The President's control of foreign relations

Preface

The numerous interesting questions which have arisen since Mr. Wilson went to Washington as to the powers of the President in the diplomatic field suggested the idea that it might be worth while to bring together the principal historical incidents illustrating the subject and the most instructive parts of the discussions which these incidents evoked. It is fortunate that at the very outset of our national history a debate occurred between the two ablest members of the body which framed the Constitution bearing upon this subject, and disclosing its most fundamental issues. This was the debate between 'Tacificus" (Hamilton) and "Helvidius" (Madison) w^hich is included in Part I of this volume, while an interesting parallel to this early discussion is furnished by the debate between Senators Spooner and Bacon, upon the same issues, which makes up Part III. In Part II, which constitutes the main body of the book, I have had two objects in mind: first, to cull from a rather voluminous ''literature" the best material perti-

iii iv PREFACE

nent to the subject, and secondly, to state succinctly the results that seem to spring from the discussions canvassed and from actual practice. For the most part, my indebtedness is simply to the sources, the Annals, the Globe, the Record, the Reports, the ^'Opinions of the Attorneys-General," and to the ''Messages and Papers of the Presidents." Other minor obligations are duly recorded in the footnotes. E. S. C. Princeton, August 15, 191 7.

Chapter II — Diplomatic Intercourse, Its Incidents

and Agents — Recognition 33

I — Significance of the term "executive pov^er" in 1789 33

2 — Executive independence and Congressional advice 35

3 — The power of the President to receive foreign diplomatic and consular agents. . 46

4 — The powers of the President in connection with the appointment of the diplomatic agents of the United States and the determination of their grades 49

5 — Whether the power of the President to recognize new States and Governments is exclusive 7^

Chapter III — The Making, Enforcement and Termination of Treaties — Executive Agreements.. 84 I — The relations of the President and Senate in the making of treaties 84

2 — The duty and discretion of Congress in the enforcement of treaties, the powers of the President and the Courts in the vi CONTENTS

same connection, and the enforcement of the obligations of the United States at International Law 9^

3— The abrogation of treaties as international contracts, their termination upon notice given, and the power to pronounce them lapsed 109

4 — The power of the President to enter into agreements with foreign Governments without reference to the Senate. . . 116

Chapter IV— Presidential War Making— Political Questions 126

*" I — The President's choice of diplomatic policies as affected by the right of Congress to declare war 126

2 — The power of the President to recognize

an existing state of war 131

3 — The power of the President to adopt warlike measures to protect the rights

abroad of American citizens 142

4 — Same as to American *'i-nterests" abroad 156 5 — The meaning and importance of the concept ''political questions" 163

Part III — The General Issue Again: Chapter V — A Senatorial Debate 168 Conclusion (Summary of principal developments) 205 Index 209

THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS

Introduction

The power of the national Government in the control of the foreign relations of the United States is both plenary and exclusive. The Court in the Chinese Exclusion Cases says:

While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. . . . The control of local matters being left to local authorities, and national matters being intrusted to the Government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several States of the Union exist, but for the national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.^

The same idea is reiterated by the Court in Fong Yue Ting v. U. S. in the following words :

The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective. The only government of this country, which other nations recognize or treat with, is the Government of the Union ; and the only American flag known throughout the world is the flag of the United States.^

The powers, however, which compose this plenary control are shared by three branches of the national Government : Congress, the President, and the Senate. The clauses of the Constitution which give Congress its participation in the control of our foreign relations are the following, in Article I, Section 8 :

The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; ... to regulate commerce with foreign nations ; ... to establish an uniform rule of naturalization ; ... to define and punish piracies and felonies committed on the high seas and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer time than two years; to provide and maintain a navy; ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

The President's powers in the same connection, shared in some instances by the Senate, spring from the following provisions of the Constitution, in Sections I, 2, and 3 of Article II:

2 149 U. S. 698, 711. See also C. J. Taney's opinion in Holmes V. Jennison, 14 Peters 540, 569 ff.

The executive power shall be vested in a President of the United States of America. . . . The President shall be Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States ; ... he shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls. . . . The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. . . . He shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Finally, Article VI, Paragraph 2, of the Constitution provides that:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The questions that have arisen on the basis of the above provisions of the Constitution, so far as they touch the subject of the control of our foreign relations, are of two classes : first, those which have arisen because of the insufficiency of these provisions, without construction, to afford the national Government its putative complete sovereignty in this field; secondly, those which have arisen because of the fact that the powers bestowed by these provisions on different organs frequently overlap.

Illustrations of the first class of questions are the following: Congress is given the power to declare war ; the President and the Senate are given the power to make peace by treaty; but on the subject of neutrality the Constitution is silent. It is also silent on the subject of abrogating treaties; also, on the subject of according recognition to new governments; also, on the subject of international agreements short of treaties, etc.

Illustrations of the second class of questions will occur to any reader. Thus Congress is given the power to declare war, while treaties are made by the President and the Senate. Suppose that the President and the Senate make a treaty of alliance with another government by the terms of which the United States becomes obligated at a particular moment to declare war on a third power: i6 Congress under constitutional obligation so to declare war? Or, suppose that before a treaty made in due form by the President and the Senate can be carried out, Congress must vote an appropriation: is it constitutionally bound to do so? This question, in fact, arose in 1796,^ in connection with the unpopular Jay Treaty, and it has been suggested in similar situations many times since, though actually Congress seems never to have refused the required appropriation.

The principles that have been developed in the solu-

3 See Part II, Chapter III, Section 2, dealing with the enforcement of treaties.

tion of these questions will appear more in detail in Part Two of this work, but for the guidance of the reader the two preeminent ones should be stated briefly at this point: First, the gaps above alluded to in the constitutional delegation of powers to the national Government, affecting foreign relations, have been filled in by the theory that the control of foreign relations is in its nature an executive function and one, therefore, which belongs to the President in the absence of specific constitutional provision to the contrary. But, as the debate given in Part I between *Tacificus" (Hamilton) and "Helvidius" (Madison) shows, the theory was, to begin with, vigorously disputed.

Secondly, the difficulty arising from overlapping powers has been met by attributing to the respective bearers of such powers full constitutional discretion in their discharge. The difficulty has, in other words, been converted from a legal one to a political one, with the result that the real solution has to be sought as each case arises by the methods of compromise and practical statesmanship. Thus if the President, in the exercise of his powers, brings the country at any time to the verge of war. Congress still retains theoretically its discretion in the matter of declaring war, but actually no President has ever ventured so far to lose touch with Congress that the latter has not supported his foreign policy, even to the last resort, though such a case came near occurring in Tyler's administration.

But the reader -may at this point object that, since the initiative in foreign intercourse has largely passed to the President, Congress is generally at a great disadvantage in attempting to assert its viewpoint in such matters, even in the discharge of its acknowledged powers. This is no doubt true to an extent, though we must not forget either the disadvantages of the President's position. In the first place, the President must discharge his functions ordinarily through the agencies provided by Congress, by virtue of its power to "pass all laws necessary and proper for carrying into execution ... all powers vested by this Constitution in the Government of the United States, or any department or officer thereof." In the second place, the President may expend the public revenue only for the purposes which Congress may choose to dictate. Finally, the President is under direct constitutional obligation to "take care that the laws be faithfully executed."

The actual necessities of the case have more and more centred the initiative in directing our foreign policy in the hands of the President. But this is far from saying that the President is even yet an autocrat in this field. And so long as the above mentioned checks upon his power subsist, it is difficult to see how he can become an autocrat, save at extraordinary moments and when backed by the overwhelming approval of American public opinion.

CHAPTER I "Pacificus" and "Helvidius"

upon the outbreak of war between France and Great Britain in 1793 Washington, under date of April 22 of that year, issued what is usually called a Proclamation of Neutrality/ The proclamation, which was drafted by Jay, declared the intention of the United States to "pursue a course friendly and impartial to both belligerent powers," and enjoined upon all citizens its observance upon pain of prosecution.^ Though it avoided the use of the word "neutrality," the document was soon attacked by French sympathizers as beyond the President's power to issue, as well as upon other grounds. The defense of the

1 For the text of the Proclamation, see Wm. MacDonald, Documentary Source Book of American History, p. 243.

2 For a prosecution that took place in pursuance of this threat, see Gideon Henfield's Case, Wharton's State Trials, p. 49; Federal Cases, No. 6360. The prosecution, which was sustained by the United States Circuit Court at Philadelphia, comprising Justices Wilson and Iredell of the Supreme Court, and District Judge Peters, was based on the theory that the Federal courts have a common law jurisdiction of offenses against the sovereignty of the United States, an idea which has long since disappeared. See U. S. v. Goodwin, 7 Cranch 32; Wheaton v. Peters, 8 Peters 591.

proclamation was thereupon undertaken by Hamilton in a series of eight articles contributed to The Gazette of the United States (Philadelphia), under the pseudonym 'Tacificus." The first article, dated June 29, 1793, alone deals with the constitutional question. It follows:

No. I As attempts are making, very dangerous to the peace, and, it is to be feared, not very friendly to the Constitution of the United States, it becomes the duty of those who wish well to both, to endeavor to prevent their

success.

The objections which have been raised against the proclamation of neutrality, lately issued by the president, have been urged in a spirit of acrimony and invective, which demonstrates that more was in view than merely a free discussion of an important public measure. They exhibit evident indications of a design to weaken the confidence of the people in the author of the measure, in order to remove or lessen a powerful obstacle to the success of an opposition to the government, which, however it may change its form according to circumstances, seems still to be persisted in with unremitting industry.

This reflection adds to the motives connected with the measure itself, to recommend endeavors, by proper explanations, to place it in a just light. Such explanations, at least, cannot but be satisfactory to those who may not themselves have leisure or opportunity for pursuing an investigation of the subject, and who may wish to perceive that the policy of the government is not inconsistent with its obligations or its honor.

The objections in question fall under four heads:

1 That the proclamation was without authority.

2 That it was contrary to our treaties with France.

3 That it was contrary to the gratitude which is due from this to that country, for the succors afforded to us in our own revolution.

4 That it was out of time and unnecessary.

In order to judge of the solidity of the first of these objections, it is necessary to examine what is the nature and design of a proclamation of neutrality.

It is to make kfwwn to the powers at war, and to the citizens of the country whose government does the act, that such country is in the condition of a nation at peace with the belligerent parties, and under no obligations of treaty to become an associate in the war with either, and that this being its situation, its intention is to observe a corresponding conduct, by performing towards each the duties of neutrality; to warn all persons within the jurisdiction of that country, to abstain from acts that shall contravene those duties, under the penalties which the laws of the land, of which the jus gentium is part, will inflict.

This, and no more, is conceived to be the true import of a proclamation of neutrality. . . .

If this be a just view of the force and import of the proclamation, it will remain to see, whether the president, in issuing it, acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.

It will not be disputed, that the management of the affairs of this country with foreign nations is confided to the government of the United States.

It can as little be disputed, that a proclamation of neutrality, when a nation is at liberty to decline or avoid a war in which other nations are engaged, and means to do so, is a usual and a proper measure. Its main object is to prevent the nation s being responsible for acts done by its citizens, zvithout the privity or connivance of the government, in contravention of the principles of neutrality; an object of the greatest moment to a country whose true interest lies in the preservation of peace.

The inquiry then is, what department of our government is the proper one to make a declaration of neutrality, when the engagements of the nation permit, and its interests require that it should be done?

A correct mind will discern at once, that it can belong neither to the legislative nor judicial department, of course must belong to the executive.

lO

The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that member of the government, which is to pronounce the existing condition of the nation, with regard to foreign powers, or to admonish the citizens of their obligations and duties in consequence; still less is it charged with enforcing the observance of those obligations and duties.

It is equally obvious, that the act in question is foreign to the judiciary department. The province of that department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties, but it exercises this function only where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government. This position is too plain to need being insisted upon.

It must then of necessity belong to the executive department to exercise the function in question, when a proper case for it occurs.

It appears to be connected with that department in various capacities : — As the organ of intercourse between the nation and foreign nations; as the interpreter of the national treaties, in those cases in which the judiciary is not competent, that is, between government and government; as the power which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force.

This view of the subject is so natural and obvious, so analogous to general theory and practice, that no doubt can be entertained of its justness, unless to be deduced from particular provisions of the Constitution of the United States.

Let us see, then, if cause for such doubt is to be found there.

The second article of the Constitution of the United States, section first, establishes this general proposition that "the EXECUTIVE POWER shall be vested in a President of the United States of America."

OF FOREIGN RELATIONS ii

The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States ; that he shall have power, by and with the advice and consent of the senate, to make treaties ; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws he faithfully executed.

It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties ; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, "All legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, "The executive power shall be vested in a President of the United States."

The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power ; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.

The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.

Two of these have been already noticed; the participation of the senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned ; the right of the legislature *'to declare war, and grant letters of marque and reprisal."

With these exceptions, the executive power of the United States is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate; of which the power of removal from office is an important instance. It will follow, that if a proclamation of neutrality is merely an executive act, as it is believed has been shown, the step which has been taken by the President is liable to no just exception on the score of authority.

It may be said, that this inference would be just, if the power of declaring war had not been vested in the legislature; but that this power naturally includes the right of judging, whether the nation is or is not under obligation to make war.

The answer is, that however true this position may be, it will not follow, that the executive is in any case excluded from a similar right of judgment, in the execution of its own functions.

If on the one hand, the legislature have a right to declare war, it is on the other, the duty of the executive to preserve peace, till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government; and when it has concluded that there is nothing in them inconsistent with neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. The executive is charged with the execution of all laws, the law of nations, as well as the municipal law, by which the former are recognized and adopted. It IS consequently bound, by executing faithfully the laws of neutrahty, when the country is in a neutral position to avoid giving cause of war to foreign powers.

This is the direct end of the proclamation of neutrality. It declares to the United States their situation with regard to the contending parties, and makes known to the community, that the laws incident to that state will be enforced. In doing this, it conforms to an established usage of nations, the operation of which, as before remarked, is to obviate a responsibility on the part of the whole society, for secret and unknown violation of the rights of any of the warring powers by its citizens.

Those who object to the proclamation will readily admit, that it is the right and duty of the executive to interpret those articles of our treaties which give to France particular privileges, in order to the enforcement of them: but the necessary consequence of this is, that the executive must judge what are their proper limits; what rights are given to other nations, by our contracts with them; what rights the law of nature and nations gives, and our treaties permit, in respect to those countries with which we have none ; in fine, what are the reciprocal rights and obligations of the United States and of all and each of the powers at war.

The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognised, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended.

This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.

This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision.

The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.

Hence, in the instance stated, treaties can only be made by the president and senate jointly; but their activity may be continued or suspended by the President alone.

No objection has been made to the President's having acknowledged the republic of France, by the reception of its minister, without having consulted the senate; though that body is connected with him in the making of treaties, and though the consequence of his act of reception is, to give operation to those heretofore made with that country. But he is censured for having declared the United States to be in a state of peace and neutrality, with regard to the powers at war; because the right of changing that state, and declaring war, belongs to the legislature.

It deserves to be remarked, that as the participation of the senate in the making of treaties, and the power of the legislature to declare war, are exceptions out of the general "executive power" vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the "executive power" to do whatever else the law of nations, cooperating with the treaties of the country, enjoin in the intercourse of the United States with foreign powers.

In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war.

But though it has been thought advisable to vindicate the authority of the executive on this broad and comprehensive ground, it was not absolutely necessary to do so. That clause of the Constitution which makes it his duty to "take care that the laws be faithfully executed," might alone have been relied upon, and this simple process of argument pursued.

The President is the Constitutional EXECUTOR of the laws. Our treaties, and the laws of nations, form a part of the law of the land. He, who is to execute the laws, must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations, combined with our treaties, prescribed to this country, in reference to the present war in Europe, it was necessary for the President to judge for himself, whether there was anything in our treaties, incompatible with an adherence to neutrality. Having decided that there was not, he had a right, and if in his opinion the interest of the nation required it, it was his duty as executor of the laws, to proclaim the neutrality of the nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its nonobservance.