¹ Wallace McClure, International Executive Agreements, New York, 1941, reviewed by the writer in 42 Col. L. Rev. (1942) 887. Mr. McClure makes the concession—intended to be generous—that unimportant, non-controversial matters may still be left to treaty and Senate consent or approval, but that important and controversial matters become the subject of executive agreement (work cited, p. 378). An executive agreement comes into force on signature; there is no requirement for Congressional approval.

² Dangerfield, Royden J., In Defense of the Senate: A Study in Treaty-making, Norman (Oklahoma), 1933, p. 256 Google Scholar.

³ Bullitt, William C., “Consider Now the Tragedy of Versailles,” Life, March 27, 1944 Google Scholar, condensed in the Reader’s Digest for June, 1944, p. 3. W. D. Herridge (former Canadian Minister to the United States), Which Kind of Revolution?, Boston, 1943, p. 23: “Versailles was not a treaty of peace but a declaration of war.”

⁴ See Thomas Lamont in letter to the Editor of the New York Times, Sunday, April 23, 1944: “It was upon the Administration’s insistence that the Democratic Senators voted against acceptance of the Covenant with reservations and thereby automatically voted to defeat the treaty.” See Earl Grey’s letter to the London Times, reprinted in New York Times, February 1, 1920, a letter endorsed by the British and French press. D. Fleming, The United States and the League of Nations, New York, 1932, pp. 411–413. See also Stephen Bonsai, Unfinished Business, New York, 1944, p. 278. The negligible part in the defeat of treaties played by the two-thirds rule is attested by McClendon, R. Earl, “The Two-Thirds Rule in Senate Action Upon Treaties, 1789–1901,” this Journal , Vol. 26 (1932), pp. 37, 66Google Scholar.

⁵ Treaty-Making Power: Fourteen Points showing why the treaty-making power should be shared by the House of Representatives, compiled and prepared by Sol Bloom, Chairman, Committee on Foreign Affairs, House of Representatives, 1944.

⁶ Max Farrand, Records of the Federal Convention, New Haven, 1937 (Rev. Ed.) Vol. II, p. 638. Edward S. Corwin, The Constitution and World Organization, Princeton, 1944, p. 33.

⁷ Summarized in W. Stull Holt, Treaties Defeated by The Senate, Baltimore, 1933, p. 7. George Washington denied the right of the House to be joined in the making of treaties; see his communications to the Senate in 1790 and 1792, cited by William Dewhurst, “Is the President the Sole Negotiator of Treaties?”, Sen. Doc. 9, 67th Cong., 1st sess.

⁸ See the proposals of ex-Ambassador Gibson in the address at Haverford College, June 3, 1944, reported in the New York Times, June 4, 1944, Pt. I, pp. 24–25, and Gibson’s book, The Road to Foreign Policy (New York, 1944), pp. 174–187. See also the pre-war French method of legislative participation in treaty negotiation, recommended in Borchard, “Democracy and Foreign Policy,” Bronson Cutting Lecture, February 7,1938, p. 16, printed in the Congressional Record, Vol. 83, Pt. 9, pp. 538, 541. The “democracy” argument is hollow. In all constitutions some important actions require more than simple majorities; juries in capital cases must be unanimous.

⁹ The Chairman of the House Committee on Foreign Affairs suggested that the two major Parties insert in their platforms a plank pledging that the peace treaties to be concluded after this war be validated by majority vote of both Houses. This, says the New York Times, is asking both parties “to pledge themselves to disregard the plain wording of the Constitution.” In suggesting that “treaties” be called “agreements,” the Times says: “This is merely to argue that we can get around the Constitution by conspiring with each other to call a spade by another name,” and properly adds that if this can be done “we can do away with the need for any approval of treaties”; in fact, we can “interpret” the Constitution entirely away. The Times adds: “There is one honest, straightforward method of change,” and that is by Constitutional amendment. New York Times, April 17, 1944, p. 22, (Editorial, “Approval of Treaties”). In an editorial published on May 22, 1944 (p. 22), the Times maintained: “This ignoring of a plain Constitutional requirement would be a dangerous precedent. It would put in doubt the validity of treaties and international agreements not ratified in the Constitutionally prescribed manner.” See also Kenneth Colegrove, The American Senate and World Peace, New York, 1944, pp. 28, 31, 95, 105, and 110. See, however, the curious reasons for by-passing the Senate given by Q. Wright: this Journal, Vol. 38 (1944), p. 341.

¹⁰ See the report of the researches of Mr. A. C. Weinfeld in 3 Univ. of Chicago L. Rev. (1935) 453, who insists that the Founders were well acquainted with Vattel’s distinctions between treaties and mere provisional or minor agreements. This difference is illustrated in Art. I, Sec. 10 of the Constitution: “No State shall enter into any treaty, alliance or confederation; … no state shall, without the consent of Congress … enter into any agreement or compact with another state, or with a foreign power.” In addition, the word ‘ ‘treaties” is referred to in three separate Articles, concerning the making of treaties by the President, with the advice and consent of two-thirds of the Senators present (Art. II, Sec. 2, clause 2), the jurisdiction of the federal judiciary (Art. III, Sec. 2, clause 1) and the supremacy of treaties as the law of the land (Art. IV, clause 2), but the “executive agreement” is not mentioned.

¹¹ See criticism in this JournalVol. 34 (1940), by Professor Briggs, p. 569, and by Borchard, p. 690. See also Lord Lothian’s criticism, Congressional Record, March 17, 1943, pp. 2180–2181, and Professor Corwin’s letter to the New York Times, Oct. 13,1940, Part IV, p. 6.

¹² United States v. Curtiss-Wright Export Corp., 1936, 299 U. S. 304.

¹³ See the method called the Green-Sayre formula of August 24, 1943, described in Colegrove, pp. 28–30. See also Professor Briggs’ account of the Panama Resolution of 1943 in 37 Am. Pol. Sci. Rev. (1943) 686. The petroleum agreement (New York Times. August 9, 1944) has been submitted to the Senate for approval as a treaty.

¹⁴ Work cited, p. 52. “Constitutional procedure” in making any economic or military commitment in any agreement under the Lend-Lease settlements is provided for in the Wadsworth Amendment to that Act. The Senate, with House approval, deleted the phrase “in any final settlement.” Congressional Record, May 4, May 8, and May 12, 1944, pp. 4080, 4177, 4514. The Republican Party platform sought to remove any doubt by adding after “treaty” the words “or agreement” to the Connally Resolution. This change did not meet Prof. Corwin’s approval. Letter to the New York Times, June 30,1944.

^14a Senator Pepper of Florida advocates that the peace and other agreements to be concluded with enemy and allied Powers be recorded in the form of executive agreements with majority vote of both Houses, rather than by treaty. Evidently he does not think they will be sufficiently persuasive to command a 26 vote. Associated Press dispatch from Washington Aug. 15, 1944.

^14b Foreign countries are deemed to be acquainted only with the Constitution, not with current rationalizations of the executive agreement. See Fairman, Charles in this Journal , Vol. 30 (1930), p. 439 Google Scholar.

¹⁵ United States v. Curtiss-Wright Export Corp., 1936, 299 U. S. 304.

¹⁶ United States v. Belmont, 1937, 301 U. S. 324.

¹⁷ United States v. Pink, 1942, 315 U. S. 203.

¹⁸ 14 F. Supp. 230 (S.D. N.Y. 1936).

¹⁹ George Sutherland, Constitutional Power and World Affairs, New York, 1919, pp. 120 and following.

²⁰ The Republic, New York, 1943, pp. 217–218. In a learned article by Professor C. Perry Patterson, 22 Tex. L. Rev. (April and June, 1944) 286,445, entitled “In re the United States v. The Curtiss-Wright Corporation,” Professor Patterson attacks Justice Sutherland’s supposed discovery of the inherent powers of the Federal Government in internal or external affairs as “ (1) contrary to American history; (2) violative of our political theory; (3) unconstitutional, and (4) unnecessary, undemocratic, and dangerous” (p. 297).

See also refutation of the inherent powers doctrine invoked in the Curtiss-Wright case in article by Judge Quarles: 32 Georgetown Law Journal (May, 1944) 375.

²¹ See, besides the comment in this Journal, Vol. 36, p. 282, the following, all in 1942: 90 U. of Pa. L. Rev. 741; 51 Yale L. J. 848; 30 Georgetown L. J. 663; 58 Law Quar. Rev. 431; 5 Detroit L. J. 130. When the issue does not involve a Federal agreement, New York adheres to its view that a foreign confiscation of New York property is intolerable and will not be enforced. Bollock v. Sociiti Générale, 1942, 263 App. Div. 601, 33 N.Y.S. (2d) 986. Must we conclude that when the United States Government becomes the beneficiary of the spoliation, the foreign confiscation is recognized; otherwise not?

²² Professor Harry Elmer Barnes in The Progressive for March 20, 1944, Vol. 8, No. 12, p. 10.