A year after Albania's admission to the League, at the fourteenth session of the Council, the Albanian delegate signed a declaration 128 containing stipulations for the protection of minorities. This action was taken in reference to the recommendation 129 of the First Assembly with regard to the protection of minorities in Albania.

28. Withdrawal from membership. Article 1 of the Covenant provides that any member "may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal." The provision of the Covenant does not state to whom the notice must be given; presumably, it must be to other members of the League, though it is to be expected that the machinery of the League would be used to this end. Nor does the Covenant state who is to determine whether a member has fulfilled all of its obligations. It has been claimed that the Council would perform this function and could thus easily thwart any withdrawal.180 A reservation on the subject was debated extensively in the United States Senate.131

Article 26 of the Covenant provides indirectly for another method of withdrawal. According to this article, no amendment to the Covenant "shall bind any member of the League which signifies its dissent therefrom, but in that case it shall cease to be a member of the League." As nothing is said in this article about a time limit, a member signifying dissent to an amendment would probably cease to be a member at once.

No member has withdrawn from the League in accordance with these provisions. In 1922, Honduras took certain steps for notifying her intention to withdraw, but this notice was never effected.

The Argentine delegation to the First Assembly in 1920 withdrew from the meetings of the Assembly for reasons explained in a letter addressed to the President of the Assembly.132 These reasons had to do with the reception accorded by the Assembly to proposals made by the Argentine delegation for amending the Covenant. But the delegation went no further than to state to the President that it considered its "mission at an end," and Argentine continues to be a member of the League. In that capacity,

128 Minutes of the Fourteenth Session of the Council, pp. 115, 160. 129 Records of First Assembly, Plenary Meetings, pp. 568-9.

An account of the measures taken to carry out the prescriptions of the League for the protection of minorities in Albania and the Baltic States is given in the reports on the work of the Council to the Second, Third and Fourth Assemblies. See Records of Second Assembly, Plenary Meetings, pp. 119–120; Records of Third Assembly, Plenary Meetings, Vol. 2, p. 50; Records of Fourth Assembly, Plenary Meetings, pp. 222–223, 301.

130 Von Bülow, Der Versailler Völkerbund, p. 34.

131 Finch, "The Treaty of Peace with Germany in the United States Senate," 14 American Journal of International Law, p. 175.

132 Records of First Assembly, Plenary Meetings, p. 276.

Argentine was represented at a meeting of the Governing Body of the International Labor Office at Stockholm in July, 1921.133

Sir Frederick Pollock has wisely observed 134 that the withdrawal clause "does not seem very likely to be acted upon; if the League were to break up it would break in a different fashion, and so long as it holds firm one can hardly conceive what should make it desirable for any one state to secede." 29. Universality of the League of Nations. President Wilson's conception of a "general association of Nations", embodied in the Fourteen Points in his address to Congress on January 8, 1918, would seem to have envisaged a universal League of Nations. Various articles of the Covenant, notably articles 23 and 24 seem to be based on a premise of universality.135 But the admission procedure of the Covenant is not automatic. In 1920, the Argentine delegation proposed to the first Assembly that "all sovereign states recognized by the community of nations be admitted to join the League of Nations in such a manner that if they do not become members of the League this can only be the result of a voluntary decision on their part"; 136 but this proposal was not favorably received, for it was thought to "répondre imparfaitement aux circonstances mondiales actuelles."

133 Record of International Labor Conference, Third Session, Geneva, 1921, p. 882. 134 Pollock, The League of Nations (2 ed.), p. 97.

135 See Records of First Assembly, Plenary Meetings, p. 90, 179, 567-8, 572-4; Records of Second Assembly, Plenary Meetings, pp. 315, 402, 414, 815, 816, 850; Records of Third Assembly, Plenary Meetings, Vol. 1, pp. 79, 269, 281, 393.

136 Records of First Assembly, Plenary Meetings, p. 279.

THE TREATY-MAKING POWERS OF THE SENATE

BY CHARLES C. TANSILL

Professor of American History, American University, Washington, D. C.

THE FEDERAL CONVENTION

The section of the Constitution dealing with the treaty-making power was the result of extended discussion and consideration. In the so-called Virginia Plan presented on May 29, 1787, by Edmund Randolph, there is no mention of the subject of treaties, the inference being that he assumed that Congress, as the treaty-making power under the Confederation, would continue to exercise the same powers under the Constitution.1

The first mention of the treaty-making power occurs in the New Jersey plan presented on June 15 by Mr. Paterson. In Article Five of this project provision is made for a supreme court to have jurisdiction "in all cases in which foreigners may be interested," and "in the construction of any treaty or treaties, or which may arise on any of the Acts for regulations of trade." In Article Six it is also provided that all "Acts of the United States in Congress made by virtue and in pursuance of the powers hereby and by the articles of confederation vested in them, and all Treaties made and ratified under the authority of the United States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound in their decisions."

On July 26, the convention adjourned until August 6, entrusting to the Committee of Detail the task of preparing a constitution along the lines of the resolutions so far adopted by the convention. On August 6, the Committee of Detail reported its draft of a constitution, the first section of Article Nine reading as follows: "The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court." On August 23, this provision came before the convention for discussion and Mr. Madison promptly "observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties." 5

4

But no agreement could be reached on this point, so on August 31, "it was agreed to refer such parts of the Constitution as have been postponed to a Committee of a member from each State." 6 On September 4,

1 The Records of the Federal Convention of 1787, ed. by Max Farrand (New Haven, 1911), pp. 17-23.

2 Ibid., p. 242.

Farrand, op. cit., Vol. II, p. 118.

'Ibid., p. 392.

4 Ibid., p. 183.

• Ibid., p. 481.

this committee presented its report, which, with regard to the treaty-making power, was decidedly novel. Up to this time the Senate had been regarded as the chief factor in the treaty-making power, and there were several influences that led the members of the convention at first to favor the Senate rather than the Executive. The more important of these were: (1) "Fear of the autocratic power which might result from placing this important function in the hands of one man; (2) a desire to depart from English precedent; (3) the force of practice under the preceding régime, when, for lack of a president, the Continental and Confederate Congresses had directed the foreign relations of the country, including the work of treaty making; and (4) the feeling that since the states were prohibited from making treaties, some compensation should be granted them by giving this power to their representatives in the upper house, thereby protecting them against injury at the hands of the federal government in its control over foreign relations." " As the convention had progressed with its work the strength of these influences in favor of the Senate waned, and in the report of September 4, the treaty-making power was outlined as follows: "The President by and with. the Advice and Consent of the Senate shall have power to make Treaties."8 On September 7, this section came up for discussion, and Mr. Wilson, of Pennsylvania, "moved to add, after the word 'Senate' the words 'and House of Representatives.' As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter.

"Mr. Sherman thought the only question that could be made was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature." Mr. Wilson's motion was defeated, only Pennsylvania voting aye."

On September 8, the whole clause relative to the treaty-making power was discussed for the last time, and a Committee on Style was appointed "to revise and arrange the articles which had been agreed to by the House." On September 17, this committee reported a draft of a constitution which was substantially adopted, and on September 17, the convention formally adjourned.10

THE SENATE AND TREATIES, 1789-1817

It was the expectation of the framers of the Constitution that the Senate should act as an executive council for the purpose of consulting with the

7 Mathews, John M., The Conduct of American Foreign Relations (N. Y. 1922), p. 131. Farrand, op. cit., Vol. II, p. 498.

President relative to appointments to office and the negotiation of treaties.11 There is, however, a striking difference in the phraseology of the Constitution with regard to these two instances of cooperation. In the matter of appointments, the provision reads that "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint," etc. The necessary implication in this case is that the President has the sole right of nomination, and that the advice and consent of the Senate have reference only to the confirmation of the nomination thus made. But in the case of the negotiation of treaties it is specifically provided that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." This language is significant. "It does not say that the President shall negotiate, and by and with the advice and consent of the Senate shall ratify, treaties; the advice and consent of the Senate apparently operate upon the whole process of treaty making, including negotiation and ratification." 12

John Jay, however, in his contemporary exposition of this clause, does not appear to have believed that the Senate should, in the actual business of negotiating treaties, have an equal and coordinate share with the President. In Number 64 of the Federalist he discusses this clause as follows:

It seldom happens that in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.13

Jay's exposition of the treaty-making clause by no means received universal acceptance. In the debate in the Senate in July, 1789, relative to the removal power of the President, the share that the Senate was supposed to take in the actual negotiation of treaties was clearly set forth in the remarks of Pierce Butler, a delegate to the Federal Convention, and in 1789 representing South Carolina in the Senate. These remarks, preserved in the Diary of John Adams, are only fragmentary, and are as follows: "In treaties, all powers not expressly given, are reserved. Treaties to

" Mathews, J. M., op. cit., p. 133; Kerr, Clara H., The Origin and Development of the U. S. Senate, p. 137.

12 Ibid., op. cit., p. 133, also Lodge, H. C., A Fighting Frigate and Other Essays and Addresses, pp. 231-232.

13 Page 403 (Lodge ed. N. Y. 1889).