Page:The Green Bag (1889–1914), Volume 17.pdf/333

 THE GREEN BAG thereby indirectly be impairing the obligation of such contracts. "The result of the combination of these two propositions is simply that the state can exer cise no greater and no less power over corpo rations because of the existence of outstanding corporate contracts. These contracts are themselves beyond the power of the state to impair, unless it be as an indirect and remote consequence of the state's revocation or amendment of the charter of the corporation in accordance with the power which it had reserved for that purpose." The author then shows many decisions in which these principles have been ignored and concludes as follows: "This completes our survey of the extent of the power of states over corporations whose charters are granted under a reserved power of revocation or amendment. Whether these reservation clauses would have come into ex istence had the doctrine of the police power and the other limitations upon the Dartmouth College decision originated earlier in our con stitutional history cannot, of course, be pred icated. That, properly construed, they form a helpful part of our constitutional and statute laws, by rendering corporations subject to state and therefore to popular control, is undoubted. But it is just as clear that, im properly extended in their scope, they have been construed to give to the legislatures of the states in many cases an amount of power over corporations which is dangerously incon sistent with American theories of the sanctity of property and of contract rights — a power which renders investments in the stock of corporations unsafe because subject to legis lative whims and tyranny, and calling, there fore, it is submitted,, for a careful revision of prevailing judicial tendencies in this impor tant subject of state and federal jurisprudence." Appended is a collection of the forms of the reserved power clauses in the different state constitutions. CONSTITUTIONAL LAW (^Treaties, Amendments of)

AN important supplement to Mr. Hyde's article on "international agreements" in our April number is an article by B. M. Thompson entitled, "Power of the Senate to Amend a Treaty" in the April Michigan Law Review

(V. iii, p. 427). It treats of the recent action of the Senate in the matter of the Arbitration and San Domingo treaties. As to the former he contends that in their original form they authorized the President to submit to arbi tration only questions which he had authority to settle by diplomatic means. He calls atten tion to the important fact which Mr. Hyde elaborately discussed that the President has authority to enter into international agree ments which are not treaties. Assuming, how ever, the propriety of the Senate's interpreta tion of these treaties he contends that its treatment of them was wholly unauthorized. "The authority, power, or prerogative to advise the President and to concur is given to the Senate. The implied powers conferred upon the President and upon the Senate are limited to those which are necessary and essential to enable each to exercise the power specifically granted. The power to advise and concur does not include the power to negotiate a treaty since the Senate cannot take the first step in that direction. It has no authority to communicate with, or to receive any commu nication from, any foreign government." Not until after the treaty is concluded does it come before the Senate for action. Amend ment is then impossible, for that requires the assent of the other party thereto. Any such attempt on the part of the Senate "is futile and an inexcusable attempt to exercise a power expressly conferred by the United States upon the President." He cites the analogy of the power of con firming appointments under which no one has claimed that the Senate might originally nom inate office holders, though in practice it has practically usurped that power. In case of a treaty there are objections to such usurpation not arising in the case of appointments since it involves the rights of other nations. He contends that if the Senate has a right to amend a treaty the President, under his veto power, has the right to amend any bill. He insists that there are serious dangers in the usurpation of power by the Senate and, in conclusion he says: "It is natural that a body composed of able and ambitious men, not responsible for its official conduct, either to the people, or to any other department of the government,