through the ordinary diplomatie channels. By an act of Congress, the President was, in 1902, advised and authorized to enter into certain treaty arrangements with reference to the construc tion of an interoceanic canal.

All of the instances cited above are, however, by way of general exception to the rule according to which the negotiating of treaties is in the hands of the President. The Senate's function, so far at least as its formal action is concerned, is limited to the disapproval, or ratification, with or without amendments, of the treaties after they have been agreed upon by the President and the chancellaries of the foreign countries concerned.

Though, as has just been said, the formal participation of the Senate as a body in the negotiation of treaties is not often now solicited, as a matter of fact that body is, according to modern usage frequently, indeed, it might be said, generally, kept well informed as to the progress of international negotiations by means of personal interviews between the Executive and prominent Senators, especially, of course, those serving upon the Committee on Foreign Affairs of the Senate. In 1898 three of the five Commissioners appointed to negotiate the Treaty of Peace with Spain were Senators and members of the Committee on Foreign Affairs.

Nevertheless, this practice has not prevented frequent friction between the Senate and the Executive with reference to foreign relations. Especially has this been true since the time when Mr. Blaine held the position of Secretary of State. From the time when Monroe became Secretary of State in 1811 to the resig nation of Mr. Blaine in 1892, with the exception of a very few years, this Secretaryship was held by men who had previously been in the Senate, but since then, with the exception of Sherman and Knox, this has not been true." Speaking of the lack of harmony which has existed during this recent period, Professor Reinsch writes: "Under these circumstances, it is not surprising that there should have been more friction between the President and the Senate on foreign matters than existed during earlier years of our national life. Such constant friction as has during recent years existed between the Senate and the Department of State is. 11 Cf. Reinsch, American Legislatures, p. 95.

in fact, unprecedented in our national history. It began under Mr. Cleveland's régime, when the Olney-Pauncefote arbitration treaty was rejected, partly on account of the unpopularity of the Administration, partly on account of a strong political opposition to any arbitration arrangements with Great Britain. Even under McKinley, notwithstanding the unusual relations of friendliness between the President and the Senate, the most important treaties submitted by the Department of State were rejected or modified by the Senate. Again it proved impossible to have a British arbitration treaty ratified. The Hay-Pauncefote canal treaty failed, and this was also the fate of several important reciprocity treaties.

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The Senate has continued this critical attitude with the result that no important treaty has been allowed to pass without such modification as has often entirely destroyed its original purpose. The only exception is the Treaty of Paris, in the formation of which individual senators had taken a prominent part. The Newfoundland reciprocity treaty was ruined through the interference of special interests."

In addition to these instances of disagreement, in 1905 came the disagreement between the Senate and Executive with reference to the general arbitration treaties which had been negotiated, and the irritation aroused in the Senate by the San Domingo protocol entered into by the President on January 20, 1905. Further reference to the principles involved in several of these disagreements will presently be made.

Occasionally the Senate has turned down projects to the approval of which it has earlier committed itself.

§ 194. The "Recognition" of Foreign Governments.

The recognition by the United States of a status of belligerency, or the recognition of the sovereignty and independence of a foreign government are political acts, not subject to judicial review and are performed by the President. At times the claim. has been made that this power of recognition is one to be exercised at the dictation of Congress, but precedents are against the 12 See Chapter LI.

claim. 13 It is to be presumed, however, that when the recognition of a status of belligerency or of the independence of a revolutionary government is likely to institute a casus belli with some other foreign power, the President will be guided in large measure by the wishes of the legislative branch. Upon the other hand, it is the proper province of the Executive to refuse to be guided by a resolution on the part of the legislature if, in his judgment, to do so would be unwise. The legislature may express its wishes or opinions, but may not command.

§ 195. The Power of the Senate to Amend Treaties.

There would seem to be no question but that, having the power either to approve or to disapprove an international agreement negotiated by the President, the Senate has also the power, when disapproving a proposed treaty, to state upon what conditions it will approve; in other words, to amend any treaty submitted to it.14 In so doing there can be no question but that the Senate is well within its constitutional right. Upon the other hand, it is equally within the province of the Executive to consider the amendment of a treaty by the Senate as equivalent to a rejection of it. When, therefore, a treaty has been amended in the Senate, it is within the President's power to abandon the whole treaty project, or to reopen negotiations with the foreign country or countries concerned with a view to obtaining their consent to the changes desired by the Senate, or, finally, to begin de novo and attempt to negotiate an entirely new treaty, which he may hope will secure senatorial approval. In case he decides to follow the second of these courses, namely, to secure the approval of the foreign country or countries to the amendments to the treaty project made in the Senate, and is successful in this, it would seem 13 See Senate Docs., Nos. 40 and 56, 54th Cong., 2d Sess.; Hinds, Precedents of the House of Representatives, chapters XLVIII, XLIX.

14 The approval or disapproval of a treaty project by the Senate is often spoken of as the ratification or refusal to ratify. Strictly speaking, however, this language is incorrect, as the ratification of a treaty is the final act performed by the President by which the agreement is declared in force between the United States and the foreign State or States which are the parties to it.

that the treaty need not again be submitted to that body for its approval, but may be at once promulgated.

15

When, in 1795, the Jay treaty was submitted to the Senate for approval, that body advised the President to approve on condition that certain specified changes were made in it. These changes having been consented to by Great Britain the treaty was ratified without again submitting the instrument to the approval of the Senate. The question as to the propriety of this course had been submitted by Washington to the members of his cabinet and upheld by them. The same practice has been followed in subsequent cases. Where, however, the changes made in a treaty project have not been specifically indicated by the Senate as desired by that body, it has been very properly held that the amended project should be again submitted to the Senate for its action thereon.1

The Senate's right to amend a treaty has been directly upheld by the Supreme Court. In Haver v. Yaker1 the court say:

66

In this country a treaty is something more than a contract, for the federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify or approve it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it." 18 The approval of the Senate being essential to the validity of all treaties entered into by the United States," it has been held that all protocols, and explanations given by the Executive as to the meaning of treaty provisions, which have not been passed upon and approved by the Senate, are not to be considered as internationally binding upon the United States, or enforced in its courts. For this reason it is not constitutional for the President to insert in a treaty secret provisions which have not been approved by the Senate. Most of the written constitutions of foreign Powers have specific prohibitions with reference to secret provisions.

15 Crandall, Treaties: Their Making and Enforcement, pp. 68 et seq. 16 Crandall, pp. 68 et seq.

179 Wall. 32; 19 L. ed. 571.

18 Senator Lodge enumerates sixty-eight treaties that were amended by the Senate and afterward ratified.

19 For qualification of this statement, see Chapter XXXIII.

$196. Foreign States Held to a Knowledge of the Location of Treaty-Making Powers.

Generally speaking, according to rules of international law, one State is not concerned with, and, therefore, not required to be cognizant of, the constitutional law of another State with which it has dealings. With respect, however, to the constitutional treatymaking powers of the governmental organs of that State, other States are required to be informed;— qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus - and, therefore, it is no great ground of complaint on the part of a State, as, for example, England, in whose Executive is exclusively vested the treaty-making power, when a treaty project which has been mutually agreed upon between the Executive of that country and the Executive of the United States, fails of approval, or is amended in the Senate.20

It would seem, however, that when the American Senate amends a treaty, and then formally ratifies it as amended, and returns it to the President for him to submit to the other nation concerned, there is some ground for complaint that thereby such nation is improperly placed in a position where it is called upon to pass upon a project which has not been based upon negotiations between the two States in which opportunity has been given to state and argue the merits upon both sides of the project. In other words, that the onus of accepting or rejecting a completed project is thereby improperly placed upon the treaty-making organ of the foreign State. This would appear to have been the objection made by Lord Lansdowne in his note of February 22, 1901, to Lord Pauncefote, with reference to the Hay-Pauncefote treaty which in December, 1900, had been amended and then approved by the Senate. This treaty, it will be remembered, had for its aim the definite determination of certain matters which had been covered by the Clayton-Bulwer treaty, the subsisting force of

29 In order, however, to avoid the possibility of a misunderstanding and consequent irritation, it has been a common, though not uniform, practice to state explicitly in the powers granted those who are to negotiate a treaty, that their action, in order to become binding on the United States, requires the approval of the President and the Senate.