The Crowned Essay for which the Henry M. Phillips Prize of two thousand dollars was awarded on April 23, 1921, by the American Philosophical Society. PREFACE. For some years a small group of the writer's colleagues at the University of Minnesota have dined together periodically in order to listen to discussions or papers in the widely different fields of scholarship which the group represents. In the winter of 1920, with the Treaty of Versailles still unratified and unrejected by the Senate, the writer discussed before this group a subject then in the front of everyone's mind-the American system or lack of system for controlling foreign relations. The same material presented in a paper read before the American Political Science Association, December, 1920, was published in the American Political Science Review of February, 1921, and reprinted in Spanish in Inter-America, November, 1921. The writer utilized his investigations in connection with this brief article to prepare an essay in accordance with the regulations governing the award of the Henry M. Phillips Prize offered by the American Philosophical Society in 1921 for an essay on "The Control of the Foreign Relations of the United States: The Relative Rights, Duties and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice." This essay has been expanded and revised up to January, 1922, for the present publication. The essay seeks to draw particular attention to a difficulty in the control of foreign relations found in every government, but especially in a government with powers defined in a judicially enforced written constitution. This is the difficulty which arises from the fact that the organs conducting foreign relations have their responsibilities defined by international law, while their powers are defined by constitutional law. Since the sources of these two bodies of law are different, a lack of coordination between the powers and the responsibilities of these organs is to be expected. To avoid confusion the writer has considered the subject from the international point of view and from the constitutional point of view in separate parts of the book, even at the risk of some repetition. Part II is devoted to the former-parts III and IV to the latter. Throughout the book the writer has tried to indicate his reasons for thinking that the difficulty referred to can be solved only by the development of and adherence to constitutional understandings, supplementing the law of the constitution and indicating how the organs entrusted with the control of foreign relations ought to exercise their discretionary powers to avoid friction. Part V seeks to develop this thought systematically. Primary use has been made of the sources: court reports; acts of Congress; Treaties; Presidential messages; diplomatic correspondence and Congressional debates, reports and documents, particularly the reports of the Senate Foreign Relations Committee. The classified extracts from this material in Moore's Digest of International Law have been of great assistance. The unofficial writings of American statesmen have been utilized, particularly Cleveland's Presidential Problems, Roosevelt's Autobiography, Taft's Our Chief Magistrate and His Powers, Wilson's Constitutional Government in the United States and Sutherland's Constitutional Powers and World Affairs. Of special studies in the field, the writer feels especially indebted to Corwin's The President's Control of Foreign Relations, Crandall's Treaties, Their Making and Enforcement, and Hayden's The Senate and Treaties. Numerous secondary works have been examined, reference to which is made in the footnotes. The writer has made use of his own articles published in the American Journal of International Law, the American Political Science Review, The Columbia Law Review, and the Minnesota Law Review. He thanks the publishers of these periodicals for their courteous consent to such use. Finally he wishes to thank his colleague and friend, Robert E. Cushman, for many helpful suggestions made during the progress of the work. For the plan of the work, for the conclusions, for the errors and omissions, no one but the writer is responsible. MINNEAPOLIS, MINNESOTA QUINCY WRIGHT. May, 1922. ANALYTICAL TABLE OF CONTENTS. CHAPTER I. THE NATURE of the FOREIGN RELATIONS POWER 1. Difficulty in Developing a Legal Theory of the Subject.......... 2. Dual Position of the Foreign Relations Power... 3. The International Point of View.... 4. The Constitutional Point of View... 5. Methods of Reconciling These Points of View.. 6. Relation of Law and Understandings.. THE POSITION OF THE FOREIGN RELATIONS POWER UNDER CHAPTER II. THE REPRESENTATIVE ORGAN OF GOVERNMENT. 9. The Nature of International Law.. 10. Independence of States..... 11. The Representative Authority under International Law. 12. The President is the Representative Authority in the United States. 13. Foreign Representatives May Officially Communicate with the Na- tion Only Through the President or His Representatives...... 28 14. National Organs of Government other than the President or His 15. National and State Laws Subject to International Cognizance.... 16. Legislative Expressions of Opinion, not of International Cognizance. 33 18. Missions of de facto Governments, Unofficially Received.. B. All Acts of the President Subject to International Cognizance. |