There would seem to be no question but that, having the power either to approve or to disapprove an international agreement negotiated by the President, the Senate has also the power, when disapproving a proposed treaty, to state upon what conditions it will approve; in other words, to amend any treaty submitted to it.14 In so doing there can be no question but that the Senate is well within its constitutional right. Upon the other hand, it is equally within the province of the Executive to consider the amendment of a treaty by the Senate as equivalent to a rejection of it. When, therefore, a treaty has been amended in the Senate, it is within the President's power to abandon the whole treaty project, or to reopen negotiations with the foreign country or countries concerned with a view to obtaining their consent to the changes desired by the Senate, or, finally, to begin de novo and attempt to negotiate an entirely new treaty, which he may hope will secure senatorial approval. In case he decides to follow the second of these courses, namely, to secure the approval of the foreign country or countries to the amendments to the treaty project made in the Senate, and is successful in this, it would seem that the treaty need not again be submitted to that body for its approval, but may be at once promulgated.15

13 See Senate Docs., Nos. 40 and 56, 54th Cong., 2d Sess.; Hinds, Precedents of the House of Representatives, chapters XLVIII, XLIX.

14 The approval or disapproval of a treaty project by the Senate is often spoken of as the ratification or refusal to ratify. Strictly speaking, however, this language is incorrect, as the ratification of a treaty is the final act performed by the President by which the agreement is declared in force, between the United States and the foreign State or States which are the parties to it.

When, in 1795, the Jay treaty was submitted to the Senate for approval, that body advised the President to approve on condition that certain specified changes were made in it. These changes having been consented to by Great Britain the treaty was ratified without again submitting the instrument to the approval of the Senate. The question as to the propriety of this course had been submitted by Washington to the members of his cabinet and upheld by them. The same practice has been followed in subsequent cases. Where, however, the changes made in a treaty project have not been specifically indicated by the Senate as desired by that body, it has been very properly held that the amended project should be again submitted to the Senate for its action thereon.16

The Senate's right to amend a treaty has been directly upheld by the Supreme Court. In Haver v. Yaker17 the court say: "In this country a treaty is something more than a contract, for the federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify or approve it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it." 18 The approval of the Senate being essential to the validity of all treaties entered into by the United States,19 it has been held that all protocols, and explanations given by the Executive as to the meaning of treaty provisions, which have not been passed upon and approved by the Senate, are not to be considered as internationally binding upon the United States, or enforced in its courts. For this reason it is not constitutional for the President to insert in a treaty secret provisions which have not been approved by the Senate. Most of the written constitutions of foreign Powers have specific prohibitions with reference to secret provisions.

15 Crandall, Treaties: Their Making and Enforcement, pp. 68 et seq. 16 Crandall, pp. 68 et seq. 17 9 Wall. 32; 19 L. ed. 571.

18 Senator Lodge enumerates sixty-eight treaties that were amended by the Senate and afterward ratified.

19 For qualification of this statement, see Chapter XXXIII (International Agreements Which Do Not Require The Approval Of The Senate.1. 198. International Agreements Not Requiring Approval By Senate).