432 WRIGHT— UNDERSTANDINGS CONCERNING 



Though Congress and the treaty-making power ought to give 

 effect to such agreements if made within the President's power, it 

 unquestionably is within their legal power to refuse. Such exec- 

 utive agreements are not supreme law of the land. Consequently 

 before making such agreements the President ought to get the 

 advice of these bodies if possible.-" 



Draft treaties negotiated by the President are of even less obli- 

 gation than such executive agreements, and experience has shown 

 that the Senate does not hesitate to reject or amend them.^* Con- 

 sequently it is especially important that the President keep him- 

 self informed of the attitude of that body during the course of 

 negotiation and conform his policy thereto.-^ 



The conduct of diplomatic negotiations by the President and 

 the employment of troops for defense of American citizens abroad 

 or defense of the territory may easily lead to military undertak- 

 ings which will require either congressional appropriations or a 

 declaration of war. Thus all so-called declarations of war by 

 Congress have in fact been declarations of the " existence of war " 

 and the act of Congress of July 13, 1861, was a ratification of the 

 proclamation of the President of April 19, 1861, which was held to 

 have signified the actual beginning of war.^° Doubtless, in each 

 of these cases Congress was under a practical, though not a legal 

 obligation to carry out the undertaking begun by the President, and 

 unquestionably in such undertakings the President ought to keep 

 himself informed of and give due consideration to the opinion of 

 Congress. ^^ 



The same is true of acts under the President's authority as 

 Commander-in-Chief in time of war. Seizures of property under 

 military necessity in occupied areas by way of requisition and con- 

 tribution require subsequent compensation according to the law of 

 war. Also the emancipation proclamation, if indeed it was within 

 the President's power at all, certainly required action by Congress, 

 if not the amending power, to remain effective after the war. 



27 Supra, sees. 166, 169, 170, 172. 



28 Supra, sec. 177. 



^^ Supra, sec. 176; infra, sec. 266, par. 4. 



30 The Prize Cases, 2 Black 635, and supra, sec. 208. 



31 Supra, sec. 209. 



