and while he may not be able to give notice without consent of Congress 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.109

185. Denunciation by the Treaty-Making Power.

The Senate has contended that consent of the House of Representatives to the denunciation of a treaty is not necessary and the Danish treaty of 1826 was denounced by the President with consent 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: 110

As to this convention, and all others of like character, the committee 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 11th 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 1911. The issue had arisen over Russian persecution of American Jews:

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"The resolution of the House of Representatives was drawn in language 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 year'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, secs. 174, 202, 203.

110 Thirty-fourth Cong., 1st 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.

111 Taft, op. cit., pp. 116-117.

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 resolution approving my action for the resolution which came over from the House. The House was thus induced to approve my action and the incident was closed for the time."

The Swiss treaty of 1850 appears to have been denounced by the President alone in 1899.112 Willoughby approves this method of denunciation, but thinks "in important cases the President would 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.114 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 resolution of Congress or by the passage of conflicting legislation. It is somewhat difficult to locate the constitutional power for such legislation when terminating treaties on subjects not within the legislative competence of Congress, but it has been sustained in many

"It must be conceded," said the Supreme Court in the Chinese Exclusion 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.

114 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, 11 Wall. 616; The Head Money Cases, 112 U. S. 580; Moore, Digest, 5: 356-370.

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 will must control. . . . The question whether our government was justified in disregarding its engagements with another nation is not one for the determination 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 vetoing the Chinese exclusion bill of 1882 said: 116

"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." 117 To make "a scrap of paper" of a treaty by legislation will at once give basis for international demands. Thus France refused to recognize the legitimacy of American abrogation of her treaties in 1798 and compensation was made by sacrifice of the spoliation claims by the treaty of 1800.118 China has consistently protested against the disregard of her treaties by various exclusion acts.119

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. 116 Richardson, Messages, 8: 112.

117 Ibid., 7: 520. See also Message of Pres. Harrison, Dec., 1890, in referring to violation of Hawaiian Reciprocity Treaty by the tariff act, Richardson, 9: 110; Moore, Digest, 5: 368, and supra, sec. 10I.

118 Moore, Digest, 5: 357, 609–612.

119 See references to U. S. Foreign Relations, Moore, Digest, 4: 198, 202.

are all at the discretion of the President. Furthermore, many agreements 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 negotiated, 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 denunciation 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 neutrality are examples which at once spring to the mind. This field is, however, difficult 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.

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Arbitration treaties have often excepted questions affecting national "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 recommendation. The United States Supreme Court has similarly recognized certain questions undoubtedly interesting to foreign nations as within the "independence" of the nation.1

"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 territory 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 between foreign affairs and domestic affairs according to the line of territorial jurisdiction.2

"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 responsible for many events which occur or acts which take effect entirely within their borders, yet territorial autonomy is generally recognized by international 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 political decisions in foreign affairs. Their war power is confined to the 1 The Chinese Exclusion Case, 130 U. S. 581 (1889).

2 Hall, Int. Law, p. 49.

3 Supra, sec. 89.