*

*

principle. It does not, in any real sense, invest the President with the power of legislation. * What the President was required to do was simply in execution of the act of Congress." A competent writer refers to this decision as "one in which the Supreme Court has come nearest to marking the boundary within which legislative power may be delegated."†

It has been suggested by a high authority on legal and international questions that the Senate, in ratifying the Hague Convention as to International Arbitration, has parted with its power or duty to further intervene in respect to cases of arbitration which may be submitted by the United States, in accordance with that Convention, and that the President alone, without the further action of the Senate, is empowered to decide as to all questions or issues which may be submitted to arbitration, and to carry the arbitration into full effect. Under the terms of that Convention arbitration is not compulsory on any of the powers adhering to it, and a resort to the tribunal will be purely voluntary; so that it has been suggested that this solemn compact of the nations is not more likely to be efficacious in settling international controversies that the agreement of the powers at the Paris Conference of 1856, when they resolved thereafter to resort to mediation in place of war for the settlement of their disputes, which subsequent history shows to have been a dead letter in international affairs. But if this Convention is to be made available by the nations, and if the President is the sole judge of the questions to be submitted on the part of the United States, the learned jurist cited has well said: "This is a tremendous power for a republic to lodge in one man's hands."

In order that we may see what power is lodged in the hands of the President if the contention under consideration is correct, it may be well to epitomize some of the provisions of the Hague Convention. It has four professed objects in view to prevent war, (1) the exercise of good officers, (2) mediation, (3) commissions of inquiry, and (4) arbitration. It provides for the submission to arbitration of "every sort of dispute" (Art. 17). The international commissions of inquiry are to be "constituted by a special convention between the parties in litigation" (Art. 10) and the "powers which shall have recource to arbitration shall sign a special act (com

*Field v. Clarke, 143 U. S. Reports, 650.

† Hon. E. B. Whitney, in Columbia Law Review, January, 1901. Prof. S. E. Baldwin, in Yale Review, February, 1901.

promis), in which is clearly set out the case to be decided, as well as the extent of the powers of the arbitrators.” (Art. 31).

Can it be conceived that the Senate in ratifying this Convention intended to confer or could have conferred, upon the President the unrestrained power to submit to arbitration a question involving the national honor, the Monroe doctrine, or even the legitimacy of our claim to any portion of the national domain? And would it be competent for the President alone to enter into a convention or agreement with a foreign power in accordance with Articles 10 and 31?

In giving its advice and consent to the ratification of the Hague Convention, the Senate conferred upon the President power to do what was necessary on the part of our government to organize the tribunal (Art. 23), the administrative council (Art. 28), and the international bureau (Art. 26), so that at the Hague there would be provided the machinery to carry on an arbitration, whenever any two or more nations might by agreement submit their differences to the tribunal there constituted. But I apprehend that should it happen that our Government decide to refer any dispute with a foreign government to the Hague tribunal, President Roosevelt, or whoever should succeed him, would enter into a convention with the foreign government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States, and the Hague Convention, aright, such would be the only course permissible by those instruments.

What is the view entertained by the Senate on this subject may be seen from its action on the Olney-Pauncefote arbitration convention of 1897.* The parties to that instrument provided that "all questions in difference between them which they may fail to adjust by diplomatic negotiations" should be submitted to arbitration. The different classes of questions were precisely distinguished, and different tribunals provided for their adjustment. The convention was drawn with care, the interests of our country well guarded, and I think it would have been a wise act on the part of the Senate and a great step in international arbitration, if the convention had been ratified. But it contained no provisions for a future convention or agreement as to the questions to be arbitrated, as contemplated in the Hague convention, and the whole control of the proposed

*Foreign relations of U. S. 1896, p. 238.

The con

process of arbitration was committed to the Executive. vention was rejected by the Senate, and it was understood that this fact was the main cause of its defeat. That body was unwilling to surrender its control of the questions to be submitted.

There are a class of Executive acts of a diplomatic character which at first glance would seem to be an independent exercise of the treaty-making power, but which in a strict sense cannot be so regarded. Of this class are agreements for the adjustment of claims of American citizens against foreign governments, which are often made by the Secretary of State without any reference of the agreements to the Senate. The most noted of these was the agreement of 1871, made with Spain for the adjustment by arbitration of the claims of American citizens arising out of the Cuban insurrection. The agreement, made by a simple exchange of notes, is included in the official volume of treaties,* but it was never submitted to the Senate for approval. Under this agreement, claims to the amount of many millions of dollars were adjusted.

A number of other agreements of a similar character have been made by successive Secretaries of State, whereby specified claims of Americans have been submitted to arbitration. The practice has not been uniform respecting the Senate. Sometimes such adjustments have taken the form of conventions which were submitted to the Senate, and in other cases the same President has carried out the agreement without consulting that body. In the latter case he proceeds upon the accepted theory that all claims of private citizens against foreign governments are subject to political exigencies, and it is within the discretion of the Executive to urge them diplomatically upon the foreign government or not; but their submission is usually with the consent of the claimant.

No case has yet occurred where the Executive has entered into an agreement for the adjustment by arbitration of the private claim of a foreigner against the United States without securing the approval of the Senate in the form of a convention. The reason for this may be that the Executive cannot bind the Government to the payment of money.

Other Executive acts of a diplomatic character are transitory measures which take the name of a modus vivendi. These are usually made pending some treaty negotiations, they are a temporary expedient to avoid friction or trouble until a permanent set

*Treaties of the United States. (1889) p. 1025.

tlement of the questions in controversy is reached, and are made by the Secretary of State with the foreign government concerned. They take the shape of an exchange of notes or of a formal protocol, and ordinarily are not submitted to the Senate for approval. Of this character was the modus vivendi arranged by the commissioners of the United States and Great Britain pending the ratification of the convention of 1888, for adjusting the northeast fisheries with Canada. Also a modus vivendi was arranged with Great Britain, pending the negotiation of the Bering Sea fur-seal arbitration treaty, providing for the protection of the seals during one season, and a second modus was agreed upon for the second season to extend over the period of the fur-seal arbitration at Paris in 1893. One of these latter was submitted to the Senate, but the other was not submitted and went into effect by the President's proclamation alone.

Among the most recent instances of this class of Executive acts is the modus vivendi of 1899 respecting part of the Alaskan boundary made by Secretary Hay. For this act he has been unjustly criticised by a portion of the press as usurping the functions of the Senate and surrendering American territorial and mining rights. The arrangement was affected by the Secretary with the British Charge d'Affairres in Washington, pending the settlement of the much debated boundary question by the Joint High Commission to which the subject had been referred by the two Governments. The constant travel and traffic with the Yukon region from the head of the Lynn Canal made some temporary arrangements absolutely necessary for customs and police purposes. The agreement fixed a line “provisionally without prejudice to the claims of either party in the permanent adjustment of the international boundary;" the Secretary was careful to have the line so drawn so as to leave on the American side all permanent occupants within the territory in dispute, and to keep the line more than twenty miles from tide-water. Soon after the line was fixed gold was discovered on the British side, and a great influx of American miners took place, but the Secretary had fortunately provided in the modus that American citizens "within the temporary jurisdiction" of Great Britain should "suffer no diminution of the rights and privileges they would enjoy" in the United States. No harm would come to any American interest from the modus, and it has been productive of much good. It can be terminated at any time upon notice by either party. A similar modus vivendi was made by Secretary Evarts and the British Minister in 1878, as to the same boundary line on the Stikine river,

which evoked no criticism, as it was generally recognized to be a necessary provision; and it has continued in force to the present day.

From the foregoing review of the practice of the Government under the Constitution, it may be seen, first, that the Senate retains and exercises with jealous care its functions as a part of the treatymaking power; second, that Congress can and does delegate duties to, and increase the power of, the President in matters respecting foreign affairs; and third, that there are certain acts of an international character, binding the Government, which the President may perform without the interposition of the Senate.

Severe criticism is passed upon the Senate, sometimes at home, but more often abroad, for its action respecting treaties. It is frequently charged that it is composed of members who are ignorant of international law and of diplomatic practice, and that its decisions are mainly influenced by partisan politics and by a desire to thwart the Executive. At no time in our history has the Committee on Foreign Relations of that body been without controlling members thoroughly conversant with international law and foreign affairs; and though not without blemish, the personnel of that body may be favorably compared in intelligence and decorum with any other legislative body of the European Governments. Its members are on most questions swayed by partisan considerations, but in international affairs they are generally actuated by a high spirit of patriotism, and the conduct of the Senate respecting treaties has, in the main, justified the wisdom of the framers of the Constitution in giving it participation in the treaty-making power.

John W. Foster.