admitted the same principle with reference to its own ratification when instructions have been given by the full treaty power. Thus in 1790 two-thirds of the Senate joined with the President in instructing the negotiation of a treaty with the Cherokees. When the treaty was submitted for ratification, the Senate committee found that it conformed to these instructions and consequently ratification became obligatory.21 The same was true of the consular convention with France signed in 1788 according to instructions of Congress which had power to make treaties under the Articles of Confederation. The treaty was submitted to the Senate for ratification after organization of the new government under the Constitution. On his advice being asked, John Jay, who continued in charge of foreign affairs, replied that "while he apprehended that the new convention would prove more inconvenient than beneficial to the United States, the circumstances under which it had been negotiated made, in his opinion, its ratification by the Senate indispensable." The Senate immediately proceeded to ratify.22

26. Signature under Authority of the President.

In case the agreement is of a character which the President has authority to make on his own responsibility, such as protocols, vention was finally ratified by Spain in 1818. Almost immediately a similar controversy arose over the Florida cession treaty. Secretary Adams said, "The President considers the treaty of 22d February last as obligatory upon the honor and good faith of Spain, not as a perfect treaty, ratification being an essential formality to that, but as a compact which Spain was bound to ratify." He then drew an analogy between an unratified treaty and a covenant to convey land, asserting that "the United States have a perfect right to do what a court of chancery would do in a transaction of similar character between individuals, namely, to compel the performance of the engagement as far as compulsion can accomplish it, and to indemnify themselves for all the damages and charges incident to the necessity of using compulsion." It should be noted that in the full powers of his plenipotentiary, the Spanish monarch had expressly promised to ratify "whatsoever may be stipulated and signed by you." 5 Moore, Digest, 189-190. In both of these cases the United States distinguished its own position, in which the recognized constitutional rights of the Senate precluded an obligation to ratify.

21 Crandall, op. cit., p. 79. The question might be raised whether such a delegation is not an unconstitutional delegation of legislative power. See infra, sec. 60.

22 Crandall, loc. cit.; Hayden, The Senate and Treaties, 1789-1817, N. Y., 1920, p. 7.

truces and armistices, he is bound by the act of his agents acting within their instructions. In such cases where the agent acts beyond his instructions, as did General Sherman in concluding an armistice with General Johnston in 1865, the President may repudiate the agreement as did President Lincoln on this occasion.23

In the case of treaties, full powers and instructions are generally from the President alone, although ratification requires the consent of the Senate. Consequently the latter retains full discretion to refuse ratification of the signed instrument. The Senate has often rejected treaties and the practice was thus justified by Secretary of State Clay:

25

"The government of his Britannic Majesty is well acquainted with the provision of the Constitution of the United States, by which the Senate is a component part of the treaty making power, and that the consent and advice of that branch of Congress are indispensable in the formation of treaties. According to the practice of this government the Senate is not ordinarily consulted in the initiatory state of a negotiation, but its consent and advice are only invoked after a treaty is concluded under the direction of the President and submitted to its consideration."

Foreign nations have acquiesced in the practice though occasionally exception has been taken to the practice of amendment or reservation by the Senate on the ground that such amendments present a virtual ultimatum to the foreign government to accept or reject, leaving no opportunity for negotiation.2

"His Majesty's Government," wrote Lord Lansdowne, refusing to accept the first Hay-Pauncefote treaty as amended by the Senate, find themselves confronted with a proposal communicated to them by the United States Government, without any previous attempt to ascertain their views, for the abrogation of the Clayton-Bulwer treaty."

Objection is here taken to a breach of diplomatic etiquette in method but the full power of the United States under international law to refuse ratification or to consent only if certain alterations are made, is not denied.

23 Halleck, International Law, 4th ed. (Baker), 2: 356, infra, sec. 167. 24 Supra, note 17.

25 Moore, Digest, 5: 200. See also Foster, Practice of Diplomacy, N. Y., 1906, p. 276.

26 Willoughby, Constitutional Law, p. 465. See also Crandall, op. cit., p. 82, Moore, Digest, 5: 201; Satow, op. cit., 2: 274. See the vigorous denunciation of the Senate amendment to the proposed King-Hawksburg treaty of 1803 by Great Britain, Am. St. Pap., For. Rel., 3; 92-94; Hayden, op. cit., p. 150.

27. Reservations Expressly Consented to.

Though the United States can not be reproached with violation of international law if it refuses to ratify or qualifies its ratification of a treaty signed by authority of the President alone, yet a qualified ratification is of no effect unless consented to by both signatories. How may this consent be evidenced? Express consent to reservations by statement in the act of ratification or by exchange of notes would of course by sufficient,27 as would acceptance without objec

27 The Senate advised ratification of the treaty with France of Feb. 3, 1801, provided a new article be substituted for article II. Bonaparte ratified with this modification but added a new proviso. Ratifications were exchanged at Paris, but before proclamation President Jefferson resubmitted the treaty to the Senate which accepted Bonaparte's proviso. Malloy, Treaties, etc., p. 505. Hayden, op. cit., p. 124. After consenting to ratification of the General Act for the suppression of the African Slave Trade (1890), the Senate "Resolved further, That the Senate advise and consent to the acceptance of the partial ratification of the said General Act on the part of the French Republic, and to the stipulations relative thereto, as set forth in the protocol signed at Brussels, January 2, 1892." It then made a reservation on its own behalf. The protocol of deposit of ratifications of Feb. 2, 1892, provided for in Article 99 of the treaty, recites the Senate's resolution and states: "This resolution of the Senate of the United States having been preparatively and textually conveyed by the Government of His Majesty the King of the Belgians to the knowledge of all the signatory powers of the General Act, the latter have given their assent to its insertion in the present Protocol which will remain annexed to the Protocol of January 2d, 1892." Malloy, Treaties, etc., p. 1992. In the treaty of 1911, Japan gave express assent to an "understanding" and tacit assent to an amendment." The proclamation of President Taft reads: "And whereas, the advice and consent of the Senate of the United States to the ratification of the said Treaty was given with the understanding 'that the treaty shall not be deemed to repeal or affect any of the provisions of the Act of Congress entitled "An Act to regulate the Immigration of Aliens into the United States," approved February 20th, 1907;'

And whereas, the said Treaty, as amended by the Senate of the United States, has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the City of Tokyo, on the fourth day of April, one thousand nine hundred and eleven;

"Now, therefore, be it known that I, William Howard Taft, President of the United States of America, have caused the said Treaty, as amended and the said understanding to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, etc." Charles, Treaties, etc., p. 82. An interpretation proposed by the Senate to the treaty of 1868 with the North German Confederation was duly

The terms

tion of an official note stating such reservations.28 of such a note must be consented to by all the organs constituting the treaty power of each state. Thus, as is the case with the treaty itself, unless the President and Senate have each consented to amendments, reservations or interpretations, the United States is not bound. Attempts of either to act separately have been unavailing. The Supreme Court said in reference to a joint resolution passed by a majority of the Senate, stating the purpose of the Senate in ratifying the treaty annexing the Philippines: 29

"We need not consider the force and effect of a resolution of this sort. . . . The meaning of the treaty can not be controlled by subsequent explanations of some of those who may have voted to ratify it." Justice Brown, concurring, said:

"It can not be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. ... The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratificatiton, or make such ratification conditional upon the adoption of amendments to the treaty."

A similar fate has met interpretations or reservations made by the President without consent of the Senate, even when accepted by the other signatory. Thus explanatory notes signed by the communicated to that government and accepted as the true interpretation of the article. It was, however, omitted in the exchange copy given by that government. This omission being noticed later, a special protocol was signed in 1871, recognizing the interpretation. Crandall, op. cit., p. 88.

28 In negotiating the treaty of 1850 with Switzerland, the American negotiator agreed that the unqualified most-favored-nation clause of article IO should be interpreted absolutely. In 1898, Switzerland claimed under this clause, the benefits offered to France under a reciprocity agreement of May 30, 1898. At first the United States objected that to admit the claim would be contrary to her accepted interpretation of identical most-favorednation clauses, but "It was found upon an examination of the original correspondence that the President of the United States was advised of the same understanding and that the dispatch in which it was expressed was communicated to the Senate when the treaty was submitted for its approval," consequently customs officials were directed to admit Swiss importations at the reduced rate. Moore, Digest, 5: 284.

29 Fourteen Diamond Rings v. United States (1901), 183 U. S. 176. "The power to make treaties is vested by the Constitution in the President and Senate, and while this proviso was adopted by the Senate, there is no evidence that it ever received the sanction or approval of the President." N. Y. Indians v. U. S. (1898), 170 U. S. 1. See also Moore, Digest, 5: 210; Crandall, op. cit., p. 88.

plenipotentiaries on exchange of ratifications to the Mexican peace treaty of 1848 and the Clayton-Bulwer treaty with Great Britain of 1850 were considered of doubtful validity,30 and on other occasions the President has submitted such explanatory documents to the Senate before proclaiming the treaty.81

Thus, if in fact the note has not received consent of the full treaty-making power, the United States is not bound unless the foreign nation can show that it had reason to suppose the note had been constitutionally accepted. There would certainly be such a presumption where the exchange of notes took place before the Senate had acted. Thus intrepretive agreements relating to the treaties with Mexico (1848) and Great Britain (1850) not having been exchanged until after ratification, though considered valid by foreign nations, 32 were questioned by the United States.33 On the other hand, the interpretive notes exchanged before the Senate had acted on the Swiss treaty of 1855 were considered valid. In

30 Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 85, 381. Bigelow, Breaches of Anglo-American Treaties, pp. 116-149, discusses at length the effectiveness of these and other documents alleged to be explanatory of the Clayton-Bulwer treaty. Secretary Root agreed by exchange of notes with Mr. Bryce, British Ambassador, as to the meaning of Art. II of the arbitration convention of 1908. These documents were submitted to the Senate for its information but apparently not for its approval. Crandall, op. cit., p. 89.

31 Jefferson thought it necessary to submit an interpretation offered by Napoleon of the treaty of 1801 to the Senate before exchange of ratifications. Charles Francis Adams said that the British interpretation of the Declaration of Paris, to which the United States desired to accede, would have to be submitted to the Senate. Secretary Fish declared the exchange of ratifications of a treaty with Turkey in 1874 was invalid because accompanied by an explanation of the American plenipotentiary which rendered a Senate amendment nugatory. Secretary Bayard refused to give an explanation of a Senate amendment to the treaty with Hawaii of 1884 and to authorize a protocol explaining the submarine cable convention of 1886 without Senate approval. Crandall, op. cit., pp. 86-89; Moore, Digest, 5: 207. Although protocols prolonging the time for exchange of ratifications have not always been submitted to the Senate, this has usually been done. Crandall, op. cit., pp. 89-92.

32 Mexico and Great Britain respectively asserted the validity of these agreements. Moore, 5: 205; Lord Clarendon to Mr. Buchanan, May 2, 1854, Br. and For. St. Pap., 46: 267, Moore, 3: 138. The Mexican agreement is printed after the Treaty in Malloy, Treaties, etc., p. 1119.

33 Supra, note 30.

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