The President and Foreign Affairs The President is the official spokesman of the nation in the conduct of all foreign affairs,' and he is primarily responsible for our foreign policy and its results. It is true, however, that he is controlled in some matters by the Senate and in others by Congress. The Senate must confirm his nominations to diplomatic and consular positions, and must approve his treaties, and Congress alone can create diplomatic and consular positions and provide the salaries attached to them. Congress must also, in many cases, make provision for the execution of treaties, but it has no right to establish and conduct relations with any foreign power independently of the President. Under the Constitution, the President appoints ambassadors, other public ministers, and consuls, subject to the confirmation of the Senate; he makes treaties with the consent of two-thirds of the Senators present; and he receives ambassadors and public ministers from foreign countries; but his authority is not limited to the formal letter of the law. He may do many things that vitally affect the foreign relations of the country. He may dismiss an ambassador or public minister of a foreign power for political as well as personal reasons, and, if on the former ground, he might embroil the country in war. His power to receive any foreign representative authorizes him to recognize the independence of a new state, perhaps in rebellion against its former legitimate sovereign,3 and thus he might incur the risk of war. He may order a fleet or a ship to a foreign port under circumstances that may provoke serious difficulty; the ill-fated battleship Maine was sent to the harbor of Havana by President McKinley at a time when it was regarded by many Spaniards, though not officially, as an unfriendly act. The result all the world knows. As commander-in-chief of the army he might move troops to such a position on the borders of a neighboring state as to bring about an armed conflict. A notable instance of such an action occurred in the case of the opening of the 3 For example, Mr. Roosevelt's recognition of the republic of Panama in revolt against Colombia. Mexican War, when President Polk ordered our troops into the disputed territory, and, on their being attacked by the Mexicans, declared that war existed by act of Mexico. Again, in his message to Congress the President may outline a foreign policy so hostile to another nation as to precipitate diplomatic difficulties, if not more serious results. This occurred in the case of the Venezuelan controversy, when President Cleveland recommended to Congress demands which Great Britain could hardly regard as anything but unfriendly. The President may even go so far as to make "executive agreements" with foreign powers without the consent of the Senate. The Constitution requires that only "treaties" shall be confirmed by the Senate, and long practice has shown conclusively that this term does not cover every sort of an international arrangement which may be made.1 Every adjustment of a minor matter with a foreign country is an agreement. A German who is a naturalized citizen of the United States returns to his native country, and his former sovereign calls upon him to render military service; a diplomatic discussion of the case arises, and it is finally settled by an exchange of notes between the Secretary of State and the German Government; this is clearly an "international agreement." The line between a treaty and an executive agreement is difficult to draw; but the character of the power which the President can wield under his right of making such agreements is well illustrated by Mr. Roosevelt's action with regard to Santo Domingo. In January, 1905, he drafted a treaty with the government of the republic to the effect that the United States would maintain the integrity of that country, supervise the administration of its finances, make provisions for the settlement of foreign claims, and generally assist in keeping order there. The Senate, however, refused to ratify this treaty; and the President thereupon secured from the Dominican government the appointment of American citizens to supervise the finances; made provision for the deposit of a certain portion of the republic's revenues for the benefit of foreign creditors; and sent American battleships to the ports of that country. In short, he carried out the main terms of the agreement without senatorial approval, and his policy was 'J. B. Moore, "Treaties and Executive Agreements," Political Science Quarterly, Vol. XX, pp. 385 ff.; also International Law Digest, Vol. V, p. 210. severely criticised by the opposition in the Senate. "The treaty has been practically carried into effect without consulting the Senate," contended Senator Rayner. "The appointment of an American agent as an official of Santo Domingo to collect its customs was simply a cover and an evasion. Under the principles of international law and the comity of nations, this government is morally bound for the proper custody of this fund, and would be liable in case of its waste or loss. . . . Now when you add to this the fact that our warships are in the harbors of the island ostensibly for the purpose of protecting American interests, but in reality protecting the officials of the island against any menace from without and revolution from within, you have the establishment of a sovereignty or a protectorate without a word from Congress or the Senate sanctioning the same." It is evident that the President, under his unquestioned authority to make executive agreements, might go to great lengths and make arrangements with a foreign power far more serious in character than is often stipulated by formal treaty. Nevertheless, in this matter as in many other matters of government, time and circumstance must determine. The President, in addition to his administrative duties, enjoys the power to grant reprieves and pardons (except in cases of impeachment) for offences against the United States. No limits are imposed on his exercise of this power, and therefore it may be used as he sees fit. He may remit a fine, commute a death sentence to a term of imprisonment, or free the offender altogether; but when forfeiture of office is one of the penalties imposed, he cannot restore the offender to his former position. Though the usual process is to pardon after conviction, a pardon may be granted before or during trial. In the exercise of his power of pardon, the President relies, of course, largely upon the opinions of others. The application for executive clemency with all the papers attached is sent to the Attorney-General, in whose department there is a pardon-clerk in charge of the preliminary stages. Usually the judge and district attorney under whose supervision the case was first tried are asked to make any statement they may choose about the merits of the case. The Attorney-General endorses on the appli 1 Reinsch, Readings, pp. 79 ff., for a full discussion of this important point. cation his opinion as to what course of action should be pursued, and the papers are then sent to the President for final determination. "If the trial seems to have been fairly conducted," said President Harrison, "and no new exculpatory evidence is produced, and the sentence does not seem to have been unduly severe, the President refuses to interfere. He cannot weigh the evidence as well as the judge and jury. They saw and heard the witnesses, and he has only a writing before him. It often happens that the wife or mother of the condemned man comes in person to plead for mercy, and there is no more trying ordeal than to hear her tearful and sobbing utterances and to feel that public duty requires that she be denied her prayer." 1 The President and Legislation? The President's position as chief executive officer is so exalted and the powers of that place are so extensive, that his functions as a legislator, both constitutional and customary, are often lost sight of by commentators. He is required by the Constitution to give to Congress from time to time information of the state of the Union and to recommend such measures as he may judge necessary and expedient. In the exercise of this function, he may recommend laws and even draw bills, which Congress willingly accepts, or which it accepts reluctantly under the feeling that the President has the support of his party throughout the country, or which it modifies or rejects altogether if it disapproves. The message is the one great public document of the United States which is widely read and discussed. Congressional debates receive scant notice, but the President's message is printed almost in extenso in nearly every metropolitan daily, and is the subject of general editorial comment throughout the length and breadth of the land. It is supposed, though often erroneously, to embody in a very direct sense the policy of the presidential party; it stirs the country; it often affects congressional elections; and if its recommendations correspond with real and positive interests of sufficient strength, they sooner or later find their way into law. 1 Harrison, This Country of Ours, pp. 146 ff. There ought to be no cavil about the President's frequent and considerable use of the power to give information to Congress. "From the nature and duties of the executive department," says Story, "he must possess more extensive sources of information as well in regard to domestic as to foreign affairs than can belong to Congress. The true workings of the laws, the defects in the nature or arrangements of the general systems of trade, finance, and justice; and the military, naval, and civil establishments of the Union are more readily seen, and more constantly under the review of the executive, than they can possibly be of any other department. There is great wisdom, therefore, in not merely allowing, but in requiring the President to lay before Congress all facts and information which may assist their deliberations; and in enabling him at once to point out the evil and suggest the remedy. He is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them." 1 Of course, it may be questioned whether, in these days of swift communication of thought and argus-eyed journalists, there is very much in the President's message, that is new to Congress; and moreover, a great deal of the work of fitting legislation to conditions is done either by special or regular committees supposed to be more or less expert in the branches of legislation intrusted to their charge. Nevertheless, there can be no doubt about the advisability of a close association between those who make and those who enforce the laws. Especially is this true since the President is the only officer of the national government who represents the national party as a whole, and it is to him that the country looks for results in administration — results which can only be brought about by his cöoperation with his party in Congress. The presidential message, at the opening of Congress, was delivered in person to the Senate and House in joint assembly by Washington and Adams; but this was abandoned by Jefferson. From that time forward the practice has been to communicate by means of written messages. 1 Commentaries (5th ed.), Vol. II, p. 382. |