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

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.

APPENDIX B.

CONSTITUTIONAL UNDERSTANDINGS.1

Professor J. B. Moore has pointed out that "so-called constitutional understandings are logically much more of the essence of things under the British system than under the American system," noting the analogy of the former constitution to the common-law system of private rights established by gradually developing judicial precedents and of the latter constitution to the civil-law system established by formal code." "Just as the British Constitution," said Gladstone, "is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of The same contrast has been noted by Bryce in his contrast of "rigid" and "flexible" constitutions. Without questioning the value of this contrast many writers have, however, dwelt upon the flexibility" of the "rigid" American Constitution due to "constitutional understandings."

man." 8

66

1 See section 266.

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

3 Fisk, Critical Period of American History, p. 264.

4 Bryce, Studies in History and Jurisprudence, 1: 139 et seq. Wilson, Congressional Government, 1885, pp. 7-9, Constitutional Government, in the United States, 1908, p. 57; Bryce, American Commonwealth, ed. 1891, 1: 390; Beard, American Government, ed. 1910, p. 60; Munro, Government of the United States, 1919, p. 57; Wright, The Understandings of International Law, Am. Journ. Int. Law, 14: 578-580.