5, 1868, although the exchange in each case had taken place subsequently to the time stipulated for that purpose.9 In order to effect the exchange of the ratifications of the commercial convention with Cuba of December 11, 1902, within the stipulated time, a constructive exchange was resorted to. On notification that the Cuban exchange copy had in good form been placed in transmission, the exchange copy of the United States was delivered to the Cuban minister in Washington, and a protocol was signed reciting the fact of the exchange. So also in the case of the treaty of commerce and navigation with China of October 8, 1903, upon the delivery of the American exchange copy to the Chinese minister in Washington, and upon the receipt by the American minister at Peking, for transmission, of the Chinese exchange copy, the protocol reciting the fact of the exchange was signed." The exchanges of the ratifications of the treaty with Mexico of January 20, 1883, and with Chile of August 7, 1892, were effected under similar conditions, and recorded in protocols signed, May 20, 1884, and January 26, 1893, respectively.98 96 See also treaty with Bolivia of May 13, 1858; with Peru of March 17, 1841; and with Sweden-Norway of May 26, 1869. 97 Mr. Conger, minister to China, to Mr. Hay, Secretary of State, January 13, 1904. 98 "Inasmuch as in this country the pleasure of the Senate must be known before a treaty can be ratified, and as delays may accordingly supervene, it is the preference of this Government that it be provided that the ratification and the exchange of ratifications shall be effected 'as soon as possible,' rather than within a specified time." Instructions to Diplomatic Officers, §246. CHAPTER VII. POWERS OF THE PRESIDENT. §47. Negotiation.-To the President is entrusted the exclusive power of communication with foreign states. "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Accordingly, with him resides the right of determining finally on all negotiations to be conducted with foreign powers. Although such negotiations are regularly conducted through the Secretary of State, they originate in legal contemplation with the President. Treaties are signed by the Secretary of State, as also by all other agents, and the ratifications are exchanged, by virtue of special powers conferred by the President.3 I John Marshall, in the House of Representatives, March 7, 1800. Annals, 6th Cong., 613. 2 Jones v. United States, 137 U. S. 202, 217; Wolsey v. Chapman, 101 U. S. 755, 770. The Department of Foreign Affairs was established by the act of Congress approved July 27, 1789. By an act approved September 15, 1789, the name was changed to Department of State. I Stats. at L. 28, 68. Gouverneur Morris submitted to the Federal Convention, August 20, 1787, propositions providing for a Council of State, in which there was to be a Secretary of Foreign Affairs, to be appointed at the pleasure of the President, to whom was to be entrusted, among other duties, the preparation of plans of treaties and the examination of such as might be transmitted from abroad. Doc. Hist. of the Const., III, 566. "The act creating the Department of State, in 1789, was an exception to the acts creating the other Departments of the Government. * It is a Department which from the beginning the Senate has never assumed the right to direct or control, except as to clearly defined matters relating to duty imposed by statute and not connected with the conduct of our foreign relations. We direct all the other heads of Departments to transmit to the Senate designated papers or information. We do not address directions to the Secretary of State. We direct requests to the real head of that Department, the President of the United States, and, as a matter of courtesy, we add the qualifying words, 'if in his judgment not incompatible with the public interest.'" John C. Spooner, in the U. S. Senate, January 23, 1906, Cong. Record, 59th Cong., 1st Sess., 1420. 3 Section 243 of the standing Instructions to Diplomatic Officers of the United States (1897) reads: "In case of urgent need a written international compact between a diplomatic representative of the United States and a foreign government may be made in the absence of specific instruc 93 §48. Ratification.-The final act of ratification of a treaty is not delegated, but is performed by the President by and with the advice and consent of the Senate, two-thirds of the Senators present concurring. The authorization of the Senate is a condition precedent to the validity of the treaty, and is regularly given after its negotiation in the form of a resolution advising and consenting to the ratification. $49. Reservation in Full Powers of Right of Ratification.From the first there has been inserted in the full powers of the negotiators, as likewise in the text of the treaty, a reservation of the right of ratification, which regularly, although not uniformly, explicitly provides that the ratification shall be by the President, by and with the advice and consent of the Senate. In commenting on Jefferson's rough draft of the instructions to the commissioners appointed in the early part of 1792 to negotiate with the court of Spain, Hamilton suggested that the clause in which the right of ratification was to be reserved should be so worded as to indicate the participation of the Senate. Jefferson, on the other hand, considered a stipulation, that the treaty should be ratified, without the particular body of individuals by which it was to be ratified being designated, to be sufficient. The instruction was not modified, and the treaty of October 27, 1795 was drawn up accordingly. In the treaty with Great Britain of November 19, 1794, as has since been the more regular practice, the clause reserving the right of ratification specifically provided that the treaty should be ratified by the President by and with the advice and consent of the Senate. However, even if the reservation is not so expressed, the constitutional requirement of the consent of the Senate to the conclusion of treaties, of which requirement all nations have notice, is to be read into the full powers conferred by the President, and into all treaties negotiated under his authority. $50. Proclamation.-After the final ratification and the exchange or deposit of ratifications, the treaty is proclaimed by the President. This serves as a public announcement as well of the tions or powers. In such cases it is preferable to give to the instrument the form of a simple protocol, and it should be expressly stated in the instrument that it is signed subject to the approval of the signer's Government." 4 See Am. State Papers, For. Rel., I, 471, 533. 5 Writings of Jefferson (Ford ed.), V, 445. terms of the treaty as of the fact of its due ratification. Proclamation is made only by the President." 851. Treaties Withheld from the Senate.-Since all treaties must receive the final ratification of the President, he may at will as a constitutional right withhold from the Senate a treaty already negotiated. Of proposed treaties thus withheld, note may be made of a treaty of commerce and navigation with Great Britain, negotiated on the part of the United States by James Monroe and William Pinkney, and signed December 31, 1806; a convention with Mexico, signed March 21, 1853, relative to a transit way across the Isthmus of Tehuantepec; a convention with the Netherlands, signed December 15, 1863, for the regulation of emigration of freedmen from the United States to Dutch Guiana; conventions with Colombia, signed March 30, 1872 and November 1, 1879, for the extradition of fugitives from justice; a convention with Switzerland, signed February 14, 1885, for the protection of trade-marks; the general act of the Berlin Conference, signed February 26, 1885, with reference to the Kongo;" a treaty of commerce with Japan, signed February 20, 1889; a convention for the establishment of a tribunal of arbitration, adopted in April, 1890, by the First International American Conference; a convention of arbitration with Japan, signed February II, 1905; and two conventions with Roumania, one of extradition, the other for most-favored-nation treatment in commerce, signed, respectively, at Bucharest, April 16, 1908. 852, Submitted to the Senate with Recommendation for Amendment. Or the treaty may be submitted by the President to the Senate accompanied with recommendations for amendments. President Washington in a message of February 13, 1793, and President Adams in a message of December 6, 1797, in submitting certain Indian treaties, suggested qualified ratifications.R In submitting for the approval of the Senate the treaty of peace 6 Mr. Blaine, Secretary of State, to Mr. Angell, October 10, 1881, MSS. Inst. to China, III, 266; Moore, Int. Law Digest, V, 210. The treaty with China of July 28, 1868 was proclaimed under the seal of the American legation in China, November 23, 1869, immediately upon the exchange of ratifications at Peking. Subsequently, February 5, 1870, the treaty was duly proclaimed by the President. 7 See message of President Cleveland, December 8, 1885. Richardson, Messages and Papers of the Presidents, VIII, 330. 8 Id., I, 135, 259. with Mexico, signed February 2, 1848, by N. P. Trist, whose powers had previously been revoked, President Polk, after noting that the treaty substantially conformed in respect of boundaries and indemnity with the terms which the commissioner had originally been empowered to offer, recommended the rejection by the Senate of the tenth article respecting grants of land within the limits of Texas. He also suggested the rejection of the additional and secret article." The Senate followed these recommendations. President Taylor, in submitting, April 22, 1850, the ClaytonBulwer treaty, signed April 19, 1850, suggested an amendment either of the treaty submitted or of the treaty with Nicaragua, signed September 3, 1849, then pending before the Senate, in order that the provisions of the two treaties might not be inconsistent with each other in their spirit and intent.10 In submitting, February 13, 1851, the treaty of commerce with the Swiss Confederation, signed November 25, 1850, President Fillmore directed the attention of the Senate to objectionable provisions and recommended amendments.11 President Pierce, in submitting, February 10, 1854, the Gadsden treaty of December 30, 1853, recommended certain specific amendments.12 In submitting, February 5, 1863, the claims convention with Peru, signed January 12, 1863, President Lincoln recommended a material amendment.13 President Grant, by message dated May 31, 1870, suggested the amendment by the Senate in certain particulars of the treaty for the annexation of San Domingo, signed November 29, 1870, and then pending in the Senate, to obviate objections which might be urged against the treaty as signed.1 On May 22, 1872, President Grant submitted an agreement signed February 17, 1872, with the Chief of the Island of Tutuila, and recommended it to the favorable consideration of the Senate, subject to certain modifications.15 President Cleveland, in submitting, July 5, 1888, an extradition convention with Colombia, signed May 7, 1888, directed the attention of the Senate to certain amendments sug 9 Id., IV, 573. |