§ 464. Powers of, and checks upon, ministers plenipotentiary. The faith and honor of the nation are not affected by the refusal of the Senate to ratify a treaty negotiated by commissioners representing the United States, as all commissions of plenipotentiaries appointed for that purpose contain provisions that their action is subject to the approval of the President, and to ratification by the Senate. Plenipotenti Court sustained the validity of this method of regulating foreign relations; Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, HARLAN, J.; CHIEF JUSTICE FULLER wrote a dissenting opinion. When the tariff act of 1890 was repealed these reciprocal provisions under the proclamations necessarily ceased and the duties under the new tariff law were exacted alike from all countries. Under the reciprocity provisions of the tariff act of July 24, 1897, (30 U. S. Stat. at L., p. 151, see sec. 3, p. 203,) the President, in July, 1900, by two proclamations, granted reduced duties on certain articles to Germany and Italy respectively. (31 U. S. Stat. at L., pp. 1978 and 1979.) Under the Copyright Laws of 1891 and Rev. St. U. S. §§ 4952, et seq., as thereby amended, protection is afforded to foreign authors whose countries afford similar protection to American authors. It is an executive act to determine when these provisions are complied with and the Executive announces the fact by proclamation. See Bulletin No. 4, issued by the Copyright Department of the Library of Congress for a list of countries which have afforded this protection to Americans, and whose citizens are allowed to copyright their works in the United States. See For. Rel. U. S. 1879, pp. 481, et seq. for correspondence of Secretary of State, Wm. M. Evarts, on the subject of reciprocal legislation in regard to wreckage and salvage in the Great Lakes. The danger of reciprocal legislation is that either country can repeal or modify its own legislation and deprive citizens of the other country of the protection formerly afforded. This necessarily is met by counter legislation or by Executive proclamation. As stated at the outset of this note only a few instances are given of each of the methods referred to in this note. § 464. 1The Commissions and Full Powers of the American plenipotentiaries to negotiate the Treaty of 1898 with Spain appear at pp. 15, et seq., of Senate Document, No. 62 (Part 1), 55th Congress, 3d Session, Message from the President of the United States transmitting the treaty. The plenipotentiaries were appointed "to negotiate and sign a Treaty of peace between the United States and Spain, subject to the ratification of their Government." The Full Power of the Spanish Commission was broader and contained the following: "And everything you may so confer and agree upon, negotiate, conclude and sign, I now confirm and ratify, I will observe and execute, will cause to be observed and executed, the same as if I myself had conferred and agreed upon, negotiated, concluded and signed it, for all of aries of foreign governments dealing with the United States are always fully aware of the existence of those limitations, as the examination and exchange of the commissions, or “full powers" as they are called in diplomatic terms, of the plenipotentiary, always precede any negotiation whatsoever. It is also a principle of international law that the ministers of one government are bound to know the constitutional limitations on the power of the ministers of another government with whom they may be dealing. This rule applies with peculiar force to the negotiation and ratification of treaties with governinents which exist under a written constitution, as all which I confer upon you ample authority to the fullest extent required by law. . . In witness, etc. "Signed: MARÍA CHRISTINA.” The Full Powers of the American and British Commissions to negotiate the Treaty of Washington of 1871 appear at pp. 495, et seq., For. Rel. U. S. for 1871. They do not contain any words of limitation as to ratification. As a general rule the treaties themselves contain a provision that the ratification of the President and Senate is essential to their validity. 2 The first clause of nearly every treaty in the Treaty Volumes show that this form of procedure is adopted. "The municipal constitution of every particular State determines in whom resides the authority to ratify treaties negotiated and concluded with foreign powers, so as to render them obligatory upon the nation. In absolute monarchies, it is the prerogative of the sovereign himself to confirm the act of his plenipotentiary by his final sanction. In certain limited or constitutional monarchies, the consent of the legislative power of the nation is, in some cases, required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases, it is, consequently, an implied condition in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the state. "He who contracts with another,' says Ulpian, 'knows, or ought to know, his condition.' Qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus (1. 19, D. de div. R. J. 50, 17). But, in practice, the full powers given by the government of the United States to their plenipotentiaries always expressly reserve the ratification of the treaties concluded by them, by the President, with the advice and consent of the Senate." Wheaton's Elements of International Law, § 265, page 366, Boyd's Third English Edition. See also § 131, vol. II, pp. 5 et seq., Wharton's Digest of International Law. 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 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. "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 shall be ratified and ratifications exchanged at some future date and specified place, then until ratification neither side is bound by it. If there is no such clause, the treaty may take effect in accordance with the terms therein contained. The power to ratify or reject is vested in different parts of the Sovereign power, according to the constitution of different countries, in a popular assembly, as the Cortes in Portugal; in a second chamber, as the Senate in the United States; in the Executive, as the Crown in England. "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. It is possible that a treaty may require legislation in order to bring it into effect. Such is the case with treaties involving fiscal changes which cannot be brought about without the consent of Parliament. The ratification is then postponed till the required legisla tion has taken place, or the treaty must contain, express or implied, a condition subsequent that its operation is dependent on the action of Parliament." Anson's Law and Custom of the Constitution, Part II; The Crown, 2d edition, pp. 48-49. 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. THE HAGUE TREATIES OF 1899. To what extent this ratification is necessary and whether it can be dispensed with in regard to any arrangements with foreign powers has to some extent been discussed in note 2 to § 463, pp. 367, et seq. ante. John W. Griggs, formerly Attor- 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. 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 perma- Up to the present time no disnent court of arbitration accessible puted question has been referred at all times, and acting, unless to The Hague Court of Arbitration, otherwise stipulated by the parties by the United States. The quesin accordance with the rules of tion, however, has been discussed procedure included in the present from an academic standpoint, convention." Arts. XXIII and whether the Executive department XXIV provide for the appointment of not more than four persons by each Power to act as arbitrators. 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 Supreme Court of the United States; Hon. George Gray, Delaware, formerly Senator of the United States and now United States Circuit Judge; and Hon. Claims, (U. S. Tr. and Con. 1889, p. 478, and U. S. Treaties in Force, 1899, p. 252), and of 1892 as to the Bering Sea dispute, both of which were ratified by the Senate. (U. S. Treaties in Force, 1899, p. 262.) 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 This 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: "This point is of essential importance in the United States of America on account of the power of the Senate. The appointment of a Commismission of Inquiry having no further necessary consequences than the providing for each party's share of necessary expenses, 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. The Senate Document No. 231, Morgan, William Windom, George H. Pendleton, George F. Edmunds, Cushman K. Davis, Henry Cabot Lodge, George Gray, William H. Seward, William M. Evarts, James Buchanan, Henry Clay, Edward Everett, John Sherman, Daniel Webster, Lewis Cass, and many others. 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 |