Even after being favorably acted upon by the Senate, it would appear that, under certain circumstances, the President may refuse to ratify a treaty. Thus, in 1888, when China proposed certain changes in an agreement with this country which had already been approved by the Senate, the President abandoned the entire project.

International agreements not requiring submission to the Senate

Not all agreements entered into by the United States with foreign powers are held to be treaties in the sense in which that term is used in the treaty clause of the Constitution. Such agreements as are held not to be treaties in this sense, it has been the practice of the President, acting in pursuance of his general powers as Chief Executive or as authorized by congressional statute, to enter into and promulgate without submission to the Senate. Furthermore, in not a few instances the Senate has itself expressly conferred upon the President the power to contract with foreign powers with reference to specified matters.4

International correspondence is exclusively in the hands of the President, or his agent, the Secretary of State. Hence it is improper for any international documents to be addressed to, or sent directly to the Senate, or for any attempt to be made, in any way, by an agent of a foreign power to influence directly the action of the Senate upon a treaty that is pending before it or is later to be sent to it for its action thereupon. Upon the other hand, it is, of course, improper for the Senate or any other organ of the

4 See pamphlet, reprinted from the Yale Review by J. F. Barnett, entitled "International Agreements Without the Advice and Consent of the Senate;" article by J. B. Moore in the Political Science Quarterly, Sept., 1905, entitled "Treaties and Executive Agreements"; and article by C. C. Hyde in Greenbag, April, 1905, entitled "Agreements of the United States other than Treaties."

Federal Government, by resolution or otherwise, to attempt to communicate with a foreign power except through the President. Thus, when in 1877 Congress passed two joint resolutions congratulating the Argentine Republic and the Republic of Pretoria upon their having established a republican form of government, and directing, in the one case, the Secretary of State to acknowledge the receipt of a dispatch from Argentine, and in the other to communicate with Pretoria, the President vetoed both resolutions.

By virtue of the power exclusively vested in him to conduct diplomatic negotiations between this and a foreign country, the President has, since early years, entered into numerous agreements with foreign chancellaries for the settlement of claims made by private American citizens against foreign governments. In a considerable number of cases these claims have been settled by means of arbitrations agreed upon between the foreign offices concurred.

In no case has the President attempted, without consulting the Senate, to adjust finally claims brought by foreigners against the United States. In no case, also, has the President, by executive action, attempted the settlement of claims set up by the United States in its own behalf.

The constitutional authority of the President, without consulting the Senate, to enter into protocols of agreement as the basis for treaties to be negotiated, is beyond question, and has repeatedly been exercised without demur from the Senate.

As the term indicates, a modus vivendi is a temporary arrangement entered into for the purpose of regulating a matter of conflicting interests, until a more definite and permanent arrangement can be obtained in treaty form. Continued and unquestioned practice supports the doc

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

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. 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

FOR THE

ENFORCEMENT

CONGRESSIONAL LEGISLATION

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 a 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.