of treaties and their ratification, and also in the enactment of legislation to carry them into effect. No treaty can, to use well understood expressions, be "railroaded," or "rushed" through the various stages necessary for its complete consummation. If there is anything wrong about it, ample opportunities are afforded for time, reflection and deliberate action, before it becomes the supreme law of the land.

The Constitution provides that the President shall make treaties by and with the consent of the Senate. This was construed by some, in the earlier days of our Government, as meaning that the advice of the Senate should be taken by the Executive before the treaty was negotiated; the consent to be given after it had been made. The impossibility, however, of obtaining an expression of opinion in advance of the negotiation of the treaty has caused that plan to be abandoned. Treaties are now concluded either by the Secretary of State, who acts for the Executive in regard to all foreign relations, or through commissioners appointed by, and representing, the President, but generally receiving their

§ 462.

1 United States Constitution, article I, sec. 10, paragraph 1: "No State shall enter into any Treaty, Alliance or Confedera

tion."

Article II, sec. 2, paragraph 2: "He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

isters; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

Article III, sec. 2, paragraph 1: "The Judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls."

Article VI, paragraph 2: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made. under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

Article II, sec. 3: " .. he (the President) shall receive Ambassadors and other public Min- notwithstanding."

instructions through the State Department. Commissioners are sometimes appointed by the President and confirmed by the Senate, and sometimes are appointed and act without such confirmation.

In these negotiations, while there is no obligation to consult the Senate, that body has frequently been taken into the confidence of the Executive prior to the conclusion of the treaty. This is done sometimes by the appointment of senators as commissioners; 2 at other times the Committee on Foreign Relations, to which the treaty when completed is always immediately referred after it has been transmitted to the Senate, is consulted through its chairman or through the members in sympathy with the administration. The opin ions of members of this Committee are undoubtedly of aid and assistance to the President, or to his representatives, in foreshadowing what the action of that Committee will be when the treaty shall come before it for consideration.

§ 463. Governmental procedure in making treaties.While the provisions of the Constitution, therefore, are strictly adhered to, and the President makes the treaty, the State department always, and the Senate generally, is fully apprised of the subject-matter of the negotiations and the method in which it is proposed to deal with it, before any treaty is concluded, and before the faith of the nation is even

2 During the past few years the propriety of appointing Senators to act as commissioners to negotiate treaties has been discussed in Congress on several occasions. It has been suggested that Senators should not act in such capacity as they are eventually to pass upon the treaty itself; it has been urged, on the other hand, that it is advisable to have Senators act as such commissioners so that all the circumstances surrounding the negotiation can be reported by them to the Senate, and thus fully acquaint that body with all the details involved.

submitted the Russian treaty of 1865, ceding Alaska, to Senator Charles Sumner, then chairman of the Committee on Foreign Relations.

In the recent negotiations of several treaties, notably those in relation to reciprocity, and with Great Britain in regard to the control of trans-isthmian communication, members of the Foreign Rela tions Committee have been consulted by the Administration.

4 See documents recently pub lished of Compilation of Reports of this Committee referred to in

3 A notable instance in this re-note 9 to § 444, p. 312, ante. spect was when Secretary Seward

tentatively pledged by the signatures of the plenipotentiaries. Opportunities are thus afforded of investigating whether the power of the Government is being properly exercised, not only as to material advantage, but also as to the legality of the proceedings and the extent of the power exercised.

After the treaty has been concluded it is referred to the President; it then rests with him to determine whether he shall submit it to the Senate for ratification. This is not merely a matter of form; there are numerous instances in the history of the United States in which treaties have been concluded by commissioners appointed by the President but which he, or his successor, has rejected and which have never reached the Senate, the mere action of the President in refusing to submit them, thus rendering them wholly inoperative. In a note to this section 2 a brief description will be given

§ 463.

1 President Taylor refused to transmit a treaty negotiated with Nicaragua in 1849. (Hise-Silva Treaty.) See for particulars of

this treaty and events connected therewith, letter of Secretary Evarts to President Hayes, March 8, 1880, published with Sen. Ex. Doc. 112, 46th Cong., 2d Session.

2 FORMS OF AGREEMENTS WITH FOREIGN POWERS. Five methods will be referred to in this note in the following order: I. Treaties and Conventions; II. Declarations of Accession to Existing Treaties; III. Modi Vivendi; IV. Protocols and Diplomatic Arrangements; V. Reciprocal Legislation and Executive Proclamation.

I. TREATIES AND CONVENTIONS.

The method usually, in fact almost universally, adopted for establishing relations between two or more countries is by the execution and formal ratification, according to the constitutional provisions or law of the contracting parties, of a written instrument containing: First, the names of the contracting powers, or sovereigns, and the individuals with their full titles, who have been authorized to negotiate the treaty, with a declaration that the representatives of each power have examined and approved the full powers of the representatives of the other power and found them satisfactory; Second, one or more articles declaratory of the various matters agreed upon by the powers and which are either expressed in the common language, if both countries have the same, or in the several languages of the contracting powers, in either parallel columns or duplicates, or in either English or French, as may have been agreed upon, especially in the case of conventions acceded to by numerous powers; when a treaty is in one or more languages each must be treated as the final treaty; (See Davis' Rule VI on construction of treaties in note 6 to § 391, p. 147, ante); Third, provisions for ratification of

of the various methods by which contractual relations between the United States and Foreign Powers are established

the treaty, the exchange of ratification, duration and method of termination or renewal; Fourth, signatures of the commissioners.

The foregoing are simply stated here as the customary forms usually complied with; the form of a treaty or convention, if properly ratified and acted upon, is not essential to its validity. The procedure generally followed by the United States in the negotiation and ratification of a treaty is the subject of other notes (see § 464, 465, pp. 373, et seq., post).

Agreements or contracts between Governments are called TREATIES and CONVENTIONS indiscriminately. While no fixed rule can be stated as to the distinction between these terms, it can be said generally that TREATY applies to an international agreement between two nations by which their relations of peace, amity and commerce are established, while the word CONVENTION applies to agreements between a number of powers, or between two powers as to some particular matter, such as in the former case, the Geneva Conventions (Red Cross) of 1864 and 1882, and in the latter case the numerous "claims conventions" between this and other countries settling claims or appointing commissions to adjudicate them. Postal agreements are almost universally called POSTAL CONVENTIONS. The titles of the various treaties, conventions, etc., in the TREATIES APPENDIX at the end of this volume show how these terms are generally used. Treaties, conventions (postal and all other kinds), and in fact every kind of an agreement with any foreign power or powers which can come within the definition of the word TREATY as the same is used in the Constitution of the United States, must be ratified by the Senate, by a two-thirds vote, before they can become the law of the land as provided by Article VI, and in this respect it makes no difference how it may be entitled. This applies to declarations of accession, modi vivendi, and, to some extent, to protocols and agreements mentioned in the succeeding sections.

For a definition and description of "treaties" and other international arrangements, and how they are enacted into, see the following authorities: Glenn's International Law, §§ 100-103; Woolsey's International Law, § 150; Wharton's International Law Digest, §§ 130, 131, and 131a; Hall's International Law, 4th edition, pp. 343, et seq.; Wheaton's International Law, 8th edition, pp. 328, et seq.

II. DECLARATIONS OF ACCESSION TO EXISTING TREATIES.

Treaties and conventions are sometimes made by two or more powers, with provisions permitting other governments to unite therein with the same effect as though they were among the original signatory powers. This is called accession to a treaty and is evidenced by a declaration of accession, executed in the manner provided by, and lodged with, the power named in the treaty.

The Geneva Convention (Red Cross) of 1864 was acceded to by the United States by a declaration executed March 1, 1882, (U. S. Tr. and

and evidenced. No attempt will be made to enumerate every instance in which the various methods have been

Con. 1889, p. 1150; U. S. Treaties in Force, 1899, p. 665) which was ratified by the Senate March 16, 1882, and accepted by the Swiss Confederation June 9, 1882.

There have been occasions on which foreign powers have acceded to treaties previously made by the United States with a single power and containing provisions for accession of other powers. Such was the case when Württenburg acceded in 1853 by a declaration (U. S. Tr. and Con., 1889, p. 1146) to the treaty of 1852 between this country and Prussia, which provided for the accession thereto of other States of the then existing Germanic Confederation. In 1847 Oldenburg acceded to the treaty of commerce and navigation with Hanover, by a mere declaration of accession, which was never ratified or proclaimed (9 U. S. Stat. at L., Treaties, p. 66).

A notable instance, which can only be briefly mentioned, in which the accession of the United States to an existing treaty was considered, arose under the Declaration of Paris of 1854, as to Privateering, Blockades and Neutral Commerce. Only four powers originally entered into this Declaration, but it contained, provisions for other Powers acceding thereto and nearly all the maritime powers have done so. The correspondence conducted in regard thereto, during their respective terms of office, by Secretaries of State Marcy and Seward, is interesting and instructive. The United States has never acceded to the Declaration; but on several occasions it has offered to do so under certain specified conditions generally involving the exemption of private property at sea from capture during war. (See document prepared by the author on this subject for use of the American Commissioners to the Peace Conference at The Hague, 1899, referred to in note 5 to § 160, pp. 278, 280, vol. I.) In the author's opinion the ratification of the Senate is as essential to the accession of the United States to an existing treaty or convention as it would be if the United States were one of the original parties thereto; and to the accession of a foreign power to an existing treaty or convention between the United States and another foreign power, unless the original treaty provided for such accession.

III. MODI VIVENDI.

A modus vivendi is an agreement between two or more nations as to their conduct in regard to matters in dispute pending the adjustment thereof. That is to say it is a temporary treaty or convention limited to a period which as a general rule is very brief.

Instances in which this form of treaty has been used are:

In regard to the North Atlantic Fisheries in 1885, when the fishery clauses in the treaty of Washington of 1871 were terminated (see note 1 to § 385, p. 132, ante), a modus vivendi was arranged by notes exchanged during April, 1885, between Secretary Bayard and Sir L. S. SackvilleWest, then minister from Great Britain, by which certain arrangements were made for the balance of the fishing season from July 1, 1886, when