ancillary to the creation of a state of war between the United States and France. Judge Sewall, then a representative from Massachusetts, remarked upon the passage of the bill: "It is certainly a novel doctrine to pass a law declaring treaties void, but the necessity arose from the peculiar situation of the country. In most countries it is in the power of the Chief Magistrate to suspend a treaty whenever he thinks proper; here Congress only has that power. So early, therefore, do we find the idea that Congress alone can abrogate treaties. Never since 1798 has Congress bluntly declared void an international obligation, although it has legislated in the face of international obligations.

Probably contrary to Polk's desire, as he had asked that provision be made by law to terminate the Oregon convention of 1827, Congress inserted the clause "in his discretion," when passing the joint resolution of 1846 authorizing the President to give notice of the abrogation of that convention. Thus it threw the responsibility upon the President for the international act, giving him the support of its "authorization."

Congressional "authorization" was superseded by senatorial authorization in the next decade when Pierce informed Congress that he "deemed it expedient that the contemplated notice should be given to Denmark," for the abrogation of the commercial treaty of 1826. Thus freed, the claim of the United States to be exempt from the Sound Dues might not be embarrassed. The Senate, acting as upon a treaty submitted to it, resolved that the President was authorized in his discretion to give the necessary notice. Did the "authorization" proceed from the legislative grant or from the Senate's power in treatymaking? Pierce gave the notice "in pursuance of the authority conferred" by the Senate. Sumner, fearing that the power of the Senate over treaties might be made use of to cause the abrogation of those sections of the Webster-Ashburton Treaty which provided for a joint-cruising arrangement against the slave-trade, attacked the action of the Senate. Upon the theory that a treaty is the supreme law of the land, Sumner insisted that it could not be "set aside, terminated, superseded, disclaimed, repealed, or abrogated, except by the exercise of the highest power known to the Constitution, embodying the collected will of the whole people in a legislative act, under the sanction of the Senate. and House of Representatives of the United States in Congress assembled. . . . The President, by and with the advice and consent of the Senate, may make treaties, but there is nothing in our Constitution conferring upon them the power to abrogate treaties. To attribute to them any such power is to go beyond the Constitution." Sumner's biographer concludes that his speeches upon this occasion aided "in establishing the rule that treaties can be abrogated only by act of Congress. No rule of this sort has ever been established.

6

Quite contrary to such an alleged rule was the position taken by Lincoln in 1864 on the giving of notice of the termination of the Great Lakes Agreement of 1817. Here a resolution authorizing the President to give the required. notice passed the House and failed in the Senate. Nevertheless, Seward gave notice to Great Britain that the agreement would be terminated. Congress thereupon passed a joint resolution "adopting and ratifying" the notice given "as 5 Annals of Congress, II, 2120.

6 Works, IV, 98-120. 7 Pierce's "Sumner," III, 425.

if the same had been authorized by Congress." That this retroactive "authorization" did not operate to annul the agreement or to limit executive discretion is apparent from the sequel. Seward withdrew the notice before the expiration of the required six months and the agreement continued to be in force.

The bill passed by Congress in 1880 restricting Chinese immigration provided more directly for the abrogation of repugnant articles in the Burlingame Treaty than by "authorizing" the President to give notice of termination. The terms of the bill were that the President should "immediately, on the approval of this act, give notice to the Government of China of the abrogation" of the repugnant articles. President Hayes vetoed the bill, not so much on account of alleged legislative infringement of his powers, but rather because of treaty-faith and the character of the treaty obligation. The Burlingame Treaty contained no provision for termination by notice. Hayes's veto was as much directed against the articles of the bill which contravened the treaty as against the requirement that parts only of the treaty be abrogated. The sole bulwark against the threatened treaty-breach was, therefore, the executive veto. "The authority of Congress to terminate a treaty with a foreign Power," the veto message states, "by expressing the will of the nation no longer to adhere to it, is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate." Hayes thus seems to assert that the treaty-abrogating power is vested in Congress, and the treaty-making and modifying power in the President and Senate. He took no exception to the mandatory language of the bill, but rather admitted that Congress had the power to enjoin such executive action.

When in 1899 Switzerland claimed that the most-favored-nation clause in the commercial treaty of 1850 had an unlimited meaning, Secretary Hay directed our minister at Berne to give notice of the termination of Articles VIII to XII thereof. The notice as given was that it was "the intention of the United States to arrest the operations of the convention" so far as those articles were concerned. Switzerland "accepted" the notice. No ratifying action by Congress or by the Senate followed. Indeed President McKinley did not refer to the matter in his subsequent message to Congress.

The giving of notice by the Executive without authorization by Congress or by the Senate was the method made use of by President Taft in abrogating the Russian Treaty of 1832. A joint resolution, in a form disliked by the President, providing for the abrogation of the treaty passed the House. While it was held up in the Senate, the President proceeded to give notice to Russia and then notified the Senate of his action: "I now communicate this action to the Senate as a part of the treaty-making power of this government, with a view to its ratification and approval." The course of ratification, however, did not follow in accordance with the President's theory. The objectionable House resolution was amended by the Senate and the ratification of the President's action was by a joint resolution adopting and ratifying the notice given, thus following the precedent of 1864.

The Seamen's Act of 1915, commonly known as the La Follette Act, provided for the termination of treaties in conflict with it, but in language essentially different from earlier Congressional directions as to notice:

That, in the judgment of Congress, articles in treaties and conventions of the United States, insofar as they provide for the arrest and imprisonment of officers and seamen deserting ... and any other treaty provision in conflict with this Act ought to be terminated, and to this end the President be, and he is hereby, requested and directed, within ninety days after the passage of this Act, to give notice to the several governments, respectively, that so much as hereinbefore described of all such treaties and conventions between the United States and foreign governments will terminate on the expiration of such periods after notices have been given as may be required in such treaties and conventions.

It is obvious that so far as municipal legal validity and vigor went, the La Follette Act controlled. This provision did not attempt directly to annul treaties. It was the judgment of Congress that treaties in conflict ought to be terminated, and the President was "instructed and directed" to give the necessary notices in order that there might be no breaches of treaties because of the provisions of the Congressional act. Good statutory draftsmanship might have inspired a specific designation of the treaties involved, but it would perhaps have raised questions of treaty interpretation. The La Follette Act was approved by President Wilson, and it was announced by the Department of State within ninety days thereafter that notices had been given to Austria-Hungary, Belgium, Brazil, China, Colombia, Denmark, France, Great Britain, Greece, Italy, the Netherlands, Rumania, Spain, Sweden, Norway, the Congo, and Tonga. By July of the following year announcement was made that a considerable number of the countries had accepted the notices and agreed to the elimination of the objectionable stipulations. The similarity between Section 16 of the La Follette Act and Section 34 of the Jones Act is obvious. One is evidently copied from the other. The former "instructed and directed" the President to give notice, while the Jones Act "authorized and directed" him. The Jones Act was likewise approved by the President, but there is no principle of legal estoppel by which he is bound by his approval of the act to carry out any provisions which he might hold to have been outside the powers of Congress. Like President Hayes, he might have vetoed the bill upon the grounds of policy and also of unconstitutionality. The prime purpose of the veto, as Hamilton said, is to save the Executive from being overridden by Congress. The La Follette Act was not vetoed as an invasion of executive power and no exception was taken to the "direction" of the President by Congress.

There remains the question, can the President be forced to follow the instructions of Congress? Certainly the courts could, or would, not do so. Certainly Congress cannot. Therefore the treaties remain in force as international obligations. The legislative intent to force abrogation is not clear. Yet in the extent to which the Jones Act may contravene the provisions of our commercial treaties, we are face to face with breaches of these obligations. As none but those which contain provisions for termination by notice are involved in clause 34, it would seem that the position of the President in refusing to give notice makes a breach certain, or at least possible, where it could have been avoided.

While, then, it was within the President's discretion as to whether he would give notice or not, the position actually taken cannot operate to save the country from the charge of failing to observe its international agreements.

Without assuming to decide the extent to which the provisions of the Jones Act, aside from section 34, are in contravention of our commercial treaties (a matter for future judicial determination), and without in any sense affirming the wisdom of these legislative provisions, it remains clear that the act provided a method by which breaches of international obligations might be avoided. This method the President is unwilling to accept. If, then, there be irreconcilable conflict between the substantive provisions of the act and our commercial treaties, the position of the President will result, not in the observance of our treaty obligations, but in their breach. It seems to be within the power of the President to terminate treaties by giving notice on his own motion without previous Congressional or Senatorial action. It would seem, on the other hand, that the President cannot be forced by Congress or by the Senate to perform the international act of giving notice. It is observable, however, that in practice there has previously been no such difference of opinion between the President and Congress as to the termination of treaties so as to result in an impasse; and that the successful handling of international affairs rests, not so much upon questions of constitutional power, as upon the coöperation of functions and instrumentalities, particularly in those matters having a two-fold aspect, the one international, the other domestic. As there cannot be a clear line of cleavage between the two, or rather as the one class actually or potentially involves the other, coöperation and not separation of functions is necessary.

THE REFUSAL OF THE PRESIDENT TO GIVE NOTICE OF TERMINA

TION OF CERTAIN TREATY PROVISIONS UNDER

THE JONES ACT

BY HOWARD THAYER KINGSBURY

Member of the New York Bar

There has been much discussion, in the public press and elsewhere, of the refusal of the President to give notice, pursuant to Sec. 34 of the Merchant Marine Act of June 5, 1920, of the termination of so much of the treaties with various foreign governments as restricts the right of the United States to impose discriminating customs duties on imports in foreign vessels and discriminatory tonnage dues on foreign vessels entering the United States. So far as this discussion is concerned with the proposed policy of assisting the American merchant marine by thus discriminating against foreign shipping, it is not within the province of this comment to venture an opinion. So far, however, as criticism has been directed against this action of the President upon the ground that in thus failing or refusing to carry out this direction of Congress he has exceeded his constitutional rights, an interesting and important question of constitutional law, affecting international relations, is presented. Much of the criticism is based upon an apparent confusion of thought in regard to the respective functions of the President and Congress in making treaties, terminating treaties, carrying out treaties, and proceeding in contravention of treaties; and also upon a failure to distinguish between the termination of a treaty as a whole and the termination or elimination of a particular provision of a treaty.

There is no dispute that the President negotiates treaties, and enters into them by and with the advice and consent of the Senate. Congress may make recommendations on this subject, but it has neither legal nor actual power to compel the negotiation or making of a treaty. On the other hand, where legislation is necessary to carry out the provisions of a treaty, the President cannot compel Congress to act. In other words, the practical power of refusing to abide by a treaty is necessarily in the hands of Congress. In like manner, Congress may enact legislation inconsistent with an existing treaty, and such legislation is controlling upon all courts and officers of the United States, whatever may be its effect upon the international obligations and responsibilities of the country.

There is also precedent for the termination by Congressional action of a treaty as a whole, either pursuant to a power of termination reserved in the treaty itself or otherwise. Such action is simply notice to the other party that