolled by any other au- 
 thority. Three difficulties may arise from this situation: 
 
 (A) The powers of two departments may overlap, giving rise 
 to contrary action on the same occasion. 
 
 " The existence," said a Senate Foreign Relations Committee report of 
 1898, " of the same power for the same purposes in both the legislative and 
 executive branches of the Government might lead to most unfortunate result's. 
 For instance, if the legislative and executive branches both possessed the power 
 of recognizing the independence of a foreign nation, and one branch should 
 declare it independent, while the other denied its independence, then, since 
 they are coordinate, how could the problem be solved by the judicial branch ? " ^ 
 
 (B) An independent department may lack sufficient power to 
 achieve a desired end without the cooperation of another independ- 
 ent department. 
 
 " A treaty," said the Circuit Court, " is the supreme law of the land in 
 respect of such matters only as the treaty-making power, without the aid of 
 Congress, can carry into effect. Where a treaty stipulates for the payment 
 of money for which an appropriation is required, it is not operative in the 
 sense of the Constitution." 2 
 
 (C) Organs properly adapted to meeting certain international 
 responsibilities may not exist. The general principle which ought 
 
 1 Sen. Doc. 56, S4th Cong., 2d sess., p. 4 ; Corwin, op. cit., p. 36, supra, 
 sec. 191. 
 
 2 Turner v. Am. Baptist Missionary Union, 5 McLean 347 ; Wharton, 
 Digest, 2 : 73 ; Moore, Digest, 5 : 222. 
 
 339
 
 340 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 to govern the discretion of the departments in the presence of such 
 difficulties has been thus expressed by the Supreme Court of North 
 Carolina : ' 
 
 "While the executive, legislative, and supreme judicial powers of the 
 government ought to be forever separate and distinct, it is also true that the 
 science of government is a practical one ; therefore, v/hile each should firmly 
 maintain the essential powers belonging to it, it cannot be forgotten that the 
 three coordinate parts constitute one brotherhood, whose common trust re- 
 quires a mutual toleration of what seems to be a 'common because of 
 vicinage ' bordering on the domains of each." 
 
 A. The Overlapping of Powers of Independent Departments. 
 
 245. Constitutional Understanding Respecting the Overlapping of 
 Powers. 
 
 The difficulty arising from the overlapping of the powers of two 
 independent and coordinate departments of the government has 
 been met in part by the legal principle that the most recent exercise 
 of power prevails and in part by the understanding that each de- 
 partment should so exercise its concurrent powers as not to impair 
 the validity of action already taken by the other department with- 
 out that department's consent. 
 
 246. Concurrent Powers of President and Congress. 
 
 The powers of the President or of the courts cannot conflict 
 with those of Congress or the treaty-making power, because the 
 constitutional acts of the latter are declared the supreme law of 
 the land. Consequently, a conflicting act of the President or the 
 courts would be contrary to law and void. The President and 
 courts, however, have certain powers concurrent with congressional 
 powers in the sense that they may validly act, until Congress has 
 acted. Thus the Supreme Court could determine its appellate juris- 
 diction upon the basis of Article III of the Constitution alone,* 
 and the President could organize and conduct military government 
 in newly acquired territory, regulate the landing of cables, and 
 issue regulations for branches of the civil service before Congress 
 
 ' Brown v. Turner, 70 N. C. 93, 102. 
 
 *Ex Parte McCardle, 7 Wall. 506, 513, and Marshall, C. J., in Durousseau 
 V. U. S., 6 Cranch 307, 313, and U. S. v. Moore, 3 Cranch 159, 170, 172.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 341 
 
 had acted. ^ But once Congress, or the treaty-making power, has 
 acted, if its act is constitutional, there is no doubt but that it is the 
 supreme law of the land, and the President and courts are hence- 
 forth bound by it.^ An act either of Congress or of the treaty-mak- 
 ing power which encroaches upon the constitutional powers of the 
 President or courts is of course unconstitutional and void. The 
 courts may so declare it, but it has been generally held that the 
 President is confined to the veto to invalidate unconstitutional legis- 
 lation. If an act has been signed by a predecessor, is passed over 
 his veto, or is signed by himself inadvertently, it is held that he must 
 obey it, even though the act is clearly unconstitutional, until such 
 time as the courts may declare it void.'^ This principle is not, 
 however, extended to congressional acts afifecting the inherent 
 powers and the foreign relations powers of the President. Such 
 acts, if encroachments upon presidential powers, even though man- 
 datory in terms and formally valid, have been interpreted as merely 
 advisor}' and as leaving the President discretion to ignore them. 
 Thus, the President has ignored congressional acts and resolutions 
 prescribing conditions for the removal of administrative officers,* 
 defining the grades of diplomatic officers,® directing the negotiation 
 or modification of treaties,^" and formulating foreign policy." 
 
 'Santiago v. Nogueras, 214 U. S. 260; Richards, Acting Att. Gen., 22 
 Op. 13 ; Moore, Digest, 2 : 452-463 ; supra, sec. 219. 
 
 "Where two organs enjoy concurrent powers to produce a status, the one 
 acting first, of course, effects the result. Thus a presidential recognition of 
 war would be effective irrespective of subsequent acts of Congress. " In 
 short, it frequently happens that the same legal result may be produced by 
 very different powers of government; nor need the fact lead to confusion, 
 since, as soon as any of the competent powers has acted, the result is pro- 
 d-uced." Corwin, Mich. Law Rev., 18: 672, but see his President's Control 
 of Foreign Relations, p. 36. 
 
 T Willoughby, op. cit., pp. 1306-1309. 
 
 8 As President Johnson's refusal to accept the tenure of office act, for 
 which he was impeached, but not convicted. See also President Cleveland's 
 action in the Duskin case, Presidential Problems, 1904, p. 56, and Parsons v. 
 U. S., 167 U. S. 324. 
 
 9 Cushing, Att. Gen., 7 Op. 186 ; supra, sec. 236. 
 loCrandall, op. cit., p. 74; supra, sec. 174- 
 
 11 Supra, sec. 203.
 
 342 THE CONTROL OF AMERICAN FOREIGN RELATIONS, 
 
 247. Concurrent Powers of the President and the Courts. 
 
 The power of the President to settle international controversies 
 may, however, overlap the jurisdiction of the courts to settle private 
 controversies. The understanding that the authority taking prior 
 action should govern, has usually been applied in such cases. Thus 
 a German prize crew brought the British vessel Appam into an 
 American port, while the country was neutral. The original owner 
 promptly libelled the vessel in the United States District Court 
 and while the case was pending the German government sought, 
 through the Department of State, to have their claim submitted to 
 arbitration. Secretary Lansing replied in a note of April 7, 1916:^^ 
 
 " Moreover, inasmuch as the Appam has been libeled in the United States 
 District Court by the alleged owners, this government, under the American 
 system of government in which the judicial and executive branches are en- 
 tirely separate and independent, could not vouch for a continuance of the 
 status quo of the prize during the progress of the arbitration proposed by the 
 Imperial Government. The United States Court, having taken jurisdiction 
 of the vessel, that jurisdiction can only be dissolved by judicial proceedings 
 leading to a decision of the court discharging the case — a procedure which 
 the executive cannot summarily terminate." 
 
 On this statement two comments may be made. Unquesionably, 
 the President, through the Secretary of State, had power to settle the 
 controversy with Germany by arbitration or otherwise, irrespective 
 of the results of the District Court's decision. The fact that the 
 United States could not vouch for a continuance of the status quo 
 of the vessel was no reason for refusing to arbitrate the interna- 
 tional issue. In the second place, even if constitutional difficulties 
 did prevent the President meeting responsibilities under interna- 
 tional law, such difficulties would not be a valid defense against 
 claims by foreign nations. Foreign nations are entitled to expect 
 satisfaction of their claims through the President, according to the 
 measure of international law alone. However, the case illustrates 
 the operation of the constitutional understanding whereby the Pres- 
 ident refuses to consider controversies already in process of con- 
 sideration by the courts. 
 
 ^2 Department of State, White Book, European War, No. 3, p. 344.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 343 
 
 Conversely, the courts ordinarily refuse to pass on controversies 
 in process of diplomatic settlement. Thus, in the case of Cooper, 
 the Supreme Court was asked to issue a writ of prohibition to 
 restrain the United States District Court of Alaska from enforcing 
 a sentence of forfeiture of a British vessel alleged illegally to have 
 taken seal in American jurisdictional waters fifty-seven miles from 
 shore. Discussion was going on between Great Britain and the 
 Department of State as to whether this point was in American juris- 
 diction and the court expressed the opinion that the President had 
 power to settle the controversy. 
 
 " If this be so, the application calls upon the court, while negotiations are 
 pending, tq decide whether the Government is right or wrong, and to review 
 the action of the political departments upon the question contrary to the 
 settled law in that regard." 
 
 The court dismissed the suit on finding that there had been no 
 definite facts found as to the place of seizure, but its opinion 
 indicates the feeling that it ought not to prejudice the results of the 
 controversy pending before the Department of State. The court, 
 however, seemed to regard this feeling as an understanding rather 
 than a legal requirement, for it said : " 
 
 " We are not to be understood, however, as underrating the weight of 
 the argument that in a case involving private rights the court may be obliged, 
 if those rights are dependent upon the construction of acts of Congress or 
 of a treaty, and the case turns upon a question, public in its nature, which 
 has not been determined by the political departments in the form of a law 
 specifically settling it, or authorizing the Executive to do so, to render judg- 
 ment, since we have no more right to decline the jurisdiction which is given 
 than to usurp that which is not given." 
 
 This latter power seems to have been exercised in the case of Pearcy 
 V. Stranahan, where the Supreme Court decided upon the status of 
 Pine Island ofif Cuba, although the matter was and had been for 
 seven years pending in the State Department. Where a decision 
 has actually been given by the political departments on such ques- 
 tions as the limits of jurisdiction, the status of governments and 
 states, etc., the courts follow such decisions implicitly.^ 
 
 14 
 
 13 /n re Cooper, 143 U. S. 472; Moore, Digest, i: 744; Willoughby, op. 
 cit., p. lOIO. 
 
 1* Pearcy v. Stranahan, 205 U. S. 257 (1907) ; Jones v. U. S., 137 U. S. 
 202; supra, sec. 107.
 
 344 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 248. Concurrent Powers of Treaty Power and Congress. 
 
 The most notable overlapping of power, however, occurs in the 
 case of Congress and the treaty-making power. Treaties may 
 require the payment of money, establish customs duties, regulate 
 foreign commerce, fix a standard of weights and measures, pro- 
 vide for international postal service and international copyright, 
 provide courts for the trial of seamen on foreign vessels sojourn- 
 ing in the United States, define and provide for punishing offenses 
 against the law of nations, require the meeting of guarantees by 
 armed force or declaration of war, regulate declarations of war or 
 forbid them in certain circumstances, prohibit the granting of letters 
 of marque and reprisal, make rules concerning captures on land 
 and water, limit the size or disposition of military forces, make 
 rules for the conduct of land and naval forces in war, annex or dis- 
 pose of territory, in fact there are very few of the enumerated 
 powers of Congress which have not been the subject of treaty. It 
 has been suggested that the treaty power lacks " constitutional com- 
 petency" to act on these subjects. To this the answer of Calhoun 
 seems adequate : ^^ 
 
 "If this be the true view of the treaty-making power, it may be truly 
 said that its exercise has been one continual series of habitual and uninter- 
 rupted infringements of the Constitution. From the beginning and through- 
 out the whole existence of the Federal Government it has been exercised 
 constantly on commerce, navigation, and other delegated powers." 
 
 The court has often recognized this overlapping and considering 
 that acts of Congress " made in pursuance of " the Constitution, and 
 treaties " made under the authority of the United States " are 
 both the supreme law of the land, has regarded them of equal 
 validity and applied the most recent in date in case a conflict is too 
 definite to reconcile.^^ Thus, according to the law neither treaty- 
 making power nor Congress is limited by the previous exercises of 
 concurrent power by the other. In practice, however, it has been 
 recognized that Congress ought not to violate treaties at will and 
 
 '^^ Moore, Digest, 5 : 164. 
 
 16 Head Money Cases, 112 U. S. 580; Chinese Exclusion Cases, 130 U. S. 
 58; U. S. V. The Peggy, i Cranch 103.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 345 
 
 that the treaty-making power ought not to altet congressional 
 poHcies at random. The fact that the President and Senate par- 
 ticipate in both treaty-making and legislation tends to minimize such 
 conflicts, but in some cases they have occurred. Thus the Chinese 
 exclusion acts of 1889 were in conflict with the Burlingame treaty of 
 1868. Congress, however, has usually refrained from impairing 
 treaties by legislation and if treaties were found to conflict with 
 proposed legislative policies, has advised the President to negotiate 
 modifications in the treaty. As such negotiation and ratification 
 of the resulting treaty is always discretionary with the President 
 and Senate, the practice means that changes are in fact brought 
 about by concert of Congress and the treaty-making power." 
 
 Treaties have very seldom been found to conflict with earlier 
 acts of Congress. Perhaps the only case is a treaty with France of 
 1 801, which required the return of uncondemned prizes and thereby 
 divested certain captors of their rights to prize money as provided 
 by an earlier act of Congress.^* This is accounted for by two 
 reasons. Many treaties which would afifect established legislative 
 policies in such matters as tariff's, commercial regulation, etc., are 
 by their own terms made to depend for efifectiveness upon con- 
 gressional acceptance. Most other treaties conflicting with legis- 
 lative policy are held not to be self-executing and consequently can- 
 not be carried into efi^ect imtil Congress acts. This is true of 
 treaties requiring an appropriation, a declaration of war, criminal 
 punishment, etc. The obligation of Congress to pass such legis- 
 lation will be considered later. However, whichever reason applies, 
 the treaty power does not in practice modify existing acts of 
 Congress without the consent of Congress. 
 
 i'^ See La Follette Seaman's Act of 1915 and Jones Merchant Marine Act 
 of 1920, supra, sees. 184, 187. 
 
 18 U. S. V. The Peggy, i Cranch 103. See also La Ninfa, 75 Fed. 513, 
 applying the award of the Behring Sea Arbitration based on treaty and op- 
 posed to the earlier interpretation of an act of Congress; and also application 
 of most-favored-nation clause in Swiss treaty of 1850 in 1898, supra, sec. 154.
 
 34G THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 B. Cooperation of Independent Organs. 
 
 249. Constitutional Understanding Respecting the Cooperation of 
 Independent Organs. 
 
 The difficulty which arises from the frequent need of coopera- 
 tion between independent and coordinate departments in carrying 
 out the powers of the national government is met by a constitu- 
 tional understanding which may be stated in the following words : 
 Where action contemplated by any independent department re- 
 quires the cooperation of another independent department for its 
 carrying out, the advice of that department ought to be sought 
 before the action is taken, but where such action has already been 
 taken the department whose cooperation is required ought to per- 
 form the necessary acts even though its advice had not been asked 
 or if asked had not been followed. 
 
 " Whenever," reported the Senate Foreign Relations Committee, " af- 
 firmative action of either the executive or the legislative branch of the gov- 
 ernment may involve a call upon the assistance of the other, the branch about 
 to take action should, if possible, first obtain indications of the other's 
 desires." ^^ 
 
 " It is a general principle," says Finley-Sanderson, " that any valid act 
 done by either the legislative, executive or judicial branches of the govern- 
 ment is binding upon each of the others, and is not subject to be set aside by 
 either of them." 20 
 
 Each department of the national government may exercise 
 powers which will require the cooperation of one or more of the 
 other departments in carrying out. Such acts by the courts, the 
 President, Congress and the treaty-making power will be considered 
 in succession. 
 
 250. Decisions by the Courts. 
 
 Most decisions of the Federal Courts will be ineffective unless 
 the President enforces them. Undoubtedly to so enforce them is a 
 legal obligation of the President under his duty "to take care that 
 the laws be faithfully executed " and an attitude such as that taken 
 by President Jackson when he remarked : " John Marshall has 
 
 19 Sen. Doc. 56, 54th Cong., 2d sess., p. 5. See also Hill, Present Prob- 
 lems in Foreign Policy, 1919, p. 171, and infra, sec. 256. 
 
 20 Finley-Sanderson, The Executive, p. 217; Wright, Atn. Jl. Int. Law, 
 12: 94; supra, sec. 69.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 347 
 
 made his decision, now let him enforce it " is a violation of his 
 oath to the Constitution.^^ He has no independent discretion as 
 to whether the court's decision was really a correct interpretation 
 of the Constitution and law. There is in this case no duty on the 
 part of the court to consider the President's probable attitude 
 before making its decision. On the contrary, the court ought to 
 apply the law impartially and irrespective of the views of the 
 political organs of government. 
 
 Decisions of the Supreme Court which involve an interpreta- 
 tion of the Constitution, statutes, treaties or other laws of the 
 United States form precedents which by constitutional understand- 
 ing ought to be followed in future cases by all organs of the gov- 
 ernment. The political organs of the government in performing 
 acts within their discretionary powers may exercise independent 
 judgment as to the meaning of the Constitution, laws and treaties. 
 Thus, Congressmen and Senators would not be violating their oaths 
 to support the Constitution if, honestly believing the decision erro- 
 neous, they repassed a statute which had just been declared un- 
 constitutional nor would the President if he signed it. Likewise 
 the treaty power and the President are not legally bound to fol- 
 low judicial decisions as to the scope of their powers in conducting 
 foreign relations and as we have seen foreign nations are entitled 
 to regard the statements of the President on the subject as practi- 
 cally authoritative. However, it is believed that the other organs 
 of government ought to regard the interpretation of law by the 
 Supreme Court as final and to be departed from only in extreme 
 cases.^^ But adherence to this understanding implies acceptance 
 by the court of its converse, namely, that in making decisions on 
 constitutional questions affecting the competence of independent 
 organs, the court must carefully weigh the opinions of these de- 
 partments and follow them if possible. This understanding has 
 been accepted by the court in its repeated assertion that it will 
 hold the view of the political departments, as evidenced through the 
 
 21 Sumner's Jackson, p. 227. 
 
 22 The President and Congress may, of course, adhere to stricter canons 
 of constitutional interpretation than the court. Wright, Col. L. R., 20: 140; 
 Willoughby, op. cit., p. 1306; Taft, op. cit., p. 136; Finley-Sanderson, op. cit., 
 p. 218; Cushman, Minn. Law Rev., 4- 275-
 
 348 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 formal conclusion of a statute or treaty, in the highest respect and 
 will not regard such acts as unconstitutional unless so beyond reason- 
 able doubt.23 
 
 251. Acts of the President. 
 
 The President, as well as the courts, may need the cooperation 
 of other organs in order to make his acts effective. In the per- 
 formance of political acts within his power, the courts have con- 
 sidered themselves bound to give efifect to his decisions. Thus the 
 courts have held themselves bound to give effect to his decisions as 
 to which of two contending governments in a state of the Union is 
 legitimate, as to whether the government in a state is republican in 
 form, as to the extent of American territory, as to the existence of 
 a contingency requiring a calling forth of the militia, as to the 
 existence of civil war in the United States, as to the condition of 
 belligerency or neutrality of the United States, as to the status of 
 foreign governments and their representatives, as to the extent of 
 territory of foreign states, as to the existence of insurgency, civil 
 war or international war abroad, and as to the settlement of claims 
 of American citizens upon foreign governments. In giving effect 
 to such political decisions the court has usually grouped the Pres- 
 ident and Congress together as the " political department of the 
 government " and has not often discussed the relative competence 
 of each in such matters.^* Unquestionably, it might do so, and 
 could properly refuse to follow a political decision of the President 
 if on a subject beyond his competence. Thus in his dissent in the 
 prize cases,^^ Justice Nelson, supported by three colleagues, was 
 unwilling to accept the President's proclamation of blockade as the 
 initiation of civil war, holding that the power to declare the existence 
 of war, even civil war, was confined to Congress. The majority, 
 however, thought themselves bound by the political decision of the 
 President. The courts also consider themselves bound to apply 
 
 23 Willoughby, op. cit., p. 20; Cushman, Mich. Law Rev., 19: 771. 
 
 2* Supra, sec. 107. 
 
 25 The Prize Cases, 2 Black 635, 690.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 349 
 
 executive orders of the President, if made under legal authority, 
 in the same manner as acts of Congress.^^ 
 
 On the other hand, if acts of the President require for their 
 carrying out cooperation by Congress or by the treaty-making 
 power, the obligation of these organs is founded not upon law but 
 upon a constitutional understanding. The President may make 
 executive agreements which require action by Congress. Such was 
 that by which Great Britain ceded Reef Island in Lake Erie on 
 condition that the United States would erect a lighthouse thereon; 
 that providing for the administration of San Domingan customs 
 houses ; and that providing for reciprocity with Canada. So also 
 the President may make agreements requiring action by the treaty- 
 making power. Such were the preliminaries of peace with Spain 
 in 1898 and with Germany in 1918. Such also were protocols with 
 Costa Rica and Nicaragua looking toward the conclusion of treaties 
 providing for the construction of a Trans-Isthmian Canal. 
 
 Though Congress and the treaty-making power ought to give 
 effect to such agreements if made within the President's power, it 
 unquestionably is within their legal power to refuse. Such exec- 
 utive agreements are not supreme law of the land. Consequently 
 before making such agreements the President ought to get the 
 advice of these bodies if possible. ^^ 
 
 Draft treaties negotiated by the President are of even less obli- 
 gation than such executive agreements, and experience has shown 
 that the Senate does not hesitate to reject or amend them. 2* Con- 
 sequently it is especially important that the President keep him- 
 self informed of the attitude of that body during the course of 
 negotiation and conform his policy thereto.^® 
 
 The conduct of diplomatic negotiations by the President and 
 the employment of troops for defense of American citizens abroad 
 or defense of the territory may easily lead to military undertak- 
 ings which will require either congressional appropriations or a 
 declaration of war. Thus all so-called declarations of war by 
 
 26 Goodnow, op. cit., p. 85. 
 
 ^'^ Supra, sees. 166, 169, 170, 172. 
 
 ^^ Supra, sec. 177. 
 
 '^^ Supra, sec. 176; infra, sec. 266, par. 4.
 
 350 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Congress have in fact been declarations of the "existence of war" 
 and the act of Congress of July 13, 1861, was a ratification of the 
 proclamation of the President of April 19, 1861, which was held to 
 have signified the actual beginning of war.^° Doubtless, in each 
 of these cases Congress was under a practical, though not a legal 
 obligation to carry out the undertaking begun by the President, and 
 unquestionably in such undertakings the President ought to keep 
 himself informed of and give due consideration to the opinion of 
 Congress. ^^ 
 
 The same is true of acts under the President's authority as 
 Commander-in-Chief in time of war. Seizures of property under 
 military necessity in occupied areas by way of requisition and con- 
 tribution require subsequent compensation according to the law of 
 war. Also the emancipation proclamation, if indeed it was within 
 the President's power at all, certainly required action by Congress, 
 if not the amending power, to remain efifective after the war. 
 After the Civil War Congress actually provided for compensation 
 in certain cases or seizure and the amending power passed the 
 thirteenth amendment abolishing slavery. 
 
 32 
 
 252. Acts of Congress. 
 
 Congress when acting within its powers makes laws which legally 
 bind the courts and the President. The courts, as the official inter- 
 preters of the Constitution, may examine the competence of 
 Congress and refuse to apply unconstitutional statutes. The Pres- 
 ident, in his capacity as head of the national administration, has 
 not even this power.^^ While acting as the representative organ 
 of the government in foreign relations, however, he has an inde- 
 pendent constitutional position, and is not subject to the direction of 
 Congress. Treaties are on a par with acts of Congress, conse- 
 quently while conducting negotiations with a view to treaty mak- 
 ing, the President is not bound to follow resolutions or directions of 
 Congress even though mandatory in terms. As a matter of con- 
 stitutional understanding Congress ought not to pass such resolu- 
 
 30 The Prize Cases, 2 Black 635, and supra, sec. 208. 
 
 31 Supra, sec. 209. 
 
 32 Supra, sees. 216-218. 
 
 33 Supra, sec. 246.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 351 
 
 tions except with the consent of the President, and it has usually 
 followed this understanding. If such resolutions are passed, doubt- 
 less the President ought to follow them as a matter of constitutional 
 understanding, and he usually has. However, he is the judge of 
 the considerations which are likely to make negotiations successful 
 and retains his discretion in spite of congressional directions. 
 
 34 
 
 253. Acts of tJie Treaty-Making Power. Obligation of the Courts. 
 The obligation of organs of government to aid in the carrying 
 out of the undertakings of coordinate organs has been most dis- 
 cussed in connection with the execution of treaties. Treaties if 
 self-executing are of the same legal effect as acts of Congress and 
 bind the President and the courts in the same manner. The latter 
 may declare a treaty unconstitutional and void, but has never done 
 so. The treaty-making power covers a broader field than does the 
 power of Congress since it is given in full to the national govern- 
 ment while the legislative power is divided between national and 
 state governments. Apparently the only ground on which a treaty 
 could be declared void w^ould be that it dealt with a subject not 
 proper for international negotiation, a limitation so vague as to be 
 hardly capable of judicial application, or that it violated an express 
 or implied prohibition of the constitution.^^ Since a declaration of 
 unconstitutionality based on constitutional prohibitions would not or- 
 dinarily relieve the United States of international responsibility, the 
 courts have always attempted, heretofore with success, to reconcile 
 doubtful treaty provisions with the Constitution.^^ The courts cannot 
 consider voidable treaties void until the political departments have 
 acted. Thus, the Supreme Court required the extradition of an 
 American citizen to Italy under the treaty of 1871 even though 
 Italy had repeatedly violated the treaty by refusing to extradite 
 Italian citizens wanted by the United States. For the courts a treaty 
 is law from the date of its proclamation by the President until 
 announcement of its termination by the political departments of the 
 
 5* Supra, sees. 203, 246. 
 8" Supra, sees. 67, 68, 173. 
 ^^ Supra, sec. 31.
 
 352 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 government, or its supercession by a conflicting treaty or act of 
 Congress.^'' 
 
 254. Acts of the Treaty-Making Power: Obligation of the Pres- 
 ident. 
 
 The President is legally bound by treaties the same as by acts of 
 Congress, whether they have been made by himself or his prodeces- 
 sors. He cannot modify them by agreements with the other party 
 without ratification by two-thirds of the Senate, though precedents 
 indicate that he may upon his own authority terminate them by 
 denunciation under the terms of the treaty itself. ^^ In case the 
 treaty directs the President in such political matters as the negotia- 
 tion of another treaty, or the urging upon Congress or the States 
 of legislation, he retains his discretion and is constitutionally com- 
 petent to ignore such directions, though by an understanding of the 
 Constitution he ought to make honest efforts to carry out the 
 treaty. 
 
 255. Obligation of the Treaty-Making Power Itself as to Future 
 Action. 
 
 The treaty power cannot bind its own future action. Clearly 
 it can repeal one treaty by negotiating a new one with the same 
 party. But if it concluded a conflicting treaty with a different 
 party, a more complicated situation arises. Under constitutional 
 law, unquestionably the more recent treaty prevails though the 
 courts ought to reconcile the two treaties by interpretation if pos- 
 sible. Under international law, however, the older treaty prevails 
 on the theory that a treaty violative of the rights of an innocent 
 third party is against the policy of international law. Therefore, 
 although the treaty power is not legally bound to respect its earlier 
 treaties, it ought to do so. The obligation is an understanding 
 which has generally been observed. The Jay treaty with Great 
 Britain in 1794 was alleged to violate certain provisions of the 
 French treaty of 1778; and the Panama treaty of 1903 was alleged 
 
 3T Supra, sec. 182 et seq 
 ^^ Supra, sees. 172, 186.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 353 
 
 to violate provisions of the Hay-Pauncefote treaty with Great 
 Britain of 1901, but they were not clearly proved to do so.^'' 
 
 Treaties may require subsequent action by the treaty-making 
 power to give them effect. Such is the case with certain general 
 arbitration treaties which require the conclusion of a special treaty 
 or compromis for submission of each particular controversy coming 
 under the general arbitration treaty. Such would also be true of 
 the treaty of Versailles, which urges the conclusion of treaties 
 upon such subjects as the maintenance of fair labor conditions, the 
 maintenance of freedom of communications and transit, the pre- 
 vention and control of disease, etc. Such provisions as this do not 
 legally bind the treaty-making power, but undoubtedly the President 
 and Senate ought to make due efforts to conclude such treaties 
 when the occasion arises. 
 
 256. Acts of the Treaty-Making Powers: Obligation of Congress. 
 
 Treaties may require action by Congress to give them effect. 
 Where executive and judicial action alone is sufficient to give 
 treaties effect they are said to be " self-executing," but an exact dis- 
 tinction between those treaty provisions which become ex propria 
 vigore the supreme law of the land and those which require legis- 
 lative action is not clear. In Foster v. Neilson (1829), Chief 
 Justice Marshall thought the provision of the Florida cession treaty 
 that grants of land made in Florida prior to January 24, 1818 " shall 
 be ratified and confirmed " was not self-executing and that the 
 courts could not recognize such titles until Congress had acted. 
 Subsequently an examination of the Spanish text of the treaty 
 showed that the phrase should have read " shall remain ratified and 
 affirmed" and in United States v. Percheman (1833) Chief Justice 
 Marshall held that this rendered the clause self-executing, support- 
 ing his decision also on principles of general international law.*" 
 However, there are many acts which the treaty power cannot itself 
 perform or the performance of which it cannot authorize by any 
 organ other than Congress, yet Congress is under a certain obliga- 
 
 39 Wright, Conflicts between International Law and Treaties, Am. Jl. Int. 
 
 Law. II : 57^579- 
 
 <o Foster v. Neilson, 2 Pet. 253 (1829) ; U. S. v, Percheman, 7 Pet. 51 
 
 (1833) ; see also supra, sec. 137.
 
 354 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 tion to perform them itself when necessary for carrying out a 
 treaty. The obligation may seem absolute in view of the statement 
 of Article VI that treaties are the supreme law of the land, but 
 in practice, and in view of the equal constitutional power of 
 Congress itself to make supreme law superseding treaties, the 
 constitutional duty of Congress must be considered as an under- 
 standing of the Constitution, rather than a law.'*^ 
 
 Practice indicates that treaty provisions dealing with matters 
 which for historical and practical reasons have been placed by the 
 Constitution peculiarly within legislative competence,*^ require 
 congressional cooperation for their execution. Of this character 
 are treaty provisions dealings with finances, whether ( i ) requiring 
 appropriations of money, or (2) altering revenue laws and com- 
 mercial regulations. While even in these cases Congress ought to 
 act so as to give effect to a ratifed treaty, yet the treaty-making 
 power is under an equal obligation to consider, in connection with 
 its view of international policy, the views on domestic policy of 
 Congress, before finally ratifying the instrument. In these matters 
 foreign and domestic policy are connected with extraordinary in- 
 timacy, and a complete collaboration of the treaty power and the 
 legislative power is appropriate. An opportunity for Congress to 
 pass upon treaties of this character before ratification would seem 
 generally expedient though not legally necessary.'*^ 
 
 *i Hamilton, however, wrote in a draft for Washington's message to the 
 House of Representatives on the Jay treaty : " The House of Representatives 
 have no moral power to refuse the execution of a treaty which is not con- 
 trary to the Constitution, because it pledges the public faith; and have no 
 legal power to refuse its execution, because it is a law, until at least it ceases 
 to be a law by a regular act of revocation of the competent authority." 
 Works, Hamilton ed., 7: 566. 
 
 ■*2 The Constitution not only gives the financial powers to Congress, but 
 it gives them especially to the House of Representatives. The terminology 
 of Art. I, sec. 7, cl. i, and sec. 9, cl. 7, is a different sort of delegation from 
 the powers given by Art. i, sec. 8. This is a recognition of the historical 
 connection between control of the purse and the rise of the House of Com- 
 mons in England. See the Federalist No. 58; Magoon, Reports, p. 151. 
 
 43 The objection brought in the Federal Convention of 1787 against such 
 submission to Congress, that it would make secrecy impossible (Farrand, 
 op. cit., 2: 538), would probably have less weight at present. See also supra, 
 sees. 59, 149, 154. Sir Cecil Hurst reported to the 6th committee of the First 
 Assembly of the League of Nations that " at the time when the convention of
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 355 
 
 Other treaty provisions require for their performance detailed 
 supplementary legislation or specific acts which the Constitution 
 directs to be performed by Congress. In this category are treaty 
 provisions requiring (3) the incorporation and administration of 
 territory,** (4) the organization of courts and creation of offices 
 and (5) a declaration of war in certain contingencies, or abstention 
 from war.*^ In these cases Congress is bound to act and carry out 
 in good faith the obligations which the treaty power has undertaken. 
 These matters are ones upon which a proper decision might be 
 expected from a comprehensive view of international relations, 
 and hence the treaty power enjoys a greater freedom of action than 
 in those of the former category. 
 
 Another class of treaty provisions are by nature self -executing, 
 but because of historical traditions and constitutional interpreta- 
 tion, require legislation to be executable. Here are included treaties 
 (6) defining crimes and extending criminal jurisdiction. The com- 
 mon law has been traditionally assiduous in protecting the individual 
 against arbitrary criminal punishment, and this spirit, especially in 
 reference to criminal procedure, has been embodied in Article 3, 
 Section 2. Clause 3, the Fifth and Sixth Amendments, but federal 
 courts are not denied a general criminal jurisdiction by any specific 
 clause of the Constitution, and in some early cases they actually 
 assumed jurisdiction of crimes defined by customary international 
 law. This view has. however, changed, and it is now held that 
 
 Saint Germain (for control of arms trade) was drawn up it was realized 
 that in certain countries the complete execution of its provisions might 
 necessitate legislation" (First Assembly Document, No. 199) and the Tem- 
 porary Mixed Commission on Armaments attributed the failure of the United 
 States to ratify this convention to the failure of Congress to pass the neces- 
 sary legislation (Second As?embly Document, No. 81, p. 15)- Congress 
 failed to respond to the President's request for legislation in execution of 
 similar provisions of the Brussels act of 1890. (Moore, Digest, 2: 468-474-) 
 Supra, sec. 118. 
 
 **The terminology of Art. 4, sec. 3. cl. 2, indicates that the power is 
 
 supplementary in character. 
 
 45 That the power of Congress to declare war is directory, rather than a 
 
 peculiar congressional prerogative, is indicated by the incorporation in the 
 
 same clause of the power to "make rules concerning captures," which is 
 
 clearly shared with the treaty power. Supra, sec. 151.
 
 356 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 the criminal jurisdiction of federal courts it entirely statutory.*^ 
 Hence, treaty crimes must be incorporated in acts of Congress be- 
 fore they become cognizable in federal courts.*^ 
 
 In general it may be said that where the cooperation of Congress 
 is necessary to carry out a treaty, Congress ought to act, exercising 
 discretion only as to the means most suitable for attaining the ends 
 contemplated by the treaty, and the duty is none the less binding in 
 international law and constitutional understanding from the fact 
 that the Constitution furnishes no power to compel it. The entire 
 system of the Constitution demands that each department accept in 
 good faith and cooperate in carrying out the undertakings of the 
 other departments. But such cooperation cannot be relied upon 
 unless the treaty power has given due consideration to the attitude 
 of Congress before making the commitment. 
 
 " There is force, no doubt," says David Jayne Hill, " in the contention 
 that the Congress of the United States is under a moral obligation to main- 
 tain the honor of the nation, which implies the strict fulfillment of all pledges 
 made by the treaty-making power, but there is even more weight in the 
 affirmation that the treaty-making power is under a moral obligation not to 
 pledge the honor of the nation in doubtful conditions, as well as under a 
 legal obligation not to destroy the freedom of a coordinate branch of the 
 government by pledging it to a performance beyond the intentions of the 
 Constitution from which all its authority is derived." *^ 
 
 *^ Supra, sees. 128, 129. 
 
 ■*7 Congress has passed laws giving courts jurisdiction over many offenses 
 against international law, supra, sees. 1 12-122. Although State courts must 
 regard treaties as the supreme law of the land, they appear to be excluded 
 from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. i, which 
 gives the Federal courts exclusive jurisdiction "of all crimes cognizable under 
 the authority of the United States." A treaty crime would probably be con- 
 sidered in this category, even if, because of the failure of Congress to act, 
 the Federal courts could not exercise jurisdiction. 
 
 48 Hill, Present Problems in Foreign Policy, 1919, p. 171. Secretary of 
 State Hughes has spoken to the same effect: "The extent to which Congress 
 would regard itself as bound, as a matter of good faith, to enact legislation 
 for the purpose of carrying out treaties has been the subject of debate, from 
 time to time, since the days of Washington. Despite these debates, and not- 
 withstanding its power to frustrate the carrying out of treaties. Congress in 
 a host of instances has passed the necessary legislation to give them effect; 
 and the disposition has frequently been manifested to avoid any basis for the 
 charge of bad faith through a disregard of treaty stipulations. . . . Foreign
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 357 
 
 C. Duty of the Departments to Act. 
 
 257. Constitutional Understanding Respecting the Establishment of 
 Necessary Instrumentalities. 
 
 The difficulty which arises from the lack of constitutional instru- 
 mentalities for meeting all international responsibilities is met in 
 part by the legal duty of the President " to take care that the laws 
 be faithfully executed " and in part by an understanding requiring 
 Congress to supply the instrumentalities necessary for meeting inter- 
 national responsibilities. Story pointed out that Congress was under 
 an obligation to establish inferior federal courts in order to carry 
 out the purposes of the Constitution.*^ 
 
 "If Congress may lawfully omit to establish inferior courts, it might 
 follow that in some of the enumerated cases the judicial power could no- 
 where exist. . . . Congress is bound to create some inferior courts, in which 
 to vest all that jurisdiction which, under the Constitution, is exclusively 
 vested in the United States, and of which the Supreme Court cannot take 
 original cognizance." 
 
 We have noticed that Congress, under the necessary and proper 
 clause, has power to provide for meeting international responsibil- 
 ities.^" It is believed that it is under a constitutional duty to exer- 
 cise these powers. 
 
 258. Duty of All Organs to Aid in Meeting International Respon- 
 sibilities. 
 
 The traditional conceptions of American statesmen has been that 
 all organs of government were bound to aid in the meeting of inter- 
 national responsibilities. 
 
 nations might be expected to take the view that they were not concerned with 
 our internal arrangements, and that it was the obligation of the United States 
 to see that the action claimed to have been agreed upon was taken. If that 
 action was not taken, although Congress refused to act because it believed it 
 was entitled to refuse, we should still be regarded as guilty of a breach of 
 faith. It is a very serious matter for the treaty-making power to enter into 
 an engagement calling for action by Congress unless there is every reason to 
 believe that Congress will act accordingly." (Address in New York, March 
 26, 1919, on the League of Nations Covenant, International Conciliation. 
 Special Bulletin, April, 1919, pp. 689-691.) See also supra, sec. 39- 
 
 49 Martin v. Hunter, i Wheat. 304 (1816). 
 
 "0 Supra, sec. 225.
 
 358 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 "The statesmen and jurists of the United States," says Sir Henry Maine, 
 " do not regard international law as having become binding on their country 
 through the intervention of any legislature. They do not believe it to be of 
 the nature of immemorial usage of which the memory of man runneth not to 
 the contrary. They look upon its rules as a main part of the conditions on 
 which a state is originally received into the family of civilized nations. . . . 
 If they put it in another way, it would probably be that the state which dis- 
 claims the authority of international law places herself outside the circle of 
 civilized nations." ''^ 
 
 In accordance with this conception of international law, Duponceau 
 has written : ^^ 
 
 " The law of nations is to be carried into effect at all times under the 
 penalty of being thrown out of the pale of civilization or involving the coun- 
 try in war. Every branch of the national administration, each within its 
 district and its particular jurisdiction, is bound to administer it. . . . Whether 
 there is or not a national common law in other respects, this universal com- 
 mon law can never cease to be the rule of executive and judicial proceedings 
 until mankind shall return to the savage state." 
 
 The exercise by each organ of all constitutional powers necessary 
 to assure the meeting of international responsibilities is a constitu- 
 tional understanding which each organ of the government ought to 
 observe. The United States has insisted upon this principle in its 
 dealings with other nations.^^ Foreign nations have diplomatically 
 and judicially asserted it.^* The Senate, the courts, the President 
 and text writers have maintained it at different times. ^^ It is diffi- 
 cult to see on what other principle the meeting of international re- 
 sponsibilities in good faith can be assured in a government of divided 
 powers, and if these responsibilities are not met it would seem that 
 the objects of the Constitution as stated in its preamble to which all 
 officers of the government are pledged under oath would be in 
 peril. Organs of government, says Pillet, must observe the more 
 
 51 Maine Int. Law, p. 37, supra, sec. 33. 
 
 "2 Duponceau, op. cit., p. 3. 
 
 83 Mr. Livingston, Sec. of State, to Mr. Serrurier, June 3, 1833, Wharton, 
 2: 67 ; supra, sec. 3. 
 
 54 French Conseil d'Etat, Dalloz, Juris. Gen., Rept. t. 42, s. v. Traite Int., 
 No. 131, Wright, Am. Jl. Int. Law, 12: 94. 
 
 ^^ Supra, sees. 11, 39, 69.
 
 RELATIONS OF INDEPENDENT DEPARTMENTS. 359 
 
 fundamental obligations of international law " on penalty of expos- 
 ing the state to a responsibility which may paralyze its sovereignty 
 and put obstacles to the reign of its national law." ^® 
 
 58 Piglet, Rev. Gen. de Droit Int. Pub.. 5 : 87.
 
 CHAPTER XIX.* 
 
 The Control of Foreign Relations in Practice. 
 
 259. The Position of the President. 
 
 Our study of the international and constitutional law governing 
 the conduct of foreign relations has brought out two facts. First, 
 that the President is the dominating figure. As the representative 
 authority under international law and as the authority with ex- 
 clusive power under constitutional law to communicate with foreign 
 nations he has the initiative in conducting foreign afifairs. No less 
 significant, however, is the fact that the President does not have con- 
 stitutional power to perform many acts essential to a proper con- 
 ducting of foreign relations. Many of these powers are vested in 
 other departments of the government, coordinate with the Presi- 
 dent. In such cases he is obliged to rely on persuasion and the 
 operation of understandings of the Constitution in order to carry 
 out foreign policies successfully, and to meet international respon- 
 sibilities. Has this proved a practically effective system for con- 
 ducting foreign relations? 
 
 260. Friction in the American System. 
 
 That it has often developed friction is unquestionable. "A 
 treaty entering the Senate," wrote John Hay, " is like a bull going 
 into the arena ; no one can say just how or when the final blow will 
 fall — but one thing is certain, it will never leave the arena alive." ^ 
 When the Secretary of State put this in his diary he had seen seven- 
 teen treaties borne from the Senate lifeless or so mutilated by amend- 
 ments that they could not survive. We can pardon his earlier state- 
 ment : " The fact that a treaty gives to this country a great, lasting 
 advantage seems to weigh nothing whatever in the minds of about 
 half the Senators. Personal interest, personal spites, and a con- 
 
 * The major portion of this chapter was published in the American Po- 
 litical Science Review, February, 1921. 
 
 1 Thayer, The Life of John Hay, 2 : 393. 
 
 360
 
 FOREIGN RELATIONS IN PRACTICE. 361 
 
 tingent chance of petty political advantage are the only motives 
 that cut any ice at present." ^ Numerous illustrations of strained 
 relations betv^een the Executive and the Legislature at Washington 
 might be cited. Thus in " The Education," Henry Adams records 
 the reply of a cabinet officer to his plea for patience and tact in 
 dealing with Congress : " You can't use tact with a Congressman ! 
 A Congressman is a hog ! You must take a stick and hit him on the 
 snout." 3 
 
 Going back even farther we find in John Quincy Adams's Diary 
 comment on a very early incident : * 
 
 " Mr. Crawford told twice over the story of President Washington's 
 having at an early period of his administration gone to the Senate with a 
 project of a treaty to be negotiated, and been present at their deliberations 
 upon it. They debated it and proposed alterations so that when Washington 
 left the Senate Chamber he said he would be damned if he ever went there 
 again. And ever since that time treaties have been negotiated by the 
 Executive before submitting them to the consideration of the Senate." 
 
 Senator Maclay, who was present at the time, records the same in- 
 cident in his journal on August 22, 1789.^ 
 
 " I cannot now be mistaken. The President wishes to tread on the 
 necks of the Senate. . . . He wishes us to see with the eyes and hear with 
 the ears of his Secretary only. The Secretary to advance the premises, 
 the President to draw the conclusions, and to bear down our deliberations 
 with his personal authority and presence. Form only will be left to us." 
 
 261. Criticisms of the American System. 
 
 The prevalence of such incidents suggests that the difficulties 
 which arose between President Wilson and the Senate in consider- 
 ing the Peace Treaty of Versailles were not wholly due to person- 
 alities. It suggests that institutions may have been partly to blame. 
 Indeed, Viscount Grey, in his letter to the Times of January 31, 
 1920, said that the American Constitution "not only makes possible, 
 but, under certain conditions, renders inevitable conflict between the 
 Executive and the Legislature." 
 
 ^Ibid., 2: 274. 
 
 3 The Education of Henry Adams, 1918, p. 261. 
 
 * Memoirs, 6: 427. 
 
 5 Journal of William Maclay, N. Y., 1890, p. 132.
 
 362 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 American commentators have often deplored this situation. 
 Frequently they have urged reform, usually in the direction of the 
 British cabinet system, but their attention has been centered upon 
 domestic affairs. It is an extraordinary fact that, with respect to 
 the control of foreign affairs, the reverse is true. British v^riters 
 have looked hopefully to the United States as a model for reform. 
 Thus, in his American Commonwealth, Lord Bryce says : ® 
 
 " The day may come when in England the question of limiting the 
 present all but unlimited discretion of the executive in foreign affairs will 
 have to be dealt with, and the example of the American Senate will then 
 deserve and receive careful study." 
 
 This opinion has been acted upon, and features of the American 
 system have been endorsed by the British union for democratic con- 
 trol of foreign relations founded in 1914/ 
 
 262. Need of Popular Control in Foreign Relations. 
 
 Two things seem to be needed in an institution designed to con- 
 duct foreign relations with success — concentration, or the ability to 
 act rapidly and finally in an emergency, and popular control giving 
 assurance that permanent obligations will accord with the interests 
 of the nation. The subordination of national interests to dynastic 
 and personal ends, prominent in sixteenth and seventeenth century 
 diplomacy, showed the vice of an irresponsible concentration of 
 power. The natural remedy seems to be parliamentary participa- 
 tion in treaty-making and war-making and this has in part been 
 provided for in most continental European Constitutions during the 
 nineteenth and twentieth centuries.^ In England alone, the Crown 
 
 8 American Commonwealth, 2d ed., p. 104. 
 
 '' " The Morrow of the War," first pamphlet issued by the Union of 
 Democratic Control, 1914, printed in Ponsonby, Democracy and Diplomacy, 
 London, 1915, p. 21. 
 
 ^ See Myers, Legislatures and Foreign Relations, Am. Pol. Sci. Rev., 
 11: 643 et seq. (Nov., 1917), and British report on Treatment' of Inter- 
 national Questions in Foreign Governments, Pari. Pap., Misc. No. 5 (1912), 
 Cd. 6102, printed in Appdx. II, Ponsonby, Democracy and Diplomacy, p. 
 128 et seq., and Heatley, Diplomacy and the Study of Foreign Relations, 
 1919, p. 270 et seq. See also Method* and Procedure in Foreign Countries 
 Relative to the Ratification of Treaties, 66th Cong., 1st Sess., Sen. Doc. 26.
 
 FOREIGN RELATIONS IN PRACTICE. 363 
 
 preserves its ancient prerogative in these matters and although in 
 practice Parliament is sometimes consulted before ratification of 
 important treaties, Lord Bryce and others have urged a more certain 
 method of popular control, suggesting study of the American proc- 
 ess of Senate participation.^ But why labor the point ! Democracy 
 is convinced of the merits of democratic diplomacy. There is 
 greater need to emphasize the importance of concentration. 
 
 263. Need of Concentration of Authority. 
 
 This need of concentration of power for the successful conduct 
 of foreign affairs was dwelt upon in the works of John Locke,^° 
 Montesquieu," and Blackstone,^- the political Bibles of the consti- 
 tutional fathers. It was emphasized by many speakers in the federal 
 
 ^ Supra, notes 6, 7. For relations of Crown and Parliament in treaty- 
 making in England, see Anson, Law and Custom of the Constitution, 3d ed., 
 II, pt. 2, p. 103 ct seq. 
 
 1° Supra, sec. 83. 
 
 ^i"By the (executive power, the prince or magistrate) makes peace or 
 war, sends or receives embassies, establishes the public security, and pro- 
 vides against invasions. . . . The Executive power ought to be in the 
 hands of a monarch ; because this branch of government which has always 
 need of expedition is better administered by one than by many; whereas, 
 whatever depends on the legislative power is oftentimes better regulated by 
 many than by a single person. But if there was no monarch, and the 
 executive power was committed to a certain number of persons selected from 
 the legislative body, there would be an end of liberty; by reason the two pow- 
 ers would be united, as the same persons would actually sometimes have, 
 and would moreover always be able to have, a share in both." (Montesquieu, 
 L'Esprit des lois, 1. xi, c. 6, ed. Philadelphia, 1802, i : 181, 186.) 
 
 12 " With regard to foreign concerns, the king is the delegate or repre- 
 sentative of his people. It is impossible that the individuals of a state, 
 in their collective capacity, can transact the affairs of that state with an- 
 other community equally numerous as themselves. Unanimity must be want- 
 ing to their measures, and strength to the execution of their counsels. In 
 the king, therefore, as in a centre, all the rays of his people are united, 
 and form by that union a consistency, splendor, and power that make 
 him feared and respected by foreign potentates ; who would scruple to enter 
 into any engagement that must afterwards be revised and ratified by a popu- 
 lar assembly. What is done by the royal authority, with regard to foreign 
 powers, is the act of the whole nation ; what is done without the king's con- 
 currence is the act only of private men." (Blackstone, Commentaries, i: 
 252.)
 
 364 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 convention," by the authors of the FederaHst/* and by President 
 Washington in his message on the Jay treaty .^^ The same opinion 
 
 13 See remarks by Hamilton and Gouverneur Morris, Farrand, op. cit., 
 i: 290, 513. 
 
 1* " It seldom happens in the negotiation of treaties, of whatever nature, 
 but that perfect secrecy and immediate dispatch are sometimes requisite. 
 There are cases where the most useful intelligence may be obtained, if the 
 persons possessing it can be relieved from apprehension of discovery. Those 
 apprehensions will operate on those persons whether they are actuated by 
 mercenary or friendly motives; and there doubtless are many of both de- 
 scriptions who would rely on the secrecy of the President, but' who would 
 not confide in that of the Senate, and still less in that of a large popular 
 assembly. The convention have done well, therefore, in so disposing of the 
 power of making treaties that although the President must, in forming 
 them, act by the advice and consent of the Senate, yert he will be able to 
 manage the business of intelligence in such a manner as prudence may 
 suggest. 
 
 " They who have turned their attention to the affairs of men must have 
 perceived that there are tides in them ; tides very irregular in their duration, 
 strength and direction and seldom found to run twice exactly in the same 
 manner or measure. To discern and to profit by these tides in national af- 
 fairs is the business of those who preside over them; and they who have had 
 much experience on this can inform us that there frequently are occasions 
 when days, nay, even when hours, are precious. ... So often and so essen- 
 tially have we heretofore suffered from the want of secrecy and dispatch that 
 the Constitution would have been inexcusably defective if no attention had 
 been paid to those objects. Those matters which in negotiations usually re- 
 quire the most secrecy and the most dispatch are those preparatory and 
 auxiliary measures which are not otherwise important' in a national view 
 than as they tend to facilitate the attainment of the objects of negotiation. 
 For these the President will find no difficulty to provide ; and should any cir- 
 cumstance occur which requires the advice and consent of the Senate, he 
 may at any time convene them." (The Federalist, Jay, No. 64, Ford, ed., pp. 
 429-430.) See also Hamilton, No. 70, Ford, ed., p. 467. 
 
 15 " The nature of foreign negotiations requires caution and their suc- 
 cess must often depend on secrecy; and even when brought to a conclusion 
 a full disclosure of all the measures, demands, or eventual concessions which 
 may have been proposed or contemplated would be extremely impolitic ; for 
 this might have a pernicious influence on future negotiations, or produce 
 immediate inconveniences, perhaps danger and mischief, in relation to other 
 powers. The necessity of such caution and secrecy was one cogent reason 
 for vesting the power of making treaties in the President, with the advice 
 and consent of the Senate, the principle on which that body was formed 
 confining it to a small number of members." (Washington's Message to 
 the House of Representatives, March 30, 1796, Richardson, op. cit., p. 194.)
 
 FOREIGN RELATIONS IN PRACTICE. 365 
 
 was restated by De Tocqueville, who, because he doubted the abiUty 
 of democracy to achieve this concentration, doubted its capacity to 
 cope with foreign affairs. 
 
 " As for myself," he said, " I have no hesitation in avowing my con- 
 viction, that it is more especially in the conduct of foreign relations that 
 democratic governments appear to me to be decidedly inferior to govern- 
 ments carried on upon different principles. Foreign politics demand scarcely 
 any of those qualities which a democracy possesses, and they require on 
 the contrary the perfect use of almost all those faculties in which it is de- 
 ficient. . . . Democracy is unable to regulate the details of an important 
 undertaking, to persevere in a design, and to work out its execution in the 
 presence of serious obstacles. It cannot combine its measures with 
 secrecy and it will not await their consequences with patience. These are 
 qualities which more especially belong to an individual or to an aristocracy 
 and they are precisely the means by which an individual people attains to 
 a predominant position." i^ 
 
 But lest the apologist of the " Ancient Regime " be thought 
 biased, let us hear a recent writer of a different school. Mr. Walter 
 Lippmann thus discusses the uses of a king:^^ 
 
 " The reason why we trust one man, rather than many, is because one 
 man can negotiate and many men can't. Two masses of people have no 
 way of dealing with each other. . . . The American people cannot all seize 
 the same pen and indite a note to si.xty-five million people living within 
 the German Empire. . . . The very qualities which are needed for negoti- 
 ation — quickness of mind, direct contact, adaptiveness, invention, the right 
 proportion of give and take — are the very qualities which masses of people 
 do not possess." 
 
 264. Practice in American History. 
 
 As practice is the best evidence of what Constitutions are, so 
 history is the best evidence of what institutions must become, if 
 
 18 Democracy in America, N. Y., 1862, i : 254. 
 
 1'^ The Stakes of Diplomac3\ 2d ed., 1917, pp. 26, 29. See also remarks of 
 Senator Spooner, of Wis., in Senate, January 23, 1906: "The conduct of 
 our foreign relations is a function which requires quick initiative, and the 
 Senate is often in vacation. It is a power that requires celerity. One course 
 of action may be demanded tonight, another in the morning. It requires 
 also secrecy; and that element is not omitted by the commentators on the 
 Constitution as having been deemed by the framers of the most vital im- 
 portance. It is too obvious to make elaboration pardonable." (Cong. 
 Rec, 40: 1420; quoted Corwin, op. cit., p. 176.) See also Sen. Doc. No. 56, 
 54th Cong., 2d Sess., pp. 6-18; Reinsch, World Politics, 1900, p. 334; Heatley, 
 op. cit., p. 71.
 
 366 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 they are to perform their functions. " Even democratic countries 
 like France and England," says Bryce, " are forced to leave foreign 
 affairs to a far greater degree than home affairs to the discretion 
 of the ministry of the day." ^^ The Greek city states in which diplo- 
 macy by mass meeting led to disaster when confronted by the as- 
 tuteness of Philip of Macedon are the exception which proves the 
 rule.^^ Thus, in the United States when foreign problems have 
 come to the front, concentrated authority has been developed to cope 
 with them. In the first period from 1789 to 1829 foreign relations 
 were complex. Presidents were chosen because of their experience 
 in diplomacy, and they displayed competence and leadership. There 
 was friction but in all cases until the last, — John Quincy Adams's 
 policy with reference to the Panama congress, — the President's pol- 
 icy prevailed. In the second period which extended from 1829 to 
 1898 our problems were mainly domestic. In these Congress as- 
 sumed a leadership and though Presidents continued to assert their 
 prerogative in foreign affairs, opportunities were only occasional 
 and defeats were frequent. Presidents were chosen for political 
 availability, not for ability or experience, and the Senate's power 
 of vetoing treaties was strengthened by frequent exercise. In his 
 "Congressional Government," presented as a doctor's thesis in 1885, 
 Woodrow Wilson generalized the progress of this period as fol- 
 lows : 20 
 
 " In so far as the President is an executive officer he is the servant of 
 Congress ; and the members of the Cabinet, being confined to executive func- 
 tions, are altogether the servants of Congress. 
 
 " Party government can exist only when the absolute control of ad- 
 ministration, the appointment of its officers as well as the direction of its 
 means and policy is given immediately into the hands of that branch of 
 the government whose power is paramount, the representative body. 
 
 " No one, I take it for granted, is disposed to disallow the principle 
 that the representatives of the people are the proper ultimate authority in 
 all matters of government and that administration is merely the clerical part 
 of government. Legislation is the originating force. It determines what shall 
 
 18 American Commonwealth, 2d ed., i : 218. See also Reinsch, World 
 Politics, p. 329. 
 13 Ibid., 1 : 217. 
 20 Congressional Government, isth ed., pp. 266, 273-274.
 
 FOREIGN RELATIONS IN PRACTICE. 367 
 
 be done; and the President, if he cannot or will not stay legislation by 
 the use of his extraordinary power as a branch of the legislature, is plainly 
 bound in duty to render unquestioning obedience to Congress. . . . The 
 principle is without drawback and is inseparably of a piece with all Anglo- 
 Saxon usage; the difficulty, if there be any, must lie in the choice of means 
 whereby to energize the principle. The natural means would seem to 
 be the right on the part of the representative body to have all the executive 
 servants of its will under its close and constant supervision, and to hold 
 them to a strict accountability ; in other words, to have the privilege of 
 dismissing them whenever their service became unsatisfactory." 
 
 The third period began with the Spanish War of 1898. Our 
 foreign relations have increased in complexity and with them the 
 President's power and influence; but because of the enlarged sense 
 of senatorial prerogative, developed through three-quarters of a 
 century of comparative diplomatic isolation, friction has been ex- 
 treme.^^ Woodrow Wilson, now professor of politics at Princeton 
 University, wrote a preface for the 15th edition of his book in 
 1900.22 
 
 " Much the most important change to be noticed is the result of the 
 war with Spain upon the lodgment and exercise of power within our federal 
 system ; the greatly increased power and opportunity for constructive states- 
 manship given the President, by the plunge into international politics and 
 into the administration of distant dependencies, which has been that war's 
 most striking and momentous consequence. When foreign affairs play a 
 prominent part in the politics and policy of a nation, its Executive must of 
 necessity be its guide; must utter every initial judgment, take every first step 
 of action, supply the information upon which it is to act, suggest and in 
 large measure control its conduct. 
 
 " It may be, too, that the new leadership of the Executive, inasmuch as it 
 is likely to last, will have a very far-reaching effect upon our whole method 
 of government. It may give the heads of the executive departments a new 
 influence upon the action of Congress. It may bring about, as a conse- 
 quence, an integration which will substitute statesmanship for government 
 by mass meeting. It may put this whole volume hopelessly out of date." 
 
 Where the President has acted in domestic administration, he 
 has acted within limits, narrowly defined by Congress, and as time 
 has gone on, his discretion in this field has become less and less. 
 Where, on the contrary, he has acted in foreign affairs, his discre- 
 tion has been very wide, and Congress has generally followed his 
 
 21 Reinsch, American Legislatures, p. 95 i Willoughby, op. cii., p. 460. 
 
 22 Congressional Government, pp. xi-xiii.
 
 368 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 lead. " The Senate," says Carl Russell Fish, speaking of the period 
 since 1898, "has been confined to checking or modifying the policy 
 of the administration. The direction of policy has been with the 
 executive." ^^ Can we not assume that the result of over a century 
 of experience under the Constitution illustrates certain necessities 
 in an adequate control of foreign affairs? 
 
 24 
 
 265. Constitutional Change Not Necessary. 
 
 Our system for controlling foreign relations has been copied 
 in its main outlines on the continent of Europe, and its adoption 
 has been suggested as a reform worth considering in England. It 
 has in it elements making for concentration of authority in an 
 emergency, yet it assures control by the people's representatives of 
 permanent obligations. More than all we are used to it. Remem- 
 bering Montaigne's warning that " all great mutations shake and 
 disorder a state,"" we may question the advisability of radical 
 change in the Constitution. 
 
 266. Need of Constitutional Understandings. 
 
 Improvement lies not in structural change in our organs for con- 
 trol of foreign relations.^" but in the development of understandings 
 
 23 American Diplomacy, N. Y., 1916, p. 428; see also Reinsch, World 
 Politics, p. 337. 
 
 2* Corwin, op. cit., p. 207. 
 
 25 Montaigne, Essays, Cotton, ed., 2: 760. 
 
 26 The writer is inclined to believe that a change in the treaty power from 
 two-thirds of the Senate to a majority of both houses would be an improve- 
 ment. This would be in accord with the practice of most continental Euro- 
 pean governments. It would obviate the complaint of the House of Repre- 
 sentatives and eliminate the ever present possibility of inability to execute a 
 treaty, valid at international law, because of refusal of the House to agree to 
 appropriations or necessary legislation. It would also make deadlocks less 
 frequent. One party is much more likely to control a majority of both 
 houses than two-thirds of the Senate. The main objection of the fathers to 
 submission to the House was on the score of secrecy, and this has frequently 
 been abandoned by the Senate in recent years. This change, which would, of 
 course, require a constitutional amendment, would m.ake the treaty-making 
 power the same as the legislative power, except that the President would have 
 the sole initiative, and retaining an ultimate decision on ratification, would 
 have an absolute veto. See also J. T. Young, The New American Movement, 
 N. Y., 1915, p. 25, and former Representative and Governor of Massachusetts, 
 S. W. McCall, "Of the Senate" and "Again the Senate," Atlantic Monthly, 
 Oct., 1903, and Sept., 1920.
 
 FOREIGN RELATIONS IN PRACTICE. 369 
 
 for the smooth interaction of the independent departments of govern- 
 ment.28^ Lord John Russell remarked that " political constitutions in 
 which different bodies share the supreme power are only enabled to 
 exist by the forbearance of those among whom this power is dis- 
 tributed." '" It is a familiar thought and has been developed in 
 detail by Professor Dicey, who distinguishes the conventions or 
 understanding from the law of the British Constitution. The former 
 explain how the independent organs of the supreme power, King, 
 Lords and Commons, shall exercise their discretion, i.e., how the 
 Crown shall exercise its prerogative and the Houses of Parliament 
 their privileges. He believes that in England these conventions have 
 grown up so as to assure the ultimate triumph of the will of the 
 political sovereign, i.e., the majority of the voters for members of 
 the House of Commons.^' 
 
 In the eighteenth century the British Constitution, though per- 
 haps organized to preserve liberty, as Montesquieu, De Lolme and 
 Blackstone thought, was a jarring and jangling instrument. There 
 was little of smoothness in the relations of George III, his ministers 
 and his parliaments. The United States Constitution is now in 
 that condition. We have good institutions but we have not yet de- 
 veloped constitutional manners which will make them work like a 
 well-ordered dinner party. The crudity of Jefferson's pell mell 
 banquet and Jackson's Peggy O'Neil cotillion persists in the rela- 
 tions of the departments of government. 
 
 Our conventions will not be those of England. In the conduct 
 of domestic affairs, our system of legally enforceable Hmitations^ 
 upon power rather than the English system of unlimited power, 
 subject to immediate political responsibility for its exercise, is likely 
 to persist. We will continue to rely upon legal responsibility, rather 
 than political responsibility as in England, or administrative respon- 
 sibility as on the continent of Europe. In short, the object of the 
 conventions and understandings which we will develop will be the 
 ultimate triumph of the people acting through the constitution- 
 amending process, not as in England, the people acting through an 
 election to the House of Commons. 
 
 26a See Appendix B, p. 375. 
 
 27 Quoted, Wilson, Cong. Govt., 15th ed., p. 242. 
 
 »' Dicey, The Law of the Constitution, 8th ed., Chap. XIV.
 
 370 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 In the conduct of foreign affairs, however, there will probably 
 be a closer approximation in the two countries. At present parlia- 
 mentary control does not exist in the British foreign office-'' any 
 more than constitutional limitations check the President's control 
 of foreign relations.^" In foreign affairs neither a daily question- 
 ing under threat of ousting from office, nor a judicially interpreted 
 confinement to constitutional powers has proved feasible. Until 
 international organization is much further developed, great discre- 
 tion must be vested in a single head. Acts involving assumptions 
 of national responsibility must be final. Under present conditions 
 we must frankly recognize executive leadership in foreign affairs. 
 But we must attempt to develop understandings so that the Presi- 
 dent's wide discretion will only be exercised after the most careful 
 consideration possible, and in a way which will make the employment 
 of a senatorial or congressional veto an extreme rarity, and an im- 
 peachment a virtual impossibility. Such understandings might de- 
 velop through : 
 
 1. Declaration by Congress of permanent policies, not in any 
 way restricting executive methods, but pointing the general ends 
 toward which the President should direct his effort ; ^^ 
 
 2. Development by treaty of international organization and ar- 
 bitration so as to bring as large a portion of diplomacy as possible 
 under the control of recognized principles of international law, an 
 atmosphere in which democratic institutions, and particularly Amer- 
 ican institutions, have always thriven ; '^ 
 
 2» See remarks of A. J. Balfour and Premier Asquith to Select Committee 
 of the House of Commons on Procedure, 1914 (Report 378), printed in 
 Ponsonby, op. cit., Appdx. i, p. 121 et seq. See also ibid., p. 45 et seq., 
 Heatley, op. cit., pp. 68-70, 265, and supra, note 18. 
 
 30 See H. J. Ford, " The War and the Constitution," and " The Growth 
 of Dictatorship," Atlantic Monthly, Oct., 1917, and May, 1918, and supra, 
 sec. 68. 
 
 31 Supra, sec. 204. 
 
 32 " Democracies are absolutely dependent for their existence upon the 
 preservation of law. Autocracies can give commands and enforce them. 
 Rules of action are a convenience, not a necessity, for them. On the other 
 hand, the only atmosphere in which a democracy can live between the danger 
 of autocracy on one side and the danger of anarchy on the other is the
 
 FOREIGN RELATIONS IN PRACTICE. 371 
 
 3. Observance by the independent departments of government 
 of the understanding that toleration, consideration, and respect 
 should grace the exercise of powers which may collide with the 
 powers of other departments, which may need supplementing by the 
 action of other departments, or which may be indispensable for the 
 meeting of international responsibilities.^^ Finally, as a necessary 
 condition of such observance ; 
 
 4. Maintenance of close informal relations between the agencies 
 of the government having to do with foreign affairs. Such rela- 
 tions now exist between the President and the administrative depart- 
 ments represented in the Cabinet. Why should not the Cabinet be 
 enlarged so as to include representatives of the legislative branch? 
 The Vice-President, who is closely in contact with the Senate, has 
 been added by President Harding. But a more genuine congres- 
 sional point of view could be gained by admitting also the Speaker 
 of the House, President pro tem. of the Senate, and perhaps the 
 Chairman of the House Committee on Foreign Affairs and the Sen- 
 ate Committee on Foreign Relations. The President, sitting with 
 these five ofificials, together with the Secretaries of State, Treasury, 
 War, Navy, Commerce and the Attorney-General, would form a 
 Cabinet capable of reaching decisions on foreign affairs likely to 
 secure cooperation from all departments of the government and yet 
 not too large to do business. ^^ 
 
 Closer relations might also be established by the President with 
 Congress and especially with the Senate through personal delivery 
 of messages and explanations of his policy, but always at his ini- 
 tiative.^^ The present practice, whereby Congress does not " di- 
 rect " the Secretary of State to submit papers and information as it 
 
 atmosphere of law. . . . The conception of an international law binding upon 
 the governments of the world is, therefore, natural to the people of a democ- 
 racy, and any violation of the law which they themselves have joined in 
 prescribing is received with disapproval, if not with resentment." E. Root, 
 The Effect of Democracy on International Law, Proc. Am. Soc. Int. Law, 
 
 1917, pp. 7-8. 
 
 33 Supra, sec. 244. 
 
 3* The writer owes this suggestion to Professor John A. Fairlie. 
 
 35 " Rule XXXVI of the Standing Rules of the Senate still provides the 
 manner in which the President is to meet the Senate in executive session. 
 Henry Cabot Lodge, in referring to the recognition in this rule of the right
 
 372 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 does other cabinet officers but requests the real head of the depart- 
 ment, the President of the United States, "to submit matters if, in 
 his judgment, not incompatible with the public interest," must be 
 maintained.^® 
 
 Finally, close informal relations between the President and con- 
 gressional committees on foreign affairs should exist, here again 
 at the President's initiative. President Madison was right, as Sen- 
 ator Lodge pointed out in 1906, in refusing to receive a Senate com- 
 mittee sent on command of that body to interview him with refer- 
 ence to an appointment of a minister to Sweden. ^^ But the Pres- 
 ident should often invite such committees to discuss with him.^* 
 Thus, without limiting the President's power in foreign relations, 
 or in any way impairing his capacity to take speedy action when 
 necessary, we might develop understandings which would show him 
 how he ought to exercise his discretion — understandings sanctioned 
 in last analysis by the possibility of Senate or congressional veto of 
 his measures, defeat of his party in the next election, or even im- 
 peachment. 
 
 Though this essay has dealt with constitutional law and consti- 
 tutional understandings, it must be emphasized that the system is not 
 the most important part of government. Any system will work 
 with big men.^^ It is the merit of the British system that it throws 
 
 of the President to meet with the Senate in consideration of treaties, said in 
 the United States Senate, January 24, 1906: 'Yet I think we should be dis- 
 posed to resent it if a request of that sort was made to us by the President.' 
 Cong. Rec, 59th Cong., ist sess., 1470" (Crandall, op. cit., p. 68, note 5). 
 But see remarks of Senator Bacon, supra, sec. 176. President Wilson revived 
 the custom in abeyance since the time of John Adams of appearing in person 
 before Congress for the delivery of formal messages. 
 
 3" Supra, sec. 234. 
 
 37 " In the administration of Mr. Madison the Senate deputed a committee 
 to see him in regard to the appointment of a minister to Sweden, and he 
 replied that he could recognize no committee of the Senate, that his relations 
 were exclusively with the Senate." Senator Lodge of Massachusetts, Jan. 23, 
 1906, Cong. Rec, 40: 1420, quoted Corwin, op. cit., pp. I74-I7S. 
 
 ^^ Supra, sec. 176. A recent illustration is President Wilson's offer to 
 discuss the treaty of Versailles with the Senate Foreign Relations Committee, 
 an offer which resulted in several conferences in the White House during the 
 summer of 1919. See 66th Cong., ist sess., Sen. Doc. 106, p. 499 et seq. 
 
 3^ " Constitute government how you please, infinitely the greater part of 
 it must depend upon the exercise of powers which are left at large to the
 
 FOREIGN RELATIONS IN PRACTICE. 373 
 
 big men to the top. The United States must develop political tradi- 
 tions and methods that will do the same.^° The people and parties 
 must insist on men of experience and tried capacity as candidates. 
 For the conduct of foreign relations, the personnel of the Presidency, 
 the Secretaryship of State and the Senate are especially important. 
 The Senate might well have more members with executive and ad- 
 ministrative experience as did the Senate of ancient Rome. Why 
 not retain the services of ex-Presidents and Secretaries by electing 
 them to the Senate ? *^ Conversely, Secretaries of State might well 
 be chosen from men of legislative, especially senatorial, experience." 
 Finally, the President on whom falls final responsibility for leading 
 the separated and often antagonistic agencies of government to the 
 goal of a successful foreign policy should not be a dark horse. Why 
 not develop traditions of advancement, as from a governorship to the 
 Senate, then to the Vice-Presidency, or to the Cabinet, and finally 
 to the Presidency. It was done in the first forty years of our 
 national history.*^ It would lead bigger men to the Senate and 
 Cabinet. It would insure capacity and popular confidence in the 
 President. 
 
 prudence and uprightness of ministers of state. Even all the use and potency 
 of the laws depends upon them. Without them your Commonwealth is no 
 better than a scheme upon paper; and not a living, active, effective organiza- 
 tion." Edmund Burke. 
 
 40Reinsch, World Politics, pp. 340-346. 
 
 <i There have been some notable examples of this in recent years, such as 
 Senators Root and Knox. 
 
 42 "From Monroe's Secretaryship of State in 181 1, down to the resigna- 
 tion of Mr. Blaine, that position was held constantly by men who had been 
 United States Senators, with the exception of brief interregna, covering alto- 
 gether less than one and a half years, and with the exception of William M. 
 Evarts, who became a Senator later in his career. Since the resignation of 
 Mr. Blaine an entirely new system has come into use. Senators Sherman (and 
 Knox) being the only Secretaries of State who had also been members of 
 the Senate. Under these circumstances, it is not surprising that there should 
 have been more friction between the President and the Senate^ on foreign 
 matters than existed during the earlier years of our nation's life." (Reinsch, 
 Am. Legislatures, p. 95, quoted in Willoughby, op. cit., p. 460.) 
 
 «For table showing the experience of American Presidents, see Am. 
 Pol. Sci. Rev., 15: 25. Wilson (Congressional Government, pp. 251-256) 
 refers to the tendency of the governorship rather than membership in the 
 Senate or House to be in the line of promotion to the presidency.
 
 APPENDIX A. 
 
 Congressional Delegation of Power to Make International 
 
 Agreements.^ 
 
 The above heading may occasion criticism. Thus Professor J. B. 
 Moore is inchned to think that "no 'delegation' of power whatever 
 is involved in the matter." 
 
 " As Congress possess no power whatever to make international agree- 
 ments," he continues, " it has no such power to delegate. All that Congress 
 has done in the cases referred to is to exercise beforehand that part of the 
 function belonging to it in the carrying out of a particular class of interna- 
 tional agreements. Instead of waiting to legislate until an agreement has been 
 concluded and then acting on the agreement specifically, Congress has merely 
 adoptea in advance general legislation under which agreements, falling within 
 its terms, become effective immediately on their conclusion or their procla- 
 mation." 2 
 
 It is true that Congress has no agreement making power to dele- 
 gate,^ but it is also true that in fields covered by Congressional legis- 
 lation the President can not make an agreement until Congress has 
 passed an authorizing act.* Treaties will supersede earlier legisla- 
 tion, but this force has never been attributed to executive agreements. 
 In the type of subject matter here involved an agreement is necessarily 
 both an international bargain and a national regulation. Now, while 
 Congress has no power to make an international bargain, it does have 
 power to regulate postal service, copyrights, tariffs, etc. Strictly it 
 is this power to make regulations within the scope of general laws 
 which it delegates to the President and not the power to make bar- 
 gains with foreign nations, but since in dealing with matters of 
 domestic administration within the power of Congress the two are 
 inextricably connected, the result in this field is the same as though 
 the power to make the agreement flowed wholly from the Congres- 
 sional act. It has therefore seemed least misleading to adhere to the 
 usage suggested both by custom and the language of Congressional 
 acts. 
 
 1 See section 6i. 
 
 2 Proc. Am. Phil. Soc, Minutes, 6o: XV. 
 
 3 Supra, sec. 159. 
 * Supra, sec. 162. 
 
 375
 
 APPENDIX B. 
 
 Constitutional Understandings.^ 
 
 Professor J. B. Moore has pointed out that " so-called constitu- 
 tional understandings are logically much more of the essence of 
 things under the British system than under the American system," 
 noting the analogy of the former constitution to the common-law 
 system of private rights established by gradually developing judicial 
 precedents and of the latter constitution to the civil-law system estab- 
 lished by formal code.^ "Just as the British Constitution," said 
 Gladstone, " is the most subtle organism which has proceeded from 
 progressive history, so the American Constitution is the most wonder- 
 ful work ever struck off at a given time by the brain and purpose of 
 man." ^ The same contrast has been noted by Bryce in his contrast 
 of " rigid " and " flexible " constitutions.* Without questioning the 
 value of this contrast many writers have, however, dwelt upon the 
 "flexibility" of the "rigid" American Constitution due to "consti- 
 tutional understandings." ^ 
 
 1 See section 266. 
 
 2Proc. Am. Phil. Soc, Minutes, 60: XIV. 
 
 3 Fisk, Critical Period of American History, p. 264. 
 
 * Bryce, Studies in History and Jurisprudence, i: 139 et seq. 
 
 ^ Wilson, Congressional Government, 1885, pp. 7-9, Constitutional Gov- 
 ernment, in the United States, 1908, p. 57 ; Bryce, American Commonwealth, 
 ed. 1891, i: 390; Beard, American Government, ed. 1910, p. 60; Munro, Gov- 
 ernment of the United States, 1919, p. 57; Wright, The Understandings of 
 International Law, Am. Journ. Int. Law, 14: 578-580. 
 
 376
 
 INDEX 
 
 Abrogation of treaty. (See Treaty.) 
 Act of Congress : 
 
 Authority of President to use 
 force under, 308. 
 
 Construed in accord with inter- 
 national law, 165. 
 
 Enforcement of international 
 law by, 186-187. 
 
 Ignored by President, 341. 
 
 Insufficiency of, to meet all in- 
 ternational responsibilities, 185- 
 i8g. 
 
 Limitation of state powers by, 
 
 74- 
 
 Provisos in deference to inter- 
 national law and treaty, 163- 
 164. 
 
 Publication of, 31. 
 
 Source of Federal criminal 
 jurisdiction, 199. 
 
 Subject to international cogni- 
 zance, 30, 32, 40. 
 
 Supersedes customary interna- 
 tional law, 174. 
 
 Supersedes earlier treaty, 162, 
 
 345- 
 
 Superseded by later treaty, 164. 
 
 Superseded by arbitration award, 
 no. 
 
 Vetoed by President because 
 violative of treaty, 164-165. 
 
 When effective, 31, 199. 
 Acts of Congress referred to : 
 
 Alien enemies, 86, 303. 
 
 Alien exclusion and expulsion, 
 83, 188, 303, 304. 
 
 Alien landholding, 163-164. 
 
 Annexation of territory, 275. 
 
 Anti-trust, 165. 
 
 Appreciation of foreign compli- 
 ments, 278. 
 
 Appropriation for international 
 claims, 66, 226. 
 
 Arming of merchant vessels, 
 294-295. 
 
 Arms trade, 184. 
 
 Authorizing arbitration, 281, 283. 
 
 Authorizing armament limita- 
 tion conference, 278, 282. 
 
 Authorizing executive agree- 
 ments, 105, 106. 
 
 Authorizing intervention, 271, 
 297. 
 
 Authorizing participation in in- 
 ternational organization, 228, 
 
 334. 
 
 Authorizing President and 
 
 Courts to meet international 
 
 responsibilities, 100. 
 Authorizing treaty negotiation, 
 
 248. 
 Authorizing use of force, 167, 
 
 186, 192, 296, 297. 
 Cable landing, 302. 
 Canal tolls, 163. 
 Chinese exclusion, 83, 261, 345. 
 Citizenship, 277. 
 Copyrights, 105. 
 Declaration of war, 286, 289. 
 Diplomatic immunities, 163, 167. 
 Draft, 163. 
 Enforcement of consular awards, 
 
 185. 
 
 Enforcement of treaties, 74. 
 
 Embargo and non-intercourse, 
 301-302. 
 
 Expatriation, 277-281. 
 
 Extradition, 184, 194. 
 
 Forbidding Presidential partici- 
 pation in international confer- 
 ences, 325. 328, 335. 
 
 Fulfillment of guarantees, 227. 
 
 Guano islands, 134, 'i7?>, 274. 
 
 International navigation rules, 
 181. 
 
 377
 
 378 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Jurisdiction in Bering Sea, 164, 
 
 165, 174. 345- 
 
 Jurisdiction of Federal courts, 
 170, 198. 
 
 Migratory birds, 87. 
 
 Militia, 94. 
 
 Navigation and shipping, 84, 163, 
 258, 281, 345. 
 
 Neutrality, 74, 181, 295. 
 
 Offenses against diplomatic offi- 
 cers, 180. 
 
 Offenses against foreign cur- 
 rency, 182. 
 
 Offenses against international 
 boundaries, 183. 
 
 Offenses against international 
 law, 87, 179-184, 356. 
 
 Offenses against resident aliens, 
 180. 
 
 Offenses against treaties, 184- 
 186. 
 
 Offenses at sea, 165. 
 
 Offenses in foreign countries, 
 183. 
 
 Oil leases, 301. 
 
 Organization of diplomatic and 
 consular services, 167. 
 
 Organization of military and 
 naval services, 167. 
 
 Patents, 105. 
 
 Piracy, 180. 
 
 Postal service. 105. 
 
 Presentation of claims, 22, 29. 
 
 Prize money, 345. 
 
 Prizes, 164, 167. 
 
 Rank of diplomatic officers, 324, 
 325. 
 
 Recommending state enforce- 
 ment of international law, 177, 
 179, 180. 
 
 Release from state jurisdiction 
 of person exempt under inter- 
 national law, 161, 171, 180, 229. 
 
 Return of deserting seamen, 184. 
 
 Retaliation, 301. 
 
 Sedition and espionage, 188. 
 
 Tariff, 106, 164. 
 
 Tenure of office, 316. 
 
 Termination of treaties, 256, 281. 
 
 Trademarks, 105. 
 
 Trading with the enemy, 303. 
 
 Treatment of enemy property, 
 
 301. 
 War power, 74. 
 White slavery, 87. 
 Acts of government organs, respon- 
 sibility for, 151. 
 Acts of parliament, when void, 210. 
 Adams, Charles Francis : 
 
 On President's power to termi- 
 nate treaty, 39. 
 On American accession to Decla- 
 ration of Paris, 47. 
 Adams, Henry, On relations of Con- 
 gress and the President, 361. 
 Adams, John : 
 
 Dismissal of Secretary of State, 
 Z22. 
 
 On power to arm merchant ves- 
 sels, 295. 
 Adams, John Quincy: 
 
 On duty to ratify treaties, 43, 
 
 252. 
 On recognition, 270, 272. 
 On relations of President and 
 Senate, 361. 
 Admiralty jurisdiction of federal 
 
 courts, 200. 
 Administrative Agreements. (See 
 
 Executive Agreements.) 
 Advice, meaning of, in League of Na- 
 tions Covenant, 114. 
 Agents, power of President to ap- 
 point, 249, 315. (See also Diplo- 
 matic Agents.) 
 Agreement: 
 
 Determination of obligations by, 
 
 218. 
 National Obligations founded on, 
 206. 208. 
 Agreements, international, conclu- 
 siveness of President's statements 
 condemning, 41. 
 Alabama, arbitration on " due dili- 
 gence," 176, 177. 
 Alabama, case of, 18. 
 Alabama claims court, 222. 
 Algeciras general act. (See Treaty.) 
 Alien enemies, expulsion and intern- 
 ment of, 85, 304. 
 Aliens:
 
 INDEX. 
 
 379 
 
 Congressional power to protect, 
 
 88. 
 Exclusion of, constitutional, 83, 
 
 130, 303. 
 Expulsion of constitutional, 83, 
 
 303- 
 Indemnity for injury of, 225. 
 Insufficiency of legislation to pro- 
 tect, 187. 
 International law applied in cases 
 
 regarding status of, 172. 
 Jurisdiction of federal courts in 
 
 cases aflfecting, 201-203. 
 Offenses against punished, 180. 
 Rights of, 170, 201. 
 Source of power to exclude and 
 
 expel, 133. 
 State legislation discriminating 
 
 against, 162. 
 State power to protect, 154, 179. 
 (See also Treaties.) 
 Ambassador, power to appoint, 325. 
 
 (See also Diplomatic Officers.) 
 Amelia Island Case, 193, 296. 
 Amendment to constitution. (See 
 
 Constitution of United States.) 
 Amendment to treaty. (See Trea- 
 ties.) 
 Amends in reparation, 229. 
 American Civil War : 
 
 Commencement of, 288. 
 Termination of, 291. 
 Anarchy, offense against interna- 
 tional law, 188. 
 Annexation. (See Act of Congress, 
 
 Territory, Treaties.) 
 Appam, case of, 24, 342. 
 Apology, amends by, 229. 
 Appointment of officers, power to 
 
 make, 314. 
 Appropriations, power to make, 225. 
 Arbitration, International: 
 
 Authority to submit cases to, 62, 
 
 222, 223. 
 Awards binding, 61, 224. 
 Awards self executing as to 
 
 boundary settlements, 226. 
 Awards supreme law of the land, 
 
 174, 224, 245. 
 Duty to submit cases to, 222. 
 Effect of fraud, 22^, 22i,. 
 Grounds for rejecting award, 224. 
 
 Number of cases settled by, 244. 
 Submission of cases to, constitu- 
 tional, no. 
 Types of cases submitted to, 215. 
 (See also Treaty.) 
 Arbitration court, establishment of, 
 
 334. 
 Arbitration Treaties, 109, 223. 
 
 Definition of justiciable ques- 
 tions, 211-212. 
 Not applicable to third parties, 
 
 166. 
 Senate rejection of, 252. 
 Suggested by Congress, 248. 
 Arguelles, case, 78, 190, 195, 237. 
 Armament limitation : 
 
 Provisions of League of Nations 
 
 Covenant, 114. 
 Treaties on, suggested by Con- 
 gress, 248. 
 Armies, power to raise, 85. 
 Armistice, 240. (See also Executive 
 
 Agreement.) 
 Arms trade, 184, 191. 
 Aroostook war, 230. 
 Arthur, Chester A., President, Veto 
 of Chinese exclusion act, 165, 261. 
 Articles of Confederation, 21. 
 
 Control of Foreign Relations 
 
 under, 61, 138. 
 Legislation enforcing interna- 
 tional law under, 177, 179, 180. 
 National powers under, 145. 
 Treaty power under, 43, 246. 
 Assassination, not a political offense, 
 
 189. 
 Asylum, not permitted, 168. 
 Austin, John, on Nature of Interna- 
 tional law, 210. 
 Austria: 
 
 Protest on President's comment 
 
 on Kossuth revolution, 36. 
 Termination of war with, 293. 
 (See also Treaties.) 
 Austria-Hungary, declaration of war 
 against, 289. 
 
 Bacon. Senator, of Georgia: 
 
 On legislative nature of treaty- 
 making power, 139, 140. 
 On Senate participation in treaty 
 negotiation, 250.
 
 380 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Baldwin, Simeon E., On power of 
 President to conclude compromis 
 of arbitration, io8. 
 Barnett, James F., on power of 
 
 states to make agreements, 232. 
 Bayard, T. F., Secretary of State: 
 On display of force, 294. 
 On international responsibilities, 
 
 18. 
 On power to interpret political 
 
 treaties, 215. 
 On powers of Congress and 
 President to determine obliga- 
 tions, 216. 
 On Senate amendments to treaty, 
 
 47. 
 
 On termination of war, 291. 
 
 Belligerency: 
 
 Distinguished from insurgency, 
 
 200, 269. 
 Recognition of, a political ques- 
 tion, 172. 
 Benton, Thomas Hart, Senator from 
 Missouri : 
 On Diplomatic Officers. 
 Resolution on Texan annexa- 
 tion, 279. 
 Bering Sea fisheries case, no, 164, 
 
 165, 174. 343- 
 
 Bering Sea fisheries treaty, suggested 
 by Congress, 248. (See also Trea- 
 ties.) 
 
 Bernstorff, Count, German Ambas- 
 sador, rebuked, 29. 
 
 Beust, Count, Austrian Chancellor, 
 on Concert of Europe, 319. 
 
 Beveridge, A. J., Senator from Indi- 
 ana: 
 
 On executive nature of foreign 
 
 relations power, 137. 
 On nature of treaty-making 
 power, 139. 
 
 Bibb, Senator, of Georgia, on ap- 
 pointment of diplomatic officers, 
 326-327. 
 
 Bills of rights, reason for, 172. 
 
 Blackstone, Sir William, on control 
 of foreign relations, 363. 
 
 Blaine, James G., on Congressional 
 resolutions on foreign policy, 280. 
 
 Blockade proclamation, effect of, 38, 
 288. 
 
 Borchard, E. M. : 
 
 On international court of claims, 
 
 225. 
 On making of contracts, 41. 
 On power of government to 
 
 abandon claims, 82. 
 On power of officers to bind the 
 
 state, 26. 
 On President's power to use 
 
 force abroad, 307. 
 On responsibilities of states, 151. 
 Boundaries : 
 
 Demarkation of, 232. 
 
 Executive agreements regarding, 
 
 239- 
 Offenses relating to punished, 
 
 183. 
 Recognition of changes in, 274. 
 Boxer rebellion, 241, 285, 296. 
 Brazil, recognition of insurgent navy 
 
 of, 40. 
 Breaking diplomatic relations. (See 
 
 Diplomatic relations.) 
 Brewer, Justice : 
 
 On nature of national powers, 
 
 131. 
 On political questions, 83. 
 British Empire, International respon- 
 sibilities of, 15. (See also Great 
 Britain.) 
 Bryan, William J., Secretary of 
 State : 
 On irregularity of diplomatic 
 communications to the people, 
 22. 
 On responsibilities of German 
 Government for Prussian 
 treaty, 16. 
 Peace treaties by. (See Trea- 
 ties.) 
 Bryce, James : 
 
 On cognizability of acts of Con- 
 gress, 2^. 
 On control of foreign relations, 
 
 366. 
 On influence of Senate in for- 
 eign affairs, 362. 
 On rigid and flexible constitu- 
 tions, 375. 
 Burke, Edmund, on discretion in the 
 conduct of government, 272.
 
 INDEX. 
 
 381 
 
 Burlingame treaty. (See Treaties, 
 China.) 
 
 Burton, Senator, on Arbitration trea- 
 ties, 112. 
 
 Cabinet, relation to President, 371. 
 Cable, power to regulate, 302. (See 
 
 also Treaties, Submarine cable.) 
 Calhoun, John C. : 
 
 On treaty-making power, loi, 
 
 103, 121-122, 344. 
 On unitary responsibility under 
 
 international law, 25. 
 
 Calif orniia-Japanese controversies. 
 (See Japan.) 
 
 Canadian Waterway Commission, 
 
 183, 219. 
 Capitulations, 240. 
 Caroline case, 206. 
 
 Cartel, 235, 240. (See also Execu- 
 tive agreement.) 
 Ceremonials, obligation of, 209. 
 Cherokee Indians. (See Treaties.) 
 China: 
 
 Dispatch of troops to, by Presi- 
 dent, 227. 
 Reservation to treaty of Ver- 
 sailles, 49. (See also Trea- 
 ties.) 
 Chinese exclusion acts : 
 
 Protected by China, 17, 162. 
 Subject to international cogni- 
 zance, 32. (See also Acts of 
 Congress.) 
 Citizens of the United States, defini- 
 tion, 276. 
 Citizenship: 
 
 Determination by courts, 278. 
 Recognition by Department of 
 state, 277. 
 Civil services, observance of interna- 
 tional law by, 167. 
 Civil war, authority to use force in, 
 193. (See also American Civil 
 War.) 
 Claims : 
 
 Delegation of power to settle, 
 
 220. 
 International, 82, 209. 
 Law applied in settling, 222. 
 
 May be compromised, 82. 
 May be presented to President, 
 222. 
 
 Mode of presentation, 23, 35, 65, 
 217. 
 
 Number settled by treaty and ar- 
 bitration, 244. 
 
 War, settlement of, by treaty, 
 220. 
 
 Claims court. (See Court of 
 Claims.) 
 
 Claims treaty. (See Treaties.) 
 Clay, Henry: 
 
 On recognition power of Con- 
 gress, 271. 
 On right of Senate to refuse 
 
 ratification of treaties, 44. 
 On reprisals, 298. 
 Resolution of recognition, 279. 
 Clayton-Bulwer treaty. (See Trea- 
 ties, Great Britain.) 
 Cleveland, President Grover: 
 
 On Monroe Doctrine, 39, 283. 
 On obligation to indemnify in- 
 jured aliens, 225. 
 Urges legislation to enforce arms 
 trade treaty, 191. 
 Colombia. (See Treaties, Colom- 
 bia.) 
 Colonial governor, power of, 145. 
 Comancho case, 99, 162. 
 Commander-in-chief, power of Presi- 
 dent to make arrangements as, 240. 
 (See also President.) 
 Comity of nations, international un- 
 derstandings, 8, 212. 
 Commerce, power to control, 302. 
 Commercial treaties. (See Treaties.) 
 Commission of inquiry, power of 
 President to submit controversies 
 to, 219. 
 Commissioners, appointment of, 326. 
 
 (See also Diplomatic agents.) 
 Common law: 
 
 Certain principles of, 209-211. 
 Obligations under, 213. 
 Jurisdiction of federal courts 
 under, 196-198.
 
 382 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Comprotnis of arbitration : 
 
 Power to make, io8, 223, 236. 
 
 Senate participation in, 216-217. 
 (See also Executive agree- 
 ment.) 
 Concert of Europe, nature of, 319. 
 Concurrent resolution, ineffective to 
 
 denounce treaty, 34. 
 Confederate states of America, un- 
 official reception of mission by 
 England, 35. 
 Confiscation of property, 169. 
 Congress : 
 
 Can not be deprived of powers 
 by treaty, loi. 
 
 Can not bind President in for- 
 eign affairs, 350. 
 
 Can not delegate legislative 
 power, 312. 
 
 Can not delegate power to au- 
 thorize reprisals, 209. 
 
 Can not delegate war power, 290. 
 
 Can not exercise judicial or ex- 
 ecutive functions, 312. 
 
 Can not make treaties, 233. 
 
 Checks upon disregard of inter- 
 national law by, 164. 
 
 Concurrent resolution not sub- 
 ject to international cogni- 
 zance, 33. 
 
 Consent of, to state agreements, 
 230. 
 
 Control of federal administra- 
 tion, 235. 
 
 Control of Indian relations, 234. 
 
 Control of diplomatic officers, 61. 
 
 Delegation of power to Presi- 
 dent, 302. 
 
 Delegation of power to make in- 
 ternational agreements, 105, 
 233. 236, 374. 
 
 Duty of courts to apply acts of, 
 350. 
 
 Duty of President to enforce 
 acts of, 350. 
 
 Duty to carry out Executive 
 agreements, 237, 349. 
 
 Duty to carry out military under- 
 taking of President, 349. 
 
 Duty to execute treaties, 191, 
 207. 
 
 Incompatibility of membership 
 in, with public office, 316. 
 
 Influence in foreign relations, 
 366, 370. 
 
 Initiative in domestic affairs, 148. 
 
 May be deprived of discretion 
 by treaty, 103. 
 
 National obligations to be deter- 
 mined by, 216. 
 
 Observance of international law 
 by, 162. 
 
 Powers concurrent with Presi- 
 dent, 340, 341. 
 
 Powers concurrent with treaty- 
 making power, 344, 345. 
 
 President's official communica- 
 tions to, subject to interna- 
 tional cognizance, 36. 
 
 Privileges and immunities of, 96. 
 
 Recognition of international re- 
 sponsibilities, 18. 
 
 Rejection of resolutions affecting 
 foreign relations, 279. 
 
 Relation to President, 371. 
 
 Resolution of single house, not 
 subject to international cogni- 
 zance, 33. 
 
 Veto on war declaration, 149. 
 (See also Act of Congress; 
 Congress, powers; House of 
 Representatives, Senate.) 
 Congress, powers of, 96. 
 
 Abrogation of treaty, 260. 
 
 Annexation of territory, 275-276. 
 
 Appropriations, 225. 
 
 Cable landing, 267. 
 
 Commerce, 302. 
 
 Commercial pressure, 301. 
 
 Conduct of war, 305. 
 
 Confiscation of enemy property, 
 300. 
 
 Creation of offices, 311. 
 
 Criteria of expatriation, 277. 
 
 Declaration of war, 227, 290. 
 248. 
 
 Interpretation of constitution, 
 347. 
 
 Intervention, 310. 
 
 Meeting of international respon- 
 sibilities, 18, 100, 159. 
 
 Naturalization, 277.
 
 INDEX. 
 
 383 
 
 Denunciation of treaty, 258. 
 
 Enforcement of treaty, 185, 228. 
 
 Extradition, 190, 195 
 
 Foreign relations, 138, 139, 266, 
 267. 
 
 Government of territory, 134. 
 
 Imports prohibition, 303. 
 
 Initiation of treaties, 233-234, 
 
 Organization of army and navy, 
 221, 320. 
 
 Participation in international or- 
 ganization, 334. 
 
 Protection of resident aliens, 88, 
 187. 
 
 Rank of diplomatic officers, 324- 
 
 325- 
 Recognition, 270, 271, 273, 286. 
 
 Reprisals, 298. 
 
 Resolutions on foreign policy, 
 278-283. 
 
 Termination of executive agree- 
 ments, 236. 
 
 Termination of voidable treaties, 
 356. 
 
 Termination of war, 292. 
 
 Treaty making, 261 
 
 Use of force, 305. 
 Conquest : 
 
 Acquisitions of territory by, 276. 
 
 Termination of war by, 291. 
 Conspiracy against foreign states, 188. 
 Constitution of United States: 
 
 Amendments to, when effective, 
 
 31. 
 
 Appeals from Supreme Court to 
 international tribunal not per- 
 mitted b}-, 118. 
 
 Compared with British constitu- 
 tion, 375. 
 
 Compared with European consti- 
 tutions, 369. 
 
 Controls conduct of foreign rela- 
 tions, 4. 
 
 Courts can not exercise non-judi- 
 cial powers, 1 17. 
 
 Delegation of legislative power, 
 prohibited, 99, 103, 312. 
 
 Extent to which knowledge of, 
 by foreign nations is presumed, 
 38, 41- 
 
 Fundamental principles of, 71- 
 
 75- 
 
 Importance of able men to ad- 
 minister, 372, 2,72,- 
 
 International law to be enforced 
 under, 179. 
 
 International responsibilities rec- 
 ognized by, 18. 
 
 Interpretation of, in accordance 
 with international law, 162. 
 
 Motives for forming, 145. 
 
 Need of modification in foreign 
 relations control, 368. 
 
 Protects powers of each depart- 
 ment, 98. 
 
 Reasons for friction in its opera- 
 tion, 369. 
 
 Supersedes customary interna- 
 tional law, 174. 
 
 Validity of consent to treaty de- 
 termined by, 26. (See also 
 Congress, Courts, President, 
 Separation of Powers, States 
 of United States, Treaty-mak- 
 ing power.) 
 Constitutional limitations : 
 
 Do not affect international re- 
 sponsibilities, 17. 
 
 Mainly of territorial application, 
 124. 
 
 On foreign relations power, 121, 
 
 125. 
 On national powers, 76. 
 On state powers, JT)- 
 Constitutional provisions referred to: 
 Abolition of slavery, 80, 301, 350. 
 Administration of territory, 355. 
 Admission of new states, 130, 
 
 275- 
 Appointing power, 98, loi, 119, 
 
 314-316. 
 
 Appropriations, 104, 354. 
 
 Citizenship, 276. 
 
 Compulsory process for obtain- 
 ing witnesses, 56, 79, 81, 162. 
 
 Creation of courts, 99, 103, 312. 
 
 Creation of offices and agencies, 
 103, 311- 
 
 Declaration of war, 104, 355. 
 
 Diplomatic officers, 14, 243, 323. 
 
 Division of power between states 
 and nation, "jTx 132.
 
 384 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Due process of law, 78, 170, 196, 
 
 202. 
 Duty to execute laws, 146, 157, 
 
 235, 305, 357- 
 
 Executive power vested in Presi- 
 dent, 95, 135, 155. 
 
 Foreign commerce, 302, 303. 
 
 Grand jury, 85. 
 
 Guaranteed rights of individuals, 
 
 n. 
 
 Guarantees of criminal proce- 
 dure, 355. 
 
 Independence of judiciary, 202. 
 
 Inviolability of state territory, 
 55, 57, 89, 307. 
 
 Judicial power, 95, 116, 158. 
 
 Jurisdiction of federal courts, 
 202. 
 
 Legislative power vested in Con- 
 gress, 95, 96. 
 
 Letters of marque and reprisal, 
 298. 
 
 Maintenance of courts, 15. 
 
 Militia, 94, 304. 
 
 Naturalization, 277. 
 
 Necessary and proper clause, 80, 
 
 87, 155, 179, 311, 357- 
 
 Non-suability of states by indi- 
 viduals, 205. 
 
 Offenses against law of nations, 
 79, 87, 155. 179- 
 
 Organization of army and navy, 
 320. 
 
 Organization of courts, 355. 
 
 Powers of President, 141, 146. 
 
 Power to conduct foreign rela- 
 tions, 71. 
 
 Power to meet international re- 
 sponsibilities, 159. 
 
 Preamble, 358. 
 
 President's use of force, 305. 
 
 Privileges and immunities of 
 citizens, 306. 
 
 Procedure for acts of Congress, 
 107. 
 
 Prohibition of alcoholic bever- 
 ages, 79, 162, 303. 
 
 Raising of armies, 94. 
 
 Republican form of government 
 in states, 57, 307. 
 
 Revenue laws, 354. 
 
 Rules of capture, 85. 
 Separation of powers, 76, 95. 
 States' rights, 76, 86. 
 Supreme law of the land, 5, 32, 
 
 344. 
 
 Treaty-making power, 53, 246. 
 Treaty supersedes state laws, 162, 
 Treaties supreme law of land, 57, 
 
 yi, 104, 172, 196, 354. 
 Veto power, 141. 
 War powers of national govern- 
 ment, 284. 
 War powers of states, 264. 
 Constitutional understandings : 
 
 Importance of, 8, 126, 368, 369, 
 
 375. 
 Meaning of, 7, 8. 
 Protect exercise of powers by 
 
 each department, 98. 
 Reason for, 339. 
 On consideration in exercise of 
 
 powers, 371. 
 On cooperation of independent 
 
 organs, 346. 
 On duty of departments to act, 
 
 357- 
 On overlapping of powers, 340. 
 On reserved powers of states, 75, 
 
 92. 
 On treaty negotiations, 251. 
 Sanctions of, 372. 
 Suggestions for development of, 
 370. 
 Constitutions, limitations upon, by, 
 
 international law, 14. 
 Consular courts : 
 
 Do not exercise judicial powers 
 
 of United States, 116. 
 Need not accord jury trial, 78, 
 84. 
 Consular regulations, 168. 
 Consular service, appointments to, 
 
 325, 335- 
 Consuls : 
 
 International law applied in cases 
 
 affecting, 172. 
 Legislation enforcing awards of 
 foreign, 185. 
 Contract : 
 
 National obligations based on, 
 
 206. 
 State obligations based on, 205.
 
 INDEX. 
 
 385 
 
 Contractual obligations, responsibility 
 
 for, 153. 
 Continental Congress, recognition of 
 
 international responsibilities, 18. 
 Contributions of enemy property, 299. 
 Controversies, international, settle- 
 ment of. (See Arbitration, Ex- 
 ecutive agreements, Permanent 
 Court of International Justice, 
 Treaties.) 
 Convoys, power to authorize, 295. 
 Cooley, T, M., on popular sover- 
 eignty, ^2. 
 Copyright agreements. (See Acts of 
 
 Congress.) 
 Corwin, E. S. : 
 
 On concurrent powders of depart- 
 ments, 341. 
 On Congressional resolutions on 
 
 foreign policy, 281. 
 On President's power to make 
 
 executive agreements, 240. 
 On recognition power, 273. 
 On representative powers of 
 President, 23. 
 Council of conciliation, power of 
 President to submit controversy to, 
 2ig. 
 Courtesy, international, duty of, 209, 
 
 212. 
 Court of Cessation, France, on inter- 
 pretation of treaties, 218. 
 Court of Claims : 
 
 Jurisdiction of, 221. 
 Suability of states in, 205. 
 Court of International Justice. (See 
 Permanent Court of International 
 Justice.) 
 Court, Supreme. (See Supreme 
 
 Court.) 
 Courts of claims, special, 222. 
 Courts, extra-territorial. (See Ex- 
 tra-territorial courts.) 
 Courts, federal. (See Federal 
 
 courts.) 
 Courts martial : 
 
 Jurisdiction of, 168. 
 Not affected by constitutional 
 limitations, 84. 
 Courts of United States: 
 
 Bound by arbitral awards, 174, 
 245. 
 
 Bound by written law, 174. 
 
 Can not make international 
 agreements, 234. 
 
 Constitutional powers of, 96. 
 
 Determination of citizenship by, 
 278. 
 
 Decisions do not affect interna- 
 tional responsibility, 18. 
 
 Do not investigate political ques- 
 tions, 172, 269. 
 
 Duty to apply Acts of Congress, 
 
 351. 
 
 Duty to apply reservations to 
 
 treaty, 253. 
 Duty to apply treaties, 172, 257. 
 Enforcement of executive agree- 
 ments, 236, 242. 
 Establishment of, required by in- 
 ternational law, 14. 
 Foreign relations powers of, 266, 
 
 267. 
 Observance of executive agree- 
 ments, 239. 
 Observance of international law, 
 
 170. 
 Power to meet international re- 
 sponsibilities, 158. 
 Recognition of termination of 
 
 treaty, 256. 
 Recognition of territorial accre- 
 tions, 273. (See also Court of 
 Claims, Federal courts, Su- 
 preme Court.) 
 Courts, Prize. (See Prize courts.) 
 Crandall, S. B. : 
 
 On Congressional initiative of 
 
 treaties, 248. 
 On duty to know treaty power 
 
 of foreign states, 41. 
 On negotiators of treaties, 249. 
 Crawford, Secretary of the Treasury, 
 
 on power of recognition, 272. 
 Criminal judgments, not executable 
 
 in foreign courts, 189. 
 Criminal jurisdiction of federal 
 
 courts. (See Federal courts.) 
 Crown, British, powers of, 143. 
 Cuba, dispatch of troops to, by Presi- 
 dent, 227. (See also Treaties.) 
 Cuban insurgents, status of, i73- 
 Cullom, Shelby E., Senator from Illi- 
 nois, on arbitration treaties, 112.
 
 386 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Gushing, Caleb, Attorney-General : 
 On duty of Congress to execute 
 
 treaties, 63 
 On President's power of direc- 
 tion, 317. 
 On President's power to deter- 
 mine rank of diplomatic offi- 
 cers, 324. 
 Czar's ambassador, case of, 178. 
 
 Dana, H. W., on obligation of Con- 
 gress under treaties, 63. 
 Davis, acting Secretary of State, on 
 methods of presenting international 
 claims, 23. 
 Davis, Judge Advocate General, on 
 
 use of militia, 308. 
 Declaration of London. (See Trea- 
 ties.) 
 Declaration of Paris. (See Trea- 
 ties.) 
 Declaration of War. (See War.) 
 Declaratory judgments on bound- 
 aries, 213. 
 De Facto Government : 
 
 Treaty making power of, 57. 
 Unofficial reception of missions 
 from, 35. 
 Delegate distinguished from repre- 
 sentative, 318. 
 Delegation of legislative power. 
 (See Constitution of United 
 States.) 
 Democracies : 
 
 Capacity to conduct foreign re- 
 lations, 365. 
 Dependence on law, 370. 
 Denial of justice, 152, 170. 
 Denunciation of treaty. (See Trea- 
 ties.) 
 Department of State. (See State, 
 
 department of.) 
 Derby, Lord, on obligation of guar- 
 antee treaty, 214. 
 Destruction of enemy property, 299. 
 De Tocqueville, Alexis, on control of 
 
 foreign relations, 365. 
 Dicey, E. V., on constitutional under- 
 standings, 369. 
 Dillon, French consul, case of, 17, 
 55-56, 79, 81, 116. 
 
 Diplomatic relations, grounds for 
 
 breaking, 20. 
 Diplomatic service, appointments to, 
 
 325, 335. 
 Diplomatic agent: 
 
 Appointment of, 316, 328, 329. 
 Position compatible with judicial 
 or legislative office, 316. 
 Diplomatic agreements, 243. (See 
 
 also Executive agreements.) 
 Diplomatic etiquette, breach of, in 
 
 Senate amendment to treaty, 45. 
 Diplomatic immunities, 79, 162, 168, 
 
 173, 177. 
 Diplomatic instructions, 168. 
 Diplomatic mission : 
 
 By naval officers, 297. 
 Self constituted, forbidden, 34. 
 Diplomatic officers: 
 
 Communicate only with execu- 
 tive, 29. 
 Communications to people im- 
 proper, 29. 
 Duty to exchange, 209. 
 Grades established by interna- 
 tional law, 323. 
 Immunities of, 79- 162, 163, 168, 
 
 173, 177- 
 International law applied in 
 
 cases affecting, 171. 
 Jurisdiction in cases affecting, 
 
 170, 202. 
 Nature of, 318. 
 Offenses against, punished, 179, 
 
 180. 
 Power to determine grades of, 
 
 324. 
 Power to determine occasion for 
 
 appointing, 326. 
 Powers fixed by international 
 
 law. 14. 
 Protection of, by President, 194. 
 Reception of, political question, 
 
 172. 
 Unofficial reception of, from de 
 
 facto government, 35. 
 Diplomatic pressure, power to bring, 
 
 293- 
 Diplomatic protection of citizens 
 
 abroad, 15, 16.
 
 INDEX. 
 
 387 
 
 Disarmament. (See Armament limi- 
 tation.) 
 
 Discovery, acquisition of territory 
 by, 274. 
 
 Display of force, 294. 
 
 Domestic affairs distinguished from 
 foreign affairs, 150, 263, 264. 
 
 Dominions, British self governing: 
 Foreign relations power of, 16. 
 Representation in League of Na- 
 tions, 16. 
 
 Drago doctrine, 153. 
 
 Draft acts, constitutionality of, 85, 
 94. (See also Acts of Congress.) 
 
 Dubois, Dutch minister, case of, 79, 
 162. 
 
 Due diligence, 152, 176, 177. 
 
 Due Process of Law. (See Consti- 
 tution of United States.) 
 
 Duponceau, Peter, on obligation of 
 international law, 58, 358. 
 
 Embargo : 
 
 On arms to insurgents, 183, 
 Power to authorize, 301. 
 Emancipation proclamation, consti- 
 tutionality of, 86, 300, 350. 
 England. (See Great Britain.) 
 Exchange of Notes, 235. (See also 
 
 Executive agreement.) 
 Exchange of ratifications. (See 
 
 Treaties.) 
 Exclusion. (See Aliens, Chinese 
 
 Exclusion.) 
 Executive : 
 
 Danger of excessive influence in 
 
 foreign relations, 5. 
 Usually representative organ, 26. 
 (See also President.) 
 ;' Executive agreement : 
 ' Annexation of territory by, 275. 
 
 Congressional execution of, 237. 
 Duty of President to accept if 
 
 made within instructions, 44. 
 Extradition by, 237. 
 License to trade, 240. 
 Military agreements, 240. 
 National obligations based on, 
 
 206. 
 Number claims settled by, 244. 
 Obligation of, 234. 
 Power to make, 54, 237, 243. 
 
 Preliminary to treaty negotia- 
 tion, 228, 243. 
 
 Submission of private claims to 
 arbitration by, 223. 
 
 Termination of, 236, 262. 
 
 Transit of foreign troops, 242. 
 
 Under authority of Congress, 
 105, 374. 
 
 Under authority of Treaty, 106- 
 iio, 236. 
 
 Validity of, 239. 
 Executive agreements referred to : 
 
 Boxer protocol, 1901, 241. 
 
 Canadian reciprocity, 349. 
 
 Copyrights, 105. 
 
 Costa Rica, transisthmian canal, 
 349- 
 
 Gentlemen's agreement, with 
 Japan, 243. 
 
 Germany, 1918, armistice, 54. 
 
 Germany, 1918, peace prelimi- 
 naries, 54, 216, 241, 349. 
 
 Great lakes disarmament, 1817, 
 242. 
 
 Guantanamo lease, 107, 236. 
 
 Hay open door notes, 243. 
 
 Horse-shoe reef cession, 236, 349. 
 
 Lansing-Ishii agreement with 
 Japan, 235, 243. 
 
 Mexican boundary marauders, 
 187, 217, 242. 
 
 Nicaragua canal, 349. 
 
 North Atlantic Fisheries, 240. 
 
 Patents, 105. 
 
 Postal service, 105. 
 
 Reciprocity, 106. 
 
 Root-Takahira agreement with 
 Japan. 235, 243. 
 
 San Juan island occupation, 239. 
 
 Santo Domingan customs, 156, 
 
 349- 
 Spain, 1898, peace preliminaries, 
 
 54, 241, 349. 
 Trade marks, 105. 
 Executive message as means of in- 
 ternational communication, 36. 
 Executive orders : 
 
 Regulating military and civil 
 
 services, 167. 
 Supersede customary interna- 
 tional law, 174. 
 Executive power, nature of, 140.
 
 388 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Executive regulations and instruc- 
 tions, how enforced, i68. 
 Expatriation, right of, 277. 
 Expulsion. (See Ahens, Alien ene- 
 mies.) 
 Extradition : 
 
 Based on treaty, 189. 
 
 By authority of President, 190, 
 
 194. 
 By state authority, 153, 178, 231. 
 Constitutionality, 78. 
 Jurisdiction of federal courts 
 
 over, 198. 
 Political assassins liable to, 189. 
 Statutes regarding, 184. 
 Extra-territorial courts : 
 Establishment of, 15. 
 Criminal jurisdiction of, 191. 
 
 Family of nations : 
 
 Admission to, 20. 
 
 Organization of, 214. 
 
 States members of, bound by in- 
 ternational law, 58. 
 Federal Courts : 
 
 Creation of, 312. 
 
 Decision on political questions, 
 
 173- 
 
 Duty of President to execute de- 
 cisions of, 346, 347. 
 
 May not exercise non-judicial 
 functions, 312. 
 
 Powers concurrent with Presi- 
 dent, 342, 343- 
 
 Power to determine national ob- 
 ligations, 221. (See also 
 Courts of United States, Su- 
 preme Court.) 
 Federal Courts jurisdiction: 
 
 Admiralty, 200, 201. 
 
 Cases affecting aliens, 170-171, 
 201-203. 
 
 Cases affecting diplomatic offi- 
 cers, 202. 
 
 Cases affecting military and 
 naval officers, 169. 
 
 Cases brought by foreign states, 
 
 23. 
 Claims, 221-222. 
 Criminal, 196-199, 355, 356. 
 Exclusive, 178. 
 
 Enforcement of international 
 
 law, 196. 
 Enforcement of neutrality, 182. 
 Enforcement of treaties, 190, 191. 
 Extradition, 198. 
 Prize, 169, 200, 221. 
 Release of persons claiming im- 
 munity under international law, 
 171. 
 Federal governments : 
 
 Treaty-making power may be 
 
 distributed, 15. 
 Unitary responsibility of, 15. 
 Federalist : 
 
 On Articles of Confederation, 
 
 21. 
 On control of foreign relations, 
 
 364. 
 On inapplicability of constitu- 
 tional limitations to foreign 
 relations power, 124. 
 On nature of foreign relations 
 
 power, 140, 147. 
 On obligation of treaties, 6. 
 Field, David Dudley, on conspiracy 
 
 against foreign nations, 185. 
 Field, Justice : 
 
 On sovereign powers of national 
 
 government, 130. 
 On treaty-making power, 121. 
 Fillmore, Millard, President: 
 
 Executive agreement by, 237. 
 On war powers of President, 192. 
 Finley, J. H., and Sanderson, J. F., 
 on cooperation of departments, 346. 
 Fish, Carl Russel, on control of for- 
 eign relations, 368. 
 Fish, Hamilton, Secretary of State: 
 On Dillon case, 17. 
 On relation of legislation to 
 
 treaty, 17. 
 On Senate amendments to treaty, 
 
 47- 
 Fisheries : 
 
 Executive agreement regarding, 
 
 239- 
 Senate rejection of treaty con- 
 cerning, 252. 
 State agreements on, 232. 
 Florida invasion, 193. (See also 
 Treaties, Spain.)
 
 INDEX. 
 
 389 
 
 Foreign relations : 
 
 Control of, in American history, 
 
 366. 
 Control of, in European coun- 
 tries, 362. 
 Control of, under constitution, 
 
 335, 336. 
 
 Classification of agencies for 
 conducting, 317-318. 
 
 Criticism of American system of 
 control, 361. 
 
 Distinguished from domestic af- 
 fairs, 150, 263, 264. 
 
 Friction in control of, 360. 
 
 Need of concentration in control 
 
 of, 363- 
 Need of popular control, 362. 
 Need of Presidential leadership, 
 
 370. 
 Need of secrecy in control of, 
 
 364-365- 
 Foreign relations power: 
 
 Constitutional point of view, 6. 
 Danger of executive control, 5- 
 Difficulty of developing legal 
 
 theory, 3. 
 Dual position of, 4- 
 Elements of, 7i- 
 Executive nature of, I35- 
 International point of view, 4- 
 Law and understandings of, 7- 
 Legislative nature of, I37- 
 National government, 129. 
 Nature of. 3. I34, 148. 
 Not judicial, I35- 
 Overlapping of, 266. 
 Political question, 124. 
 Practical control of, 148- 
 Relation to constitutional and in- 
 ternational law, 4. 
 States of United States, 129. 
 (See also Recognition, Treaty- 
 making power. War.) 
 Fortification of Horseshoe Reef, for- 
 bidden, 2^. 
 
 Foster, J. W. : 
 
 On congressional approval of 
 Monroe Doctrine, 283. 
 
 On Control of Foreign Relations 
 under Articles of Confedera- 
 tion, 61. 
 
 On power of President to con- 
 clude cotnpromis of arbitra- 
 tion, 108. 
 France : 
 
 Inability to execute claims treaty, 
 
 66. 
 Protest at President Jackson's 
 
 threat of reprisals, 36. 
 Treaty-making power, 53. (See 
 also Treaties, France.) 
 French spoliation claims, 82, 219, 222. 
 Freund, Ernst, on inapplicability of 
 constitutional limitations to for- 
 eign relations power, 124. 
 Frye, William P. (See WiUiam P. 
 
 Frye.) 
 Full powers, effect of exchange of, 
 42. 
 
 Garfield, James, President, opinion 
 on President's powers, 157. 
 
 ■Geflfcken, on duty to know treaty 
 power of foreign states, 41. 
 
 Genet, Citizen, French Minister, re- 
 call of, 29. 
 
 Geneva arbitration. (See Alabama 
 case.) 
 
 Gentleman's agreement. (See Ex- 
 ecutive agreements.) 
 
 Germany : 
 
 Foreign relations power, 16. 
 Controversy on tonnage dues, 32. 
 Declaration of war against, 289. 
 International responsibility of 
 
 national government, 15. 
 Preliminaries of peace with. 
 (See Executive agreements.) 
 Termination of war with, 293. 
 (See also Treaties, Germany.) 
 Gladstone, W. E., on nature of Brit- 
 ish and American constitutions, 
 
 375- 
 Goodnow, Frank J. : 
 
 On administrative powers in 
 
 American colonies, 145- 
 On appointment of agents, 315- 
 On powers of President, 156. 
 Gore, Senator of Massachusetts, on 
 appointment of diplomatic officers, 
 326.
 
 390 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Governments, recognition of, 268. 
 (See also Federal Governments.) 
 Grant, U. S., President: 
 
 Message on cable landing, 302. 
 On representative powers of 
 
 President, 22, 30. 
 Veto of Congressional resolu- 
 tions affecting foreign rela- 
 lations, 30, 278. 
 Gray, Justice : 
 
 On extradition power of Presi- 
 dent, 195. 
 On foreign relations power of 
 
 national government, 130. 
 On judicial applicability of inter- 
 national law, 171. 
 On President's power to permit 
 transit of troops, 242. 
 Great Britain : 
 
 Creation of executive depart- 
 ments, 144. 
 Distribution of powers, 143-145. 
 Nature of constitution, 369, 375. 
 Powers of crown, 143. 
 Powers of Parliament, 143. 
 Treaty-making power, 53, 55. 
 (See also British Empire, 
 Treaties.) 
 Great Lakes Disarmament agreement. 
 (See Executive agreements, Trea- 
 ties.) 
 Greece, control of foreign relations 
 
 in, 366. 
 Gresham, Secretary of State : 
 
 On duty of states to know for- 
 eign constitutions, 41. 
 On termination of executive 
 agreements, 236. 
 Grey, Sir Edward, on American Con- 
 stitution, 361. 
 Greytown incident, 285, 296, 299, 306. 
 Griggs, Attorney-General, on treaty- 
 making power, 123. 
 Guaranteed rights of individuals. 
 (See Constitution of United 
 States.) 
 Guarantee, International : 
 
 Interpretation of, 60, 217. 
 
 Obligation of, 214. 
 
 Power to fulfill, 227. 
 
 Under League of Nations, 115. 
 
 Guarantee Treaties. (See Treaties.) 
 Guadaloupe-Hidalgo, treaty o f . 
 
 (See Treaties, Mexico.) 
 Guano Islands, 134, 274. 
 
 Habeas Corpus, suspension of writ, 
 
 85. 
 Hague Conference, 1907, recommen- 
 dations as to future conferences, 
 
 319- 
 Hague Conventions, 1899, 1907: 
 Deposit of ratifications, 50. 
 Not applicable to third parties, 
 
 166. 
 Reservations to, 48, 51, 282. 
 Hague Conventions, 1907, referred 
 to: 
 
 I, Settlement of international dis- 
 putes. 108, no, 210, 228, 334. 
 
 II, Public contract debts, 153, 
 223, 247. 
 
 III, Declaration of war, 289. 
 
 IV, Rules of land warfare, 299. 
 
 V, Neutrality on land, 177, 191, 
 196. 
 
 X, Geneva Convention at Sea, 
 185. 
 
 XII, International Prize Court, 
 no, n7, 224, 334. 
 
 XIII, Neutrality at Sea, 177, 191. 
 Hague Permanent Court of Arbitra- 
 tion, bureau, participation of 
 United States in, 228, 334. 
 
 Hall, James Parker, power of states 
 of United States to make agree- 
 ments, 230. 
 Hall, W. E.: 
 
 On basis of international law, 13. 
 On independence of states, 264. 
 Hamilton, Alexander : 
 
 Conception of presidency, 145. 
 Instructions for neutrality en- 
 forcement, 196. 
 On Articles of Confederation, 21. 
 On duty of Congress to execute 
 
 treaties, 354. 
 On inapplicability of constitu- 
 tional limitations to foreign re- 
 lations power, 124. 
 On nature of foreign relations 
 power, 136, 147-
 
 INDEX. 
 
 391 
 
 On President's power to meet 
 international responsibilities, 
 155. 
 On Tripolitan war, 287. 
 Harding, Warren Gamaliel, Presi- 
 dent; 
 On Congressional resolutions on 
 
 foreign policy, 278, 281-282. 
 On termination of war, 292. 
 Harlan, Justice, on power of Con- 
 gress to enforce treaties, 185. 
 Harley, J. E., on obligation to ratify 
 
 treaties, 42. 
 Harrison, Benjamin, President, urges 
 
 legislation to protect aliens, 229. 
 Hartford convention, 93. 
 Hawaii : 
 
 Congressional resolution regard- 
 ing, 281. 
 Annexation treaty rejected by 
 the Senate, 252. (See also 
 Treaties, Hawaii.) 
 Hay, John, Secretary of State: 
 Arbitration treaties, 109. 
 Conference with Senators on 
 
 treaty negotiation, 251. 
 On Senate's attitude toward 
 
 treaties, 360. 
 Relations with President, 323. 
 Hay open door notes. (See Execu- 
 tive agreements.) 
 Hay-Pauncefote Treaty. (See Trea- 
 ties, Great Britain.) 
 Hayes, Rutherford B., President: 
 On good faith of treaties, 261. 
 On termination of treaty, 257, 
 
 258. 
 Veto of Chinese exclusion act, 
 17, 164. 
 Hayti, dispatch of troops to, by Presi- 
 dent, 227. (See also Treaties, 
 Hayti.) 
 "Helvidius" (Madison), 136. 
 High seas, offenses on, punished, 180. 
 Hill, David Jayne : 
 
 On duty of treaty-making power 
 to consider attitude of Con- 
 gress, 356. 
 On necessity of separation of 
 powers, 5. 
 
 Hitchcock, Senator of Nebraska, pro- 
 posed reservation to Treaty of 
 Versailles, 60. 
 
 Hoadley, Bishop, on power to inter- 
 pret law, 63. 
 
 Hoar, Senator of Massachusetts, on 
 appointment of Senators to nego- 
 tiate treaties, 251. 
 
 Hobbes, Thomas, on nature of inter- 
 national law, 210. 
 
 Hohfeld, W. M., on fundamental le- 
 gal conceptions, 214. 
 
 Holland, T. E., definition of obliga- 
 tion, 213. 
 
 Holmes, Oliver Wendell, Justice: 
 On law-making power of judges, 
 
 64. 
 On power of Congress to en- 
 force treaties, 186. 
 On non-suability of sovereign, 
 
 210. 
 On vaHdity of treaties, 87-88. 
 Holy Alliance, sympathy for abso- 
 lute governments, 14. 
 Horseshoe reef, cession of, 237. 
 House of Representatives : 
 
 Advisability of participation in 
 
 treaty-making, 246, 368. 
 No treaty-making power, 62, 233. 
 On Congressional resolutions on 
 
 foreign policy, 280. 
 Resolution on obligation to ap- 
 propriate for treaty, 6, 226. 
 Resolution on Maximillian gov- 
 ernment in Mexico, 23- (See 
 also Congress.) 
 Huerta, Victoriana, Defacto Presi- 
 dent of Mexico : 
 Non-recognition of, 20, 268. 
 Note on United States interven- 
 tion, 215. 
 Hughes, Charles Evans, on duty of 
 treaty-making power to consider 
 attitude of Congress, 356, 357. 
 Hungary, termination of war with, 
 
 293- 
 Hyde, Charles Cheney, on executive 
 agreements submitting claims 
 against United States, 244.
 
 392 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Immigration laws. (See Act of Con- 
 gress Aliens.) 
 Imperfect obligation. (See Obliga- 
 tion.) 
 Imperfect rights under international 
 
 law, 8. 
 Independence : 
 
 Of nations, 13, 263, 264. 
 Questions of, non-justiciable, 29. 
 Indians : 
 
 Control of, by Congress, 234. 
 Naturalization of, 277. (See 
 also Treaties.) 
 Insurgency: 
 
 Distinguished from belligerency, 
 
 200, 269. 
 International law applied in 
 
 cases affecting, 172. 
 Neutrality laws applied to, 200. 
 Recognition of, political question, 
 172, 268, 269. 
 Insurgents : 
 
 Acts in behalf of, violation of 
 
 neutrality laws, 182. 
 Embargo on arms to, 183. 
 Internment of, 196. 
 Insurrection against foreign govern- 
 ments, punished, 183. 
 International administration, 247. 
 International agencies, creation of, 
 
 334. 
 International agreements, power of 
 states to make, 230-232. (See also 
 Executive agreements, Treaties.) 
 International claims. (See Claims.) 
 International conferences: 
 
 Nature of delegates to, 318. 
 Participation in, authorized, 228, 
 
 334. 
 Presidential participation in, for- 
 bidden, 325, 328, 335. (See 
 also Hague Conferences.) 
 International cooperation, duty of, 
 209. 
 
 International court, determination of 
 national obligations by, 222. (See 
 also Hague Permanent Court of 
 Arbitration, International Prize 
 Court. Permanent Court of Inter- 
 national Justice.) 
 
 International court of claims, pro- 
 posal for, 224-225. 
 International law : 
 
 Acquisition of territory under, 
 134. ^72,. 
 
 Acts of Congress interpreted by, 
 165. 
 
 Applied by courts, 158, 171, 221, 
 222. 
 
 Applied in claims settlement, 223. 
 
 Based on agreement of states, 
 208. 
 
 Can not be altered by municipal 
 law, 16. 
 
 Codified in executive regulations, 
 168. 
 
 Conclusiveness of acts and utter- 
 ances of national organs under, 
 38. 
 
 Conditions favoring observance 
 of, 161. 
 
 Confiscation of enemy property 
 under, 300. 
 
 Constitution interpreted in ac- 
 cordance with, 162. 
 
 Defines rank of diplomatic offi- 
 cers, 318, 323. 
 
 Definition of, 13, 212. 
 
 Does not require withdrawal of 
 claim, 66. 
 
 Enforcement of, 176-179, 196. 
 
 Governs foreign relations power, 
 
 4. 
 Immunities under, 79, 242. 
 Imposes limitation upon national 
 
 organs, 14. 
 Imposes moral obligations, 210. 
 Interpreted by national organs in 
 
 first instance, 213. 
 Interpretation of, by President, 
 
 245. 
 Limits of jurisdiction defined by, 
 
 16s. 
 Nature of, 13. 
 Naval forces bound by, 168. 
 National obligations founded on, 
 
 206, 209. 
 Obligation of, 58, 212. 
 Observance of, by Congress, 162. 
 Observance of, by Courts, 170.
 
 INDEX. 
 
 393 
 
 Observance of, by military and 
 civil services, 167. 
 
 Observance of, by President, 166. 
 
 Observance of, by treaty-making 
 power, 166. 
 
 Offenses against, 79, 159. 
 
 Offenses against, punished in fed- 
 eral courts, 196, 197. 
 
 Offenses against, punished in 
 state courts, 154, 180. 
 
 Power to seize property under, 
 299. 
 
 President bound by, in exercise 
 of war powers, 169. 
 
 Principles of state responsibility, 
 151. 
 
 Prohibits trading with the enemy, 
 303. 
 
 Release from states of persons 
 claiming immunity under, 171. 
 
 Representative authority under, 
 IS- 
 
 Respect for. In acts of Congress, 
 163. 
 
 Self defense under, 307. 
 
 Sources of 208. 
 
 Supersedes British Order in 
 Council, 170. 
 
 Tacit acceptance of, 58. 
 
 Termination of treaty by opera- 
 tion of, 256. 
 
 Treaties codifying, 247. 
 
 Types of cases in which applied, 
 159, 171. 
 
 Validity of treaty under, 57. 
 
 Value of, for democracies, 370. 
 
 Written law interpreted in ac- 
 cord with, 175. 
 International organization : 
 
 Advisability of development of, 
 370. 
 
 Power to participate in, 228. 
 
 Delegation of power to, no. 
 International Prison Commission, 
 participation in, by United States, 
 334- 
 International Prize Court, no, 224, 
 
 334. 
 Constitutionality of, 117. 
 International responsibilities. (See 
 Responsibilities, international.) 
 
 International understandings : 
 
 Do not require withholding of 
 
 claims, 66. 
 Meaning, 7, 8. 
 International unions, participation 
 
 in, 334- 
 Internment : 
 
 Of alien enemies, 304. (See also 
 
 Alien enemies.) 
 Of troops — 
 
 Constitutionality, 78. 
 Obligation, 209. 
 Under executive authority, 
 196. 
 Intervention distinguished from rec- 
 ognition, 270. 
 Invasion, power to repel, 308. 
 Iredell, Justice, on power to termi- 
 nate voidable treaties, 256. 
 Irish independence, congressional 
 
 resolutions on, 34. 
 Italian lynching cases, 18, 25, 60, 67, 
 
 206, 225, 229. 
 Italy : 
 
 Claims in regard to Louisiana 
 
 lynchings, 18. 
 Withdrawal of minister from 
 United States, 21. (See also 
 Treaties.) 
 
 Jackson, Andrew, President : 
 
 On enforcement of judicial de- 
 cisions, 346. 
 
 On reprisals, 298. 
 
 Recommendation of reprisals, 25, 
 36, 66. 
 
 Removal of bank deposits, 317. 
 
 Seeks Senate advice to treaty, 
 250. 
 Japan : 
 
 Land ownership controversy, 24, 
 90, 265. 
 
 Protests at anti-alien legislation, 
 
 30. 
 School children controversy, 90, 
 265. (See also Treaties.) 
 Jay, John : 
 
 On control of foreign relations, 
 
 364- 
 On duty to ratify treaties, 43.
 
 394 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 On obligation of treaties, 6. 
 
 On Senate discretion in treaty- 
 making, 252. 
 Jefferson, Thomas : 
 
 Attitude toward neutrality proc- 
 lamation, 268. 
 
 Initiation of Tripolitan war, 297. 
 
 On effect of general reprisals, 
 291. 
 
 On grades of diplomatic officers, 
 
 324. 
 On nature of foreign relations 
 
 power, 137, 138. 
 On President's foreign relations 
 
 powers, 22, 28, 36, 38. 
 On Treaty-making power, 102, 
 
 123. 
 On Tripolitan war, 286. 
 Johnson, Andrew, President, procla- 
 mation of termination of Civil 
 War, 291. 
 Jones merchant marine act, 258, 281, 
 
 345- 
 Judge in own case, 112, 209-210. 
 Judgments, execution of foreign, 189. 
 Judges, law-making power of, 63. 
 Judiciary. (See Courts.) 
 Judiciary, federal, privileges and im- 
 munities of, 97. (See also Federal 
 courts.) 
 Jurisdiction : 
 
 Armed forces to respect foreign, 
 
 168. 
 International law applied in cases 
 
 regarding limits of, 172. 
 Of federal courts. (See Fed- 
 eral courts, jurisdiction.) 
 Justiciable questions, 211, 212. 
 Justinian Digest, on making of con- 
 tracts, 41. 
 
 Kent, James, Chancellor, on treaty- 
 making power, 55. 
 King can do no wrong, 210. 
 Knox, Philander C. : 
 
 On international cognizability of 
 
 Acts of Congress, 32. 
 On League of Nations Covenant, 
 
 113. 
 
 Resolution for termination of 
 war, 292. 
 
 Kocourek, on distinction of obliga- 
 tion and responsibility, 214. 
 Kossuth revolution, 36. 
 Koszta case, 285, 306, 309. 
 
 La Abra and Wyle claims, 223. 
 La Follette Seaman's act, 84, 258, 345. 
 Land Warfare, rules of, 168. 
 Lansdowne, Lord, British foreign 
 minister, on Senate amendment to 
 treaty, 45- 
 Lansing, Robert, Secretary of State : 
 On Appam case, 342. 
 On arming of merchant vessels, 
 
 295. 
 On diplomatic communications 
 
 to the people, 29. 
 On international responsibilities 
 of representative organ, 19, 24. 
 On Lansing-Ishii agreement, 243. 
 Lansing-Ishii agreement. (See Ex- 
 ecutive agreements.) 
 Latin-American states, attitude to- 
 ward diplomatic protection of citi- 
 zens, 16. 
 Law, relation to understandings, 7, 8. 
 (See also Acts of Congress, Con- 
 stitution, International law.) 
 League of Nations : 
 
 Appointment of representatives 
 
 in, 333- 
 Arbitration under, 113, 210, 223. 
 Article 10, 60, 61, 114, 214, 241. 
 Conciliation by, 219. 
 Domestic affairs under, 263. 
 Exercises no legislative power, 
 
 114. 
 
 Guarantees under, 115. 
 
 Justiciable questions under, 212, 
 214. 
 
 Limitation of Armament by, 114. 
 
 Mandates under, 114. 
 
 Nature of delegates to, 320. 
 
 Permanent International Court 
 of. (See Permanent court.) 
 
 Powers of, 113. 
 
 Powers of Council, 60. 
 
 Representation of British domin- 
 ions in, 16. 
 
 Respect for earlier treaties, 166. 
 
 Settlement of disputes by, 114.
 
 INDEX. 
 
 395 
 
 Treaties to be concluded under, 
 
 228. 
 Unanimity required, 113. (See 
 also Reservations to Treaty of 
 Versailles, Versailles treaty.) 
 Lee, Attorney-General : 
 
 On duty of diplomatic officers to 
 communicate with executive 
 only, 29. 
 On foreign relations power of 
 Secretary of State, 22. 
 Legal obligations. (See Obliga- 
 tions.) 
 Legislation. (See Acts of Congress, 
 
 State statutes, Congress.) 
 Legislative acts, do not affect inter- 
 national responsibilities, 17. 
 Legislative omissions, do not affect 
 
 international responsibilities, 17. 
 Legislative power, delegation of. 
 (See Constitution of United 
 States.) 
 Legislature, difficulty of exercising 
 
 foreign relations power, 7. 
 Lenin, defacto head of Russian gov- 
 ernment, non-recognition of, 20. 
 Letters of marque. (See Repristas.) 
 Letters rogatory. (See Rogatory.) 
 Liability, synonymous with responsi- 
 bility, 213, 214. 
 Libels against foreign states, not 
 punishable by federal statute, 187, 
 188. 
 License to trade, 240. 
 Lincoln, Abraham, President : 
 
 Blockade proclamation by, 38. 
 Extradition of Arguelles, 190, 
 
 195, 22,7. 
 Recognition of civil war, 288. 
 Refusal to carry out congres- 
 sional resolution on foreign af- 
 fairs, 281. 
 Refusal to denounce treaty, 258. 
 Repudiation of armistice made 
 
 by General Sherman, 44, 240. 
 Use of force to suppress rebel- 
 lion, 193. 
 Lippmann, Walter, on control of for- 
 eign relations, 5, 365. 
 Liquor trade punished, 184. (See 
 also Constitutional provisions.) 
 
 Livingston, Edward : 
 
 On fulfillment of treaties, 4. 
 On President's power as sole 
 agent of international commu- 
 nication, 28. 
 On President's power to appoint 
 diplomatic agents, 331. 
 Locke, John : 
 
 On delegation of legislative 
 
 power, 104. 
 On nature of foreign relations 
 power, 141. 
 Lodge, Henry Cabot, Senator from 
 Massachusetts : 
 On personal meetings of Presi- 
 dent with Senate, 371-372. 
 On Presidential agents, 332. 
 On President's relations to Sen- 
 ate foreign relations com- 
 mittee, 372. 
 On termination of war, 292. 
 Proposed reservations to treaty 
 of Versailles, 61. 
 Logan, Dr. George, self-constituted 
 
 mission to France, 34. 
 Logan act, 22, 34. 
 
 London, Declaration of. (See Trea- 
 ties.) 
 London Naval Conference, 117, 118. 
 London protocol, 1871. (See Trea- 
 ties.) 
 Louisiana lynchings. (See Italian 
 
 lynching cases.) 
 "Lucius Crassus" (Hamilton), 287. 
 Lusitania, warning in respect to, 29. 
 
 Maclay, William, Senator: 
 
 On relation of President to Sen- 
 ate, 361. 
 On Washington's appearance in 
 Senate, 250. 
 McLean, Justice, on discretion of 
 Congress in execution of treaties, 
 66. 
 McLemore, Representative from 
 Texas, resolution warning Ameri- 
 cans from travelling on armed 
 merchant vessels, 279, 281. 
 McLeod case, 18, 59, 161, 180, 229. 
 McKinley, William. President: 
 Initiation of Spanish war, 289.
 
 396 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Unofficial reception of mission 
 from South Africa, 35. 
 
 Recommends intervention in 
 Cuba, 270. 
 
 Urges legislation to protect resi- 
 dent aliens, 187. 
 Madison, James: 
 
 Attitude toward neutrality proc- 
 lamation, 268. 
 
 On duty to ratify treaties, 43. 
 
 On nature of foreign relations 
 power, 138. 
 
 On nature of executive power, 
 
 145. 
 On treaty making, 246. 
 Practice in recognition, 272. 
 Magdalena Bay incident, 282. 
 Maine, Sir Henry Sumner, on Ameri- 
 can attitude toward international 
 law, 358. 
 Mandates, 114. 
 
 Marcy, William, Secretary of State: 
 On constitutionality of treaties, 
 
 81. 
 On Greytown incident, 306. 
 Maritime law, power of federal 
 
 courts to enforce, 200. 
 Marshall, John : 
 
 On confiscation of enemy prop- 
 erty, 300. 
 On power to annex territory, 275. 
 On self-executing treaties, 207. 
 On extradition power of Presi- 
 dent, 194. 
 On interpretation according to 
 
 international law, 165. 
 On representative powers of 
 
 President, 21. 
 On resultant powers of national 
 government, 133. 
 Mason and Slidell, unofficial recep- 
 tion in England, 35. 
 Maximilian government in Mexico, 
 Congressional resolution on, 33, 
 280. 
 Meade's claim, 82. 
 
 Mediation, power to President to ac- 
 cept offer of, 219. 
 Medley, D. J., on beginning of cabi- 
 net responsibility in England, 144. 
 Metzger case, 27, 41. 
 
 Mexican boundary commission, 183, 
 
 184. 
 Mexican war, 297. 
 
 Declaration of, 286. 
 Initiation of, 287, 288. 
 Mexico : 
 
 Boundary marauders. (See Ex- 
 ecutive agreements.) 
 Mobilization of troops on 
 border, 296. (See also Trea- 
 ties.) 
 Migratory birds. (See Acts of Con- 
 gress, Treaties.) 
 Militia : 
 
 Power of President to call forth, 
 
 192, 193. 
 Use of, in Civil War, 193. 
 Miller, Justice, on power of Con- 
 gress to enforce treaties, 186. 
 Miller, David Hunter : 
 
 On unitary responsibility of 
 British Empire under League 
 of Nations, 16. 
 On reservations to treaty, 48. 
 Military agreements, power of Presi- 
 dent to make, 240. (See also Ex- 
 ecutive agreements.) 
 Miltary commissions, jurisdiction of, 
 
 168. 
 Military forces: 
 
 International law applied in 
 
 cases affecting, 172. 
 President's power to use, 186, 
 
 192. 
 Use of, by President in Civil 
 
 War, 193. 
 Use of, regulated by Congress, 
 167. 
 Military government, power to estab- 
 lish, 320-321. 
 Military officers, appointment of, 320- 
 
 321. 
 Military services: 
 
 Control of, by courts, 169. 
 Observance of international law 
 by, 167. 
 Ministers. (See Diplomatic offi- 
 cers.) 
 Modus Vivendi, 235, 239. (See also 
 Executive agreements.)
 
 INDEX. 
 
 397 
 
 Monroe Doctrine, 282, 283. 
 
 Congressional approval of, 283. 
 Use of force in pursuance of, 
 309. 
 Monroe, James, President, appoint- 
 ment of diplomatic agents, 328. 
 Montaigne, on Constitutional changes, 
 
 368. 
 Montesquieu, on foreign relations 
 
 power, 142, 363. 
 Moore, John Bassett : 
 
 On " apprehensive interpreta- 
 tion " of the Constitution, 162. 
 On arbitration treaties, 112. 
 On congressional delegation of 
 power to make international 
 agreements, 374. 
 On constitutional understandings, 
 
 375- 
 On declaration of war, 286. 
 On Greytown incident, 306. 
 On method of settling interna- 
 tional claims, 244. 
 On power of recognition, 270. 
 On treaty-making power, 102. 
 Moral obligations. (See Obliga- 
 tions.) 
 Morgan, Senator from Alabama, on 
 Cuban intervention resolution, 271. 
 Morris, Gouverneur : 
 
 Conception of Presidency, 145. 
 On power of Congress to admit 
 
 new states, 276. 
 On treaty making, 246. 
 Most-favored-nation clause, 32. (See 
 
 also Treaties.) 
 Municipal law : 
 
 Can not alter international re- 
 sponsibilities, 16. 
 International law applied as part 
 of, 158, 171, 221, 222. 
 
 National decisions, conclusiveness of 
 
 President's statements in reference 
 
 to. 38- 
 
 National government of United 
 
 States : 
 
 Distribution of foreign relations 
 
 powers, 266. 
 Foreign relations power of, 130, 
 
 265, 266. 
 International responsibility of, 15. 
 
 Power to make international 
 
 agreements, 233. 
 Power to meet international re- 
 sponsibilities, 154. 
 Responsibility of, for violations 
 of international law within the 
 states, 206. (See also Consti- 
 tution of United States.) 
 National honor, questions involving, 
 
 non-justiciable, 211. 
 National obligations. (See Obliga- 
 tions.) 
 Natural rights, 80. 
 Navassa island, status of, 173. 
 Naval officers, appointment of, 297, 
 
 320-321. 
 Naval warfare, rules of, 168. 
 Navigation rules, offenses against, 
 
 punished, 181. 
 Navy: 
 
 Use of, for intimidation, 294. 
 Use of, as marition police, 296. 
 Necessity: 
 
 Military, justifies capture of 
 
 enemy property, 299. 
 Use of self help in, 296. 
 Negotiation of treaties. (See Trea- 
 ties.) 
 Negotiations, conduct of, 219. 
 Nelidow, President of Second Hague 
 Conference, on nature of delegates 
 to international conferences, 320. 
 Neutrality: 
 
 Enforcement by executive, 196. 
 Enforcement by federal courts, 
 
 200. 
 International law applied in 
 
 cases affecting, 172. 
 Offenses against, punished, 179, 
 
 181. 
 Panama Canal Zone, 239. 
 President's proclamation of, con- 
 clusive, 39. 
 Proclamation by President, 268. 
 Proclamation, effect of, 199, 200. 
 Non-intercourse, power to authorize, 
 
 301. (See also Embargo.) 
 Non-justiciable question, definition 
 
 of, 211. 
 North Atlantic fisheries arbitration, 
 
 on sovereignty, 215. 
 North Atlantic fisheries case, 109.
 
 398 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 North Atlantic fisheries modus Vi- 
 vendi, 240. 
 
 North German Confederation. (See 
 Treaties.) 
 
 Obligations : 
 
 Definition of, 213. 
 
 Conditions under which they ex- 
 ist, 214. 
 
 Distinguished from responsibili- 
 ties, 213, 214. 
 
 Responsibility for fulfillment, 
 152. 
 
 Imperfect, 212. 
 
 Legal contrasted wth moral, 211, 
 
 215- 
 
 Moral, 210. 
 National — 
 
 Determination of, 220-222. 
 Difficulty of determining, 
 
 209-210. 
 Nature of, 206. 
 Power to interpret, 215. 
 Power to perform, 225. 
 Presumed to be moral, 211. 
 Presumed to be non-justici- 
 able, 211. 
 Responsibility for perform- 
 ance of, 205. 
 Occupation of foreign territory, 296. 
 Office under United States, incom- 
 patibilities of, 316. 
 Oil investments, diplomatic discus- 
 sion regarding, 301. 
 Olney, Richard, Secretary of State: 
 Interpretation of Monroe Doc- 
 trine, 39. 
 On obligation to indemnify in- 
 jured aliens, 225. 
 Opium trade, 303. (See also Trea- 
 ties.) 
 Oppenheim, L., on representative 
 organ, 20. 
 
 "Pacificus" (Hamilton), 136. 
 Panama, recognition of, 218. (See 
 
 also Treaty.) 
 Panama Canal : 
 
 Dispatch of troops to, 227. 
 Guarantee of. 218. 
 Senate rejection of treaties con- 
 cerning, 252. 
 
 Panama Canal tolls act, 32, 163. 
 
 Controversies concerning, 60, 163, 
 
 165. 
 Panama Canal Zone, executive agree- 
 ment regarding. 238, 239. 
 Panama Congress, appointment of 
 
 delegates to, 279, 327. 
 Pan-American Union, participation 
 
 in, by United States, 334. 
 Passport regulations, 277. 
 Patent agreements. (See Acts of 
 
 Congress.) 
 Pennsylvania, Attorney-General of, 
 
 on letters rogatory, 189. 
 Permanent Court of International 
 Justice : 
 Compulsory jurisdiction on pro- 
 tocol, 224. 
 Establishment of, 224. 
 Jurisdiction of, 113, 223, 224. 
 Justiciable questions, 212. 
 Perry, Matthew C, Commodore, 
 
 opening of Japan, 297. 
 Pershing, John, General, punitive ex- 
 pedition to Mexico, 296. 
 Pierce, Franklin, President, on Grey- 
 town incident 306. 
 Pillet, on observance of international 
 
 law, 358, 359- 
 Pine Island controversy, 173. 343- 
 Pious Fund and case, 65, 108. 
 Piracy, 180, 184. 
 
 Defined by international law, 201. 
 Suppression of, 296, 299. 
 Phillimore, Sir Robert, on duty of 
 belligerents to establish prize 
 courts, 15. 
 Philippines, independence of, 253. 
 Police power, exercise of, by United 
 
 States in Panama, 218. 
 Policy: 
 
 Power to decide on, not affected 
 by constitutional guarantees, 
 82. 
 Power to decide on, not affected 
 
 by states' rights, 93. 
 Power to decide on, not limited 
 by separation of powers, 120. 
 Pronouncements on, by Presi- 
 dent, subject to international 
 cognizance, 39.
 
 INDEX. 
 
 399 
 
 Political questions, 232, 348. 
 
 Acquisition of territory, 134. 
 Boundary determination, 274. 
 Classification of, 172. 
 Determined by political depart- 
 ments, 215. 
 Includes most foreign relations 
 
 powers, 124. 
 Not considered by courts, 83, 
 
 172, 267, 343. 
 Termination of treaty, 257. 
 Polk, James K., President : 
 
 Initiation of Mexican war, 297. 
 On efifect of executive interpre- 
 tation of treaty, 217. 
 On Mexican war, 287. 
 Pomeroy, J. N. : 
 
 On repelling invasion, 308. 
 On war powers of President, 285. 
 Porto Ricans, naturalization of, 277. 
 Postal agreements. (See Acts of 
 Congress, Executive agreements.) 
 Prescriptive bays, recognition of, 274. 
 Presidency : 
 
 Analogy to British Crown, 145. 
 Conception of, in Federal Con- 
 vention, 145. 
 Development of administrative 
 powers of, 146. 
 President of United States: 
 
 Agreement to urge foreign claims 
 
 upon Congress, 244. 
 Bound by act of Congress and 
 
 treaty, 341 • 
 Can not acquire territory by con- 
 quest, 276. 
 Can not authorize reprisals, 298. 
 Can not be deprived of power 
 
 by treaty, 119. 
 Can not confiscate enemy prop- 
 erty on land, 299. 
 Can not determine obligations 
 within power of Congress, 216. 
 Can not establish prize courts, 
 
 221, 321. 
 Capacity to start war, 285. 
 Classification of powers, 235. 
 Communications to Congress 
 subject to international cogni- 
 zance, 35. 
 
 Conclusiveness of acts and utter- 
 ances of, under international 
 law, 38, 58, 59- 
 
 Concurrent powers with Con- 
 gress, 340, 341- 
 
 Concurrent powers with federal 
 courts, 342, 343. 
 
 Constitutional basis of represent- 
 ative powers, 23. 
 
 Constitutional powers of, 96. 
 
 Dominance in conduct of foregn 
 relations, 137, 336, 360. 
 
 Duty of Congress to carry out 
 political undertakings of, 349. 
 
 Duty of courts to follow politi- 
 cal decisions of, 348. 
 
 Duty of treaty-making power to 
 carry out political undertak- 
 ings of, 349- 
 
 Duty to enforce treaties, 352. 
 
 Duty to execute acts of Con- 
 gress, 350. 
 
 Enforcement of executive agree- 
 ments, 236. 
 
 Exclusiveness of recognition 
 power, 270. 
 
 Extent of power in making ar- 
 mistices, 241. 
 
 Extent to which he can bind the 
 nation, 244. 
 
 Final authority in treaty denun- 
 ciation, 258. 
 
 Foreign relations powers distin- 
 guished from administrative 
 powers, 147. 
 
 Foreign states may bring claims 
 before, 24. 
 
 Impeachment of, 167. 
 
 Independent of Congress in con- 
 ducting foreign relations, 1491 
 258, 278-281, 341- 
 Leadership in foreign affairs, 
 
 149, 366-368. 
 Need of traditions for advance- 
 ment to, 373. 
 Neutrality proclamation by, 199. 
 Observance of international law 
 
 by, 166. 
 Official acts of, subject to inter- 
 national cognizance, 25, 28, 35. 
 Personal delivery of messages 
 by, 371, 372.
 
 400 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Practice in conducting foreign 
 relations, 136. 
 
 Presumed to speak for the na- 
 tion, 25, 36, ZT. 
 
 Privileges and immunities of, 25, 
 
 97- 
 
 Purposes for which he may use 
 
 force abroad, 306. 
 Purposes for which he may use 
 force in American territory, 
 
 193, 194- 
 
 Recognition of international re- 
 sponsibilities, 18. 
 
 Recommendation of amend- 
 ments to treaty, 254. 
 
 Refusal to submit treaty to Sen- 
 ate, 254. 
 
 Relations with cabinet, 371. 
 
 Relations with Congress, 371. 
 
 Relations with Congressional 
 committees on foreign affairs, 
 
 Relations with Secretary of 
 State, 322. 323. 
 
 Relations with Senate, 360, 361- 
 
 Representative organ, 21, 26. 
 
 Requests for Senate advice dur- 
 ing treaty negotiations, 250. 
 
 Sole agency of international com- 
 munication, 28. 
 
 Unofficial reception of mission 
 from defacto governments, 35. 
 
 Use of veto in defense of inter- 
 national law, 164. 
 
 War powers limited by interna- 
 tional law, 85-86, 169. 
 
 Why given treaty-making power, 
 246. 
 
 Withdrawal of treaty from Sen- 
 ate, 254. 
 President, powers of, 146. 
 
 Appointment of officers, 314. 
 Appointment of diplomatic 
 
 agents, 249, 328, 329- 
 Appointment of diplomatic offi- 
 cers, 325. 
 Appointment of military and 
 
 naval officers, 321. 
 Appointment of peace missions, 
 327. 
 
 Appointment of treaty negotia- 
 tors, 119, 249. 
 
 Arming of merchant vessels, 295. 
 
 Cable landing, 267, 302. 
 
 Commissioning military and 
 civil officers, 322. 
 
 Conclusion of compromis of ar- 
 bitration, 223. 
 
 Conclusion of executive agree- 
 ments, 53, 233-236, 243. 
 
 Confiscation of property in war, 
 
 85. 
 
 Control of foreign relations, 141, 
 266, 267. 
 
 Creation of offices, 313. 
 
 Denunciation of treaties, 259. 
 
 Determination of foreign policy, 
 64, 282. 
 
 Determination of national obli- 
 gations, 217. 
 
 Determination of occasions for 
 using military force, 193. 
 
 Direction of administration, 141, 
 148, 194, 317. 
 
 Direction of military forces, 305. 
 
 Enforcement of awards of for- 
 eign consuls, 195. 
 
 Enforcement of international 
 law, 192. 
 
 Enforcement of neutrality, 176, 
 182. 
 
 Enforcement of treaties, 190. 
 
 Exchange of ratifications of 
 treaty, 52, 254. 
 
 Extradition under treaty, 194. 
 
 Extradition without treaty, 195. 
 
 Formal amends, 229. 
 
 Fulfillment of guarantee, 227. 
 
 Government of unorganized ter- 
 ritory, 320-321. 
 
 Initiate treaties, 248. 
 
 Interim appointments, 119. 
 
 Internment of foreign troops, 
 196. 
 
 Interpretation of constitution, 
 
 347. 
 Interpretation of international 
 
 law, 245. 
 Interpretation of national and 
 
 state laws, 40. 
 Interpretation of treaty, 47. 245.
 
 INDEX. 
 
 401 
 
 Meeting of international respon- 
 sibilities, ICO, 158. 
 Movement of military and naval 
 forces, 119, 186, 227, 304, 309. 
 Movement of military and naval 
 
 forces abroad, 296. 
 Movement of military forces in 
 
 United States territory, 193. 
 Negotiation of treaties, 44, 249. 
 Organization of army and navy, 
 
 320. 
 Proclamation of treaties, 255. 
 Radio censorship, 196. 
 Ratification of treaties, 52, 254. 
 Reception of diplomatic officers, 
 
 242. 
 Recognition, 39, 268. 
 Recognition of citizenship, 277. 
 Recognition of termination of 
 treaty by international law, 
 256. , 
 
 Recognition of termmation of 
 
 war, 291, 293. 
 Recognition of territorial acqui- 
 sitions, 274. 
 Recognition of war, 286. 
 Removal of officers, 146, I94, 3i6, 
 
 322. 
 Repudiation of acts by subordi- 
 nates, ultra vires, 40, 44- 
 Return of deserting seamen 
 
 under treaty, 195. 
 Signature of treaties, 251. 
 Suppression of boundary inci- 
 dents, 184. 
 Treaty making, 261-262. 
 Veto, 119. 
 Presidential agent, not an officer of 
 
 United States, 333- 
 Presidential agreements. (See Ex- 
 ecutive agreements.) 
 Prize courts : 
 
 Apply international law, 19, i7i, 
 
 221. 
 Cases settled by, 221. 
 Duty of, 299. 
 Duty of belligerents to establish, 
 
 15. 173- . . 
 
 Effect of municipal law limita- 
 tions upon, 19. 
 
 Power to establish, 221, 314- 
 
 Prize jurisdiction. (See Federal 
 courts, Jurisdiction.) 
 
 Prizes, restoration of, 182, 200. 
 (See also Acts of Congress.) 
 
 Proclamation of neutrality. (See 
 Neutrality.) 
 
 Proclamation of treaties. (See Trea- 
 ties.) 
 
 Property, private, power to author- 
 ize seizure, 85, 298. 
 
 Protectorates, recognition of, 268. 
 
 Protocol, 235. (See also Executive 
 agreements.) 
 
 Public vessels, international law ap- 
 plied in cases affecting, 172. 
 
 Privateering, power to authorize, 298. 
 
 Radio, power to regulate, 196, 302. 
 Ratification of treaty. (See Trea- 
 ties.) 
 Rawle, William : 
 
 On abrogation of treaties, 260. 
 On powers of President, I49- 
 On termination of treaties, 283. 
 Reasonable doubt, acts must be un- 
 constitutional beyond, 348. 
 Rebus sic stantibus, 256. 
 Reciprocity treaties, Senate rejection 
 of, 252. (See also Executive 
 agreements. Treaties.) 
 Recognition : 
 
 By subordinate does not bind 
 
 President, 40. 
 Distinguished from intervention, 
 
 270. 
 
 Exclusiveness of President's 
 power, 39, 270. 
 
 Grounds for withdrawing, 20. 
 
 Method of, 268. 
 
 Of foreign states and govern- 
 ments, 39, 268-273. 
 
 Of termination of war, 291, 293. 
 
 Of war, 286, 289. 
 
 Political question, 172. 
 
 Power of, 266, 268. 
 
 Relation of, to war, 269. 
 
 Resolutions on, by states of 
 United States, 265. 
 
 Source of power, 133. 
 Reinsch. Paul S., on experience of 
 Secretaries of State, 373-
 
 402 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Removal power, 316. (See also 
 
 President.) 
 Renault, L., on inexpediency of 
 
 treaty reservations, 49. 
 Reparation : 
 
 By formal amends, 229. 
 
 By punishment of individual, 178, 
 
 229. 
 By release of prisoner, 229. 
 Obligation of, 153, 209. 
 Repentigny claim, 222. 
 Representative distinguished from 
 Requisition of enemy property, 299. 
 
 delegate, 318. 
 Representative organ of government, 
 
 13- 
 
 Attributes of, under international 
 law, 15, 28. 
 
 Constitutional restrictions on, 19. 
 
 Duty of states to maintain, 21. 
 
 Form of, 26. 
 
 May be altered by constitutional 
 amendment, 26. 
 
 Must be free of municipal law 
 restrictions, 19. 
 
 President of the United States 
 as, 21. 
 
 Sole agency of international com- 
 munication, 28. 
 Reprisals : 
 
 Effect of, 291. 
 
 Power to authorize, 298. 
 Res adjudicata, 64, 235. 
 Reservations to treaty: 
 
 Express consent to, 45. 
 
 Made at exchange of ratifica- 
 tions, 255. 
 
 Made at signature, 251. 
 
 Must be agreed to by President 
 and Senate, 46. 
 
 Not permitted, to Declarations 
 of Paris and London, 49. 
 
 Number of cases of, 253. 
 
 Occasions for presenting, 48, 50. 
 
 Refusal of foreign state to ac- 
 cept, 254, 255- 
 
 Senate's power, 253. 
 
 Statements of policy in, 282. 
 
 Tacit consent to, 48. 
 
 Reservations to treaty referred to : 
 African Slave Trade general act, 
 
 51. 
 Algeciras convention, 282. 
 Corea-United States, 1882, 331. 
 France-United States, 1801, 50, 
 
 255- 
 
 Great Britain-United States, 1794, 
 Jay treaty, 253. 
 
 Hague Conventions, 51, iii, 282. 
 
 Monroe Doctrine, 282. 
 
 Sanitary convention, 1903, 52. 
 
 Spain-United States, 1819, Flor- 
 ida purchase, 49. 
 
 Spain-United States, 1898, 253. 
 Reservations to Versailles treaty pro- 
 posed by United States Senate, 
 
 49, 107- 
 
 Appointment of representatives 
 in League of Nations, 119. 
 
 Constitutionality, 119. 
 
 Power to use military force, 119. 
 
 Presidential agents, 333. 
 
 Withdrawal from League of Na- 
 tions, 34, 107, 119- 
 Reserved powers of states of United 
 States : 
 
 Classification of, 89. 
 
 Constitutional understandings re- 
 garding, 86. 
 
 Do not limit treaty-making power, 
 
 89. 
 Responsibilities : 
 
 Distinguished from obligations, 
 
 213-214. 
 Powers not deducible from, 154. 
 Social conditions under which 
 
 they exist, 214. 
 Responsibilities, international, 13. 
 Based on consent, 58. 
 Classification of, 213. 
 Definition of, 213. 
 For domestic disturbances, 264. 
 Duty of government organs to 
 
 meet, 358. 
 Instrumentalities for meeting, de- 
 fined by treaty, 99. 
 Meeting of, distinguished from 
 
 making agreements, 62. 
 Not affected by municipal law, 
 
 16.
 
 INDEX. 
 
 403 
 
 Of President under international 
 
 law, 27. 
 Power of Congress to meet, 100, 
 
 159- 
 Power of courts to meet, 100, 
 
 158. 
 Power of President to meet, 100, 
 
 157- 
 Power of states of United States 
 
 to meet, 153. 
 Power of treaty-making power 
 
 to meet, 160. 
 Power to meet, not affected by 
 
 constitutional limitations, 78, 
 
 87, 99- 
 Power to meet, not an inherent 
 
 executive power, 155. 
 Power to meet through enforce- 
 ment of international law, 176. 
 Principles of, 151. 
 Recognition of, by Continental 
 
 Congress, 18. 
 States judges of their own, 14. 
 To perform national obligations, 
 
 205. 
 Understandings with respect to, 
 
 9; 
 
 Unitary under international law, 
 15, 25. 
 Resultant powers of national gov- 
 ernment, 132. 
 Retaliation, power to authorize, 301. 
 Retorsion, power to authorize, 301. 
 Rio Grande, boundary commission, 
 
 184. 
 Richards, Acting Attorney General, 
 on power to land cables, 267, 302. 
 Rivier, on the representative organ, 20. 
 Rogatory, letters, not applicable in 
 
 criminal cases, 189. 
 Roman law, ogligations under, 213. 
 Roosevelt, Theodore : 
 
 Dispatch of troops, 296. 
 Influence in foreign affars, 323. 
 Interpretation of Panama Canal 
 
 Guarantee, 217, 218. 
 Negotiation of Algeciras Con- 
 vention, 136. 
 On anarchy as offense against 
 
 international law, 188. 
 On executive agreement with 
 Santo Domingo, 237. 
 
 On President's powers, 156. 
 
 Submission of Pious funds case 
 to arbitration, 108. 
 
 Unofficial reception of mission 
 from Soutli Africa, 35. 
 
 Urged legislation to protect resi- 
 dent aliens, 187. 
 
 Use of navy, 294. 
 
 Withdrawal of treaties from 
 Senate, 109, 254. 
 Root, Elihu : 
 
 Arbitration treaties, 109, 112. 
 
 On constitutionality of interna- 
 tional prize court, 117. 
 
 On obligation of Congress under 
 treaties, 62. 
 
 On responsibility of national 
 government for protecting resi- 
 dent aliens, 18. 
 
 On value of international law for 
 democracies, 370. 
 Root-Takahira agreement. (See Ex- 
 ecutive agreements.) 
 Russell, Lord John : 
 
 On constitutional understandings, 
 
 369. 
 On effect of Blockade proclama- 
 tion, 38. 
 Russia : 
 
 Claim to jurisdiction in Bering 
 
 Sea, 174. 
 Treaty protecting citizens sug- 
 gested by Congress, 248. (See 
 also Treaties.) 
 Russo-Japanese war, commencement 
 *f, 290. 
 
 Sackville, Lord, British minister, re- 
 call of, 29. 
 
 Salmong, John W., on responsibility, 
 214. 
 
 Salisburj', Lord, British Premier, 
 discussion of Monroe Doctrine, 39. 
 
 Salutes : 
 
 Amends by, 229. 
 Exchange of, 168, 209. 
 
 Sanitary Convention. (See Trea- 
 ties.) 
 
 San Juan Island, agreement regard- 
 ing, 239.
 
 404 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Santo Domingo : 
 
 Annexation treaty, Senate rejec- 
 tion, 252. 
 Executive agreement regarding, 
 156, 238. 
 Scott, James Brown, on reservation 
 
 to treaties, 51. 
 Scrap of Paper incident, 212, 261. 
 Seamen : 
 
 May be compelled to fulfill con- 
 tracts, 84. 
 Return of deserting, 195. 
 Secrecy. (See Foreign relations.) 
 Secret agents, power to appoint, 330. 
 Secretary of State : 
 
 Appointment of, 322. 
 Conferences with Senators on 
 
 treaty negotiation, 251. 
 Recognition of citizenship, 277. 
 Removal of, 322. 
 Relations with President, 323. 
 Secretary of War, power to settle 
 
 certain claims, 220. 
 Sedition against foreign sovereigns, 
 
 punishable in states, 178. 
 Self executing treaties. (See Trea- 
 ties.) 
 Sequestration of enemy property, 299. 
 Senate: 
 
 Advice to treaty negotiation, 250. 
 Conception of, in Federal Con- 
 vention, 145. 
 Consent to ratification of trea- 
 ties, 252. 
 Consent to treaty reservations, 
 
 SO. 
 Duty to carry out preliminaries 
 
 of peace, 241. 
 Duty to ratify treaty in accord 
 with executive agreement, 243. 
 Duty to ratify treaty in accord 
 
 with instructions, 43. 
 Influence in foreign affairs, 368. 
 Participation in appointment of 
 treaty negotiators, 249, 330, 331. 
 Participation in claims settle- 
 ment, 224. 
 Participation in compromis of 
 
 arbitration, 223. 
 Participation in instruction of 
 
 treaty negotiators, 250. 
 Power in treaty making, 261. 
 
 Power to determine national ob- 
 ligations, 216. 
 Number of treaty reservations 
 
 by, 253. 
 
 Protests against Presidential 
 agents, 330-332. 
 
 Refusal to reject or consent to 
 treaty, 253. 
 
 Rejection of treaties, 44, 238, 252. 
 
 Relations with President, 360, 
 361. 
 
 Reservation, amendment and in- 
 terpretation of treaty, 253. 
 
 Veto of treaties, 149. 
 
 Why given participation in treaty 
 making, 93. 
 
 Withdrawal of treaty from, by 
 President, 254. 
 Senate Committee on Foreign Rela- 
 tions : 
 
 Conferences with President, 250, 
 372. 
 
 On arbitration treaties, iii. 
 
 On cooperation of departments, 
 346. 
 
 On denunciation of treaties, 259. 
 
 On executive nature of foreign 
 relations power, 137. 
 
 On overlapping of powers of de- 
 partments, 339. 
 
 On power of recognition, 273. 
 
 On power of states of United 
 States in foreign relations, 265. 
 
 On Presidential agents, 119, 249, 
 330, 332. 
 
 On reason for President's initia- 
 tive in treaty making, 248. 
 
 On representative powers of 
 President, 21. 
 Senate resolutions : 
 
 Foreign acquisition of neighbor- 
 ing naval bases, 282. 
 
 Interpretation of treaty by, in- 
 effective, 33, 34, 46. 
 
 Visit and search of vessels, 281. 
 Senators: 
 
 Appointment as treaty negotia- 
 tors, 251, 316, 333. 
 
 Conference of Secretary of State 
 with, on treaty negotiations, 
 251.
 
 INDEX. 
 
 405 
 
 Separation of Powers : 
 
 Does not limit power to make 
 decisions on national policy, 
 120. 
 Limitations derived from, 95. 
 Limitations on treaty-making 
 
 power, loi. 
 Most important limitation on 
 
 foreign relations power, 125. 
 Origin of theory, 172. 
 Should not be too rigidly ap- 
 plied, 126. (See also Constitu- 
 tion of United States.) 
 Seward, William H., Secretary of 
 State : 
 On House resolutions affecting 
 
 foreign policy, 22, 280. 
 On practice in international com- 
 munication, 2^. 
 On termination of foreign wars, 
 291. 
 Sherman, William T., General, armis- 
 tice by, repudiated, 44, 240. 
 Sherman, John, on Presidential agents, 
 
 249, 332. 
 Sherman anti-trust act, 165. 
 Signature of treaty. (See Treaties.) 
 Slave trade, suppression of, 184, 295. 
 
 (See also Treaties.) 
 Slavery, prohibition of, in accord 
 with international law, 80. (See 
 also Constitutional provisions, 
 Emancipation Proclamation.) 
 South Africa, unofficial reception of 
 
 mission from, 35. 
 South African war, termination of, 
 
 291. 
 Sovereign powers, not vested in na- 
 tional government, 130-132. 
 Sovereigns : 
 
 International law applied in cases 
 
 afifecting, 171. 
 Sedition against, punishable in 
 states, 178. 
 Sovereignty : 
 
 Nature of, 134. 
 
 Questions involving, non-justici- 
 able, 214. 
 Theory of, divided, 72. 
 Spain: 
 
 Controversies on obligation of 
 preliminaries of peace, 54. 
 
 Controversies on ratification of 
 treaties, 42, 43. (See also 
 Treaties.) 
 Spanish- American war : 
 
 Effect on control of foreign re- 
 lations in United States, 367. 
 Initiation of, 289. 
 Preliminaries of peace. (See 
 Executive agreements.) 
 Spanish colonial wars, termination 
 
 of, 291. 
 Spanish-Peruvian war, termination 
 
 of, 291. 
 Spanish treaty claims commission, 
 
 222, 245. 
 Spooner, Senator of Wisconsin: 
 
 On control of foreign relations, 
 
 365. 
 On Department of State, 322. 
 On executive nature of foreign 
 relations power, 137. 
 Stanton, Commodore, recognition of 
 Brazilian insurgents, repudiated by 
 President, 40. 
 Stare Decisis, application to interna- 
 tional decisions, 64, 65. 
 State, Department of: 
 
 Agency of communication, 21. 
 Negotiation by, 219. 
 Organization of, 322. 
 State, Secretary of. (See Secretary 
 
 of State.) 
 States of the United States : 
 
 Admission to the union, 275, 276. 
 Anti-alien legislation by, 90-91. 
 Consent to alienation of terri- 
 tory, 89. 
 Consent to treaty, 55. 
 Contracts by, 205, 232. 
 Exempt from taxation, 86. 
 Guaranteed rights of, 76. 
 Jurisdiction of courts, in cases 
 
 affecting aliens, 202. 
 Limitations on powers of, 73. 
 Limitations on foreign relations 
 
 powers, 265. 
 No extradition power, 190, 231. 
 No power to perform national 
 
 obligations, 205. 
 Not internationally responsible, 
 
 25- 
 
 Not judge in own case, 210.
 
 406 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Officers of, may not be burdened 
 with national duties. 312. 
 
 Release from, of persons claim- 
 ing immunity under inlerna- 
 tional law, 161, 171, 180, 229. 
 
 Remedies by, will not relieve na- 
 tional government of responsi- 
 bility, 206. 
 
 Republican form of government 
 guaranteed, 86. 
 
 Resolutions by, recommending 
 recognition, 265. 
 
 Suability of, 205, 206. 
 
 Territory of, guaranteed, 86. 
 
 Territory of, may not be ceded, 
 88. (See also Constitution of 
 United States.) 
 States of the United States, powers: 
 
 Agreement making, 230-232, 261. 
 
 Appontment of militia officers, 
 321. 
 
 Criminal legislation concurrent 
 with Congress, 178. 
 
 Diplomatic, 264. 
 
 Enforcement of international 
 
 law, 177- 
 
 Foreign relations, 129. 
 
 Meeting of international respon- 
 sibilities, 153. 
 
 Protection of resident aliens, 179. 
 
 Regulation of alien property 
 holding, gi. 
 
 Reserved, 75. 
 
 War, 264. 
 States of the United States, statutes: 
 
 Publication, 30. 
 
 Subject to international cogni- 
 zance, 30, 40. 
 
 Void if contrary to treaty, 91, 161, 
 
 175. 
 When effective, 30, 161. 
 States' rights, limit national powers, 
 
 86. 
 States, sovereign: 
 
 Bound by international law, 55- 
 Consent to suit in justiciable con- 
 troversies, 211. 
 Definition of, 15- 
 May bring suits in United States 
 
 courts, 23. 
 Non-suability, 210. 
 Offenses against punished, 182. 
 
 Recognition of, 20, 268. 
 Recognition of, political question, 
 172. 
 Stone, Senator of Missouri, on war 
 
 powers of Congress, 290. 
 Story, Joseph, Justice : 
 
 On criminal jurisdiction of fed- 
 eral courts, 198. 
 On duty of Congress to establish 
 
 inferior federal courts, 357. 
 On interpretation of treaties, 218. 
 On President's discretion, 309. 
 On President's power to carry 
 out awards of foreign consuls, 
 
 195. 
 On treaty-making power, 234. 
 
 Stowell, Lord, on initiation of war, 
 
 288. 
 Submarine cable convention. (See 
 
 Treaties.) 
 Succession, law of, 80. 
 Sumner, Charles, Senator from Mas- 
 sachusetts : 
 On denunciation of treaty, 259. 
 Resolution on proposed Santo 
 Domingan annexation, 279. 
 Supreme Court of the United States: 
 Appellate jurisdiction of, 203. 
 Effect of decisions as precedents, 
 
 347- 
 Original jurisdiction of, 202. 
 
 Suspension of arms, 240. 
 Sutherland, George: 
 
 On arbitration treaties, 112. 
 On war powers of President, 84, 
 170. 
 Switzerland : 
 
 Controversy on application of 
 most-favored-nation clause, 33, 
 
 228. 
 
 International responsibility of na- 
 tional government, 15. 
 
 Official commentary on League of 
 Nations covenant, 60, ii4- (See 
 also Treaties.) 
 
 Taft, William Howard: 
 Dispatch of troops, 296. 
 On arbitration treaties, in, 112. 
 On denunciation of treaties, 259. 
 On executive agreements, 238.
 
 INDEX. 
 
 407 
 
 On powers of President, 156. 
 On power to interpret laws, 64. 
 On President's power to deter- 
 mine foreign policy, 64, 245. 
 On President's power to direct 
 
 forces, 119, 308. 
 On responsibility of nation for 
 protection of resident aliens, 25. 
 Proclamation of Japanese treaty 
 
 of 191 1, 43- 
 Urges legislation to protect resi- 
 dent aliens, 187. 
 Withdrawal of treaties from 
 Senate, 254. 
 Taney, Chief Justice : 
 
 On foreign relations powers of 
 
 national government, 134. 
 On nature of foreign relations 
 
 powers, 131. 
 On powers of states of United 
 States to make agreements, 230. 
 Taylor, Zachary, President, communi- 
 cation on Kossuth revolution pro- 
 tested by Austria, 25, 36. 
 Tazewell, Senator from Virginia, on 
 President's power to appoint diplo- 
 matic agents, 330. 
 Telegraph, power to regulate, 302. 
 Termination of executive agreements. 
 
 (See Executive agreements.) 
 Termination of Treaties. (See Trea- 
 ties.) 
 Termination of war. (See War.) 
 Territory : 
 
 Annexation of, political question, 
 
 172. 
 Conquest of, 276. 
 International law applied to de- 
 termine rights in newly ac- 
 quired, 172. 
 Methods of acquiring, 273-275. 
 Military government of, constitu- 
 tional, 83, 85. 
 Power to annex, 83, 130, 274, 275. 
 Power to cede, 226. 
 Recognition of acquisitions, 268, 
 
 274. 
 Source of power to annex, 133. 
 Texas annexation treaty, Senate rejec- 
 tion, 252. 
 
 Thayer, W. R., on relations of Presi- 
 dent and Secretary of State, 2-3- 
 Tinoca, de facto President of Costa 
 
 Rica, non-recognition of, 20, 268. 
 Trademark agreements. (See Acts 
 
 of Congress.) 
 Treaties : 
 
 Abrogation of, 260-261. 
 
 Amendments to, 46. 
 
 Annexation of territory by, 274- 
 
 275- 
 Applied by courts, 162, 172, 222. 
 Appointment of negotiators of, 
 
 249- 
 
 Authorizing executive and judi- 
 cial action 190. 
 
 Authorizing executive agreements, 
 106, 236. 
 
 Authorizing extradition by state 
 authority, 178. 
 
 Can not deprive Congress of 
 powers, lOi. 
 
 Can not deprive courts of inher- 
 ent powers, 116. 
 
 Can not vest courts with non- 
 judicial functions, 117. 
 
 Capture of property under author- 
 ity of, 299. 
 
 Change in character of, during 
 19th century, 206-207. 
 
 Claims settled by, 244. 
 
 Classification of subject matter, 
 
 247. . , 
 
 Conclusion of, may be national 
 
 obligation, 228. 
 
 Conflict with acts of Congress, 
 
 164, 175. 305. 345- 
 Conflict with another treaty, 166, 
 
 175. 352. 
 
 Conflict with customary interna- 
 tional law, 174. 
 
 Confliet with state law, 91, 175- 
 
 Congress deprived of full discre- 
 tion by, 103. 
 
 Congressional execution of, 103, 
 226, 354-356. 
 
 Courts can not make, 234. 
 
 Delegation of judicial power by, 
 112, 116. 
 
 Delegation of power by, to inter- 
 national organs, no, 112.
 
 408 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Delegation of power by, to Presi- 
 dent, to conclude compromis of 
 arbitration, io8. 
 
 Denunciation on notice, 258. 
 
 Deposit of ratifications, 50. 
 
 Designating special organs to exe- 
 cute, 26, 99. 
 
 Duty to ratify, 42, 252, 253. 
 
 Exchange of ratifications, 48, 50, 
 52, 254. 
 
 Imposes moral obligation, 210. 
 
 Initiation of, 248. 
 
 International obligation of, not 
 affected by congressional abro- 
 gation, 260, 261. 
 
 Interpretation of, 63, 112, 218. 
 
 Interpretation by President, 25, 
 
 245. 
 
 Interpretation of law by, 115-116. 
 
 Interpretation of, requires full 
 treaty power, 48, 65, 217. 
 
 Interpretation by national organs 
 in first instance, 213. 
 
 Interpreted in accord with inter- 
 national law, 166. 
 
 Interpretive resolutions by Houses 
 of Congress, 253. 
 
 Making of, distinguished from 
 meeting responsibilities, 62. 
 
 May deal with subjects in power 
 of Congress, 102, 103, 344. 
 
 Most-favored-nation clause, ap- 
 plication to Switzerland, 46. 
 
 Must deal with subjects of inter- 
 national scope, 123. 
 
 National claims submitted to ar- 
 bitration under, 22^. 
 
 National obligations based on, 206. 
 
 Negotiation under authority of 
 President, 44. 
 
 Never declared unconstitutional, 
 80, 247. 
 
 Number concluded by United 
 States, 246, 247. 
 
 iN umber rejected by Senate, 252. 
 
 Objection of foreign states to 
 Senate amendment, 44. 
 
 Obligation of, 6, 59, 212. 
 
 Obligation of Congress to enforce, 
 IQI. 
 
 Obligation to ratify, 42. 
 
 Offenses against, punished, 179, 
 184-186. 
 
 Offenses created by, may be pun- 
 ished, 79. 
 
 Organs for interpreting, 210. 
 
 Power of Congress to pass laws 
 in execution of, 87. 
 
 Power to conclude, under national 
 constitution, 53. 
 
 President's refusal to submit to 
 Senate, 254. 
 
 Proclamation of, 255. 
 
 Protocols postponing exchange of 
 ratifications, 47. 
 
 Provisions dependent on state leg- 
 islation, 26, 30, 31. 
 
 Publication of, 31. 
 
 Qualified ratification of, must be 
 consented to, 45. 
 
 Ratification of, 42, 52, 252, 254. 
 
 Recognition of, in act of Con- 
 gress, 163. 
 
 Rejection of, by foreign govern- 
 ment, 255. 
 
 Repudiation of, 6, 260. 
 
 Requiring legislative execution, 
 208. 
 
 Requiring subsequent treaty, 353. 
 
 Reservations to. (See Reserva- 
 tions to Treaty.) 
 
 Respect for earlier treaties by, 
 166. 
 
 Secrecy in negotiation of, 354. 
 
 Secret, 255. 
 
 Self executing, 207, 228, 353. 
 
 Senate participation in interpreta- 
 tion of, 48, 217. 
 
 Senate refusal to ratify, 44, 238. 
 
 Settlement of controversy by, 219. 
 
 Signature of, 48, 249, 251. 
 
 States of United States forbidden 
 to make, 230. 
 
 Steps in conclusion of, 41, 42. 
 
 Subject matter of, 246. 
 
 Supreme law of land, 158, 255- 
 
 Termination of, 39, 107, 256-262, 
 
 351. 352. 
 Termination of, political question, 
 
 172. 
 Ultra vires provisions, 53-56. 
 Validity if made by de facto 
 
 government, 57-
 
 INDEX. 
 
 40d 
 
 Validity if made under necessity, 
 
 57, 89. 
 
 Voidable, 256. 
 
 War, effect on, 256. 
 
 When efifective, 31, 42, 52, 255. 
 
 Withdrawal from Senate by 
 President, 245. (See also Ex- 
 ecutive agreements.) 
 Treaties concluded by United States, 
 referred to : 
 
 Austria, 1921, termination of war, 
 
 293. 
 
 Cherokee Indians, 1790, 43- 
 China, 1868 (Burlingame), immi- 
 gration, 164, 257, 345. _ 
 1894, protection of citizens, 
 191. 
 Colombia, 1846, guarantee, 217, 
 
 227, 247, 296. 
 Corea, 1882, commerce, 249, 303. 
 
 331. 
 Cuba, 1903, protection, 217, 296. 
 
 1903, reciprocity, 106. 
 Denmark, 1917, cession of Virgin 
 
 Islands, 252. 
 France, 1778, alliance, 247, 256, 
 
 257. 
 1778, commerce, 90, 166. 
 
 1788, consuls, 43. 
 
 1801, commerce and claims, 
 
 45, 47, 50, 219, 220, 345- 
 1803, Lousiana purchase, 102. 
 1831, claims, 66, 219, 220. 
 
 1852, consuls, 56. 
 
 1853, alien land ownership, 31, 
 90. 
 
 1898, commercial reciprocity, 
 
 33- 
 
 1919, proposed guarantee, 253. 
 Germany. 1844, commerce, 102. 
 
 1921, termination of war, 293. 
 Great Britain, 1783, peace, 31, 
 162, 191. 
 
 1794 (Jay), commerce and 
 claims, 62, 102, 226, 255, 
 266. 352. 
 
 1803 (King-Hawksbury), pro- 
 posed boundary, 44. 
 
 1814 (Ghent), peace, 326, 
 327. 
 
 1817, Great Lakes disarma- 
 ment, 39, 242, 247, 258. 
 
 1818, fisheries, 215. 
 
 1842 (Webster-Ashburton), 
 
 Maine boundary, 55, 89, 
 
 220, 226, 227, 230. 
 1846, Oregon boundary, 220. 
 1850, Isthmian canal (Clay- 
 
 ton-Bulwer), 25, 45, 47, 48, 
 
 65, 255, 258. 
 1854, use of state canals, 31, 
 
 90. 
 1 87 1 (Washington), neutral 
 
 duties, 177. 
 1892, Bering sea arbitration, 
 
 164. 
 
 1900 (Hay-Pauncefote), pro- 
 posed Isthmian canal, 45. 
 
 1901 (Hay-Pauncefote), Isth- 
 mian canal, 163, 258. 
 
 1908, arbitration, 47, 99, 109, 
 210-21 1. 
 
 1910, claims, 224. 
 
 191 1, Canadian boundary com- 
 mission, 183, 219. 
 
 1918, migratory birds, 87, 185. 
 Hawaii, 1884, reciprocity, 47. 
 Hayti, 191 5, intervention and 
 
 guarantee, 217, 247, 297. 
 Hungary, 1921, termination of 
 
 war, 293. 
 Indian tribes, 43, 234. 
 Italy, 1871, extradition and rights 
 
 of citizens, 67, 351- 
 Japan, 191 1, rights of citizens, 
 
 45, 90. 
 Mexico, 1848 (Guadaloupe Hi- 
 dalgo), peace, 25, 47, 48, 
 65, 109, 217, 220, 255. _ 
 1889, boundary commission, 
 184. 
 North German Confederation, 
 
 1868, naturalization, 46. 
 Panama, 1903, guarantee, 247, 
 
 352. 
 Russia, 1832, commerce, 259. 
 
 1867, Alaska purchase, 102, 
 
 245- 
 Santo Domingo, 1907, customs 
 administration, 238.
 
 410 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Spain, 1795, embargoes, 245. 
 1819, Florida purchase, 49. 
 1898, peace, 46, 220, 251. 
 Switzerland, 1855, most-favored- 
 nation clause, 33, 46, 48, 228, 
 260. 
 Turkey, 1874, extradition, 47. 
 Treaties, general, referred to : 
 
 Algeciras convention, Morocco, 
 
 SO, 136, 282. 
 Alien rights, 89. 
 Arbitration. (See Arbitration 
 
 treaties.) 
 Arms trade, 354, 355- 
 Bering sea sealing, 185, 228. 
 Brussels general act, 1890, Afri- 
 can slave trade, 45, 50, 51, 191, 
 227. 
 Bryan, peace, 219, 247. 
 Commercial, 228. 
 Consular jurisdiction, 185. 
 Declaration of London, maritime 
 
 capture, 49. 
 Declaration of Paris, maritime 
 
 warfare, 47, 49, 245, 298. 
 Geneva convention. Red Cross, 
 
 185, 191, 247. 
 Guarantee, 247, 253. 
 Hague conventions. (See Hague 
 
 conventions. ) 
 International administration, 247. 
 International organization, 228. 
 League of Nations Covenant. 
 (See League of Nations Cove- 
 nant.) 
 London, 1871, obligation of treat- 
 ties, 212. 
 Maritime salvage, 185. 
 Pan-American pecuniary claims, 
 
 19 10, 99, 222. 
 Radio telegraph, 185. 
 Sanitary convention, 1903, 52. 
 Submarine cable, 1885, 47, 185, 
 
 2t6, 228. 
 Vereiniging, 1902, end of Boer 
 
 war, 35. 
 Versailles. (See Versailles, 
 
 treaty of.) 
 Vienna, 181?, classification of dip- 
 lomatic officers, 14. 
 White slavery, 1904, 87. 
 
 iTreaty-making power, 53. 55, 233, 246, 
 Can not be delegated, 104. 
 Can not bind its own future 
 
 action, 352. 
 Capacity to meet international 
 
 responsibilities, 160. 
 Concurrent powers of Congress, 
 
 3447345. 
 Constitutional limitations upon, 
 
 121, 248, 351. 
 Constitutional provisions on, 55. 
 Creation of offices by, 312. 
 Delegation to international organ, 
 
 III. 
 Denunciation of treaty by, 259. 
 Duty to carry out executive agree- 
 ments, 349. 
 Duty of Congress to carry out 
 
 acts of, 353-356. 
 Duty of courts to enforce acts of, 
 
 351. 
 Duty of President to enforce acts 
 
 of, 352. 
 Limited by guarantees of private 
 
 right, 80. 
 Limited by separation of powers, 
 
 lOI. 
 
 Limited by states' rights, 55, 88. 
 May create courts, 104. 
 Observance of international law 
 
 by, 166. 
 Opinion of text writers on, 92. 
 Should respect states' reserved 
 
 powers, 93. 
 Suggested modification of, 368. 
 Termination of voidable treaty 
 
 by, 256. 
 Under Articles of Confederation, 
 246. 
 Tripolitan war, 286, 297. 
 Trumbull case (Chile vs. U. S., 1892), 
 
 27, 41. 
 Tucker, H. St. George, on conflicts 
 of state legislation with treaty, 162. 
 Turkey. (See Treaties.) 
 
 Ulpian, on making of contract, 41. 
 
 Understandings, relation to law, 7, 8. 
 (See also Constitutional under- 
 standings. International understand- 
 ings.)
 
 INDEX. 
 
 411 
 
 United States. (See National govern- 
 ment, States of United States, Con- 
 stitution, House of Representa- 
 tives, Senate, Congress, President, 
 Courts.) 
 Vattel, E. : 
 
 On imperfect obligations, 8. 
 
 On legal and moral obligations, 
 
 211. 
 On obligation of international 
 
 law, 67. 
 On organ to interpret treaty, 210. 
 Venezuela claims cases, 109. 
 Vera Cruz incident, 205, 297, 299. 
 Versailles treaty : 
 
 Compatibility with preliminaries 
 
 of peace, 54. 
 Deposit of ratifications, 50. 
 League of Nations Covenant. 
 (See League of Nations Cove- 
 nant.) 
 Obligation to ratify, 216. 
 Reservation proposed by China, 
 
 49. 
 Reservations proposed by Senate. 
 (See Reservations to treaty of 
 Versailles.) 
 Senate rejection of, 252. 
 Veto. (See President.) 
 Vicarious responsibility, 152. 
 Vice President, participation in cabi- 
 net meetings, 371. 
 Vienna, Treaty of. (See Treaties.) 
 Villa, pursuit of, 193, 296. 
 Virgin islands, annexation treaty re- 
 jected by Senate, 252. 
 Vital interests, questions involving, 
 non-justiciable, 211. 
 
 Walsh, T. J., Senator from Mon- 
 tana, on termination of treaty, 108. 
 War: 
 
 Causation of, 284, 285. 
 Declaration authorizes general 
 
 reprisals, 299. 
 Declaration, effect of, 256, 297, 
 
 298, 299. 
 Declaration, power, 227, 266, 286, 
 
 290. 
 Declaration, prohibits trading with 
 enemy, 303. 
 
 Definition, 284. 
 
 Fact of, subject to international 
 
 cognizance, 39. 
 International law applied in cases 
 
 affecting, 172. 
 Obligation to make, under treaty, 
 
 62. 
 Power to make, 284. 
 Powers, subject to constitutional 
 
 limitations, 84. 
 Recognition of, 39, 268, 286, 289. 
 Termination of, 39, 268, 290, 291, 
 
 293- 
 Termination of, political question, 
 173. (See also Belligerency, 
 Civil war.) 
 War of 1812, declaration of, 286. 
 Wars referred to : 
 
 American civil, 288, 291. 
 Mexican, 286-288, 297. 
 Russo-Japanese, 290. 
 South .African, 291. 
 Spanish-American, 289, 367. 
 Spanish Colonial, 291. 
 Spanish-Peruvian, 291. 
 Tripolitan, 286, 297. 
 War of 1812, 286. 
 World war, 280, 293. 
 Declaration, proposed amendment, 
 regarding, 93. 
 Washington, George, President : 
 
 Appointment of diplomatic agents, 
 
 328, 331. 
 Farewell address, 67, 283. 
 On control of foreign relations, 
 
 364. 
 On international favors, 67. 
 On treaty-making power, 5, 233. 
 On power of House of Represen- 
 tatives in treaty making, 62, 
 246. 
 Neutrality proclamation, 196. 
 Personal discussion with Senate, 
 
 361. 
 Practice in recognition, 272. 
 Recognition of France, 136. 
 Seeks Senate advice to treaty, 2S0. 
 Washington, treaty of. (See Treaties, 
 
 Great Britain.) 
 Water Witch incident, 298.
 
 412 THE CONTROL OF AMERICAN FOREIGN RELATIONS. 
 
 Webster, Daniel: 
 
 On congressional resolutions on 
 
 foreign affairs, 279. 
 On duty of states to maintain 
 
 courts, 14. 
 On obligation of international law, 
 
 58. 
 On treaty-making power, 55. 
 Webster-Ashburton treaty. (See 
 
 Treaties, Great Britain.) 
 Westlake, John, on recognition, 20. 
 White slavery. (See Acts of Con- 
 gress, Treaties.) 
 Wickersham, George, Attorney Gen- 
 eral, on repelling invasion, 308. 
 William P. Frye, case of, 24. 
 Willoughby, W. W. : 
 
 On adoption of international law 
 
 by United States, 59. 
 On denunciation of treaty, 260. 
 On extradition power, 195. 
 On Neagle case, 157. 
 On power to annex territory, 275. 
 On power of states to make 
 
 agreements, 232. 
 On power to meet international 
 
 responsibilities, 154. 
 On President's powers, 146. 
 On sovereign powers of national 
 
 government, 131. 
 On treaty-making power, 56. 
 On war powers of President, 169, 
 170. 
 Wilson, G. G., and Tucker, G. F. : 
 Definition of state, 15. 
 Powers of Department of State, 
 22. 
 Wilson, James, proposal for treaty- 
 making power, 246. 
 Wilson, Woodrow : 
 
 Dispatch of troops, 296. 
 Fourteenth point of, 241. 
 On American entry into World 
 War, 289. 
 
 On experience of Presidents, yj2>. 
 
 On legal and moral obligations, 
 211. 
 
 On nature of delegates to League 
 of Nations Assembly, 320. 
 
 On obligation of preliminaries of 
 peace, 54. 
 
 On Panama Canal Tolls contro- 
 versy, 60, 163. 
 
 On power to arm merchant ves- 
 sels, 295. 
 
 On President's leadership in for- 
 eign relations, 367. 
 
 On relation of President to Con- 
 gress, 366. 
 
 On termination of treaty, 108. 
 
 On unitary responsibility of Brit- 
 ish Empire in League of Na- 
 tions, 16. 
 
 Personal conference with Senate 
 Committee on Foreign Rela- 
 tions, 2>7^- 
 
 Refusal to carry out congressional 
 resolution on foreign affairs, 
 280. 
 
 Removal of Secretary of State, 
 322. 
 
 Sympathy for democratic form 
 of government, 14. 
 
 Termination of treaties, 258. 
 
 Veto of war termination resolu- 
 tion, 292. 
 Woodbury, Justice, on jurisdiction of 
 
 federal courts, 199. 
 World War: 
 
 American entry into, 289. 
 
 Declaration of, 280. 
 
 Preliminaries of peace. (See Ex- 
 ecutive Agreement.) 
 Termination of, 293. (See also 
 Versailles treaty.) 
 
 Yrujo, Spanish minister, case of, 29.
 
 
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