fundamental obligations of international law "on penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law." 56 56 Pillet, Rev. Gen. de Droit Int. Pub., 5: 87. THE CONTROL OF FOREIGN RELATIONS IN PRACTICE. 259. The Position of the President. Our study of the international and constitutional law governing the conduct of foreign relations has brought out two facts. First, that the President is the dominating figure. As the representative authority under international law and as the authority with exclusive power under constitutional law to communicate with foreign nations he has the initiative in conducting foreign affairs. No less significant, however, is the fact that the President does not have constitutional power to perform many acts essential to a proper conducting of foreign relations. Many of these powers are vested in other departments of the government, coordinate with the President. In such cases he is obliged to rely on persuasion and the operation of understandings of the Constitution in order to carry out foreign policies successfully, and to meet international responsibilities. Has this proved a practically effective system for conducting foreign relations? 260. Friction in the American System. 1 That it has often developed friction is unquestionable. "A treaty entering the Senate," wrote John Hay, "is like a bull going into the arena; no one can say just how or when the final blow will fall-but one thing is certain, it will never leave the arena alive." When the Secretary of State put this in his diary he had seen seventeen treaties borne from the Senate lifeless or so mutilated by amendments that they could not survive. We can pardon his earlier statement: "The fact that a treaty gives to this country a great, lasting advantage seems to weigh nothing whatever in the minds of about half the Senators. Personal interest, personal spites, and a con *The major portion of this chapter was published in the American Political Science Review, February, 1921. 1 Thayer, The Life of John Hay, 2: 393. tingent chance of petty political advantage are the only motives that cut any ice at present."2 Numerous illustrations of strained relations between the Executive and the Legislature at Washington might be cited. Thus in "The Education," Henry Adams records the reply of a cabinet officer to his plea for patience and tact in dealing with Congress: "You can't use tact with a Congressman! A Congressman is a hog! You must take a stick and hit him on the Going back even farther we find in John Quincy Adams's Diary comment on a very early incident: * "Mr. Crawford told twice over the story of President Washington's having at an early period of his administration gone to the Senate with a project of a treaty to be negotiated, and been present at their deliberations upon it. They debated it and proposed alterations so that when Washington left the Senate Chamber he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate." Senator Maclay, who was present at the time, records the same incident in his journal on August 22, 1789.5 ... "I cannot now be mistaken. The President wishes to tread on the necks of the Senate. . . . He wishes us to see with the eyes and hear with the ears of his Secretary only. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only will be left to us." 261. Criticisms of the American System. The prevalence of such incidents suggests that the difficulties which arose between President Wilson and the Senate in considering the Peace Treaty of Versailles were not wholly due to personalities. It suggests that institutions may have been partly to blame. Indeed, Viscount Grey, in his letter to the Times of January 31, 1920, said that the American Constitution "not only makes possible, but, under certain conditions, renders inevitable conflict between the Executive and the Legislature." 2 Ibid., 2: 274. The Education of Henry Adams, 1918, p. 261. Journal of William Maclay, N. Y., 1890, p. 132. American commentators have often deplored this situation. Frequently they have urged reform, usually in the direction of the British cabinet system, but their attention has been centered upon domestic affairs. It is an extraordinary fact that, with respect to the control of foreign affairs, the reverse is true. British writers have looked hopefully to the United States as a model for reform. Thus, in his American Commonwealth, Lord Bryce says: "The day may come when in England the question of limiting the present all but unlimited discretion of the executive in foreign affairs will have to be dealt with, and the example of the American Senate will then deserve and receive careful study." This opinion has been acted upon, and features of the American system have been endorsed by the British union for democratic control of foreign relations founded in 1914." 262. Need of Popular Control in Foreign Relations. Two things seem to be needed in an institution designed to conduct foreign relations with success-concentration, or the ability to act rapidly and finally in an emergency, and popular control giving assurance that permanent obligations will accord with the interests of the nation. The subordination of national interests to dynastic and personal ends, prominent in sixteenth and seventeenth century diplomacy, showed the vice of an irresponsible concentration of power. The natural remedy seems to be parliamentary participation in treaty-making and war-making and this has in part been provided for in most continental European Constitutions during the nineteenth and twentieth centuries. In England alone, the Crown • American Commonwealth, 2d ed., p. 104. 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. 8 See Myers, Legislatures and Foreign Relations, Am. Pol. Sci. Rev., 11: 643 et seq. (Nov., 1917), and British report on Treatment of International Questions in Foreign Governments, Parl. Pap., Misc. No. 5 (1912), Cd. 6102, printed in Appdx. II, Ponsonby, Democracy and Diplomacy, p. 128 et seq., and Heatley, Diplomacy and the Study of Foreign Relations, 1919, p. 270 et seq. See also Methods and Procedure in Foreign Countries Relative to the Ratification of Treaties, 66th Cong., 1st Sess., Sen. Doc. 26. preserves its ancient prerogative in these matters and although in practice Parliament is sometimes consulted before ratification of important treaties, Lord Bryce and others have urged a more certain method of popular control, suggesting study of the American process of Senate participation. But why labor the point! Democracy is convinced of the merits of democratic diplomacy. There is greater need to emphasize the importance of concentration. 263. Need of Concentration of Authority. This need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke,1o Montesquieu," and Blackstone,12 the political Bibles of the constitutional fathers. It was emphasized by many speakers in the federal • Supra, notes 6, 7. For relations of Crown and Parliament in treatymaking in England, see Anson, Law and Custom of the Constitution, 3d ed., II, pt. 2, p. 103 et seq. 10 Supra, sec. 83. 11" 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, 1. xi, c. 6, ed. Philadelphia, 1802, 1: 181, 186.) 12" 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, 1: 252.) |