3. Observance by the independent departments of government of the understanding that toleration, consideration, and respect should grace the exercise of powers which may collide with the powers of other departments, which may need supplementing by the action of other departments, or which may be indispensable for the meeting of international responsibilities. Finally, as a necessary condition of such observance;

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4. Maintenance of close informal relations between the agencies of the government having to do with foreign affairs. Such relations now exist between the President and the administrative departments represented in the Cabinet. Why should not the Cabinet be enlarged so as to include representatives of the legislative branch? The Vice-President, who is closely in contact with the Senate, has been added by President Harding. But a more genuine congressional point of view could be gained by admitting also the Speaker of the House, President pro tem. of the Senate, and perhaps the Chairman of the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations. The President, sitting with these five officials, together with the Secretaries of State, Treasury, War, Navy, Commerce and the Attorney-General, would form a Cabinet capable of reaching decisions on foreign affairs likely to secure cooperation from all departments of the government and yet not too large to do business.34

Closer relations might also be established by the President with Congress and especially with the Senate through personal delivery of messages and explanations of his policy, but always at his initiative. The present practice, whereby Congress does not "direct" the Secretary of State to submit papers and information as it

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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 the law which they themselves have joined in prescribing is received with disapproval, if not with resentment." E. Root, The Effect of Democracy on International Law, Proc. Am. Soc. Int. Law, 1917, pp. 7-8.

83 Supra, sec. 244.

34 The writer owes this suggestion to Professor John A. Fairlie.

35 "Rule XXXVI of the Standing Rules of the Senate still provides 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

does other cabinet officers but requests the real head of the department, the President of the United States, "to submit matters if, in his judgment, not incompatible with the public interest," must be maintained.36

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Finally, close informal relations between the President and congressional committees on foreign affairs should exist, here again at the President's initiative. President Madison was right, as Senator Lodge pointed out in 1906, in refusing to receive a Senate committee sent on command of that body to interview him with reference to an appointment of a minister to Sweden.37 But the President should often invite such committees to discuss with him.s Thus, without limiting the President's power in foreign relations, or in any way impairing his capacity to take speedy action when necessary, we might develop understandings which would show him how he ought to exercise his discretion-understandings sanctioned in last analysis by the possibility of Senate or congressional veto of his measures, defeat of his party in the next election, or even impeachment.

Though this essay has dealt with constitutional law and constitutional understandings, it must be emphasized that the system is not the most important part of government. Any system will work with big men. 39 It is the merit of the British system that it throws 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.' Cong. Rec., 59th Cong., 1st sess., 1470" (Crandall, op. cit., p. 68, note 5). But see remarks of Senator Bacon, supra, sec. 176. President Wilson revived the custom in abeyance since the time of John Adams of appearing in person before Congress for the delivery of formal messages.

36 Supra, sec. 234.

37 “In the administration of Mr. Madison the Senate deputed a committee to see him in regard to the appointment of a minister to Sweden, and he replied that he could recognize no committee of the Senate, that his relations were exclusively with the Senate." Senator Lodge of Massachusetts, Jan. 23, 1906, Cong. Rec., 40: 1420, quoted Corwin, op. cit., pp. 174-175.

38 Supra, sec. 176. 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 66th Cong., 1st sess., Sen. Doc. 106, p. 499 et seq.

39 "Constitute government how you please, infinitely the greater part of it must depend upon the exercise of powers which are left at large to the

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big men to the top. The United States must develop political traditions and methods that will do the same.40 The people and parties must insist on men of experience and tried capacity as candidates. For the conduct of foreign relations, the personnel of the Presidency, the Secretaryship of State and the Senate are especially important. The Senate might well have more members with executive and administrative experience as did the Senate of ancient Rome. Why not retain the services of ex-Presidents and Secretaries by electing them to the Senate? 1 Conversely, Secretaries of State might well be chosen from men of legislative, especially senatorial, experience.* Finally, the President on whom falls final responsibility for leading the separated and often antagonistic agencies of government to the goal of a successful foreign policy should not be a dark horse. Why not develop traditions of advancement, as from a governorship to the Senate, then to the Vice-Presidency, or to the Cabinet, and finally to the Presidency. It was done in the first forty years of our national history. It would lead bigger men to the Senate and Cabinet. It would insure capacity and popular confidence in the President.

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prudence and uprightness of ministers of state. Even all the use and potency of the laws depends upon them. Without them your Commonwealth is no better than a scheme upon paper; and not a living, active, effective organization." Edmund Burke.

40 Reinsch, World Politics, pp. 340-346.

41 There have been some notable examples of this in recent years, such as Senators Root and Knox.

42" 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 nation's life." (Reinsch, Am. Legislatures, p. 95, quoted in Willoughby, op. cit., p. 460.)

43 For table showing the experience of American Presidents, see Am. Pol. Sci. Rev., 15: 25. 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.

APPENDIX A.

CONGRESSIONAL DELEGATION OF POWER TO MAKE INTERNATIONAL AGREEMENTS.1

The above heading may occasion criticism. Thus Professor J. B. Moore is inclined to think that "no 'delegation' of power whatever is involved in the matter."

"As Congress possess no power whatever to make international agreements," he continues, "it has no such power to delegate. All that Congress has done in the cases referred to is to exercise beforehand that part of the function belonging to it in the carrying out of a particular class of international agreements. Instead of waiting to legislate until an agreement has been concluded and then acting on the agreement specifically, Congress has merely adopted in advance general legislation under which agreements, falling within its terms, become effective immediately on their conclusion or their proclamation." 2

3

It is true that Congress has no agreement making power to delegate, but it is also true that in fields covered by Congressional legislation the President can not make an agreement until Congress has passed an authorizing act. Treaties will supersede earlier legislation, but this force has never been attributed to executive agreements. In the type of subject matter here involved an agreement is necessarily both an international bargain and a national regulation. Now, while Congress has no power to make an international bargain, it does have power to regulate postal service, copyrights, tariffs, etc. Strictly it is this power to make regulations within the scope of general laws which it delegates to the President and not the power to make bargains with foreign nations, but since in dealing with matters of domestic administration within the power of Congress the two are inextricably connected, the result in this field is the same as though the power to make the agreement flowed wholly from the Congressional act. It has therefore seemed least misleading to adhere to the usage suggested both by custom and the language of Congressional

acts.

1 See section 61.

2 Proc. Am. Phil. Soc., Minutes, 60: XV.

3 Supra, sec. 159.

4 Supra, sec. 162.