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The Hague Convention. Ex-Secretary of State John W. Foster has said: "I apprehend that should 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." 13

To much the same effect is the declaration of Mr. F. W. Holls, who was the Secretary to The Hague Conference. He says: "The appointment of a Commission of Inquiry having no further necessary consequences than the providing for each party's share of necessary expenses, would seem to be within the ordinary diplomatic functions of the President and the Department of State by memorandum or protocol, whereas an agreement to submit any question to a court of arbitration, the decision to be binding upon the parties, must necessarily take the form of a treaty requiring the constitutional co-operation of the Senate." 14

Upon the other hand, Judge Simeon E. Baldwin gives as his opinion that: "The Hague Convention, when ratified by the Senate, became thus a standing warrant, or, so to speak, a power of attorney, from the United States to the President, to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration."

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§ 204. International Agreements Entered Into, or Action Taken by the President, by Virtue of Authority Granted Him by Congressional Statute.

In many instances Congress has, by statute, authorized the Executive to perform acts of an international character, that is, acts with which other countries have been directly concerned.

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Under such authorization, numerous international postal arrangements have been entered into. Thus by act of 1872, Congress declared that "for the purpose of making better postal arrangements with foreign countries," the Postmaster-General, acting under the advice of the President, might "negotiate and conclude postal treaties."

In a similar manner, that is, under congressional sanction, the President has negotiated and entered into agreements with foreign countries with reference to copyrights and trademarks.

Various other congressional acts of this character, as, for example, that of 1901, whereby the President was authorized to lease coaling stations from Cuba, might be mentioned, but the most important of these and the only ones which need discussion are those authorizing action with reference to the tariff laws.

Since the first years under the Constitution, Congress has pursued the policy of giving to the President a considerable execu tive discretion in the application and enforcement of its laws governing commercial intercourse with foreign countries. Of this character was the Embargo Act of 1794, the act of 1799 governing commercial intercourse with France, the Non-importation Act of 1806, the Non-intercourse Acts of 1809 and 1810, the acts of 1815 and 1830 as to tonnage and other dues, the act of 1866 as to the non-importation of cattle and hides, and the acts of 1815, 1824, 1828, 1886, 1888, and 1897 with reference to the suspension of discriminating duties.16 All of these acts provided that whether or not they should go into effect should be at the discretion of the President.

By section 3 of the act of 1890 (the so-called McKinley Act) it was provided: "That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions, upon the agri16 Cf. J. B. Moore in Political Science Monthly, XX, p. 395.

cultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States, he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just, and in such case during such suspension duties shall be levied, collected and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country, as follows."

This section had been put in the McKinley Act with a view to securing reciprocal commercial agreements with foreign powers, and ten such tariff arrangements were effected by the President by means of an exchange of diplomatic notes simply. These agreements remained in force until the enactment in 1894 of the Wilson-Gorman Act.

The constitutionality of this action under the act of 1890 was contested on the ground that it amounted to a delegation by Congress to the President of a portion of its legislative power; but the Supreme Court in Field v. Clark" held the provision valid.18

By the third section of the Tariff Act of 1897 (the Dingley Act), the President was authorized to enter into reciprocity agreements with foreign countries with respect to certain enumerated articles, whereby in return for concessions obtained from other countries, equivalent concessions were to be granted by the United States. Under the authority thus granted a number of reciprocity agreements were negotiated and promulgated by the President.

Section 4 of this act of 1897 also provided for reciprocity treaties which should be approved by Congress. This section will receive consideration in the next section.19

17 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

18 See Chapter LXV in which the delegation of legislative power is discussed. 19 There have been some instances of international agreements entered into by the President without the advice and consent of the Senate, and without authorization by some previous treaty or statute, which cannot be grouped under any one of the preceding heads mentioned in this chapter. Thus,

§ 205. Extradition.

The greatly preponderant weight of opinion is that, in the absence of authority expressly given him by treaty or statute, the President has not the constitutional right to extradite to a foreign country a fugitive to this country.20 The single instance in which the President has extradited without such authority expressly conferred upon him is the surrender to Spain by Lincoln in 1864 of one Arguelles.

Whether or not Congress has the power by statute to authorize the President to extradite fugitives to countries with which the United States has no subsisting treaty upon the subject is not certain, as there has been no instance of the exercise of such power. Reasoning upon general principles, however, there would seem to be no constitutional objection to such legislation.21

for example, in 1850 Great Britain ceded to the United States a reef in Lake Erie upon condition that the United States would engage to erect thereupon a lighthouse and maintain it, and agree to erect no fortifications thereupon. This engagement the President made without consulting the Senate, and the cession was made, and later, Congress having appropriated the funds, a lighthouse was constructed.

20 Cf. Moore, Extradition.

21 Cf. Butler, § 435.

CHAPTER XXIV. (34)

CONGRESSIONAL LEGISLATION FOR THE ENFORCEMENT OF

TREATIES.

§ 206. Treaties Cannot Appropriate Money.

Though all treaties, as declared by the Constitution, are parts of the supreme law of the land, they are not always, in whole or in part, self-executory; but require, in order to be put into full force and effect, ancillary legislative action. Especially is this legislative assistance required when an expenditure of money is called for. The treaty-making power is able to obligate the United States internationally to the payment of sums of money, but is not able itself to appropriate from the United States treasury the amounts called for, or compel the legislature to provide for their payment.

The question as to the obligation of Congress, morally or legally, to appropriate moneys, the payment of which by the United States is called for by agreement entered into with foreign countries by the treaty-making power, arose in 1796 in connec tion with Jay's treaty, which had been negotiated in 1794 and ratified in 1795. The treaty having been communicated to the House of Representatives in order that the moneys called for by it might be appropriated, Gallatin and other members urged that the House, before passing the appropriation asked for, was entitled to see all the papers in the executive department relating to the treaty in order that it might then pass upon the question of its merits, and refuse or consent to the appropriation as should to the House seem fit. A resolution calling upon the President for the papers was adopted, but Washington, not wishing to create a precedent, refused obedience to it, claiming that the House, being no part of the treaty-making power, was not entitled, of right, to see the documents in question.

Jefferson, in a letter to Monroe, stated' the position as follows: 1 Works, IV, 134.

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