When an officer in the army has been court-martialed and dismissed from the army, a pardon by the President will not restore him to the service;60 but if the sentence of the court martial only extended to reduction in ranks, the President may restore him to his former position."1

A pardon by the President removes from the offender all civil or political disabilities imposed by the United States, but not those imposed by any particular State."

§ 181. Treaties and foreign relations.-"He (i. e., the President) shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur."64

"He shall receive ambassadors and other public ministers."65 "He shall nominate, and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls."

The general charge of foreign relations is given to the President. In all confederated countries the full control over foreign relations is granted to the central government, and in all countries the management of such relation is assigned to the executive department of the government. The advantages of leaving to the executive the control of foreign affairs is manifest. Negotiations with foreign countries require promptness and secrecy. Neither of these can be obtained if such negotiations are conducted by large deliberative bodies. For this reason the initiative in such matters never has been given in any country to the legislative department. In many countries the power of the executive over foreign relations is unlimited. Such a condition, however, would be out of harmony with the system of checks and balances found in the United States Constitution.

The power of the President is very strictly limited and controlled, especially in the matter of making treaties.

Dealings with foreign nations fall into two sharply defined classes. There is, first, the ordinary intercourse and communication with foreign countries carried on through the medium of diplomatic representatives; and, second, the making of those special agreements or contracts between nations known as treaties.

The President is given a much freer hand in the first division than in the second. He receives the ambassadors, other public ministers and consuls of foreign countries, and appoints, subject to the approval of the Senate, all the diplomatic representatives of the United States. Congress determines the number and rank of these latter and fixes their compensation. The President probably cannot be compelled to give Congress any information on our foreign relations when he does not deem it advisable to do so. It is for the President to determine who are the proper representatives of the various foreign states.

The peculiar nature of the government of the United States imparts certain peculiarities to treaty making by this country. The system of checks and balances, so often referred to, hinders the establishment of a vigorous foreign policy. Certainty and promptness in treaty making cannot exist under our Constitution. Domestic liberty and a vigorous foreign policy, however, are generally found to be antagonistic to each other. A development of either must tend in a greater or less degree to retard the other. The policy of the framers of the Constitution, and generally of those who have administered our government, has been to secure liberty and security at home, and so far as possible to refrain from entangling foreign alliances. The geographical situation of this country has been largely responsible both for this policy and for its success. The charge that a disgrace is inflicted upon the honor of this country by the refusal of Congress, or of a State, to abide by an unwarranted act of the President, cannot be sustained. Foreign countries dealing with our own are supposed to be acquainted with the general nature of our government and of the limitations of the powers of each

department. The greatest disgrace or danger with which this country can be threatened is the cowardly surrender by one department to any usurpation of powers by another.

The treaty making power of the President is limited by the requirements that treaties shall be made by and with the "advice. and consent" of the Senate, and that two-thirds of the senators present must concur in a treaty after the President has negotiated it. The framers of the Constitution probably did not intend to use "advice" and "consent" as synonyms. The historical evidence seems to show that it was intended to have the Senate take a part in the preliminary negotiations. This, however, never has been the case in practice. Throughout the whole history of the country the share of the Senate in treaties has consisted in ratifying treaties already negotiated. The requirement for the "advice and consent" of the Senate has been construed as being the same as the requirement for its ratification.s The Senate, however, never is under any obligations, either legal or moral, to ratify any treaty submitted to it. It may reject any treaty whatsoever. Where the Senate ratifies a treaty, and at the same time passes a resolution modifying its effect, such resolution has no binding effect; but a ratification may be made conditional on amendments being inserted in the treaty. The treaty making power of the President and Senate together is not unlimited. The Constitution provides: "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." Treaties, therefore, are not the supreme law of the land by themselves, but in connection with the Constitution and law of the United States. What is the order of precedence among these three? It is almost unnecessary to state that the Constitution of the United States must come first. An instrument which requires the vote of two-thirds of both houses of Congress and of three-fourths of the States for its amendment

551.

The Federalist, No. 75.

In re Sutherland, 53 red. Rep.

69 Fourteen Diamond Rings v. United States, 183 U. S. 183; New York Indians v. United States, 170 U. S. 23.

cannot be changed by the President and Senate. No treaty can violate any of the provisions of the Constitution. "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent." Treaties and statutes stand on an equal footing. "It (i. e., a treaty) is consequently to be regarded in the courts of justice as an equivalent to an act of the legislature."1 A treaty will prevail over a prior statute and may in turn be abrogated by a later one.72

If legislation, either national or State, is needed to carry a treaty into effect, it is optional with Congress or the State legislature to pass the required legislation or not. The question next arises as to when legislation is required to carry a treaty into effect. In general a treaty is self-executing in so far as it affects the executive or judicial departments of the government. The courts will immediately give effect to the provisions of a treaty in deciding cases that come before them.73 Again, if the executive department has the power to completely carry out the provisions of the treaty, it may be held to be self-executing. If, on the other hand, the provisions of the treaty refer to matters which naturally belong to the legislative department of any government, then the treaty is not self-executing, and action by Congress becomes necessary. This is especially true if the carrying out of the treaty requires the appropriation of money.

TO DeGeofroy v. Riggs, 133 U. S. 266. See also Santos Case, 2 Brock, 493, 7 Fed. Cases, No. 4,016.

"Chief Justice Marshall in Foster v. Neilson, 2 Peters, 253.

72 La Abra Silver Mining Co. v.

United States, 175 U. S. 460; Chinese Exclusion Case, 130 U. S. 581.

73 Ware v. Hylton, 3 Dallas, 199; Hauenstein v. Lynham, 100 U. S. 483.

The Constitution imposes no express limitations upon the matters which may become the subjects of treaty stipulations. "The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects which, in the ordinary intercourse of nations, had usually been made subjects of negotiation and treaty; and which are consistent with the nature of our institutions and the distribution of powers between the general and State governments."74

76

75

The United States by treaties, may acquire territory, or prescribe the status of the inhabitants of newly acquired territory, or provide for the exercise of judicial authority abroad,” or provide for the mutual rights of the citizens of either country in the other,78 or permit the immigration of aliens,79 or prohibit such immigration,80 or abolish disabilities of aliens,81 or create rules for the conducting of hostilities in case of warfare between the countries,82 or establish postal regulations, or regulate fisheries, or provide for the extradition of criminals.85 There is no right to extradition apart from treaties.86 In the absence of such a treaty the officers of the United States not only are not compelled to deliver up a criminal, but also are not authorized to do so. The surrender of a fugitive from justice

84

87

83

e. g., Treaty with Italy providing that in case of war between that country and United States the property of private individuals shall not be liable to capture.

83 Postal Conventions with Foreign Countries, 19 Opinions Atty. Gen. 520.

$4 22 Opinions Atty. Gen. 214. 8 Holmes v. Jennison, 14 Peters, 540.

S Santos Case, 2 Brock. 493, 7 Fed. Case, No. 4,016.

87 United States V. Davis, 2 Sumn. 482, 25 Fed. Case, No. 14, 932.