constitutional limitations are necessarily a matter of public knowledge. The same rule applies to the negotiation of treaties by Great Britain and other powers.*

$465. Necessity of ratification by the Senate; procedure in the Senate; amendments.-Assuming that the treaty is satisfactory to the President, and he transmits it to the Sen

4 The same procedure is largely in force in England. "For the purpose of making a treaty, the first stage in the proceedings is the grant of powers to representatives of the Crown to negotiate and conclude the treaty. For this purpose an instrument is prepared containing a full power to the Minister representing the Crown to negotiate or conclude a treaty, or convention with the Minister who is invested with similar powers to act for the State, which is the other party to the transaction. To this instrument the Great Seal is affixed on the authority of a sign manual warrant countersigned by the Secretary of State for Foreign Affairs.

"And so a warrant is again issued under the sign manual, countersigned by the Secretary of State, for affixing the Great Seal to an instrument ratifying the treaty. The instrument of ratification which is in fact the treaty with the Great Seal affixed to it, is then exchanged, by the Minister empowered to do so, for a ratification with corresponding forms from the other side. The Ministers who exchange ratifications execute at the same time in duplicate a document of a less formal but very important character, a statement, sealed with their respective seals, that the ratifications have been exchanged. The document of ratification of the treaty by the foreign power with whom we are dealing, and the document attesting the fact that ratifications have been exchanged, are then deposited in the Foreign Office.

"When a treaty is concluded it is signed and sealed in duplicate by the Ministers representing their respective countries with their own seals. If the treaty contains, as is usual, a clause providing that it "It is possible that a treaty may shall be ratified and ratifications require legislation in order to bring exchanged at some future date and it into effect. Such is the case specified place, then until ratifica- with treaties involving fiscal tion neither side is bound by it. changes which cannot be brought If there is no such clause, the treaty about without the consent of Parmay take effect in accordance with liament. The ratification is then the terms therein contained. The postponed till the required legislapower to ratify or reject is vested tion has taken place, or the treaty in different parts of the Sovereign must contain, express or implied, power, according to the constitu- a condition subsequent that its tion of different countries, in a operation is dependent on the acpopular assembly, as the Cortes in tion of Parliament." Anson's Law Portugal; in a second chamber, as and Custom of the Constitution, the Senate in the United States; in Part II; The Crown, 2d edition, the Executive, as the Crown in Eng- | pp. 48–49.

land.

ate, it must receive a two-thirds vote of that body before it is ratified; and there must be an exchange of ratifications with the other power, before the treaty finally becomes the supreme law of the land. In the Senate it has to pass through

§ 465.

John W. Griggs, formerly Attorney General of the United States. Article XXXI is as follows: "The powers which resort to arbi

1 THE HAGUE TREATIES OF 1899. To what extent this ratification is necessary and whether it can be dispensed with in regard to any ar-tration shall sign a special act rangements with foreign powers (compromis), in which the subject has to some extent been discussed of the difference shall be precisely in note 2 to § 463, pp. 367, et seq. defined, as well as the extent of the powers of the arbitrators. This act implies an agreement by each party to submit in good faith to the award.”

ante.

On July 29, 1899, several conventions were concluded at The Hague by the representatives of powers who had been in attendance on the Peace Conference in that city. One of these was a "convention for the peaceful adjustment of international differences," consisting of sixty-one articles providing for international commissions of inquiry, and for international arbitration. By Art. XX the signatory powers undertook to "organize a permanent court of arbitration accessible at all times, and acting, unless otherwise stipulated by the parties in accordance with the rules of procedure included in the present convention." Arts. XXIII and XXIV provide for the appointment of not more than four persons by each Power to act as arbitrators.

Then follow a number of articles establishing the rules and procedure to be followed by the parties to arbitrations before the court.

For this, and other treaties concluded at The Hague Conference, see The Peace Conference at The Hague, by F. W. Holls, pp. 374 et seq.

Up to the present time no disputed question has been referred to The Hague Court of Arbitration, by the United States. The question, however, has been discussed from an academic standpoint, whether the Executive department of the United States can refer a matter in dispute to this court by protocol or agreement without senatorial action thereon, or whether a President McKinley appointed formal agreement or treaty to arbiBenjamin Harrison, formerly Pres-trate must be made and ratified by ident of the United States (now the Senate similar to those with deceased and succeeded by Hon. Great Britain of 1871, as to the Oscar S. Straus); Hon. Melville" Civil War" and "Alabama" W. Fuller, Chief Justice of the Claims, (U. S. Tr. and Con. 1889, Supreme Court of the United p. 478, and U. S. Treaties in Force, States; Hon. George Gray, Delaware, formerly Senator of the United States and now United States Circuit Judge; and Hon. Treaties in Force, 1899, p. 262.)

1899, p. 252), and of 1892 as to the Bering Sea dispute, both of which were ratified by the Senate. (U. S.

the ordeal of an examination by the Committee on Foreign Relations; this Committee has always been composed of representatives of both of the leading political parties, the dominant one having the majority in the Committee as well as in the Senate. The legal questions involved in our relations. with foreign powers are of such importance that proficiency in constitutional and international law has become a sine qua non for membership in that Committee, the list of whose members during the past century would include the names of many of the ablest jurists of the United States, whose reputations are not confined to this side of the Atlantic.2

If the majority of the Committee on Foreign Relations

The views of Mr. Holls as to the already referred to (note 9, § 444necessity for the consent of the p. 312, ante) is a compilation of reSenate to submit matters to this ports from this committee since tribunal for arbitration, as ex- 1789. Amongst some of the mempressed on p. 216 of his Peace Con-bers whose names are mentioned as ference at Ths Hague, after refer- the authors of reports, are Charles ring to Art. X of the treaty which Sumner, John W. Clayton, Fredeprovides for appointments of Com-rick T. Frelinghuysen, John T. missions of Inquiry are as follows: Morgan, William Windom, George "This point is of essential im- H. Pendleton, George F. Edmunds, portance in the United States of Cushman K. Davis, Henry Cabot America on account of the power Lodge, George Gray, William H. of the Senate. The appointment | Seward, William M. Evarts, James of a Commismission of Inquiry | Buchanan, Henry Clay, Edward having no further necessary conse- Everett, John Sherman, Daniel quences than the providing for each | Webster, Lewis Cass, and many party's share of necessary expenses, others. would seem to be within the ordinary diplomatic functions of the President and 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 coöperation of the Senate."

The Hague treaties were ratified Feb. 7th, 1900; have not been officially reported but will probably appear in 32 U. S. Stat. at Large.

2 The Senate Document No. 231,

Some of the reports have become famous as containing expositions of principles of international law recognized by the United States. Amongst these is the report of Senator Sumner on the duty of Congress to pay our citizens for their claims known as the French spoliation claims, which were satisfied as against France by the treaties of 1800 and 1803. (See p. 274, Part I, Sen. Doc. 231, cited supra.)

In the Letters of Historicus in The London Times, originally published under an assumed name, but now credited to Sir William Vernon

reports the treaty favorably, it is still necessary for its advocates to obtain a two-thirds majority of the Senate in order to ratify it, and all questions relating to it are fully open for discussion. The consideration of treaties is sometimes con

3

Harcourt, a striking tribute is paid to the authority which should be given to American decisions on the subject of international law. On page xii of the preface, after a beautiful tribute to Washington and a reference to the closing chapters of Marshall's Biography, he says: "I have spoken with the respect they deserve of the judicial records of American decisions. But an equal if not higher reputation belongs

to the archives of American diplomatic statesmanship at the close of the last and the beginning of the present century. The published volumes of American State Papers during the early years of the French Revolutionary War present a noble monument of dignity, moderation, and good faith. They are repertories of statesmanlike principles and juridical knowledge."

8 JAMES BRYCE ON THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY. "The Senate is not only a legislative but also an executive Chamber; in fact in its early days the executive functions seem to have been thought the more important; and Hamilton went so far as to speak of the national executive authority as divided between two branches, the President and the Senate. These executive functions are two, the power of approving treaties, and that of confirming nominations to office submitted by the President.

"To what has already been said regarding the functions of the President and Senate as regards treaties (see above, [Bryce, vol. I] chap. VI) I need only add that the Senate, through its right of confirming or rejecting engagements with foreign powers, secures a general control over foreign policy. It is in the discretion of the President whether he will communicate current negotiations to it and take its advice upon them, or will say nothing till he lays a completed treaty before it. One or other course is from time to time followed, according to the nature of the case, or the degree of friendliness existing between the President and the majority of the Senate. But in general, the President's best policy is to keep the leaders of the senatorial majority, and in particular the committee on Foreign Relations, informed of the progress of any pending negotiation. He thus feels the pulse of the Senate, and foresees what kind of arrangement he can induce it to sanction, while at the same time a good understanding between himself and his coadjutors is promoted. It is well worth his while to keep the Senate in good humor, for, like other assemblies, it has a collective self-esteem which makes it seek to gain all the information and power it can draw in. The right of going into secret session enables the whole Senate to consider despatches communicated by the President; and the more important ones, having been first submitted to the Foreign Relations committee, are thus occasionally discussed without the disadvantage

fined to Executive session, but more frequently the injunction of secrecy has been removed and the debate carried on in

of publicity. Of course no momentous secret can be long kept, even by the committee, according to the proverb in the Elder Edda-'Tell one man thy secret, but not two; if three know, the world knows.'

"This control of foreign policy by the Senate goes far to meet that terrible difficulty which a democracy, or indeed any free government, finds in dealing with foreign Powers. If every step to be taken must be previously submitted to the governing assembly, the nation is forced to show its whole hand, and precious opportunities of winning an ally or striking a bargain may be lost. If on the other hand the executive is permitted to conduct negotiations in secret, there is always the risk, either that the governing assembly may disavow what has been done, a risk which makes foreign states legitimately suspicious and unwilling to negotiate, or that the nation may have to ratify, because it feels bound in honor by the act of its executive agents, arrangements which its judgment condemns. The frequent participation of the Senate in negotiations diminishes these difficulties, because it apprises the executive of what the judgment of the ratifying body is likely to be, and it commits that body by advance. The necessity of ratification by the Senate in order to give effect to a treaty, enables the country to retire from a doubtful bargain, though in a way which other Powers find disagreeable, as England did when the Senate rejected the Reverdy Johnson treaty of 1869. European statesmen may ask what becomes under such a system of the boldness and promptitude so often needed to effect a successful coup in foreign policy, or how a consistent attitude can be maintained if there is in the chairman of the Foreign Relations committee a sort of second foreign secretary. The answer is that America is not Europe. The problems which the Foreign Office of the United States has to deal with are far fewer and usually far simpler than those of the Old World. The republic keeps consistently to her own side of the Atlantic; nor is it the least of the merits of the system of senatorial control that it has tended, by discouraging the executive from schemes which may prove resultless, to diminish the taste for foreign enterprises, and to save the country from being entangled with alliances, protectorates, responsibilities of all sorts beyond its own frontiers. It is the easier for the Americans to practice this reserve because they need no alliances, standing unassailable in their own hemisphere. The circumstances of England, with her powerful European neighbors, her Indian Empire, and her colonies scattered over the world, are widely different. Yet different as the circumstances of England are, the day may come when in England the question of limiting the at present all but unlimited discretion of the executive in foreign affairs will have to be dealt with; and the example of the American Senate will then deserve and receive careful study. Yet it must be remembered that many of the most important acts done in the sphere of foreign relations are purely executive acts (as for instance, the movement of troops and ships,) which the Senate cannot control.