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political branch of the government. It is the function of the Executive or of Congress, as the case may be." 41

So Congress has asserted that it alone can interpret responsibilities 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 constitutional 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 1884:48

"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 assume 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 Versailles was required in fulfillment of the responsibilities undertaken by the President's exchange of notes with the Allied powers of November 5, 1918, and the armistice with Germany of November 11. 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

41 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.

42 Supra, secs. 34, 38.

48 Note cited, supra, note 41.

44 Supra, sec. 30, note 53.

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.45 With reference to general and permanent interpretations of treaties or agreements, however, the President has admitted the Senate's claim.

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'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." 46

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 interpretation 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 President, 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.

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46 Moore, Digest, 5: 208; see also supra, secs. 27, 28, 38, and infra, sec. 177.

47 Supra, sec. 24.

48 Taft, Our Chief Magistrate, pp. 85-87.

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 President Roosevelt had ordered the war vessel Nashville to Colon, with instructions:

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"In the interests of peace make every effort 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.50

146. By International Political Organs.

A political interpretation of national obligations is not necessarily 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: 51

"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."

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"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." 52

49 Richardson, Messages, 10: 566.

50 Ibid., 10: 664.

51 The Amiable Isabella, 6 Wheat. 1, 71–73 (1821).

52 Dalloz, Juris, Gen., Supt., t. 17 (1896), s. v. Traité, Int., No. 14.

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An interpretation by political agreement would ordinarily require negotiation through the Department of State, acting either through the Secretary of State at Washington or through a diplomatic 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 governments, they must be presented in proper form and with ample evidence, 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 officially as from the government of the claimant's state. The Department of State will not consider claims from foreign individuals, only from recognized governments.55

However, the department is free to accept an offer 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.56 Such recommendations are not binding upon the political organs of the government but are often accepted. Under the Bryan Peace treaties concluded with twenty states in 1914 and 1915, 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).57

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 nonfulfillment of the alliance treaty of 1778 were balanced off by the treaty of 1801. Claims against France were liquidated by a 53 Borchard, op. cit., pp. 355, 653; Moore, Digest, 4: 687, 781; supra, sec. 12, note 22.

54 Moore, Digest, 6: 609 et seq.

55 Ibid., 6: 607-609; 4: 694.

56 Ibid., 6: 1012 et seq.; Borchard, op. cit., p. 366 et seq.

57 Canadian Boundary controversies must be submitted to a commission

by art. viii of the treaty of 1911, Charles, Treaties, p. 42.

treaty concluded in 1831. Treaties of peace usually liquidate prewar 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 indemnity, 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.58 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 agreement has sometimes been delegated to officers other than the Secretary of State. Thus an act of March 2, 1919, provided: "

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"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 agreements or arrangements entered into with any foreign government or governments or national thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise 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

58 Borchard, op. cit., p. 379; Moore, Digest, 6: 1025.
59 40 Stat., c. 94, sec. 3, Comp. Stat., 3115, 14/15c.

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