CHAPTER XVI COMPACTS OTHER THAN TREATIES THERE are various ways in which the government of the United States may enter into compacts or agreements of a binding character, other than by means of the formal treaties I have described. Most of these, however, are of a temporary character, and in large part they are based upon the legislative authorization of Congress or have received its approval. A question which has been much discussed in recent years is how far the Senate of the United States can delegate to the Executive its functions as a part of the treaty-making power, and to what extent Congress can confer upon the President legislative duties. Repeated instances can be cited where legislation has conferred large powers upon the President in connection with our foreign relations, but it is contended that in none of those instances can it be said that Congress has transferred to him legislative powers, or that the Senate has parted from or delegated to the Executive its functions as a branch of the treaty-making power. In the early days of the republic when many of the makers of the Constitution were participating in legislation, Congress passed laws giving to the President large powers respecting foreign commerce and tariff regulations. In 1794 he was empowered to "levy an embargo 2 whenever, in his opinion, the public safety shall so require on all ships of the United States or of foreign nations in the ports of the United States; "1 and in 1799 he was empowered to break off and renew commercial intercourse with France, "whenever, in his opinion, the interests of the United States shall require." " Many acts of a like nature have been passed by Congress, the Canadian retaliatory act of 1887 3 being still in force, which confers power upon the President, under contingencies specified, to suspend, in his discretion, all commercial intercourse with the Dominion. By the act of June 8, 1872, the postmaster-general is vested with power to make postal conventions, with the approval of the President, and they are not required to be submitted to the Senate for ratification. The United States has more than forty such conventions. By similar authorizations of Congress binding agreements are made by the exchange of diplomatic notes as to trade-marks, copyrights, wrecking privileges, commercial reciprocity, and other matters. Of this class of legislation Chief Justice Marshall said: "The difference between the departments undoubtedly is that the legislative makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the decision of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." Of the same nature as the acts cited was the provision in the tariff act of 11 Statutes at Large, 373. 324 St. at L., 475. 2 Ib., 615. October 1, 1890,1 known as the McKinley law, which gave the President power to impose certain specified duties upon articles named, admitted free under the law, whenever the President should be satisfied that any for eign nation was imposing duties on American products, which he should deem reciprocally unequal and unreasonable. Under that law the President, through the secretary of state, entered into negotiations with nearly a score of foreign governments, and made with several of them what are termed "reciprocity arrangements," which were duly proclaimed in the same manner as treaties; and in the cases of other countries where the negotiations failed to bring about an agreement, proclamations were issued imposing duties on the articles named imported from those countries.3 The life of these arrangements was dependent upon the maintenance of the law, and as the law of 1890 was repealed by that of 1894, they came to an end. Similar legislation was enacted in the revenue law of 1897.* The act upon which these diplomatic agreements were based is probably the nearest approach to a delegation of legislative or treaty-making power, and its constitutionality has been upheld by the Supreme Court of the United States. The act was attacked on the ground that it "delegated to the President both legislative and treatymaking powers." In its decision the Court said: "That Congress cannot delegate legislative powers to the Pre 1 26 Stat. at L. 612. 982. For agreement with Spain for Cuba and Porto Rico, see 27 St. at L. For Proclamation as to Venezuela, see 27 St. at L. 1013. U. S. Supl. II, 702; H. Doc. 15, 57th Cong., 1st Sess. pt. 3, 958 ff. sident is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation. What the President was required to do was simply in execution of the act of Congress." A competent writer refers to this decision as "one in which the Supreme Court has come nearest to marking the boundary within which legislative power may be delegated."2 The inquiry has been made whether the Senate, in ratifying The Hague convention as to international arbitration, parted from its power or duty further to intervene in respect to cases of arbitration which may be submitted by the United States, in accordance with that convention; and whether the President alone, without the further action of the Senate, is empowered to decide all questions or issues which may be submitted to arbitration, and to carry the arbitration into full effect. The learned jurist who has propounded the inquiry says: "This is a tremendous power for a republic to lodge in one man s hands." The unratified general arbitration convention of 1897 with Great Britain contained no provision for a submission of such cases as would be embraced in the treaty to the Senate; whereupon that body amended the convention to require every case under it to receive its 1 143 U. S. Reports, 650. 2 Hon. E. B. Whitney, in Columbia Law Review, January, 1901. approval. The various arbitration treaties negotiated with foreign powers in 1904 and 1905 contained a provision that in submitting each case to The Hague Court "a special agreement" should be made defining the matter in dispute, the powers of the arbitrators, and the procedure. A question was raised in the Senate as to the scope and meaning of the word "agreement," and to remove all doubt on the subject, it amended all the treaties by substituting in its place the word "treaty." The effect of this amendment would have been to require every case to be passed upon by the Senate before submission to arbitration. The President has sent two cases to The Hague Court under the general arbitration convention of 1899- the Pious Fund case under a protocol with Mexico in 1902 and the claims of American citizens against Venezuela under a protocol in 1903. Neither of these protocols was submitted to the Senate.1 Both of them, however, were confined to private claims of American citizens against foreign governments. There is a class of executive acts of a diplomatic character which at first glance would seem to be an independent exercise of the treaty-making power, but which in a strict sense cannot be so regarded. Of this class are agreements for the adjustment of claims of American citizens against foreign governments, which are often made by the secretary of state without any reference of the agreements to the Senate. The most noted of these was the agreement of 1871, made with 1 U. S. For. Rel. 1902, 738-786, and Appendix 2; ib. 1903, 439– |