Imágenes de páginas
PDF
EPUB

structions to Mr. Snowden, March 21, 1890. An agreement, signed at St. Petersburg, June (12) 25, 1904, by Mr. McCormick, American ambassador, and Count Lamsdorff, minister for foreign affairs, as to the status of duly organized corporations and other commercial associations in the United States and Russia, which by its terms was to go into effect on the same date, was submitted to the Senate, and ratified by the President June 7, 1909, with the advice and consent of the Senate. As illustrative of recent administrative agreements, which have not been submitted to the Senate, the following may be noted: the declaration of November 7, 1901, with the Spanish government, for the exemption from the necessity of authentication of signatures attached to letters rogatory exchanged between Porto Rico and the Philippines and Spain; the agreement recorded by notes exchanged, December 3 and December 8, 1910, with the British government, for the exemption from customs inspection of commercial travellers' samples so far as compatible with the laws of the respective countries; the agreement in notes exchanged, April 17, 1913, with the government of Panama, reciprocally permitting consuls to take note of declarations of values of exports made by shippers before customs officers; and the arrangement effected by exchange of notes with the British government, September I and September 23, 1913, for extradition, between the Philippine Islands or Guam and British North Borneo, of fugitive offenders for offenses specified in the extradition conventions existing between the two countries. The agreement concluded at Brussels, November 29, 1906, between various governments, for the unification of the pharmacopoeial formulas for potent drugs, and not submitted to the Senate, was signed by the delegate on the part of the United States subject to the reservation that his government assumed no other obligation than that of exercising its influence to bring the American Pharmacopoeia into harmony with the agreement.

§61. Agreements in Execution of Treaty Stipulations.-On February 24, 1870, a declaration was signed by Mr. Fish, Secretary of State, and Sir Edward Thornton, British minister, to approve and adopt for their governments the maps prepared by the joint commission for the survey and marking of the boundaries between the United States and the British possessions along the

46 For. Rel., 1890, p. 511.

47 See also earlier agreement for same purpose of November 19, 1907.

48

49th parallel under Article I of the treaty of June 15, 1846. A similar protocol was signed March 10, 1873, in which it was recited that the boundary line described in Article I of the treaty of June 15, 1846, had been traced and marked on charts prepared for that purpose in accordance with the award of the German Emperor rendered under Article XXXIV of the treaty of 1871, and that the charts had been severally signed to serve as a perpetual record of agreement between the governments in the matter of the boundary. By exchange of notes, March 25, 1905, between Mr. Adee, Acting Secretary of State, and Mr. Durand, British ambassador, the two governments accepted the report of the commissioners appointed to carry out the delimitation of certain sections of the Alaskan boundary left undefined in the award of the tribunal constituted under the convention of January 24, 1903.10 Attorney General Cushing advised in 1855 that, under Article I of the treaty with Mexico of December 30, 1853, the establishment of the line consisted of the official agreement of the two commissioners appointed, one by each government, to survey, mark, and establish the line, and that the agreement when duly made was conclusive against both governments.50

By Article II of the extradition convention concluded June 16, 1852, between the United States and Prussia and other States of the Germanic Confederation, it is provided that the stipulations of the convention shall be applied to any other State of the Germanic Confederation which may declare its accession thereto. The Secretary of State by direction of the President accepted the accession of the Free City of Bremen, October 14, 1853; of Mecklenburg-Schwerin, January 5, 1854; of Mechlenburg-Strelitz, January 26, 1854; of Oldenburg, March 21, 1854; of Schaumburg-Lippe, July 26, 1854; and of Württemberg, December 24, 1853. On February 22, 1879, Mr. Arosemena, minister for foreign affairs of Colombia, and Mr. Dichman, American minister, signed a protocol as to the exercise by the United States of the right of transit across the Isthmus under Article XXXV of

51

48 As to statutory authority to sign these protocols, see the acts approved August 11, 1856, and February 14, 1873. II Stats. at L. 42; 17 Stats. at L. 437.

49 For. Rel., 1904, pp. 325, 326; For. Rel., 1905, pp. 478, 479. 50 7 Op. Atty. Gen., 582.

51 See also declaration signed March 10, 1847 with Oldenburg, under Article XII of the treaty of June 10, 1846 with Hanover.

the treaty of December 12, 1846.52 Examples of administrative agreements, which might be noted under this heading, are numerous.53

Much has appeared in print of late, especially during the consideration by the Senate of the proposed arbitration conventions negotiated in 1904-5 by Mr. Hay, and in 1911 by Mr. Knox, on the question of the power of the President and Senate under the Constitution to conclude a treaty for the arbitration of future differences of a defined character, by the terms of which the Senate would not have a voice in the submission of the particular case thereafter arising." That the Senate cannot delegate to an

52 For. Rel., 1879, p. 275; Moore, Extradition, I, 713-718; Moore, Int. Law Digest, §348.

53 By Article II of the convention concluded with Spain, February 17, 1834, it was provided that the interest on the perpetual indebtedness therein recognized should be paid by Spain in Paris, semi-annually. By an executive arrangement reached in April, 1841, the payments were made at Havana, yearly. Mr. Vail, in his dispatch from Madrid, April 6, 1841, to Mr. Webster, Secretary of State, in adverting to this deviation from the treaty, said: "The clause in the treaty touching this head imposes an obligation on Spain and confers an advantage on the United States. When my instructions were made out it was thought, I presume, that, if the United States were willing to waive their right under that clause and accept another in its stead, Spain would be free to assume an additional or larger obligation in a matter merely of form in the execution of the treaty, without a formal amendment of the treaty itself." H. Ex. Doc. No. 129, 48th Cong., 1st Sess., 34, 38, 49. Subsequently, by agreement, the payments were regularly made in Washington. See as to the agreement negotiated with the Sultan and other chiefs of the Sulu Archipelago by Brig. Gen. J. C. Bates, August 10, 1899, by which the sovereignty of the United States over these islands was recognized, and by which the United States was to assume certain obligations, Moore, Int. Law Digest, I, 531; V, 212. In the fifth annual report of the Philippine Commission (p. 23), it is said: "Acting under the direction of the President of the United States the civil governor on March 21, 1904, notified the Sultan of Sulu, through Major-General Wood, that the so-called Bates treaty was abrogated. Whilst it had never been formally recognized as valid and binding, and indeed as to the provision relating to slavery had been repudiated by the President, still it had been lived up to by the Americans in every particular, including the payment of annual subsidies to the Sultan and his principal datos, but it had been systematically and persistently violated by them."

54 See especially reports from the Senate Committee on Foreign Relations presented by Mr. Morgan, S. Doc. No. 155, 58th Cong., 3d Sess.; by Mr. Lodge, Mr. Root, Mr. Cullom, Mr. Burton, and Mr. Rayner, S.

other body a power conferred on it by the Constitution is clear.55 It seems equally clear that, if the United States by a treaty entered into through the constitutional treaty-making organs—the President and the Senate-agrees to submit to arbitration, in a prescribed manner, an exactly and definitely described class of cases, or all cases or controversies, which may arise in the future between this nation and other nations, and which cannot be settled by negotiation, the mere submission of an individual case so arising is not an exercise of the treaty-making power. The consent of the nation to the submission has already been given, and the faith of the nation pledged. It is immaterial whether the instrument by which the particular case is to be submitted, defining the issue and the terms of submission for the guidance of the arbitrators, is termed an agreement, a protocol, or a declaration. It is essentially an administrative act in the execution of an existing international treaty and a municipal law, provided the terms of the treaty are such as to leave no discretion in the matter and are not open to construction. The President in whom is exclusively vested the power to conduct negotiations with foreign powers alone can determine the fact that the controversy cannot be settled by negotiation. But it is the undoubted right of the Senate as a co-ordinate branch of the treaty-making power to refuse to give its consent to the conclusion of a treaty by which the faith of the nation is thus pledged.

Doc. No. 98, 62d Cong., 1st Sess. See also speech by Mr. Lodge in the U. S. Senate, printed as S. Doc. No. 353, 62d Cong., 2d Sess., and an article in the North American Review by Mr. Bacon, printed as S. Doc. No. 654, 62d Cong., 2d Sess. For excerpts from articles and opinions on the subject, see Advocate of Peace (December, 1911), LXXIII, No. 12.

55 "By the custom of our forefathers it has been brought to pass that an officer who can delegate his jurisdicto can only be one who possesses it in his own right and not by the gift of another." Digest of Justinian, Bk. II, Tit. I, 5.

CHAPTER IX.

AGREEMENTS REACHED BY THE EXECUTIVE IN VIRTUE OF ACTS OF CONGRESS.

2

§62. Navigation and Commerce.-The act of March 3, 1815, declared a repeal of so much of any act as imposed discriminating duties against the vessels, and the products of the country to which the vessel belonged imported therein, of any country in which discriminating duties against the United States did not exist, the President to determine in each instance the application of the repeal. The acts of January 7, 1824, and May 24, 1828, likewise directed the President to suspend by proclamation discriminating duties so far as they affected the vessels of a foreign nation, when possessed of satisfactory evidence that no such discriminating duties were imposed by that nation on the vessels of the United States. Section II of the act of June 19, 1886, as amended by the act of April 4, 1888, entrusted duties of similar character to the President. A partial suspension is allowed by the act of July 24, 1897. On the authority of these statutes numerous arrangements have been reached with foreign countries and made operative by proclamation. The evidence accepted by the President as sufficient may be recorded in a note or dispatch, or a memorandum of an agreement. The proclamations for the removal of discriminating duties on trade with Cuba and Porto Rico of February 14, 1884, October 27, 1886, and September 21, 1887, were based on memoranda of agreements with the Spanish government signed, respectively, February 13, 1884, October 27, 1886, and September 21, 1887.5

I 3 Stats. at L. 224.

2 4 Stats. at L. 3, 308; brought forward in Rev. Stats., §4228. See also acts of May 31, 1830, and July 13, 1832, 4 Id. 425, 579.

3 24 Stats. at L. 82; For. Rel., 1888, p. 1859. See for repeal of this section, act of August 5, 1909, section 36, 36 Stats. at L. 112.

4 30 Stats. at L. 214. See Rev. Stats., §4228.

5 See as to arrangement with Spain of December, 1831, Richardson, Messages and Papers of the Presidents, II, 575; IV, 399. See as to the removal of discriminating duties on vessels of Great Britain, the most important commercial nation, instructions of the Secretary of the Treasury, October 15, 1849. H. Ex. Doc. No. 76, 41st Cong., 3d Sess., 46; Oldfield v.

« AnteriorContinuar »