¹ Thayer, , The Life and Letters of John Hay, II, p. 393.Google Scholar

² Ibid., II, p. 274.

³ Adams, J. Q., Memoirs, VI, p. 427.Google Scholar As to the last sentence see notes 24 to 26.

⁴ Journal of William Maclay (N. Y. 1890), p. 131.

⁵ Roosevelt, , Autobiography, pp. 551–552.Google Scholar

⁶ Bryce, , The American Commonwealth (2nd ed.), I, p. 104.Google Scholar

⁷ “The Morrow of the War,” first pamphlet issued by the Union of Democratic Control, 1914, printed in Ponsonby, , Democracy and Diplomacy (London, 1915), p. 21.Google Scholar

⁸ Montesquieu, , L'Esprit des lois, Vol. I, bk. xi, ch. 6.Google Scholar

⁹ See remarks by Hamilton, , Morris, Gouverneur and Mercer, in Farrand, , Records of the Federal Convention, I, p. 292Google Scholar; II, pp. 104, 297. See also Hamilton, “Pacificus” letter, June 23, 1793, printed in Corwin, , The President's Control of Foreign Relations (1917), p. 8.Google Scholar

¹⁰ See remarks by James Wilson in Farrand, op. cit., II, 538, and Madison, “Helvidius” letter in answer to “Pacificus” August 24, 1793, printed in Corwin, op. cit. p. 16.

¹¹ See Moore, , Digest of International Law, I, pp. 243–244Google Scholar; Corwin, op. cit. p. 71; Willoughby, , Constitutional Law, I, p. 461.Google Scholar

¹² Moore, , Digest, I, pp. 121–122Google Scholar; V, pp. 589–590.

¹³ Richardson, , Messages and Papers of the Presidents, X, p. 582Google Scholar; Moore, , Digest, III, p. 55.Google Scholar

¹⁴ Adams, J. Q., Memoirs, IV, pp. 205–206Google Scholar; Corwin, op. cit. p. 73.

¹⁵ Guano islands have been acquired by the President under authority of an act of Congress (Jones vs. U. S., 137 U. S. 202 (1890), Moore, , Digest, I, p. 558Google Scholar); Horseshoe Reef in Lake Erie was acquired by the President through executive agreement with Great Britain and Midway and Wake Islands in the Pacific have been annexed by the President as a result of discovery and occupation. Moore, , Digest, I, pp. 554–555.Google Scholar

¹⁶ The power of Congress to admit new states to the union has been used as a justification for annexation of Texas. This use of this clause, however, was not intended by the constitutional fathers (Willoughby, op. cit. pp. 325–338) and could hardly apply to Hawaii. See ibid, ch. 22.

¹⁷ See “Pacificus” and “Helvidius” letters by Hamilton and Madison, called forth by this incident, printed in Corwin, op. cit. pp. 5–30 and also, Moore, , Digest, V, pp. 591–592.Google Scholar

¹⁸ The Divina Pastora, 4 Wheat. 52; Moore, , Digest, I, pp. 164Google Scholaret seq. and 247.

¹⁹ “I have yet to learn that a war in which the belligerents, as was the case with the late civil war, are persistent and determined, can be said to have closed until peace is conclusively established, either by treaty when the war is foreign, or when civil by proclamation of the termination of hostilities on one side and the acceptance of such proclamation on the other. The surrender of the main armies of one of the belligerents does not of itself work such termination.” Mr. Bayard, secretary of state, to Mr. Muruaga, Spanish minister, December 3, 1886, U. S. For. Rel., 1887, pp. 1015; Moore, , Digest, VII, p. 337.Google Scholar

²⁰ Mr. Seward, secretary of state to Mr. Goñi, Spanish minister, July 22, 1868, U. S. Diplomatic Correspondence, 1868, Vol. II, pp. 32, 34; Moore, , Digest, VII, p. 337.Google Scholar

²¹ 14 stat. 811, 13 stat. 814.

²² The Protector, 12 Wallace, 700.

²³ See note by Anderson, C. P., American Journal International Law, Vol. 14, p. 384.Google Scholar Text of the resolution, ibid., p. 419, and legislative history, ibid., p. 438.

²⁴ Crandall, , Treaties, their Making and Enforcement (N. Y., 1916), p. 70Google Scholar; Willoughby, op. cit. p. 458.

²⁵ Richardson, op. cit. Vol. II, p. 478.

²⁶ Lodge, , “The Treaty-making Power,” Scribner's, January 1902Google Scholar; Crandall, op. cit. pp. 70–72.

²⁷ Sen. Doc. No. 231, 56th Cong., 2nd Sess., viii, 332 et seq.; Sen. Rep. No. 227, 53rd Cong., 2nd sess., p. xxv; Corwin, op. cit. p. 64; Crandall, op. cit. p. 77; Moore, , Digest, IV, 452–457Google Scholar; Foster, , The Practice of Diplomacy, pp. 199–203Google Scholar; American Political Science Review, Vol. 10, p. 481 (1916).

²⁸ Crandall, op. cit. p. 82.

²⁹ Lodge, op. cit.; Crandall, op. cit. pp. 79–81.

³⁰ Crandall, op. cit. p. 97–99; Taft, , Our Chief Magistrate and his Powers, p. 106.Google Scholar

³¹ Shepherd vs. Insurance Co., 40 Fed. 341, 347; Willoughby, op. cit. p. 466; Crandall, op. cit. pp. 81, 94, 97; Taft, op. cit. p. 106; Black, , Handbook of American Constitutional Law, p. 124Google Scholar; Foster, op. cit. p. 274; Senator Spooner, quoted in Corwin, op. cit. p. 175.

³² Moore, , Digest, III, p. 212Google Scholar, V, pp. 199–201; Willoughby, op. cit. p. 464.

³³ Richardson, op. cit. I, p. 195; Moore, , Digest, V, p. 225Google Scholar; Dana, note to Wheaton, , International Law, sec. 543, note 250Google Scholar; Willoughby, op. cit. pp. 515–517. See also Roosevelt, “Message on Cuban reciprocity treaty,” Richardson, op. cit. X, p. 561; Wright, , “Treaties and the Constitutional Separation of Powers in the United States,” American Journal International Law, Vol. 12, p. 82 (Jan. 1918).CrossRefGoogle Scholar

³⁴ Willoughby, op. cit. pp. 467–479; Crandall, op. cit. pp. 102–117; Moore, , Digest, V, 210–218Google Scholar; Political Science Quarterly, Vol. 20, p. 385 (1905).

³⁵ Sen. Rep. No. 97, 34th Cong., 1st sess.

³⁶ Taft, op. cit. p. 117; Crandall, op. cit. p. 462; Willoughby, op. cit. p. 518.

³⁷ Richardson, op. cit. VII, p. 519; Crandall, op. cit. p. 461. President Lincoln refused to carry out a resolution of Congress of February 9, 1865, which he himself had signed, which “adopted and ratified” notice already given for termination of the Great Lakes disarmament treaty of 1817. He withdrew the notice and the disarmament treaty remained and still remains in force. House Doc. No.471, 56th Cong., 1st. Sess., pp. 32–34; Crandall, op. cit. p. 462. Although the President is ordinarily under a constitutional obligation to carry out all acts and resolutions of Congress passed by proper constitutional process, this is not true of those directing him in foreign affairs. Crandall, op. cit. p. 74.

³⁸ Chinese Exclusion cases, 130 U. S. 581 (1889). See also Moore, , Digest, V, pp. 364–370.Google Scholar

³⁹ Moore, , Digest, pp. 356–359.Google Scholar

⁴⁰ Willoughby, op. cit. pp. 484–488.

⁴¹ Ibid. pp. 513–515.

⁴² In re Neagle, 135 U. S. 1 (1890); Wright, , American Journal International Law, Vol. 12, pp. 77Google Scholar; Moore, , Digest, VII, p. 112et seq.Google Scholar, Borchard, , Diplomatic Protection of Citizens Abroad (N. Y., 1915), p. 452.Google Scholar

⁴³ Taft, op. cit. pp. 85, 87.

⁴⁴ Richardson, op. cit, I, p. 326.

⁴⁵ Supra, notes 20–22.

⁴⁶ Congressional Record, Vol. 40, p. 1417, quoted in Corwin, op. cit. p. 171; Reinsch, , Readings in American Federal Government, p. 82.Google Scholar

⁴⁷ Richardson, op. cit., VII, p. 431, quoted in Corwin, op. cit. p. 44.

⁴⁸ See Myers, , “Legislatures and Foreign Relations,” American Political Science Review, Vol. 11, p. 643et seq. (Nov. 1917)CrossRefGoogle Scholar, and British report on treat ment of International Questions in Foreign Governments, Parl. Pap., Misc. No. 5 (1912), Cd. 6102, printed in appendix 2, Ponsonby, , Democracy and Diplomacy, p. 128Google Scholaret seq.

⁴⁹ Supra, notes 6, 7. For relations of Crown and Parliament in treaty making in Great Britain, see Anson, , Law and Custom of the Constitution (3rd ed.), II, pt. ii, p. 103Google Scholaret seq.

⁵⁰ “These two powers, executive and federative (foreign relations), though they be really distinct in themselves, yet one comprehending the execution of the municipal laws, of the society within itself, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from; yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those whose hands it is in, to be managed for the public good; for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs, and interests, must be left in great part to the prudence of those who have this power committed to them, to be man aged by the best of their skill, for the advantage of the commonwealth,” Locke, , Two Treatises of Government, sec. 147, Works (ed. 1801), V, p. 425.Google Scholar

⁵¹ “By the [executive power, the prince or magistrate] makes peace or war, sends or receives embassies; establishes the public security, and provides against invasions. The executive power ought to be in the hands of a monarch; because this branch of government, which has always need of expedition, is better administered by one than by many: Whereas, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person. But if there was no monarch, and the executive power was committed to a certain number of persons selected from the legislative body, there would be an end of liberty; by reason the two powers would be united, as the same persons would actually sometimes have, and would moreover always be able to have, a share in both.” Montesquieu, , L'Esprit des lois, I, bk. xi, ch. 6.Google Scholar

⁵² “With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king, therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagement that must afterwards be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation; what is done without the king's concurrence, is the act only of private men.” Blackstone, , Commentaries, I, p. 252.Google Scholar

⁵³ See remarks by Hamilton and Gouverneur Morris, Farrand, op. cit., I, pp. 290, 513.

⁵⁴ “It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisites. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. These 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.

“They who have turned their attention to the affairs of men must have perceived that there are tides in them;tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us that there frequently are occasions when days, nay, even when hours, are precious‥‥ So often and so essentially have we heretofore suffered from the want of secrecy and dispatch that the Constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most dispatch are those preparatory and auxiliary measures which are not otherwise important in a national view than as they tend to facilitate the attainment of the objects of negotiation. For these the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them.” The Federalist (Jay), No. 64 (Ford ed.), pp. 429–430. See also Hamilton, No. 70 (Ford ed.), p. 467.

⁵⁵ “The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members.” Washington, Message to the House of Representatives, March 30, 1796, in Richardson, op. cit. p. 194.

⁵⁶ De Tocqueville, , Democracy in America (N. Y. 1862), I, p. 254.Google Scholar

⁵⁷ Lippman, , The Stakes of Diplomacy, pp. 26, 29.Google Scholar See also remarks of Senator Spooner of Wisconsin in the Senate, January 23, 1906: “The conduct of our foreign relations is a function which requires quick initiative, and the Senate is often in vacation. It is a power that requires celerity. One course of action may be demanded to-night, another in the morning. It requires also secrecy; and that element is not omitted by the commentators on the Constitution as having been deemed by the framers of the most vital importance. It is too obvious to make elaboration pardonable.” Congressional Record, Vol. 40, pp. 1419–1420; quoted in Corwin, op. cit. p. 176.

⁵⁸ Bryce, , American Commonwealth (2nd ed.), I, p. 218.Google Scholar

⁵⁹ Ibid. I, p. 217.

⁶⁰ Wilson, , Congressional Government (15th ed.), pp. 266, 273–274.Google Scholar

⁶¹ Wilson, , Congressional Government (15th ed.), pp. xi–xiii.Google Scholar

⁶² Fish, , American Diplomacy (N. Y., 1916), p. 428.Google Scholar

⁶³ Montaigne, , Essays (Cotton, ed.), II, p. 760.Google Scholar

⁶⁴ The writer is inclined to believe that a change in the treaty power from two-thirds of the Senate to a majority of both houses would be an improvement. This would be in accord with the practice of most continental European governments. It would obviate the complaints of the House of Representatives and eliminate the ever-present possibility of inability to execute a treaty, valid as international law, because of the refusal of the House to agree to appropriations or necessary legislation. It would, also, make deadlocks less frequent, because one party is much more likely to control a majority of both houses than two-thirds of the Senate. The main objection of the fathers to submission to the House was on the score of secrecy and this has frequently been abandoned by the Senate in recent years. This change, which would of course require a constitutional amendment, would make the treaty-making power the same as the legislative power, except that the President would have the sole initiative and, retaining the ultimate decision on ratification, would have an absolute veto. See also Young, , The New American Government, p. 25Google Scholar, and former Representative and Governor of Massachusetts, McCall, S. W., “Of the Senate” and “Again the Senate” in Atlantic Monthly, October, 1903Google Scholar, and September, 1920.

⁶⁵ Quoted by Wilson, in Congressional Government (15th ed.), p. 242.Google Scholar

⁶⁶ Dicey, , The Law of the Constitution (8th ed., London, 1915), ch. 14.Google Scholar

⁶⁷ See remarks of A. J. Balfour and Premier Asquith to select committee of the House of Commons on Procedure, 1914 (Report 378), printed in Ponsonby, op. cit., appendix 1, p. 121 et seq. and ibid., ch. 5, p. 45 et seq.

⁶⁸ See Ford, H. J., “The War and the Constitution,” and “The Growth of Dictatorship,” Atlantic Monthly, October, 1917, and May, 1918.Google Scholar

⁶⁹ Some resolutions of this kind have been passed, expressive of a policy of disarmament and arbitration. See Joint resolution, June 25, 1910, 36 stat. 885, and navy appropriation act, August 29,1916, 39 stat. 618, Comp. stat. sec. 7686a. Resolutions favoring arbitration were also passed in 1874 and 1890. See “A League of Nations” published by World Peace Foundation, Vol. I, No. 1, October, 1917.

⁷⁰ “Democracies are absolutely dependent for their existence upon the preservation of law. Autocracies can give commands and enforce them. Rules of action are a convenience, not a necessity for them. On the other hand, the only atmosphere in which a democracy can live between the danger of autocracy on one side and the danger of anarchy on the other is the atmosphere of law. … The conception of an international law binding upon the governments of the world is, therefore, natural to the people of a democracy, and any violation of that law which they themselves have joined in prescribing is received with disapproval, if not with resentment.” Root, , “The Effect of Democracy on International Law,” American Society International Law Proceedings (1917), pp. 7–8.Google Scholar

⁷¹ “It is a general principle that any valid act done by either the legislative, executive or judicial branches of the government is binding upon each of the others, and is not subject to be set aside by either of them.” (Finley-Sanderson, , The American Executive and Executive Methods (N. Y., 1908), p. 217.Google Scholar) “There is force, no doubt, in the contention that the Congress of the United States is under a moral obligation to maintain the honor of the nation, which implies the strict fulfillment of all pledges made by the treaty-making power, but there is even more weight in the affirmation that the treaty-making power is under a moral obligation not to pledge the honor of the nation in doubtful conditions, as well as under a legal obligation not to destroy the freedom of a coordinate branch of the Government by pledging it to a performance beyond the intentions of the Constitution from which all its authority is derived.” Hill, , Present Problems in Foreign Policy (N. Y., 1919), p. 171.Google Scholar See also Wright, , American Journal International Law, Vol. 12, p. 94.Google Scholar

⁷² Rule XXXVI of the Standing Rules of the Senate still piovides the manner in which the President is to meet the Senate in executive session. Henry-Cabot Lodge, in referring to the recognition in this rule of the right of the President to meet with the Senate in consideration of treaties, said, in the United States Senate, January 24, 1906: “Yet I think we should be disposed to resent it if a request of that sort was made to us by the President.” Congressional Record, 59th Cong., 1st Sess., Vol. 40, p. 1470, in Crandall, op. cit. p. 68, n. 5. President Wilson revived the custom, in abeyance since the time of John Adams, of appearing in person before Congress.

⁷³ “The act creating the Department of State, in 1789, was an exception to the acts creating the other Departments of the Government. I will not stop to refer to the language of it or to any of the discussions in regard to it, but it is a Department that is not required to make any reports to Congress. It is a Department which from the beginning the Senate has never assumed the right to direct, or control, except as to clearly defined matters relating to duties imposed by statute and not connected with the conduct of foreign relations. We direct all the other heads of Departments to transmit to the Senate designated papers or information. We do not address directions to the Secretary of State, nor do we direct requests, even, to the Secretary of State. We direct requests to the real head of that Department, the President of the United States, and, as a matter of courtesy, we add the qualifying words, ‘if in his judgment not incompatible with the public interest.’” Senator Spooner, of Wisconsin, in Senate, January 23, 1906, Congressional Record, Vol. 40, p. 1420, quoted in Corwin, op. cit. p. 177; and in Crandall, op. cit. p. 93.

⁷⁴ “In the Administration of Mr. Madison the Senate deputed a committee to see him in regard to the appointment of a minister to Sweden, I think, and he replied that he could recognize no committee of the Senate, that his relations were exclusively with the Senate.” Senator Lodge of Massachusetts, during course of debate referred to supra, n. 73, p. 1419; Corwin, op. cit. pp. 174–175.

⁷⁵ A recent illustration is President Wilson's offer to discuss the Treaty of Versailles with the Senate foreign relations committee, an offer which resulted in several conferences in the White House during the summer of 1919. See Sen. Doc., No. 106, p. 499 et seq., 66th Cong., 1st Sess.

⁷⁶ Political and administrative experience of Presidents of the United States:

Wilson, Congressional Government, pp. 251–256, refers to the tendency of the governorship rather than membership in the Senate or House to be in the line of promotion to the Presidency. Reinsch notices a change in the tradition of advancement to secretary of state:

“From Monroe's secretaryship of state in 1811, down to the resignation of Mr. Blaine, that position was held constantly by men who had been United States senators, with the exception of brief interregna, covering altogether less than one and a half years, and with the exception of William M. Evarts who became a senator later in his career. Since the resignation of Mr. Blaine, an entirely new system has come into use, Senators Sherman (and Knox) being the only Secretaries of State who had also been members of the Senate. Under these circumstances, it is not surprising that there should have been more friction between the President and the Senate on foreign matters than existed during, the earlier years of our national life.” American Legislatures and Legislative Methods (N. Y. 1913), p. 95, quoted in Willoughby, op. cit., p. 460.