24

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 constitution. It has apparently acquired a certain foundation in international law through recognition by foreign nations. Thus foreign nations have habitually presented their claims to the President 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 abroad, or their own diplomatic representatives residing near this Government. These communications are submitted to the President, and, when proper, are replied to under his direction 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." 25 The only exception to this rule appears to be in matters of a private law nature litigated before the courts.20 In matters of, international law foreign nations have sometimes been willing to German Government at this time to the surprising irregularity of a communication 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. 1, p. 76.) See also infra, sec. 13.

24" The President is the organ of diplomatic intercourse of the Government 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 Law Rev., 20: 131.

25 Mr. Seward, 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, 11 How. Prac. 1, N. Y. 1855; King of Prussia v. Kupper, 22 Mo. 550, 1856; King of Spain v. Oliver, 1 Peter's

permit trial of the issue in the courts first,27 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.28 In important matters foreign governments have refused to follow a suggestion for settlement in the courts.20 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 Westlake, op. cit., 1: 250.

27 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 Department 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, therefore, 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 international 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 William P. Frye, by Germany, Secretary Lansing wrote, "The Government of the United States, therefore, suggests that the Imperial German Government 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. 1, p. 88.)

unresponsive to suggestions for a discussion of international claims with the state governments within the United States.30 They have insisted upon discussion with the President, through the Department of State, have accepted the President's interpretation of the responsibilities as the voice of the nation2 and the United States has acquiesced."

31

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

84

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." (Taft, 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 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 protest's thereat, Moore, Digest, 7: 125; 1: 222. See also infra, secs. 19, 20.

83 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.

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 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 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,

37

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

86 Supra, notes 22, 25.

38

can bind

87 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

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.

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