avoided if possible. It is of material advantage only to a belligerent with whom the neutral comes actually in contact, on land or sea.1 Hence President Cleveland and his successor, up to the time when our own war with Spain brought us into practical alliance with the insurgents, gave them recognition neither of "belligerency" nor of independence. The reasons, however, were not understood by most of our people, who were misinformed on the legal aspects of the question. Many, moreover, were anxious to provoke the war between ourselves and Spain as soon as possible. The agitation was taken up in Congress, and both Houses at the session of 1895-6 passed a resolution expressing their opinion in favor of recognizing belligerency. In the following December a resolution actually declaring the independence of the Cubans, and offering mediation, was introduced and pressed in the Senate. It was met with a quiet statement from Mr. Olney, the Secretary of State, that such a resolution would only express the individual opinions of the gentlemen who should vote for it, and would have no legal effect, since the recognition of independence of a new foreign state is an executive and not a legislative act. The statement precipitated a constitutional debate and the journalistic and senatorial attacks upon the Secretary were hot; but they subsided rapidly upon the production of the precedents upon which he relied, and the resolution was dropped. The controversy of 1898, when a large party in Congress attempted to take the whole jurisdiction over foreign relations out of President McKinley's hands, is still fresh in memory. We have seen enough of Presidential and Congressional diplomacy, of their differences in method and effect, to realize the very great importance of the constitutional question, how far the President's power reaches in foreign affairs, and how far Congress 1 The alliance now (May 2) projected with Gomez' troops will doubtless involve a recognition of belligerency. * See the two memoranda prepared in the executive departments and presented by Senator Hale (Sen. Docs., 54th Congr., 2d Session, Nos. 40, 56); also speech of Senator White, February 25, 1897, and of Senator Spooner, April 15, 1898. has concurrent or superior jurisdiction. Had Congress the right to recognize Cuban belligerency? Had it the right to recognize Cuban independence? Had it the right to direct the course of diplomatic correspondence, and decide when the ultimatum should be sent? It must be remembered that the Federal Constitution was built upon the theory, long accepted as gospel by our statesmen, that the best form of government is one in which the three great branches, legislative, executive and judicial, are entirely independent of one another. One is to legislate, another to administer, the third to adjudicate. Neither is to direct the other. The powers of sovereignty are to be so distributed between them that there shall be no duplication, no concurrent jurisdiction, which might give rise to possible deadlocks and disputes. The theory is not always satisfied in practice, but as a general rule whatever power is granted to the executive branch is denied to the legislative, and vice versa; and certain it is that whatever power either derives from the Constitution is independent, and is not subject to direction from the other. The Constitution does not confide the whole subject of foreign affairs, or of diplomatic negotiations, in express language to either branch of the Government, but leaves the matter to implication from its express provisions. It empowers the legislative branch to regulate commerce with foreign nations, to define and punish piracies and offenses against the law of nations, to declare war, to grant letters of marque and reprisal, and to make all laws necessary to carry into execution any of these powers, or any of the other powers vested in the government of the United States, or in any department or officer thereof. It empowers the Executive-the Presidentwith the advice and consent of the Senate, to make treaties, and to appoint ambassadors, other public ministers and consuls. It empowers him to receive ambassadors and other public ministers. Diplomatic negotiations are conducted by ambassadors and other public ministers, and in rare instances by special commissioners. The President's authority to send and receive these officials is absolutely independent of the legislature. It is limited only to the extent of requiring the confirmation by the Senate of his nominations, the Senate thus acting in its executive capacity. Congress can indeed exercise great influence through its power of appropriating money; but though it refuse to appropriate for the office, the President and Senate can send an ambassador if one is to be found who will go without salary and pay for his own outfit. The highest result of diplomatic negotiations is a treaty; and the power to make treaties is also absolutely uncontrolled by Congress, the President acting with the Senate in its executive capacity. Yet a treaty is part of the supreme law of the land. It is of equal rank with an act of Congress. A statute abrogates a prior treaty with whose provisions it conflicts, but a treaty has equal power over a prior act of Congress. Thus a tariff duty on some article may have been intended by Congress to be the corner-stone of our revenue system, yet the article may be transferred to the free list by the action of the President and Senate in making reciprocity treaties with the countries from which it is imported. So our anti-Chinese legislation could be repealed by a new treaty with China. The President and Senate can do things by treaty which Congress cannot do by statute. Congress cannot modify the alien laws of a State; but a treaty with a foreign nation can give its citizens equal privileges with our own. By a treaty, without consulting the House of Representatives, we surrendered Texas in 1819, part of Maine in 1842, and British Columbia in 1846. While the first of these treaties was pending, Henry Clay introduced in the House a resolution reciting that, as Congress has power to dispose of our territory, no treaty to alienate any portion of it is valid without the concurrence of Congress; but upon opposition it was dropped. Diplomatic business not relating to treaties consists partly in negotiating informal compacts of similar nature, and for the rest in such work as the collecting and giving of information, requests for protection of our citizens, assisting them in the protection of their personal and property rights, and procuring for them social introductions. None of these acts are legislative in character. Diplomacy, therefore, is a matter entirely entrusted to the President's responsibility; while at the same time it is eminently proper that he should ask the opinion of Congress before any step is taken which might require large appropriations, or which might decrease the revenue of the government, or which might lead to war. It has been customary for Congress to give its advice in the form of a resolu tion; but sometimes it has been put in the form of a statute. Thus Congress has advised the President to make reciprocity treaties upon a certain basis with foreign countries. advice is conveyed in the form of a statutory provision authorizing him to do so, but the statute conveys no authority to him, since his treaty-making power is conferred by the Constitution, and is unlimited. Still the provisions are very valuable as assuring him the moral support of Congress, without which he ought not to make such radical changes in our revenue laws. This Among the exceptional cases in which the President ought to obtain the advice of Congress before taking any final steps, are those negotiations which may lead to war. War must be declared by Congress. It requires large appropriations and much legislative action. Before the President takes any step which might constitute a casus belli he should ask and obtain legislative approval. This was done in April, 1898, by President McKinley as a necessary preliminary to his threat of armed intervention in Cuba. The "recognition of belligerency" and "recognition of independence," which have been so much discussed within the past three years, are in their essence judicial acts. They are simply decisions, upon evidence duly presented, that belligerency or independence exists as a fact. The judiciary, however, for various practical and political reasons, refuse to take evidence and decide the question for themselves. It would often be absolutely impracticable to take the necessary evidence as to occurrences in foreign lands. It would also be most impolitic to exercise a jurisdiction which might bring the judges into collision with the executive government and bring the United States into collision with a foreign power. The judiciary, therefore, have always looked to the executive department of the government for information upon this point; and when the executive department finds and announces that belligerency or independence exists, then, and not until then, does the judiciary find the same. Belligerency can indeed be recognized also by Congress, as through its powers to declare war and to define piracies. If war were declared against the Cuban insurgents, that would recognize their belligerency at once. So, if the insurgents put privateers upon the ocean, Congress could legislate that they be not treated as pirates. Ordinarily, however, recognition must come from the executive; and I believe that never up to this time has there been a legislative recognition. I have never seen a tenable suggestion of any method by which the independence of a foreign country could be constitutionally recognized by a legislative act. An appropriation act might provide for the pay of a minister to the new state; but it would lie with the President whether to appoint him, and the effect of the appropriation would be simply that the President, when deciding to recognize, would have ready money to open diplomatic relations. It has been suggested that recognition could be made under the war power; but declaring war against a people recognizes them only as belligerents. We admitted all through the late Civil War that we were at war with the Confederates, but we never recognized them as independent. By its very definition a recognition of belligerency is a recognition that the belligerents constitute a state for all purposes of the war.1 Similar reasoning will show that Congress cannot recognize the independence of a foreign country under its power to define piracies or offences under the law of nations. It has been suggested that Congress may recognize independence through its right to regulate commerce. That would be the case if it had the right to recognize commerce by treaty, but it has not. Independence of a foreign country is not recognized by any statute regulating trade with it. Thus we have long had statutes regulating trade with the Dominion of Canada, with 1 Lawrence, International Law, §162; Hall's International Law, 4th Ed., p. 32; The Estrella, as explained at 166 U. S., pp. 57-8. |