of the Panama Canal tolls act of 1911.17 In the latter case Secretary of State Knox maintained that such protest was not proper until action under the statute had actually impaired British rights. or as least until executive proclamation to give effect to the statute had issued but his view does not seem to have been accepted. The British ambassador replied: 18

"His Majesty's government feel bound to express their dissent. They conceive that international law or usage does not support the doctrine that the passing of a statute in contravention of a treaty right affords no ground of complaint for the infraction of that right, and that the nation which holds that its treaty rights have been so infringed or brought into question by a denial that they exist, must, before protesting and seeking a means of determining the point at issue, wait until some further action violating those rights in a concrete instance has been taken."

So also foreign nations enjoying most favored nation commercial privileges by treaty with the United States, have always applied for the advantages assured by such treaties upon the taking effect of any act or treaty which gives a favor to other nations. Thus Germany and other countries applied under most favored nation clauses for a reduction of the tonnage dues on their vessels upon passage of the act of 1884 which reduced tonnage dues upon vessels from specified ports in the western hemisphere, and Switzerland gained recognition of her claim for an application of the most favored nation clause in her treaty of 1855 upon the conclusion of a treaty in 1898 by which the United States had given commercial favors to France.20

19

16. Legislative Expressions of Opinion not of International Cognizance.

Though all acts, prima facie law, are subject to international cognizance without transmission through the President, whether they originate in state constitutional or legislative provisions or in national constitutional, legislative or treaty provisions, this is not

17 Mr. Innes, Chargé d'Affaires of Great Britain, to Secretary of State Knox, July 8 and Aug. 27, 1912, Diplomatic History of the Panama Canal, 63d Cong., 2d Sess., Sen. Doc., No. 474, pp. 82-83.

18 Ibid., p. 101.

19 Report of Mr. Bayard, Sec. of State, to the President, Jan. 14, 1889, 50 Cong., 2d Sess., H. Ex. Doc., No. 74, Moore, Digest, 5: 289.

20 Moore, Digest, 5: 283-285.

true of legislative resolutions not law. Thus resolutions of a single house of congress or concurrent resolutions not submitted to the President are not law according to the Constitution and have not been noticed by foreign nations.21 This has 'been expressly held by the courts with reference to such resolutions purporting to interpret treaties.22 Thus the houses of Congress have been able to pass resolutions on such questions as Irish independence without

21 Secretary of State Seward wrote Mr. Dayton, the minister to France, with reference to a House Resolution declaring "that it does not accord with the policy of the United States to acknowledge a monarchical government erected on the ruins of any Republican government in America, under the auspices of any European power," reference being to the Maximilian government in Mexico: "This is a practical and purely Executive question, and the decision of it constitutionally belongs not to the House of Representatives, nor even to Congress, but to the President of the United States. . . . While the President receives the declaration of the House of Representatives with the profound respect to which it is entitled, as an exposition of its sentiments upon a grave and important subject, he directs that you inform the government of France that he does not at present contemplate any departure from the policy which this government has hitherto pursued in regard to the war which exists between France and Mexico. It is hardly necessary to say that the proceeding of the House of Representatives was adopted upon suggestions arising within itself, and not upon any communication of the Executive department; and that the French Government would be seasonably appraised of any change of policy upon this subject which the President might at any future time think it proper to adopt." Corwin, op. cit., p. 42, citing McPherson's History of the Rebellion, pp. 249-350.

22" There is," said the Supreme Court in refusing to apply an amendment to which the Indians had not consented, "something which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power of an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigency of a particular case may demand it." N. Y. Indians v. U. S., 170 U. S. 1 (1898). 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: "We need not consider the force and effect of a resolution of this sort. . . . The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it." Justice Brown concurring said: "It cannot be regarded as part of the treaty since it received neither the approval of the President nor the consent of the other contracting power." Fourteen Diamond Rings v. U. S., 183 U. S. 176 (1901), Moore, Digest, 5: 210.

arousing international controversy.23 So also a concurrent resolution could not be made effective to denounce a treaty. The effort of the Senate to incorporate a reservation in the Peace treaty of 1919 giving a concurrent resolution, this effect would have proved futile. The treaty, not being able to amend the Constitution, could not make a concurrent resolution a law of either international or domestic effect.24

17. Self-Constituted Missions Forbidden.

To prevent private negotiations with foreign nations, the Logan Act of 1799 was passed, after the attempt to make peace with France of the self-constituted mission of Dr. George Logan, a Philadelphia Quaker, had annoyed the government. The statute provides a fine of up to $5,000 and imprisonment up to six months for every citizen of the United States: 25

"Who without the permission or authority of the government, directly or indirectly, commences or carries on any verbal or written correspondence or intercourse with any foreign government, or an officer or agent thereof, with an intent to influence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the government of the United States; and every person, being a citizen of, or resident within the United States, and not duly authorized, who counsels, advises or assists in any such correspondence with such intent."

This act expressly excepts application by American citizens to foreign government for redress of injuries, and in general presentation of claims by an individual is not considered a violation of the principle that the representative organs of government communicate officially only with the representative organs of other governments. However, in practice the department of state in the United States and the foreign office in other states generally refuse to consider claims not officially presented by the claimant's government.20

23 See House Resolution on Ireland, March 4, 1919, Senate Resolution, June 6, 1919, and proposed 15th reservation to the Treaty of Versailles, passed by a majority of the Senate March 18, 1920.

24 Infra, sec. 62.

25 Rev. Stat., sec. 5335, Moore, Digest, 4: 449.

26 Moore, Digest, 6: 607-610, supra, note 3.

18. Missions of De Facto Governments Unofficially Received.

27

One other exception is recognized in the unofficial reception of agents of belligerent communities. Thus the British foreign Secretary communicated unofficially with Mason and Slidell, the Confederate emissaries in England, and the President of the United States communicated unofficially with representatives from South Africa after the proclamation of annexation by Great Britain had made the status of that country one of rebellion.28 Such unofficial communication with representatives of de facto governments is justified by the right of foreign states to take measures for protecting their citizens in a region outside the actual control of the de jure government, and is not a real exception to the rule.20

B. All Acts of the President Subject to International

Cognizance.

19. Communications of the President to Congress.

The President's representative character also implies that foreign nations are entitled to take cognizance of all his official utterances whether communicated by diplomatic note, public proclamation or public communication to Congress. Presidents have always maintained that communications of the latter character are not subject to the cognizance of foreign states, but in fact they have often been noticed, as when France protested against the threatening language of President Jackson's message of December, 1834, suggesting reprisals 30 and Austria protested against President Taylor's comments on Kossuth's revolution of 1848.31 In the 27 Moore, Digest, 1: 209.

28 The proclamation of annexation was issued July 1, 1900. On May 21 and 22, 1900, the South African delegates were received by the Department of State and President McKinley, and they were received by President Roosevelt on March 14, 1902. The war ended with the treaty of Vereeniging, May 31, 1902. Moore, Digest, 1: 213.

29 See Earl Russell, British Foreign Secretary, to Mr. Adams, U. S. Minister, Nov. 26, Moore, Digest, 1: 209.

30 Moore, Digest, 7: 124-125.

31" The publicity which has been given to that document has placed the Imperial Government under the necessity of entering a formal protest, through it's official representatives, against the proceedings of the American

former case President Jackson seems to have admitted the French demand for retraction by explanations in a later message.32 In the last year of the World War Executive messages to the legislature became the regular medium of communication between Germany and the United States.33

20. President Presumed to Speak for the Nation.

Finally, from the President's representative character, foreign nations are entitled to presume that his voice is the voice of the nation. Secretary of State Jefferson told French minister Genet that whatever the President communicated as such, foreign nations had a right and were bound to consider "as the expression of the nation's will" and that no foreign agent could be "allowed to question it." 84 As we shall see, this presumption becomes absolute with reference to the facts of action taken by national organs in the United States and practically so with reference to decisions of fact and policy by the nation,35 but with reference to the constitutional law governing the treaty-making power, the foreign nation may in certain cases have to go back of the President's assertions.

36

We thus find that, aside from their cognizance of state and national laws, foreign nations can officially communicate with the United States only through the President. Communication of governments with private individuals on claims and with representatives of de facto or belligerent governments are of an unofficial character. Furthermore, all official utterances of the President are of international cognizance and are presumed to be authoritative.

Government, lest that Government should construe our silence into approbation, or toleration even, of the principles which appear to have guided its action and the means it has adopted." Moore, Digest, I: 222.

32 Message, Dec. 7, 1835, Moore, Digest, 7: 125.

33 See speeches of President Wilson, Premier Lloyd George of Great Britain, Count Czernin of Austria and Count Hertling of Germany before their respective legislative bodies in 1918, printed in Dickinson, ed., Documents and Statements relating to Peace Proposals and War Aims, London, 1919.

34 Moore, Digest, 4: 680; Corwin, op. cit., p. 47.

35 Infra, sec. 21.

36 Infra, sec. 24 et seq.