On December 18, President Taft notified the Senate of what he had done and said that he communicated "this action to the Senate, as a part of the treatymaking power of this Government, with a view to its ratification and approval." (Cong. Rec., Vol. 48, Pt. 1, 62d Cong., 2d Sess., p. 453.) On December 21, the President signed a joint resolution declaring that the notice given by the President was thereby adopted and ratified.

While the Congress thus subsequently approved of Taft's notice of termination, it is not clear whether such approval was thought to be legally necessary. Mr. Knox commented again on the incident later as a Senator during the debate in the Senate in 1920 on withdrawal from the League of Nations:

“. . . [W]hile it is true that . . . the Congress, by joint resolution, ratified and confirmed the act of the President, they recognized the validity of the act of the President in denouncing the treaty in accordance with its terms."

Senator Lenroot agreed with Mr. Knox, saying that it was his understanding that in the 1911 case the President

"proceeded upon the assumption that, as the Executive, there being nothing to the contrary in the treaty itself, he had the right to give the notice of the denunciation of the treaty." (Cong. Rec., Vol. 58, Pt. 8, 66th Cong., 1st Sess., p. 8132.)

President Taft's own views on the matter seem somewhat conflicting. As noted, he communicated the fact of his notice to the Senate "as a part of the treatymaking power of this Government. with a view to its ratification and approval." Elsewhere, however, he said that his action was something "which, as President, I had the right to do by due notice." (Taft, The Presidency, 1916, p. 113.)

Seamen's Act of 1915

In the Seamen's Act of 1915 (38 Stat. 1164), President Wilson was "requested and directed" to give notice to the foreign governments concerned that all provisions in conflict with the Act would terminate on the expiration of such periods as might be required in the treaties. Pursuant to this legislation the Department of State gave the required notices.

Merchant Marine Act of 1920

Section 34 of the Merchant Marine Act of 1920 authorized and directed the President to notify the governments with whom the United States had commercial treaties of its intent to terminate so much of the treaties as restricted the right of the United States to impose discriminating customs duties and discriminatory tonnage dues. (41 Stat. 988, 1007.) President Wilson approved the Act but declined to carry out the provisions with regard to treaty termination.

A Department of State Press Release of September 24, 1920, stated that the Department had been informed by the President that he did "not deem the direction . . . an exercise of any constitutional power possessed by the Congress." The Department pointed out that

the treaties in question contained no provision for termination in the manner contemplated by Congress, and stated that the President therefore considered it misleading to speak of "termination," as the action sought to be imposed on the President amounted "to nothing less than the breach or violation of said treaties."

Secretary of State Hughes, in a memorandum to the President on October 8, 1921, said that while Congress had the power to violate treaties, an intention to do so was not to be imputed to it. For this reason, and because Congress had not seen fit to pass legislation in derogation of the treaties in question, Secretary Hughes concluded that the fair construction of section 34 would be that it authorized and directed the President to give notice for termination in cases where such notice could be given without violating the treaty. He further pointed out that Congress had not provided for the termination of the treaties in their entirety and said:

"Accordingly, if the President should undertake to abrogate or terminate any of the commercial treaties in question in its entirety, he would be acting on his own responsibility as the Executive charged with the duty of conducting our foreign relations, and he would be unable to find in the language of Section 34 that the Congress had offered to share with him the responsibility." (Hackworth, Digest of International Law, Vol. V, p. 326.)

Senate Debate on Withdrawal from the League of Nations

The debates in the Senate on the possibility of withdrawal from the League of Nations also touched to some extent on the question of Presidential notice of termination. Article 1 of the League Covenant provided that any member of the League might, after two years notice of intention, withdraw from the League, provided its international obligations and its obligations under the Covenant had been fulfilled. When the treaty was before the Senate for its advice and consent to ratification, one of the reservations submitted by Senator Lodge provided that the United States should be the sole judge of whether its international obligations had been fulfilled and that notice of withdrawal might be given by a concurrent resolution of the Congress. There was considerable debate on the proposal.

Apart from the issue of notice by concurrent resolution, varying opinions were also expressed on the President's right to give a notice of termination without congressional approval. Senator Spencer of Missouri, speaking in support of the Lodge proposal, said:

"I mean to say, Mr. President, that if the President of the United States saw fit to give notice of withdrawal, that notice of withdrawal would be effective. If it was in violation of or in contradiction to the wishes of the Congress at the time, there would be certain restrictive action, like a joint resolution of Congress, which would be persuasive upon the President, but it would not deprive him of his power.

"Why, Mr. President, the case is precisely similar to that which confronts us now. If the Senate, by unanimous vote, should approve this treaty, that does not make the treaty. The President alone can send that treaty to the other signatory powers. His is

the only voice which speaks for the United States in international relations; and if he pigeon-holes the treaty, though every Senator was in favor of ratification, the treaty would never come into effect. Such is the power of the Chief Executive of the Nation, and it illustrates the power of the President with regard to withdrawal." (Cong. Rec., Vol. 58, Pt. 8, 66th Cong., 1st Sess., Nov. 8, 1919, p. 8122.)

Senator Lenroot argued that if the Senate concluded at any time that the President had no unilateral power to terminate a treaty, impeachment could be resorted to, but he knew of no other way to control the action of the Executive. Mr. Lenroot said that the President is the final treatymaking power, since it lies within his power to refuse to complete the treaty after Senate action, and that therefore "he alone has the power, unless controlled in some way by the treaty itself or by action of Congress abrogating the treaty, to denounce" a treaty containing provision for termination. (Ibid., p. 8132.)

On February 16, 1920, Mr. Lodge introduced an amendment to the previously agreed reservation on withdrawal, the amendment providing that notice might be given "by the President or by Congress alone whenever a majority of both Houses may deem it necessary." Thus a specific proposal was made permitting the President to act alone as an alternative to action by concurrent resolution. (Ibid., Vol. 59, Pt. 3, 66th Cong., 2d Sess., p. 2944.)

To the question whether if the original reservation (notice by concurrent resolution) were adopted, the President could nevertheless give notice alone, Mr. Lodge replied that that would be in line with the two precedents of Presidential unilateral action which he had cited (McKinley and Taft cases) and which were not questioned at the time. He said he thought it "at least doubtful whether the President has not the power to do that." (Ibid., Vol. 59, Pt. 4, Feb. 21, 1920, p. 3230.) Senator Lodge's amendment was rejected, as was an amendment permitting notice of withdrawal authorized by joint resolution. The reservation in its original form was adopted. (Ibid., pp. 3236, 3241, 3242.) In the end, of course, the Senate failed to give its advice and consent to ratification of the treaty as a whole, even with several reservations previously adopted.

THE MODERN PRACTICE

While the early practice of the Republic indicated certain doubts and uncertainties whether the President alone might appropriately give notice of termination pursuant to a notice provision, the modern practice reveals no such doubts. The Congress may of course authorize the giving of notice, and has done so in the modern era. But the current rule, accepted by the executive branch, the Senate and Congress, and the great majority of modern writers, is that the President may also give a notice of termination without prior or subsequent Senate or Congressional approval.

1920—Agreement (Wilson) terminating 1891 Treaty with the Congo

The first significant case in the modern era was the termination of the 1891 commercial treaty with the independent state of the Congo,

which contained no provision for termination. The treaty was regarded as still in force after the extension of Belgian sovereignty over the Congo. In the absence of a provision for termination, the agreement of both parties was required to terminate it.

In 1915 the United States, pursuant to the Seamen's Act of 1915, notified Belgium of its intention to terminate article 5 of the 1891 treaty as of July 1, 1916. The Belgian Government, in its reply of June 29, 1916, proposed the termination of the entire treaty. The Secretary of State [Lansing] then suggested on November 11, 1916, that notice to that effect should come from Belgium. On December 31, 1916, the Belgian Foreign Minister [Beyens] replied that the Belgian note of June 29 was intended as such formal notice and that the 1891 treaty would be deemed to have been denounced on July 1, 1916. He expressed the understanding that Article 5 had ceased to be operative on July 1, 1916, the other articles remaining in force for the time being.

On December 13, 1920, the United States informed the Belgian Government that it acknowledged the notice (of denunciation of the entire treaty) as given and received on July 1, 1916, and that since the 1891 treaty contained no stipulation respecting termination, it assumed that the wishes of the Belgian Government might best be met by considering that the treaty terminated after such a period of notice as was customarily provided for in treaties of amity and navigation. Accordingly, it was said, the United States regarded the treaty as having expired on July 1, 1917, one year after notification by the Belgian Government. (1 Treaties, Malloy, 1910, 328; Hackworth, Digest of International Law, Vol. V, pp. 317-318.)

The case is important, notwithstanding that there was no notice provision in the 1891 treaty. The negotiated agreement of the parties to terminate the treaty was made on the part of the United States by the executive branch acting without Congress by means of an executive agreement. Yet there was no violation, no statute necessitating termination of more than one article, and impossibility of performance was not a relevant factor. In addition, this approach of termination by executive agreement was apparently acceptable to the Senate, which did not question it at that time or subsequently. Previously, on March 27, 1919, the Acting Secretary of State [Phillips] in informing the Senate of the requirements for abrogation of treaty provisions which might be affected by legislation, said that since the 1891 commercial treaty with the Congo had contained no provision for abrogation, "agreement by the parties thereto would seem to be necessary effectively to accomplish its abrogation as an international agreement." (Sen. Doc. No. 2, 66th Cong., 1st Sess., p. 14.)

At about the same time there occurred the last of the few instances of a President seeking authority to terminate a treaty. In May 1920 President Wilson sought the authorization of the Senate to the denunciation of the International Sanitary Convention of 1903. The proces-verbal of the deposit of ratifications of the convention contained a declaration by the signatory powers reserving the right of denunciation. The Convention itself contained no provision for denunciation or notice of termination.

After President Harding's inauguration the Senate's advice and consent were given by a Senate resolution of May 26, 1921, and notice of denunciation was subsequently given by the Executive. (Hackworth, Digest of International Law, Vol. V, p. 322; 2 Treaties, Malloy, 1910, pp. 2066, 2129, 2130; Cong. Rec., Vol. 61, Pt. 2, 67th Cong., 1st Sess., p. 1793.)

1927-Coolidge Notice of Termination of 1925 Treaty with Mexico

On March 21, 1927, during the Administration of President Coolidge, Secretary of State Kellogg directed the Ambassador to Mexico (Sheffield) to deliver to the Mexican Government a note giving the official notice of termination of a 1925 treaty with Mexico on the prevention of smuggling. (9 Bevans 949.) The action was taken pursuant to a provision for termination by notice, and the convention officially terminated on March 28, 1927. The notice was given without the direction of either the Senate or the Congress, and was not referred to either body for subsequent approval. It has been argued that in view of the state of U.S.-Mexican relations at that time, it might have been impossible to implement the Convention. However, there is no evidence to support that contention. There was a dispute in 1926 and 1927 over American-owned property in Mexico, but by a vote of 79 to 0 on January 25, 1927, the Senate passed a resolution urging arbitration of the dispute. On April 25, 1927, President Coolidge expressed hopes for an amicable settlement, and on September 21 he named a new Ambassador [Morrow]. On March 27, 1928, the State Department declared that because of steps taken by the Mexican Government, the differences had been resolved. (See Richard W. Leopold, The Growth of American Foreign Policy, 1962, pp. 464 465.)

The Secretary of State's instructions to Ambassador Sheffield in 1927 gave no indication that it was "impossible" to perform the 1925 treaty. His instructions included the following statement as to the U.S. reasons for giving the notice:

"... the United States has no commercial treaty with Mexico, and . . . in the circumstances it is not deemed advisable to continue in effect an arrangement which might in certain contingencies bind the United States to cooperation for the enforcement of laws or decrees relating to the importation of commodities of all sorts into another country with which this Government has no arrangement, by treaty or otherwise, safeguarding American commerce against possible discrimination." (U.S. Archives, 74D431: Box 16678.)

In sum, impossibility of performance was not a factor, there had been no treaty violation, and no subsequent inconsistent statute or treaty. The case stands as a clear-cut instance of Presidential notice of termination without prior or subsequent approval by the Senate or Congress.

1933-Roosevelt Denunciation of 1927 Multilateral Convention In 1933 President Roosevelt, without prior or subsequent reference to the Senate or Congress, directed United States withdrawal