4. The Constitutional Point of View.

If, on the other hand, the constitutional point of view is adopted in full, the situation seems even less promising. Yet illustrations are not wanting. The House of Representatives resolved in 1796 and again in 1871 that:

"When a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is in the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon, as in their judgment may be most conducive to the public good." •

Should a general opinion develop that national commitments made by the proper constitutional authority and solemnized with due formality might be ignored or repudiated by other organs of the government because of some obscure constitutional limitation, unknown to a foreign nation, the authority conducting foreign relations could no longer command a hearing as the representative of the nation, international negotiation would be unfruitful and international anarchy would prevail.

purpose of the division of power, and would result in the destruction of that freedom under law which the Constitution aims to establish. If such an attempt were for any reason successful, it would result in the establishing of an autocratic form of government. Absolutism, which the Constitution was intended to prevent, might thus creep in through the usurpation of power by a single department, or even by a single officer of the Government. There could be no greater offense against the Constitution than this, and public opinion should unite in condemning even the suggestion of it." D. J. Hill, Present Problems in Foreign Policy, N. Y., 1919, p. 163.

6 Annals, 4th Cong., 1st Sess., p. 771; Cong. Globe, 42d Cong., Ist Sess., p. 835; Wharton, Int. Law Digest, 2: 19.

7" Others, though consenting that treaties should be made in the mode proposed, are averse to their being the supreme law of the land. They insist and profess to believe that treaties, like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors as well as new truths often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it." Jay, Federalist No. 64, Ford ed., p. 431. See also Washington, message cited supra, note 4.

5. Methods of Reconciling these Points of View.

In practice modern states have avoided both alternatives by compromises, partly of a legal and partly of a conventional character. There has been a tendency for constitutions to multiply the organs whose concurrence is necessary to bring foreign negotiations to a valid conclusion. Thus many constitutions now vest power to make the most important decision in foreign affairs, such as declarations of war and the ratification of treaties, in the legislative body. So far as this is done, there is no difficulty in giving international commitments the force of law. However, a practical difficulty is here met. The legislative body is usually large, slow moving and ill informed on foreign relations. Many international situations must, under present conditions, be met by personal negotiation and immediate decision for which such a body is ill adapted.10 Consequently many types of international commitment are still made by executive authority. In these cases, and in fact they are still the majority, the difficulty is solved either by constitutional understandings, whereby the executive power is in fact if not in law expected to act in such a way that the other organs of government will approve its action; or by international understandings whereby the other states of the world consider commitments formally concluded by the executive authority merely provisional until they have been endorsed by other organs of the government, whose cooperation is necessary for their execution.11

6. Relation of Law and Understandings.

The writer believes that a comprehensive legal theory of the control of foreign relations must give equal weight to the powers and responsibilities derived from both constitutional law and international law. But in constructing such a theory, he has found

8 See Dicey, The Law of the Constitution, 8th ed., p. 23, for this distinction.

' Wright, The Legal Nature of Treaties, Am. Jl. of Int. Law, 10: 711

et seq.

10 Supra, note 4.

11 Wright, Am. Jl, of Int. Law, 10: 710; and infra, sec. 39.

himself forced to take account of understandings of the kind mentioned. He believes these understandings furnish the true explanation of the functioning of all systems for controlling foreign relations and especially of that in the United States. Without them a constitutional deadlock or an international breach of faith would be probable at every important international transaction.

7. Constitutional Understandings.

The constitutional understandings are based on the distinction between the possession of a power and discretion in the exercise of that power. The law of the constitution decides what organs of the government possess the power to perform acts of international significance and to make valid international commitments, but the understandings of the constitution decide how the discretion or judgment, implied from the possession of power, ought to be exercised in given circumstances.12 The powers given by law to various organs often overlap. Even more often, two or more organs must exercise their powers in cooperation in order to achieve a desired end. In such circumstances, were it not for understandings, deadlocks would be chronic. The law is the mechanism, the understandings the oil that permit it to run smoothly.

8. International Understandings.

International understandings are based on the same distinction as constitutional understandings and are often referred to as comity or imperfect rights under international law. "Our obligations to others," says Vattel, "are always imperfect when the decision as to how we are to act rests with us.' "18 They are observed on the principle of reciprocity and are of two kinds. Thus states are accustomed to exchange certain courtesies and favors, not required by strict law. They also sometimes withhold

12 Dicey, op. cit., p. 418.

13 Vattel, The Law of Nations, Introduction, sec. 17; see also Phillimore, Commentaries on Int. Law, 1: 161, sec. 163; Hall, Int. Law, 7th ed. (Higgins), pp. 14, 56; Woolsey, Int. Law, sec. 24; Davis, Elements of Int. Law, 4th ed. (Sherman), pp. 92, 116; Wright, The Understandings of Int. Law, Am. J. of Int. Law, 14: 568 (Oct., 1920).

pressure when others fail to meet the responsibilities imposed by strict law. It is with the latter kind that we are especially concerned here. As an example, international law requires that commitments to be valid be made by the proper constitutional authority, and therefore assumes that all governments are informed of the authority in foreign states with which they deal, competent to make various sorts of international commitments. International law, however, considers that commitments once made must be carried out. It knows nothing of constitutional restrictions making execution difficult or impossible, consequently governments are not required to know the agencies in foreign states for executing international commitments and are entitled to protest if execution fails, whatever the cause. If such protests are withheld it is by virtue of an international understanding."

14

Constitutional understandings suggest modes of exercising constitutional powers out of respect for international responsibilities. International understandings suggest a tolerant attitude toward certain deficiencies in the meeting of international responsibilities out of respect for constitutional limitations.

14 Wright, Columbia Law Rev., 20: 121-122; and infra, sec. 39.

15 Turner v. Am. Baptist Union, 5 McLean 347 (1852). See also Wright, Am. J. of Int. Law, 10: 709, 716, and infra, sec. 39.