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communications from them, . . . making him, in the language of one of the most eminent writers on constitutional law, the constitutional organ of communication with foreign states.' If Congress can direct the correspondence of the Secretary of State with foreign governments, a case very different from that now under consideration might arise, when that officer might be directed to present to the same foreign government entirely different and antagonistic views or statements."

Similar objection has sometimes been raised in Congress itself. Thus Webster said of an item in the appropriation bill for the Panama mission of 1826, which attempted to attach conditions: 59

"He would recapitulate only his objections to this amendment. It was unprecedented, nothing of the kind having been attempted before. It was, in his opinion, unconstitutional, as it was taking the proper responsibility from the Executive and exercising, ourselves, a power which, from its nature, belongs to the Executive, and not to us. It was prescribing, by the House, the instructions for a Minister abroad. It was nugatory, as it attached conditions which might be complied with, or might not. And lastly, if gentlemen thought it important to express the sense of the House on these subjects, or any of them, the regular and customary way was by resolution. At present it seemed to him that we must make the appropriation without conditions, or refuse it. The President had laid the case before us. If our opinion of the character of the meeting, or its objects, led us to withhold the appropriation, we had the power to do so. If we had not so much confidence in the Executive as to render us willing to trust to the constitutional exercise of the Executive power, we have power to refuse the money. It is a direct question of aye or no. If the Ministers to be sent to Panama may not be trusted to act, like other Ministers, under the instructions of the Executive, they ought not to go at all."

203. President Not Bound by Congressional Resolutions on Foreign Affairs.

The Executive has never hesitated to ignore resolutions or acts

59 Benton, Abridgment of Debates in Congress, 9: 91. Congressional resolutions on incidents in the control of foreign affairs have sometimes been defeated in Congress from an apprehension that they might be unconstitutional encroachments upon the President's powers. See Clay's resolution of 1818 for recognition of United Province of Rio de la Plata (Moore, Digest, I: 182); Benton's resolution of 1844 criticizing President Tyler's treaty for annexation of Texas (Cong. Globe, 13, Appdx., 474); Sumner's resolution of 1871 criticizing President Grant's effort to annex Santo Domingo (Cong. Globe, 42d Cong., Ist sess., pt. 1, p. 294); McLemore's resolution of March, 1916, "to warn all citizens of the United States to refrain from traveling on armed vessels" (Cong. Rec., 1916, pp. 3700–4).

of this kind, even when passed. Thus a resolution of 1864 declared, with reference to the Maximillian Government of Mexico, that:

"It does not accord with the policy of the United States to acknowledge a monarchical government, erected on the ruins of any republican government in America, under the auspices of any European power."

Secretary of State Seward explained to the minister in France:

"This is a practical and purely Executive question, and the decision of its constitutionality belongs not to the House of Representatives nor even to Congress, but to the President of the United States. . . . While the President receives the declaration of the House of Representatives with the profound respect to which it is entitled, as an exposition of its sentiments upon a grave and important subject, he directs that you inform the Government of France that he does not at the present contemplate any departure from the policy which this Government has hitherto pursued in regard to the war which exists between France and Mexico. It is hardly necessary to say that the proceeding of the House of Representatives was adopted upon suggestions arising within itself, and that the French Government would be seasonably apprised of any change of policy upon this subject which the President might at any future time think it proper to adopt."

Congress promptly resolved upon receipt of this communication

that:

"Congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as well in the recognition of new powers as in other matters, and it is the constitutional duty of the President to respect that policy, not less in diplomatic negotiations than in the use of the national forces when authorized by law; and the propriety of any declaration of foreign policy by Congress is sufficiently proved by the vote which pronounces it; and such proposition, while pending and undetermined, is not a fit topic of diplomatic explanation with any foreign power." Mr. Blaine criticized this resolution in the House:

"To adopt this principle is to start out with a new theory in the administration of our foreign affairs, and I think the House has justified its sense of self-respect and its just appreciation of the spheres of the coordinate departments of government by promptly laying the resolution on the table." But after changing the term "President" to "Executive Department" the House passed the resolution, which, however, failed to come to a vote in the Senate.60

60 McPherson, History of the Rebellion, pp. 349-354; Sen. Doc. No. 56 (cited supra, note 30), p. 47. See also President Wilson's refusal to carry

Though congressional resolutions on concrete incidents are encroachments upon the power of the Executive Department and are of no legal effect, yet they may be of value as an index of national sentiment.

"They have," says Professor Corwin, "often furnished the President valuable guidance in the shaping of his foreign policy in conformity with public opinion. Thus the resolutions which were passed by the Senate and House separately in the second session of the Fifty-third Congress, warning the President against the employment of forces to restore the monarchy of Hawaii, probably saved the administration from a fatal error. Again, the notorious McLemore resolution, requesting the President 'to warn all citizens of the United States to refrain from traveling on armed merchant vessels,' though ill-judged enough as to content, did nevertheless furnish the administration a valuable hint as to the state of the public mind, and one which it was quick to take. For the President, even in the exercise of his most unquestioned powers, cannot act in a vacuum. He must ultimately have the support of public sentiment." 61

204. Congressional Declarations of General Policy.

62

Congressional resolutions on foreign relations have often been of a more general character, avoiding reference to specific incidents, though doubtless suggested by such incidents. Thus a Senate resolution of 1858 asserted that American vessels on the high seas are not subject to visit and search in time of peace, a law of 1868 asserted the right of expatriation to be "a natural and inherent right of all people" and resolutions at various times have suggested the negotiation of arbitration treaties. A section of the naval appropriation act of 1916 declared it to be: 65

64

out provisions of the Jones Merchant Marine Act of June 5, 1920, directing the termination of certain treaty provisions, and President Lincoln's failure to terminate the Great Lakes disarmament agreement of 1817 in accord with a resolution of 1865, supra, secs. 174, 184.

61 Corwin, op. cit., p. 45.

62 Moore, Digest, 2: 946.

63 Rev. Stat., sec. 1999; Comp. Stat., sec. 3955.

64 See A League of Nations (World Peace Foundation), I, No. 1 (Oct., 1917).

65 Act Aug. 29, 1916, 39 Stat. 618; Comp. Stat. 7686b. In the Spring of 1921 President Harding is reported to have opposed the Borah amendment on disarmament (supra, sec. 56). In his message to Congress of April 12, 1921,

"The policy of the United States to adjust and settle its international disputes through mediation or arbitration, to the end that war may be honorably avoided. It looks with apprehension and disfavor upon a general increase of armament throughout the world, but it realizes that no single nation can disarm, and that without common agreement upon the subject every considerable power must maintain a relative standing in military strength."

Negotiation of reciprocal agreements with Canada on the use of boundary waters has also been suggested." A Senate resolution of 1912, though suggested by the Magdalena Bay incident, was expressed as a general policy related to the Monroe Doctrine."" Treaty reservations have sometimes offered the Senate an opportunity for the expression of general policies. The Hague Conventions on the Pacific settlement of international disputes were signed with a reservation: 68

"Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment of the United States of America of its traditional attitude toward purely American questions."

The Senate appended a similar reservation to the Algeciras Convention of 1906."

205. Power of President to Determine Foreign Policy.

It is believed that resolutions expressing general policies or principles on most subjects connected with foreign relations may be he said with reference to the proposed peace resolution: "It would be unwise to undertake to make a statement of future policy with respect to European affairs in such a declaration of a state of peace (with Germany). In correcting the failure of the Executive, in negotiating the most important treaty in the history of the nation, to recognize the constitutional powers of the Senate, we would go to the other extreme, equally objectionable, if Congress should assume the functions of the Executive. (Cong. Rec., 61: 95. See also remarks of Senator Hitchcock, April 29, 1921, ibid., 61: 745.)

66 Act June 13, 1902, 32 Stat. 373, Comp. Stat. 9984; Act June 29, 1906, 34 Stat. 628, Comp. Stat. 9989d.

67 Cong. Rec., Aug. 2, 1912, 48: 10046, A League of Nations, I, No. 5, p. 298 (June, 1918); Hart, The Monroe Doctrine, p. 235.

68 Malloy, Treaties, etc., pp. 2032, 2047.

69 Ibid., p. 2183.

71

constitutionally passed by Congress,70 and may furnish useful guides to the President. Congressional expressions of opinion on particular issues, however, and attempts to direct the President thereon encroach upon the executive field and may embarrass the President's action. In practice foreign policy has developed by executive precedent, practice and declaration. The farewell address of Washington and the Monroe Doctrine, both purely executive in origin and future interpretation, have been the most important expressions of foreign policy.72 In recent years, however, Congress and especially the Senate have tended to express permanent policies more freely, by resolution. Though the Monroe Doctrine was stated in 1823 and on several occasions efforts were made to gain for it legislative endorsement, the first statement referring to it, accepted by either House of Congress, appears to be the reservation to the Hague Convention of 1899 accepted by the Senate, and on this occasion the doctrine was not referred to by name.73

70 The constitutional authority of Congress may be traced to the power to declare war. According to Rawle, “the right to qualify, alter or annul a treaty being of a tendency to produce war, is an incident to the right of declaring war." (Supra, sec. 187.) The declaration of a foreign policy doubtless has a similar tendency toward the production or avoidance of war.

71 The power of Congress to declare general foreign policies does not confer a power to direct the details of their execution any more than the power to declare war confers a power to direct the details of military campaigns (infra, sec. 221), or the power to make laws on certain subjects confers a power to direct their administration (infra, sec. 230). The first would encroach upon the President's power to receive and commission diplomatic officers and to negotiate treaties, as the second would upon his power as commander-in-chief and the third upon his power as chief executive.

72 Richardson, Messages, 1: 221-224; 2: 209, 218-219; Moore, Digest, 6: 370, 401; see also Taft, op. cit., p. 113; Foster, Century of Am. Diplomacy, p. 438.

T3 Supra, note 6. The joint resolution of Feb. 20, 1895, endorsing the suggestion in President Cleveland's annual message that the British-Venezuelan boundary dispute be submitted to arbitration (28 stat. 971) and the act authorizing and appropriating for a commission to investigate this dispute in accordance with the recommendation of his special message of Dec. 17, 1895 (29 stat. 1), are considered by J. W. Foster to evidence "formal approval" of the Monroe Doctrine by Congress (op. cit., p. 477). These Congressional acts refer to a particular situation rather than to the Monroe Doctrine as a whole though doubtless they implied an endorsement of that Doctrine since it had been put forth as the grounds for action in President Cleveland's messages.

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