172. Validity of Diplomatic Agreements.

The President may and must interpret treaties and international law in applying their rules and principles for the settlement of claims of American citizens but he has no power to make general interpretations of treaty, or of international law. In fact, however, his decisions establish precendents, which his successors will find it difficult to avoid. Thus the agreement of President McKinley to accept the last three principles of the Declaration of Paris, during the Spanish war, would doubtless go far toward establishing these principles as international law obligatory upon the United States in future wars.52 The President has no authority to agree to general interpretations or reservations to treaties. Such documents are not valid unless consented to by the Senate.53 But the precedents established by presidential interpretation in particular cases may amount to an authoritative interpretation. Thus the Spanish Treaty Claims Commission felt justified in applying Article VII of the treaty with Spain of 1795, which forbade the "embargo or detention" of "vessels or effects" of subjects or citizens of the other contracting power, to detention of goods on land. The negotiators of the treaty appear to have intended application only to property at sea. No question was raised for over seventy years, after which the American Secretary of State consistently maintained the broad interpretation.54

"Whether or not," said the court, "the clause was originally intended to embrace real estate and personal property on land as well as vessels and their cargoes, the same has been so construed by the United States and this construction has been concurred in by Spain; and therefore the commission will adhere to such construction in making its decisions." "There is," says President Taft, "much practical framing of our foreign policies in the executive conduct of our foreign relations." 55 52 Proclamations and Decrees during the war with Spain, p. 77. 53 Supra, secs. 27, 28.

54 General Principles adopted April 28, 1903, No. 10, Special Report, Wm. E. Fuller, Washington, 1907, p. 23; Crandall, op. cit., p. 384. Executive interpretation of the Alaska Purchase treaty was followed by the court in determining the extent of jurisdiction in Behring Sea prior to the arbitration, and in general the court follows executive interpretation of political questions (supra, sec. 107).

55 Taft, op. cit., p. 113; supra, sec. 38.

Though in theory the President's independent power is confined to making agreements of temporary effect, confined to particular cases or binding the Executive alone, yet in practice and by the operation of precedents he may, by such agreements, bind other departments and through interpretations of treaties and international law bind the state as a whole.

B. The Power to Make Treaties.

173. The Subject Matter of Treaties.

The framers of the American Constitution did not anticipate or desire the conclusion of many treaties.56 For this reason they made the process of treaty conclusion difficult, requiring that the President act only with the advice and consent of two-thirds of the Senators present, some even wishing to require adhesion of the House of Representatives 58 or two-thirds majority of the entire Senate.59 This hope, however, has scarcely been realized. With a total of 595 treaties from its foundation to August, 1914, the United States

57

56 In the Federal Convention, Gouverneur Morris was not solicitous to multiply and facilitate treaties," and Madison "observed that it had been too easy in the present Congress to make treaties, although nine States were required for that purpose." Farrand, Records of the Federal Convention, 2: 393, 548. See also Jefferson, Manual of Congressional Practice, sec. 52, and letter to Madison, March 23, 1815, Moore, Int. Law Digest, 5: 162, 310.

57 Under the Articles of Confederation, the treaty-making power was vested in nine States in Congress (Art. IX), and in some of the early drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later in the Senate (ibid., 2: 169, 183), and the President was finally added on the argument that treaty-making was properly an executive function (ibid., 2: 297), and that a national agency was necessary as an offset to the special State interest of the Senate. (Ibid., 2: 392.)

58 Pennsylvania especially desired this. G. Morris, of that State, wanted to add "but no treaty shall be binding on the United States which is not ratified by a law" (Farrand, 2: 297, 392). Later, Wilson, of Pennsylvania, proposed to add "and House of Representatives," saying that "as treaties are to have the operation of laws they ought to have the sanction of laws also." On vote, Pennsylvania alone supported the motion. (Ibid., 2: 538.) This is the vote referred to by Washington in his celebrated message on the Jay Treaty where he refused to recognize the claim of the House of Representatives to participate in treaty-making. (Ibid., 3: 371; Annals of Congress, 4th Cong., 1st Sess., p. 761, Richardson, Messages, 1: 195.) 59 Farrand, 2: 549.

has averaged more than four a year, and for the twentieth century, fifteen a year, or a treaty ratified every three weeks. And this, in spite of the frequent differences between the President and the Senate often resulting in the failure to ratify.o1

These treaties have been on a very wide variety of subjects. The United States has ratified treaties politically organizing international society. Such have been alliances, as that with France in 1778; guarantees of territory or neutrality as in the French treaty of 1778 (Art. XI), the treaty with New Granada or Colombia of 1846 (Art. XXXV), with Panama in 1903 (Art. I), and with Haiti in 1916 (Art. XIV); limitations of the power to declare war by requiring delay as in the twenty Bryan treaties of 1914 or by limiting the objects for which force may be used as in the II Hague Convention of 1907; and limitations of armament as in the Great Lakes agreement of 1817. The United States has also ratified many treaties administratively organizing international society, such as postal, telegraphic, cable, radio, sanitary, slave trade, fishery, migratory bird and other conventions. It has become a party to treaties. legally organizing international society through the definition of principles of international law as in the Geneva and Hague Conventions, through the establishment of international courts and arbitration tribunals and through the agreement to submit certain types of cases to arbitration. Finally there have been treaties of annexation and boundary, treaties settling claims, treaties of commerce and navigation, consular and extradition conventions, and conventions defining the rights of aliens.62

63

No treaty has ever been declared unconstitutional. By practice, by the terms in which the power is granted in the Constitution, 60 By 25-year periods, treaties have been concluded as follows: 1778–1799, 21; 1800-1824, 20; 1825-1849, 63; 1850-1874, 141; 1875-1899, 142; 1900–1914, 208. This is in accord with the official enumeration of treaties (excluding Indian treaties), begun by the Department of State on January 29, 1908, with Treaty Series, No. 489. (See Check-list of U. S. Public Documents, 1911, p. 978.) Including the protocols and modi vivendi printed in Malloy and Charles' Collections, the total for the period would be 633.

61 Infra, sec. 177.

62 See Foster, Practice of Diplomacy, pp. 243-244.

63 Corwin, National Supremacy, p. 5; Anderson, Am. J. Int. Law, 1: 647; Willoughby, op. cit., p. 493, supra, sec. 46.

64

and by direct statement of the supreme court,' we may be certain that the power extends to "any matter which is properly the subject of negotiations with a foreign country," limited only by express or implied constitutional prohibitions the effect of which is in the main confined to the means through which the purposes of the treaty may be attained.65

174. The Initiation of Treaties.

Treaties may of course be initiated or suggested by a foreign power, but if by the United States, the initiative has ordinarily been taken by the President. Congress has sometimes suggested negotiations by joint or concurrent resolutions originating in the House of Representatives as well as the Senate. Thus resolutions of 1890, 1897, and 1910 suggested the negotiation of arbitration treaties and acts of 1916 and 1921, negotiations for general disarmament. A resolution of 1904 suggested the negotiation of a treaty for protecting the Behring Sea seals and one of 1909 the protection of American citizens in Russia. In most of these cases, negotiations were attempted, not always with success (at least once, success was frustrated by the Senate veto), but says Crandall: 66

"Although it is not to be doubted that the President will always give careful consideration to the views of Congress, deliberately expressed as to instituting negotiations, he cannot be compelled to exercise a power entrusted to him under the Constitution by a resolution of either house or of both houses of Congress."

The reason was pointed out in a report of the Senate foreign relations committee in 1815:

"Since the President conducts correspondence with foreign nations, he would be more competent to determine when, how and upon what subjects negotiations could be urged with the greatest prospect of success." 67

64 Geofroy v. Riggs, 133 U. S. 258 (1890); Wright, The Constitutionality of Treaties, Am. Jl. Int. Law, 13: 262.

65 Supra, secs. 67-69.

66 Crandall, op. cit., p. 74.

67 Compilation of Reports of the Senate Committee on Foreign Relations, Sen. Doc., No. 231, 56th Cong., 2d Sess., 8: 22; Crandall, op. cit., p. 75; Hayden, op. cit., p. 206, infra, sec. 203.

175. The Appointment of Negotiators.

Before 1815, special missions, appointed by the President with advice and consent of the Senate, were sent to conclude the most important treaties, although a number of less important missions, such as that of John Paul Jones to Algeria in 1792, were commissioned by the President alone. Since 1815 "treaties have, with few exceptions, been negotiated through the Secretary of State, the regular diplomatic representatives and consular officers, or special agents, empowered and commissioned to negotiate the treaty by the President without special confirmation for this purpose by the Senate." 68 Commissioners to the Panama Congress of 1826, to negotiate the treaty of Washington with Great Britain in 1871, and to negotiate with China in 1880 appear to be the only special missions consented to by the Senate since the war of 1812. Possibly the difficulty which President Madison encountered in getting the Senate to consent to the appointments of commissioners for concluding the treaty of Ghent ending that war, accounts in part for this fact. Over four hundred commissioners and agents have been authorized to negotiate by the President alone, including the important missions ending the Mexican, Spanish and World Wars, and the missions representing the United States at the two Hague, the Algeciras, the Versailles and the limitation of armament conferences. The Senate objected to this practice of negotiating through presidential agents in the case of the Korean treaty of 1882, but in 1888 and in 1893 the Senate Foreign Relations Committee recognized the legitimacy of the practice.69

"The President of the United States," said Senator Sherman, Chairman of the Committee in 1888, has the power to propose treaties subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he cannot take any money from the treasury to pay these agents without an appropriation by law. He can use such instruments as he pleases."

176. The Negotiation and Signature of Treaties.

Negotiation and signature have usually been under authority of the President alone. He has usually prepared the instructions and 68 Crandall, op. cit., p. 76.

69 Cong. Rec., Aug. 7, 1888, p. 7285. See also infra, secs. 239, 240.