trine that these modi vivendi may be entered into by the President without consulting the Senate.5

In the exercise of his powers as Commander-in-Chief of the army and navy the President of the United States, from both necessity and convenience, is often called upon to enter into arrangements which are of an international character. These conventions do not require the approval of the Senate. A conspicuous example of international agreements thus entered into is the protocol signed at Pekin in 1901. All protocols of agreement entered into for the purpose of furnishing a basis for treaties of peace, as for example, the Protocol of 1898 with Spain, come under this head. So do all conventions providing in time of war for an armistice, or the exchange of prisoners, etc.

The President's military powers exist in times of peace as well as during war. And thus, in 1817, the President, without obtaining the advice and consent of the Senate, was able, by an exchange of diplomatic notes, to arrange with England regarding the number of vessels of war to be kept by the two powers upon the Great Lakes. So also, upon his own discretion, the President is able to send American vessels of war to whatever ports he sees fit, whether for the purpose of friendly visits, of furnishing protection to American citizens or their property, or of making a "demonstration" in order to obtain desired action on the part of the State thus overawed."

Extraditions

The greatly preponderant weight of opinion is that, in

5 For instances, see Butler, The Treaty-Making Power, I, 369, note. 6 By general treaties as well as by statutes the President is often given authority to enter into specific international agreements which do not need to be submitted to the Senate for its approval before they become effective. The constitutionality of this delegation of authority is considered in Field v. Clark, 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

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. 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.

CHAPTER XXIV

CONGRESSIONAL LEGISLATION

FOR THE ENFORCEMENT

OF TREATIES

Auxiliary legislation often necessary

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-executing, but require for their enforcement 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 to compel the legislature to provide for their payment. The same is true as to other legislation which may be required in order to put a treaty into full force and effect. The moral and political obligation upon Congress to supply this legislation or to make the necessary appropriations is, however, exceedingly strong. As parts of the supreme law of the land, treaties rest upon a plane of equality with acts of Congress, but upon no higher plane. Resulting from this, it has been held in at number of well-considered cases that an act of Congress operates to repeal or annul prior treaty provisions inconsistent with it.1

1 Edye v. Robertson (Head Money Cases), 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798; Chae Chan Ping v. United States, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068. See also cases cited by Butler, Treaty-Making Power, I, 86.

Effect of treaties on existing statutes

We have now to examine whether, without congressional direction or permission, it is competent for the treatymaking power to regulate a matter which it is within the legislative power of Congress to control; or, by international agreements, to alter arrangements which Congress has by statute already established.

That the treaty-making power extends to many subjects within the ordinary legislative powers of Congress there can be no doubt. The Supreme Court has, in a number of instances, declared that treaties and acts of Congress stand, as law, upon exactly equal planes, and, therefore, that the later treaty operates to supersede the earlier law, exactly, as we have seen, the later law has the effect of abrogating a prior inconsistent treaty.2

In fact, however, there have been few instances in which a treaty inconsistent with a prior act of Congress has been given full force as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, Congress in every instance has succeeded in maintaining this point.

There would seem to be, however, in practice, one

2 Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415; Cherokee Tobacco Case, 11 Wall. 616; 20 L. ed. 227. See also United States v. Lee Yen Tai, 185 U. S. 213; 22 Sup. Ct. Rep. 629; 46 L. ed. 878, and cases there cited.

exception to the rule that the later treaty abrogates the prior inconsistent statute, and this is in reference to acts for raising revenue. The Constitution expressly declares that "all bills for raising revenue shall originate in the House of Representatives." Strictly interpreted this provision might be held to apply only to "bills," that is, to propositions for a statute, but in practice the spirit of the clause has been followed rather than its exact letter.3

After an account of the practice of the government and of discussions of the subject in Congress, Mr. Crandall, writing in 1904, says: "From this historical review it appears that, whatever may be the ipso facto effect of the treaty stipulations, entered into by the President and Senate, upon prior inconsistent revenue laws, not only has the House uniformly insisted upon, but the Senate has acquiesced in, their execution by Congress; that in case of proposed extensive modifications a clause, has been inserted in the treaty by which its operation is expressly made dependent upon the action of Congress; and that in the recent Cuban treaty such a clause was inserted on the initiative of the Senate."4

It is to be observed, before leaving this subject, that in no case has the treaty-making power, whatever its actual concessions, ever admitted in full terms its inability to fix as laws matters which are within the legislative powers of Congress. Thus in 1902, Senator Cullom emphatically asserted that only with reference to the appropriation of money is legislative assistance needed in order that treaties may receive acceptance as laws in our courts.5

It is to be remarked, however, that in Bertram v. Robert

3 See Moore's Digest of International Law, V, 223; and report of Senate Committee on Foreign Affairs, Compilation of Reports of the Committee on Foreign Relations, VIII, 36.

4 Treaties: Their Making and Enforcement, 145.

5 Butler, Treaty-Making Power, I, 457.