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insisted upon discussion with the President, through the Department of State,31 have accepted the President's interpretation of the responsibilities as the voice of the nation32 and the United States has acquiesced.33

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 it follow that an attempt to alter the international functions of the office 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.85 Doubtless the authority might be a council or a congress though there is an unquestionable tendency for international law to favor organs for international communication of the traditional form, that is the Chief Executive acting

31 Supra, 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 voluntary. 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 ClaytonBulwer treaty with England, 1850, Moore, Digest, 3: 138; 5: 205; Wright, Minn. Law Rev., 4: 22; Crandall, Treaties, their Making and Enforcement, 1916, pp. 85, 381) and that the President's messages to Congress are subject to international 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 protests thereat, Moore, Digest, 7: 125; 1: 222. See also infra, secs. 19, 20.

33 In the various lynchings of aliens, especially Italians, the government 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 accept presidential interpretations of responsibility. Infra, secs. 34-38.

34 The President apparently enjoys sovereign's immunities under international law. See Satow, Diplomatic Practice, 1917, 1: 6; Willoughby, Constitutional Law, 2: 1300, et seq.; Oppenheim, op. cit., sec. 356.

35 Hall, op. cit., p. 20, supra, note 15.

through a foreign minister.30 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.

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Now there is danger of misunderstanding. This does not mean that foreign nations are entitled to consider the President competent to commit the United States to all sorts of international responsibilities. 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, 38 can bind 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.

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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 implies that foreign nations are entitled to present their claims to him but 36 Supra, notes 22, 25.

37 Wilson and Tucker, op. cit., p. 213; Hall, op. cit., sec. 108; Wright, Minn. Law Rev., 4: 17.

38 Crandall, op. cit., sec. 1, 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 concessions to foreigners, if the constitutional law of the country requires the approval of Congress for such acts. Those dealing with agents of the state are ordinarily bound by their actual authority, and not, as in private

it also implies: (a) that they can communicate with the nation through him alone and (b) 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 representatives, 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.1 In 1833 Secretary of State Livingston sent letters to the Chargés 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." He referred to the fact that the style of address "to the President and Congress of the United States" which had been continued since the old Confederation was no longer proper.2 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 considered." Political correspondence with American citizens by the 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.

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39 For treaty provisions designating other organs of government as responsible, see Wright, Columbia Law Rev., 20: 123-124.

1 Moore, Digest, 4: 680.

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.

3 Magoon, Reports, 1902, p. 340, Moore, Digest, 6: 608. See also supra, Chap. II, note 21.

resident diplomatic representative of a foreign nation has usually resulted in a demand for the recall or in the dismissal of the representative 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: "

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"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 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 Bernstorff'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 newspapers."

14. National Organs of Government other than the President or his Representatives may not communicate.

The United States has likewise 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 President Grant, "following the established usage of nations, has in4 Pres. Cleveland, Annual Message, Dec. 3, 1888, Richardson, Messages of the Presidents, 8: 780, Moore, Digest, 4: 537-548.

5 Moore, Digest, 4, 487.

Lee, Att. Gen., 1 Op. 74 (1797), Moore, Digest, 4: 682.

7 Mr. Bryan, Sec. of State, to Mr. Gerard, Ambassador to Germany, May 13, 1915, U. S. White Book, European War, No. 1, p. 76.

dicated the President as the agent to represent the national sovereignty in its intercourse with foreign powers.'

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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 sigrature 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.10 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 dependent upon state law. Thus article VII of the treaty of 1853 with France allowed French citizens to possess land on an equality 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." 11

8 Richardson, op. cit., 7: 431; supra, sec. 12, infra, sec. 202.

9 Field . 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.

10 On controversy as to the rights of Japanese School Children in California, 1906, see E. Root, Am. J. of Int. Law, 1: 273 and editorials, 1: 150, 449; Corwin, National 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.

11 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.

PROC. AMER. PHIL. SOC., VOL. LX., J, MARCH 6, 1922.

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