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." 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. 18 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.15 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. |