"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.87 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 amendment 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.88 Thus Presidents Roosevelt and Taft each abandoned arbitration treaties when it appeared that the Senate was prepared to insist upon essential alterations.89 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 abandon a treaty which he thinks will probably be unacceptable to the other signatory.

179. The Exchange of Ratifications.

91

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. 1 (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, Constitutional 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.

89 Ibid., p. 98; Taft, op. cit., p. 106; Charles, Treaties, etc., p. 380.

90 Willoughby, op. cit., p. 464, and supra, sec. 26.

91 Crandall, op. cit., p. 93, and supra, sec. 29.

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 1900.92 During exchange of ratifications, however, no new interpretations or reservations should be made. The President'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. Napoleon reserved on the treaty of 1801, at exchange of ratifications, but President Jefferson promptly resubmitted the treaty to the Senate which consented to the new reservation. This has been the usual practice.93

180. The Proclamation of Treaties.

After ratifications have been exchanged, the treaty must be proclaimed to have validity as the law of the land and this act is in the power of the President alone.94 As an international obligation the treaty is binding from exchange of ratifications and such obligation is held to date back to the time of signature.' 95 As a law binding individuals, however, the rule is different: 96

"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 procla92 Moore, Digest, 5: 199-200; Hayden, op. cit., p. 145; supra, sec. 26. 93 Crandall, op. cit., pp. 85–92; and supra, sec. 27.

94 Crandall, op. cit., pp. 94-95; Moore, Digest, 5: 210.

95 Haver v. Yaker, 9 Wall. 32, supra, secs. 15, 29.

96 Ibid. See also Rev. Stat., sec. 210; Comp. Stat., sec. 308, and supra, sec. 15, note 14.

mation to be executable. The power to perform such acts has been considered elsewhere."7

C. The Power to Terminate Treaties.

181. Change in Conditions.

The

Certain provisions of treaty may be terminated by war. courts have power, in controversies coming before them, to distinguish, 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 government have made no decision.98 In controversies with foreign governments, the President may recognize these distinctions. Certain provisions may become obsolete by a change of material conditions, through operation of the implied clause "rebus sic stantibus." 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 declare such a treaty void rests with Congress or the treaty-making power.100 Justice Iredell thought the power belonged to Congress101 and on July 7, 1798, Congress held that it had the power when it declared that: 102

"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 committed have been refused, and their attempts to negotiate an amicable adjustment 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

97 Supra, chap. x and sec. 137.

98 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.

101 Ware v. Hylton, 3 Dall. 199, 261 (1796). Infra, sec. 187.

102 1 Stat., 578; Moore, Digest, 5: 356; Richardson, Messages, 7: 518.

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.108

"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 automatically 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. 1 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

"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 conflicting provisions of a later treaty between the same parties,105 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. 104 Richardson, Messages, 7: 519.

105 Cushing, Att. Gen., 6 Op. 291; Wright, Am. JI. Int. Law, 11: 576; Moore, Digest, 5: 363-4.

and the actual treaty of 1901 upon the Clayton-Bulwer treaty of 1850.106

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 President, and examples can be found of each practice. Congress has frequently passed resolutions of denunciation as it did of the British 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 terminating the Great Lakes disarmament agreement of 1817, President Lincoln withdrew the notice and the treaty continued effective.107 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 denunciation such a step would be impossible.108

"As the other high contracting party has entered into no treaty obligations 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 modification of all treaty provisions in conflict with the La Follette Seaman's Act of March 1915 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, therefore, that the President is the final authority to denounce a treaty,

Sir Edward Grey, British Sec. of 106 Moore, Digest, 3: 212 et seq. State for Foreign Affairs, to British Ambassador Bryce, Nov. 14, 1912, Diplomatic 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.

108 Richardson, Messages, 7: 519.