the Senators that the delegation of such authority to the President would not be constitutional, it may be said that both judicial precedents and previous practice of the Senate itself support in principle the treaties in question.

There have been numerous instances in which the Senate has approved treaties providing for the submission of specific matters to arbitration, leaving it to the President to determine exactly the form and scope of the matter to be arbitrated and to appoint the arbitrators. Professor J. B. Moore, in the article to which reference has already been made, enumerates thirty-nine instances in which provision has thus been made for the settlement of pecuniary claims. Twenty of these were claims against foreign governments; fourteen were claims against both governments, and five against the United States alone.11

Notwithstanding the defeat of the Hay treaties in 1905, the President still has, by virtue of The Hague Convention itself, a considerable power upon his own initiative of referring many matters of international dispute to the Permanent Court of Arbitration at The Hague or to arbitral commissions specially created, as provided for in that instrument. As we have already seen, the President, by reason of his control of all diplomatic relations, has considerable power to refer to arbitration matters of dispute which he is unable to settle through the ordinary diplomatic channels. And, in the exercise of this discretion, he can, of course, refer claims, especially those of a pecuniary nature, and questions of treaty interpretation to the tribunals established or provided for by The Hague Convention. Thus, without consulting with the Senate, he referred the Pious Fund controversy with Mexico to The Hague Tribunal.12

Aside from any other treaty agreements, there seems to be some question as to the extent of the President's powers under 11 Political Science Quarterly, XX, 403.

12 It is to be observed, however, that at the time the Pious Fund matter was, by the President, with the consent of Mexico, referred to The Hague Tribunal there was a subsisting treaty between this country and Mexicoa treaty which, of course, had had the approval of the Senate - providing for arbitration of disputes of the character of the Pious Fund.

The Hague Convention. Ex-Secretary of State John W. Foster has said: "I apprehend that should our government decide to refer any dispute with a foreign government to The Hague Tribunal, President Roosevelt, or whoever should succeed him, would enter into a convention with the foreign government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States and The Hague Convention aright, such would be the only course permissible by those instruments." 13

To much the same effect is the declaration of Mr. F. W. Holls, who was the Secretary to The Hague Conference. He says: "The appointment of a Commission of Inquiry having no further necessary consequences than the providing for each party's share of necessary expenses, would seem to be within the ordinary diplomatie functions of the President and the Department of State by memorandum or protocol, whereas an agreement to submit any question to a court of arbitration, the decision to be binding upon the parties, must necessarily take the form of a treaty requiring the constitutional co-operation of the Senate." 14

Upon the other hand, Judge Simeon E. Baldwin gives as his opinion that: "The Hague Convention, when ratified by the Senate, became thus a standing warrant, or, so to speak, a power of attorney, from the United States to the President, to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration." 15

§ 204. International Agreements Entered Into, or Action Taken by the President, by Virtue of Authority Granted Him by Congressional Statute.

In many instances Congress has, by statute, authorized the Executive to perform acts of an international character, that is, acts with which other countries have been directly concerned.

13 Yale Law Journal, XI, p. 69.

14 The Peace Conference at The Hague, p. 216. 15 Yale Review, IX, p. 415.

Under such authorization, numerous international postal arrangements have been entered into. Thus by act of 1872, Congress declared that "for the purpose of making better postal arrangements with foreign countries," the Postmaster-General, acting under the advice of the President, might "negotiate and conclude postal treaties."

In a similar manner, that is, under congressional sanction, the President has negotiated and entered into agreements with foreign countries with reference to copyrights and trademarks.

Various other congressional acts of this character, as, for example, that of 1901, whereby the President was authorized to lease coaling stations from Cuba, might be mentioned, but the most important of these and the only ones which need discussion are those authorizing action with reference to the tariff laws.

Since the first years under the Constitution, Congress has pursued the policy of giving to the President a considerable executive discretion in the application and enforcement of its laws governing commercial intercourse with foreign countries. Of this character was the Embargo Act of 1794, the act of 1799 governing commercial intercourse with France, the Non-importation Act of 1806, the Non-intercourse Acts of 1809 and 1810, the acts of 1815 and 1830 as to tonnage and other dues, the act of 1866 as to the non-importation of cattle and hides, and the acts of 1815, 1824, 1828, 1886, 1888, and 1897 with reference to the suspension of discriminating duties.16 All of these acts provided that whether or not they should go into effect should be at the discretion of the President.

By section 3 of the act of 1890 (the so-called McKinley Act) it was provided: "That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions, upon the agri

16 Cf. J. B. Moore in Political Science Monthly, XX, p. 395.

cultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States, he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just, and in such case during such suspension duties shall be levied, collected and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country, as follows."

This section had been put in the McKinley Act with a view to securing reciprocal commercial agreements with foreign powers, and ten such tariff arrangements were effected by the President by means of an exchange of diplomatic notes simply. These agreements remained in force until the enactment in 1894 of the Wilson-Gorman Act.

The constitutionality of this action under the act of 1890 was contested on the ground that it amounted to a delegation by Congress to the President of a portion of its legislative power; but the Supreme Court in Field v. Clark" held the provision valid.18

By the third section of the Tariff Act of 1897 (the Dingley Act), the President was authorized to enter into reciprocity agreements with foreign countries with respect to certain enumerated articles, whereby in return for concessions obtained from other countries, equivalent concessions were to be granted by the United States. Under the authority thus granted a number of reciprocity agreements were negotiated and promulgated by the President.

Section 4 of this act of 1897 also provided for reciprocity treaties which should be approved by Congress. This section will receive consideration in the next section.19

17 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

18 See Chapter LXV in which the delegation of legislative power is discussed. 19 There have been some instances of international agreements entered into by the President without the advice and consent of the Senate, and without authorization by some previous treaty or statute, which cannot be grouped under any one of the preceding heads mentioned in this chapter. Thus,

§ 205. Extradition.

20

The greatly preponderant weight of opinion is that, in 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.21

for example, in 1850 Great Britain ceded to the United States a reef in Lake Erie upon condition that the United States would engage to erect thereupon a lighthouse and maintain it, and agree to erect no fortifications thereupon. This engagement the President made without consulting the Senate, and the cession was made, and later, Congress having appropriated the funds, a lighthouse was constructed.

20 Cf. Moore, Extradition.

21 Cf. Butler, § 435.