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Treaties Appendix at the end of this volume will also be found of some use in this respect.

1885 (U. S. For. Rel., 1885, p. 500), and of 1888, with Haiti (Moore's History of International Arbitration p. 4770); and the agreement of 1885 with Spain (U. S. For. Rel. 1885, p. 683).

On one occasion at least the United states has acquired territory by protocol only. Horse Shoe Reef in Lake Erie was transferred to this government by a protocol and statement, and no formal treaty was ever made. (See U. S. Tr. and Con. 1889, p. 444.) Protocols have also been made on the signature or exchange of a treaty, to determine the exact meaning of a clause therein contained; as on the signature of the treaty between Bavaria and the United States, May 26, 1868. (See U. S. Tr. and Con. 1889, p. 50.) The extent to which a protocol of this nature, when made after ratification by the Senate, can affect the treaty itself is one of the numerous questions connected with the Clayton-Bulwer treaty of 1850 with Great Britain. (See U. S. Senate Document 194, 47th Congress, 1st Sess. pp. 82–87, and report of same with other documents, 1885, p. 235.)

V. RECIPROCAL LEGISLATION AND EXECUTIVE PROCLAMATION. Another method by which relations with foreign governments can be arranged and one that has often been resorted to is reciprocal legislation. That is each country enacts similar laws affording to citizens of the other reciprocal rights, or certain matters are arranged by the legislature of one country adopting a certain statute and the legislature of the other country accepting the provisions therein contained.

There have been two instances of annexation by reciprocal legislation. Texas was annexed as a State, and the Hawaii Islands as a territory, of the United States, by the Congress of the United States adopting joint resolutions specifying the terms on which the annexation could be made, and the legislatures of the other country accepting the terms. In neither of these instances was there any danger of the legislation of the other country being repealed, as in both cases the annexed government ceased to exist as an independent power and therefore no legislature with national power existed which could pass a repealing law.

Reciprocal legislation has been resorted to in regard to commercial relations, reciprocity in tariff rates, protection of copyright and like matters. A few instances only will be cited.

Tonnage dues are generally regulated by allowing to foreign vessels the same rates as American vessels when the country whose flag they fly accord to American vessels the same immunities. This is pursuant to acts of Congress and is generally evidenced by a proclamation of the President.

Under the Tariff Act of 1890 (26 U. S. Stat. at L., p. 567; see p. 612), the President was empowered to remit certain duties on goods brought from such foreign countries as accorded certain specified privileges to Ameri. can goods. The constitutionality of this act was attacked on the ground that it delegated treaty-making power to the President, but the Supreme

§ 464. Powers of, and checks upon, ministers plenipotentiary.-The faith and honor of the nation are not atfected 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. PlenipotentiCourt 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. 88 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.

the ratification of their Govern1 The Commissions and Full ment." Powers of the American plenipoten- The Full Power of the Spanish tiaries to negotiate the Treaty of Commission was broader and con1898 with Spain appear at pp. 15, et tained the following: “And everyseq., of Senate Document, No. 62 thing you may so confer and agree (Part 1), 55th Congress, 3d Session, upon, negotiate, conclude and sign, Message from the President of the I now confirm and ratify, I will obUnited States transmitting the serve and execute, will cause to be treaty. The plenipotentiaries were observed and executed, the same appointed “to negotiate and sign a as if I myself had conferred and Treaty of peace between the Uni- agreed upon, negotiated, ted States and Spain, subject to cluded and signed it, for all of

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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 governments which exist under a written constitution, as all

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which I confer upon you ample, the nation is, in some cases, reauthority to the fullest extent required for that purpose. In some quired by law.

In witness, republics, as in that of the United etc.

States of America, the advice and “Signed: MARÍA CHRISTINA." consent of the Senate are essential,

The Full Powers of the Ameri- to enable the chief executive magcan and British Commissions to istrate to pledge the national faith negotiate the Treaty of Washing- in this form. In all these cases, ton of 1871 appear at pp. 495, et it is, consequently, an implied conseq., For. Rel. U. S. for 1871. They dition in negotiating with foreign do not contain any words of limita- powers, that the treaties concluded tion as to ratification.

by the executive government shall As a general rule the treaties be subject to ratification in the themselves contain a provision that manner prescribed by the fundathe ratification of the President mental laws of the state. and Senate is essential to their 66. He who contracts with anvalidity.

other,' says Ulpian, 'knows, or 2 The first clause of nearly every ought to know, his condition.' treaty in the Treaty Volumes show Qui cum alio contrahit, vel est, vel that this form of procedure is debet esse non ignarus conditionis adopted.

ejus (1. 19, D. de div. R. J. 50, 17). 86. The municipal constitution of But, in practice, the full powers every particular State determines given by the government of the in whom resides the authority to United States to their plenipotenratify treaties negotiated and con- tiaries always expressly reserve the cluded with foreign powers, so as ratification of the treaties to render them obligatory upon cluded by them, by the President, the nation. In absolute monarch- with the advice and consent of the ies, it is the prerogative of the Senate.” Wheaton's Elements of sovereign himself to confirm the International Law, 265, page 366, act of his plenipotentiary by his Boyd's Third English Edition. final sanction. In certain limited See also § 131, vol. II, pp. 5 et or constitutional monarchies, the seq., Wharton's Digest of Internaconsent of the legislative power of tional Law.

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.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

4 The same procedure is largely " And so a warrant is again issued in force in England. “For the pur- under the sign manual, counterpose of making a treaty, the first signed by the Secretary of State, stage in the proceedings is the grant for affixing the Great Seal to an inof powers to representatives of the strument ratifying the treaty. The Crown to negotiate and conclude instrument of ratification which is the treaty. For this purpose an in- in fact the treaty with the Great strument is prepared containing a Seal affixed to it, is then exchanged, full power to the Minister repro- by the Minister empowered to do senting the Crown to negotiate or so, for a ratification with correconclude a treaty, or convention sponding forms from the other side. with the Minister who is invested The Ministers who exchange ratifiwith similar powers to act for the cations execute at the same time in State, which is the other party duplicate a document of a less forto the transaction. To this instru- mal but very important character, ment the Great Seal is affixed on a statement, sealed with their rethe authority of a sign manual war- spective seals, that the ratifications rant countersigned by the Secretary have been exchanged. The docuof State for Foreign Affairs. ment of ratification of the treaty by

“When a treaty is concluded it the foreign power with whom we is signed and sealed in duplicate by are dealing, and the document at. the Ministers representing their testing the fact that ratifications respective countries with their own have been exchanged, are then doseals. If the treaty contains, as is posited in the Foreign Office. usual, a clause providing that it “It is possible that a treaty may shall be ratified and ratifications require legislation in order to bring exchanged at some future date and it into effect. Such is the case specified place, then until ratifica- with treaties involving fiscal tion neither side is bound by it. changes which cannot be brought If there is no such clause, the treaty about without the consent of Parmay take effect in accordance with liament. The ratification is then the terms therein contained. The postponed till the required legislapower to ratify or reject is vested tion has taken place, or the treaty in different parts of the Sovereign must contain, express or implied, power, according to the constitu- a condition subsequent that its tion of different countries, in a operation is dependent on the acpopular assembly, as the Cortes in tion of Parliament.” Anson's Law Portugal; in a second chamber, as and Custom of the Constitution, the Senate in the United States; in Part II; The Crown, 2d edition, the Executive, as the Crown in Eng- pp. 48–49. land.

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. la w of the land. In the Senate it has to

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John W. Griggs, formerly AttorTHE HAGUE TREATIES OF 1899.

ney General of the United States. To what extent this ratification Article XXXI is follows: is necessary and whether it can be “The powers which resort to arbidispensed with in regard to any ar- tration shall sign a special act rangements with foreign powers (compromis), in which the subject has to some extent been discussed of the difference shall be precisely in note 2 to $ 463, pp. 367, et seq. defined, as well as the extent of the ante.

powers of the arbitrators. This On July 29, 1899, several conven- act implies an agreement by each tions were concluded at The Hague party to submit in good faith to by the representatives of powers the award.” who had been in attendance on the Then follow a number of articles Peace Conference in that city. One establishing the rules and procedof these was a “convention for the ure to be followed by the parties peaceful adjustment of interna- to arbitrations before the court. tional differences," consisting of For this, and other treaties consixty-one articles providing for in- cluded at The Hague Conference, ternational commissions of inquiry, see The Peace Conference at The and for international arbitration. Hague, by F. W. Holls, pp. 374 et By Art. XX the signatory powers seq. 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 appoint of the United States can refer a ment of not more than four per- matter in dispute to this court by sons by each Power to act as protocol or agreement without senarbitrators.

atorial 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 Claims, (U. S. Tr. and Con. 1889, Supreme Court of the United p. 478, and U. S. Treaties in Force, States; Hon. George Gray, Dela- 1899, p. 252), and of 1892 as to the ware, formerly Senator of the Bering Sea dispute, both of which United States and now United were ratified by the Senate. (U. S. States Circuit Judge; and Hon. Treaties in Force, 1899, p. 262.)

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