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availability, not for ability or experience, and the Senate's power of vetoing treaties was strengthened by frequent exercise. In his "Congressional Government," presented as a doctor's thesis in 1885, Woodrow Wilson generalized the progress of this period as follows: 20

"In so far as the President is an executive officer he is the servant of Congress; and the members of the Cabinent, being confined to executive functions, are altogether the servants of Congress.

"Party government can exist only when the absolute control of administration, the appointment of its officers as well as the direction of its means and policy is given immediately into the hands of that branch of the government whose power is paramount, the representative body.

"No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. . . . The principle is without drawback and is inseparably of a piece with all AngloSaxon usage; the difficulty, if there be any, must lie in the choice of means whereby to energize the principle. The natural means would seem to be the right on the part of the representative body to have all the executive servants of its will under its close and constant supervision, and to hold them to a strict accountability; in other words, to have the privilege of dismissing them whenever their service became unsatisfactory."

The third period began with the Spanish War of 1898. Our foreign relations have increased in complexity and with them the President's power and influence; but because of the enlarged sense of senatorial prerogative, developed through three-quarters of a century of comparative diplomatic isolation, friction has been extreme.21 Woodrow Wilson, now professor of politics at Princeton University, wrote a preface for the 15th edition of his book in 1900.22

"Much the most important change to be noticed is the result of the war with Spain upon the lodgment and exercise of power within our federal system; the greatly increased power and opportunity for constructive statesmanship given the President, by the plunge into international politics and

20 Congressional Government, 15th ed., pp. 266, 273-274.

21 Reinsch, American Legislatures, p. 95; Willoughby, op. cit., p. 460. 22 Congressional Government, pp. xi-xiii.

into the administration of distant dependencies, which has been that war's most striking and momentous consequence. When foreign affairs play a prominent part in the politics and policy of a nation, its Executive must of necessity be its guide; must utter every initial judgment, take every first step of action, supply the information upon which it is to act, suggest and in large measure control its conduct.

"It may be, too, that the new leadership of the Executive, inasmuch as it is likely to last, will have a very far-reaching effect upon our whole method of government. It may give the heads of the executive departments a new influence upon the action of Congress. It may bring about, as a consequence, an integration which will substitute statesmanship for government by mass meeting. It may put this whole volume hopelessly out of date."

Where the President has acted in domestic administration, he has acted within limits, narrowly defined by Congress, and as time has gone on, his discretion in this field has become less and less. Where, on the contrary, he has acted in foreign affairs, his discretion has been very wide, and Congress has generally followed his lead. "The Senate," says Carl Russell Fish, speaking of the period since 1898, "has been confined to checking or modifying the policy of the administration. The direction of policy has been with the executive." 23 Can we not assume that the result of over a century of experience under the Constitution illustrates certain necessities in an adequate control of foreign affairs? 24

265. Constitutional Change Not Necessary.

Our system for controlling foreign relations has been copied in its main outlines on the continent of Europe, and its adoption has been suggested as a reform worth considering in England. It has in it elements making for concentration of authority in an emergency, yet it assures control by the people's representatives of permanent obligations. More than all we are used to it. Remembering Montaigne's warning that "all great mutations shake and disorder a state," 25 we may question the advisability of radical change in the Constitution.

266. Need of Constitutional Understandings.

Improvement lies not in structural change in our organs for con28 American Diplomacy, N. Y., 1916, p. 428; see also Reinsch, World Politics, p. 337.

24 Corwin, op. cit., p. 207.

25 Montaigne, Essays, Cotton, ed., 2: 760.

trol of foreign relations,26 but in the development of understandings for the smooth interaction of the independent departments of government. Lord John Russell remarked that "political constitutions in which different bodies share the supreme power are only enabled to exist by the forbearance of those among whom this power is distributed." 27 It is a familiar thought and has been developed in detail by Professor Dicey, who distinguishes the conventions or understanding from the law of the British Constitution. The former explain how the independent organs of the supreme power, King. Lords and Commons, shall exercise their discretion, i.e., how the Crown shall exercise its prerogative and the Houses of Parliament their privileges. He believes that in England these conventions have grown up so as to assure the ultimate triumph of the will of the political sovereign, i.e., the majority of the voters for members of the House of Commons.28

In the eighteenth century the British Constitution, though perhaps organized to preserve liberty, as Montesquieu, De Lolme and Blackstone thought, was a jarring and jangling instrument. There was little of smoothness in the relations of George III, his ministers and his parliaments. The United States Constitution is now in that condition. We have good institutions but we have not yet de

26 The writer is inclined to believe that a change in the treaty power from two-thirds of the Senate to a majority of both houses would be an improvement. This would be in accord with the practice of most continental European governments. It would obviate the complaint of the House of Representatives and eliminate the ever present possibility of inability to execute a treaty, valid at international law, because of refusal of the House to agree to appropriations or necessary legislation. It would also make deadlocks less frequent. One party is much more likely to control a majority of both houses than two-thirds of the Senate. The main objection of the fathers to submission to the House was on the score of secrecy, and this has frequently been abandoned by the Senate in recent years. This change, which would, of course, require a constitutional amendment, would make the treaty-making power the same as the legislative power, except that the President would have the sole initiative, and retaining an ultimate decision on ratification, would have an absolute veto. See also J. T. Young, The New American Movement, N. Y., 1915, p. 25, and former Representative and Governor of Massachusetts, S. W. McCall, "Of the Senate" and Again the Senate," Atlantic Monthly, Oct., 1903, and Sept., 1920.

27 Quoted, Wilson, Cong. Govt., 15th ed., p. 242.

28 Dicey, The Law of the Constitution, 8th ed., Chap. XIV.

veloped constitutional manners which will make them work like a well-ordered dinner party. The crudity of Jefferson's pell mell banquet and Jackson's Peggy O'Neil cotillion persists in the relations of the departments of government.

Our conventions will not be those of England. In the conduct of domestic affairs, our system of legally enforceable limitations upon power rather than the English system of unlimited power, subject to immediate political responsibility for its exercise, is likely to persist. We will continue to rely upon legal responsibility, rather than political responsibility as in England, or administrative responsibility as on the continent of Europe. In short, the object of the conventions and understandings which we will develop will be the ultimate triumph of the people acting through the constitutionamending process, not as in England, the people acting through an election to the House of Commons.

In the conduct of foreign affairs, however, there will probably be a closer approximation in the two countries. At present parliamentary control does not exist in the British foreign office29 any more than constitutional limitations check the President's control of foreign relations.30 In foreign affairs neither a daily questioning under threat of ousting from office, nor a judicially interpreted confinement to constitutional powers has proved feasible. Until international organization is much further developed, great discretion must be vested in a single head. Acts involving assumptions of national responsibility must be final. Under present conditions we must frankly recognize executive leadership in foreign affairs. But we must attempt to develop conventions so that the President's wide discretion will only be exercised after the most careful consideration possible, and in a way which will make the employment of a senatorial or congressional veto an extreme rarity, and an im

29 See remarks of A. J. Balfour and Premier Asquith to Select Committee of the House of Commons on Procedure, 1914 (Report 378), printed in Ponsonby, op. cit., Appdx. 1, p. 121 et seq. See also ibid., p. 45 et seq., Heatley, op. cit., pp. 68–70, 265, and supra, note 18.

30 See H. J. Ford, "The War and the Constitution," and "The Growth of Dictatorship," Atlantic Monthly, Oct., 1917, and May, 1918, and supra, sec. 68.


peachment a virtual impossibility. Such conventions might develop through:

1. Declaration by Congress of permanent policies, not in any way restricting executive methods, but pointing the general ends toward which the President should direct his effort; 31

2. Development by treaty of international organization and arbitration so as to bring as large a portion of diplomacy as possible under the control of recognized principles of international law, an atmosphere in which democratic institutions, and particularly American institutions, have always thriven; 32

3. Observance by the independent departments of government of the understanding that toleration, consideration, and respect should grace the exercise of powers which may collide with the powers of other departments, which may need supplementing by the action of other departments, or which may be indispensable for the meeting of international responsibilities. Finally, as a necessary condition of such observance;


4. Maintenance of close informal relations between the agencies of the government having to do with foreign affairs. Such relations now exist between the President and the administrative departments represented in the Cabinet. Why should not the Cabinet be enlarged so as to include representatives of the legislative branch? The Vice-President, who is closely in contact with the Senate, has been added by President Harding. But a more genuine congressional point of view could be gained by admitting also the Speaker of the House, President pro tem. of the Senate, and perhaps the

31 Supra, sec. 204.

32"Democracies are absolutely dependent for their existence upon the preservation of law. Autocracies can give commands and enforce them. Rules of action are a convenience, not a necessity, for them. On the other hand, the only atmosphere in which a democracy can live between the danger of autocracy on one side and the danger of anarchy on the other is the atmosphere of law. . . . The conception of an international law binding upon the governments of the world is, therefore, natural to the people of a democracy, and any violation of the law which they themselves have joined in prescribing is received with disapproval, if not with resentment." E. Root, The Effect of Democracy on International Law, Proc. Am. Soc. Int. Law, 1917, pp. 7-8.

33 Supra, sec. 244.

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