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it should think fit.1 It needs no argument to show that to state our case, that is our claims, for this purpose, must have been meant to be purely and finally a matter for the President; yet according as it was drawn, so might the boundary be established. The Behrings Sea Convention of 1892 contained similar provisions.2 Such is indeed almost the necessary procedure in all international arbitrations.
In 1883, we made a convention with Mexico for the better demarcation of boundaries. "Each government” was to appoint certain persons, headed by a chief engineer, to constitute together an “International Boundary Commission” with power to set monuments at such points as might be agreed on by the two chief engineers. By “Government" was here plainly meant the proper executive power in each republic.
By an Act of Congress passed in 1872, the Postmaster-General, "by and with the advice and consent of the President, may negotiate and conclude postal treaties and conventions." This has been done in repeated instances, 4 and is, of course, in substance, the negotiation and execution of an agreement with a foreign power by the President, without asking the concurrence of the Senate, or rather by virtue of their consent given in advance. The statute in terms, indeed, purports to delegate to the executive the absolute power to make treaties on a certain subject, but the use of the word “treaties” was probably an inadvertence. There may be a bargain between independent states, which is something less than a treaty, and postal conventions are in the nature of commercial transactions without any direct political significance.
By the Convention Postale Universelle concluded by our government with other powers, under authority of this statute in 1891, any controversy as to its meaning is to be decided by arbitrators, one of whom is to be chosen by “chacune des Administrations en cause." For us this “Administration" must mean the Postmaster-General.5 He raises the question, puts it in proper form, and selects the judge.
1 United States Revised Statutes, ii, 313.
27 United States Statutes at Large, 104.
To state the point under consideration in its simplest form, the President has a double duty in regard to every treaty of the United States. He must superintend its execution as a contract : he must also take care that it is executed as a law. It may require that certain things be done by the United States. If so, it is he that must do them, so far as they are of an executive character. It may simply authorize such things to be done by the United States. If so, it authorizes him to do them, so far as they are of an executive character. A treaty in a word, which leaves any matters to the future determination of the President, vests him with the power to determine them as effectually as an Act of Congress could do.?
The Hague Convention, when ratified by the Senate, became thus a standing warrant or, so to speak, a power of attorney, from the United States to the President to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration.
The view here taken of the functions of the President under this Convention is opposed to that favored by Mr. Holls, one of those who helped to frame it, in an article contributed by him to the Review of Reviews in November, 1899. He there said that whenever arbitration is sought by the United States “the litigating parties are to sign what is called the compromise, but what is in reality the treaty of arbitration for the particular case, requiring on the part of the United States ratification by the Senate in every instance.” No reasons are given for the conclusion thus announced, and none are apparent except the extreme gravity of the act in question, and the possible impolicy of allowing one man thus to put at risk great national interests and pledge the public faith. Were our President a titular sovereign, these considerations would seem of little weight. He is not that, but he has many of a sovereign's powers. It is not inconsistent with free government to give high functions to great officers. England is essentially a republic, but her King certainly has the powers under the Hague Convention which Mr. Holls would deny to the President. It is noticeable that in his extensive treatise on the work of the Conference, published since the convention was ratified by the Senate, no reference is made to any such limitation on the President's powers.
"The United States v. The Peggy, 1 Cranch's Reports, 103.
* Fong Yue Ting v. United States, 149 United States Reports, 698, 714. See the careful study of the Congressional precedents as to delegating legislative or quasi-legislative power to the President, by Edward B. Whitney, formerly Assistant Attorney General of the United States, in the Columbia Law Review,
The control of Congress and primarily of the House of Representatives over the treasury may, no doubt be a serious impediment to executive action. A refusal of the necessary appropriations to satisfy our treaty obligations is always a possibility; but experience has proved that it is little more. Public sentiment, with rare exceptions, will be behind the President, upon such a question, for the newspapers which manufacture or mirror it seldom depart avowedly from ethical ideals, and still more seldom allow the people to forget their transgression by legislators.
A review of our political limitations, therefore, shows few that are radically inimical in practice to effective diplomacy. If, as a Great Power, we must at some points move more slowly than the rest, at others we need hesitate less then they. There is no ministry to be overthrown, if the President's policy fails to command the approval of Congress. There is no fear of a more and more rigorous conscription to chill any public ardor for war. There is a strength of position to the President, when entrenched behind a treaty once ratified by the Senate, which no mere majority in Congress can overcome. He needs the help of but a bare third of either house, in such a case, to keep things as they are.
It has sometimes been said, though seldom by any but Americans, that we ought not to mingle in the affairs of other continents, because we could rarely be represented by men able to negotiate on equal terms with the European diplomatists. It is true that we have no leisured class from which to select, composed of men who from childhood have been trained in the usages of good society and brought into close contact with those familiar with foreign offices and courts. But we have another class, gifted on a different side with special qualifications for the diplomatic and consular service, and from which that service among us is, as to its higher places, in fact mainly recruited. It is the American bar. The nominations come from a President
. or a Secretary of State who is commonly a lawyer. It is a committee mainly of lawyers to which, in the Senate, they are referred; and the ambassador, or minister, or consul-general thus appointed is, in a majority of instances, a member of the bar, or at least one who has received a legal education. The knowledge and training which this implies are such as to bear directly on a man's ability to conduct a diplomatic controversy. He will be apt to see the real point involved; to detect fallacies in argument; to be patient of delay; to seize his opportunity, when it comes, and to press it to the utmost.
Nor is this all. Whether our representatives at the principal foreign courts are or are not lawyers, it is practically necessary that they be men of independent fortune, on account of the small salaries attached to these positions. A property qualification has, in effect, been thus imposed. It cuts us off, not infrequently, from securing the services of better men than those we send. President Noah Porter and Judge Dwight Foster of Boston may be mentioned, for instance, as among those by whom the mission to Great Britain has been declined, in part, at least, because their private means were insufficient to allow them to fulfill its social duties as they would wish. But, on the other hand, it cuts us off from the office-seeker, who goes into politics for the money he can get out of it; nor is it to be denied that the possession of wealth is generally evidence of mental capacity, joined with sound judgment, either in the man who has it, or in his immediate ancestors, some of whose traits he is also not unlikely to inherit.
The great families in European monarchies are practically accorded a certain preëmptive right in respect to diplomatic preferment, if they show any sort of adaptation to such functions. We are free from any such incubus, and this goes far towards balancing our want of a class both leisured, cultured, and rich, from which to recruit our foreign service. We miss, however, those ties of inherited friendship and life-long association, which bind the aristocracy of one land to that of another. That is a legitimate and powerful means of smoothing the way to the confidence of foreign ministers and courts, which can seldom exist when there are no privileged orders in society.
But were the material for our diplomatic service worse than it is, our weight as a Great Power would be less affected than would be possible in the case of any other nation. It is the necessary result of our accumulated and accumulating wealth, and it is likely to come in question seldom except when we are pressing commercial and pecuniary claims. The world has become our debtor during the last four years, to the amount of two thousand million dollars. The German Empire has placed a loan in
Wall Street. Foreign militarism is wasting in barracks and camps the labor power which American youth is devoting to profitable production. We sell the bread on which European armies are fed. The business of our diplomatic representatives is henceforth to be largely of a consular description. They will be agencies to extend trade and collect bills. These are plain matters and can be handled by men who might be incompetent to plan alliances, arrange court marriages, or pave the way towards military conquest.
SIMEON E. BALDWIN. Yale University.