But executive agreements are not mentioned in the Constitution and other nations are consequently not presumed to know that there are any limitations on his executive power.

If this amendment is adopted, it would put other nations on notice as to the President's power over executive agreements as they have now notice as to the limitations on his power in the treatymaking field.

The proposed amendment has been framed so as not to require action by Congress and to the extent it decides to exercise its power, which it already possesses under its delegated power:

To make all laws which shall be necessary and proper for carrying into execu tion *** all powers vested by this Constitution in the Government of the United States, or in any department or officer thereof (art. 1, sec. 8, last clause).

It is advisable to work out congressional control gradually as the result of actual experience. For example, it would be undesirable, and harmful to the effective administration of the Department of State, that routine functions in the daily conduct of foreign relations, involving in many instances informal agreements with other nations, be rigidly controlled by law. These types of executive agreements have been described by Dr. John Bassett Moore, author of Moore's Digest of International Law, who, after serving for many year as an Assistant Secretary of State, and counselor for the State Department, became a judge of the Permanent Court of International Justice at The Hague. See quotation from him in the report of the committee on peace and law in its report of September 1, 1952, pages

17 and 18.

The proposed amendment would obviously not apply to so-called executive agreements made pursuant to authority of law or with the subsequent approval of Congress.

And most of the objections that have been made to this provision about executive agreements are made on the supposition that this is not true. Most of the executive agreements that have been presented before this committee are made under some authority of law, either previously.given or by subsequent approval.

This amendment would not affect at all the ability of the Executive to negotiate such agreement with the approval of Congress.

Congress at the request of the President, has been considering what action to take upon the so-called secret agreements made by the former President during World War II. It is doubtful if Congress would wish, if it could, to interfere with functions of the President as Commander in Chief during the actual operations of war.

The principal act of the former President now under discussion is the so-called Yalta agreement. President Roosevelt at first thought that the Yalta arrangements must be approved by the Senate. He said so in the prepared text of his report to the joint session of Congress on March 1, 1945, as released by the White House prior to delivery (Department of State Bulletin, vol. XII, No. 297, p. 234). But that sentence was omitted from the speech as delivered (Congressional Record, Mar. 1, 1945, vol. 91, pt. 2, p. 1620).

When releasing the text of the secret Yalta agreement a year after it was signed, Secretary of State Byrnes stated on January 29, 1946, that:

there was not any question about what was intended at Yalta because at Yalta he heard Mr. Roosevelt on at least 1 or 2 occasions take the position that as to

cession of territory, it was a matter that had to be settled in the peace treaty. He said that that was always Mr. Roosevelt's view, and that at Potsdam Mr. Truman took the same position as to the Silesian area (Department of State Bulletin, vol. XIV, No. 345, Feb. 10, 1946, pp. 189–190).

It appears, therefore, that the Yalta agreement is subject to the criticism of Dr. Hyde, previously quoted, of Presidential agreements made without the approval of the Senate on matters of vast import which further the political aspirations of other nations and weaken the subsequent influence of the United States.

It also appears that the Yalta agreement is a perfect example of the practice of the President using his discretion "for controversial international acts" to have recourse to an Executive agreement instead of a treaty.

In that respect he followed the advice of Dr. Wallace McClure, formerly of the State Department, who wrote a book called International Executive Agreements in which he said:

For controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as executive agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable.

Senator WATKINS. He means "secretly abandoned" instead of "quietly abandoned."

Mr. FINCH. No, quietly; in other words, not to let the Congress know anything about it at all.

Senator SMITH. He meant if it was not called to the attention of Congress openly, Congress might approve anything that was submitted there and not know about it.

Mr. FINCH. It may be subject also to "secret," too. You do something quietly. That is secret, too.

Senator WATKINS. It meant that to me and that is what was done. He quietly kept a lot of it from us.

In the second sentence he, in effect said it would be all right to bring the building of privies and all that sort of thing to the Senate, but as to things like Yalta, "Don't let them know anything about that."

Mr. FINCH. The views of Dr. McClure were in contradiction of those of Dr. Hyde, Solicitor for the State Department under Secretary Hughes.

Speaking before the American Society of International Law on April 30, 1937, Dr. Hyde said:

From examination of the various permitted modes of agreement-making to which the United States has had recourse, it will be found that in practice the test of whether it is obligatory for the President to work with the Senate, or, to put it differently, whether there has been imposed through the Constitution a duty to make use of a treaty as the instrumentality of agreement, has in the particular case usually been deemed to rest upon the character of objectives sought to be accomplished. It has not been supposed for example, that the Executive, with or without the aid of Congress, was free to dispense with treatymaking whenever he might desire to avoid difficulties to be encountered in obtaining the senatorial approval of a desired compact.

Deference to the constitutional privilege of the Senate has been constantly manifested in the making of certain well-defined classes of international arrangements; and that deference has revealed a seeming acknowledgment that the constitutional provisions in relation to treatymaking were far more than indicia of a procedure to be followed in case the Executive chose to employ a treaty as a leasing setting for an agreement, and that the provisions in that instrument were rather to be regarded as declaratory of a constitutional duty on the part of the Executive invariably to submit agreements within a broad and fairly

defined field to the Senate for its approval. The practice of the United States throughout its life reveals respect for this idea (Proceedings of American Society of International Law, 1937, p. 45).

In reading Dr. Hyde's statement, it should be borne in mind that the constitutional amendment under consideration does not affect the negotiation and ratification of treaties under article VI of the Constitution, but would be of force only to require congressional action before treaties may become internal law in the United States.

In conclusion, I should like to refer to treaties for the peaceful settlement of international disputes, which have been mentioned in the course of these hearings.

Beginning with the Jay Treaty of 1794, the United States has occupied a position of leadership in promoting the substitution of law for force in the conduct of international relations. Among a number of congressional declarations of policy, I shall mention only one, the Concurrent Resolution of 1890 which requested the Presi dent

to invite *** negotiations with any government with which the United States has or may have diplomatic relations, to the end that any differences which cannot be adjusted by diplomatic agency may be referred to arbitration and be peacefully adjusted by such means (Congressional Record, 51st Cong1st sess, vol. 21, pt. 3, p. 2986).

It was John Hay, an American Secretary of State, who proposed a plan for a permanent international tribunal to the First Peace Conference at The Hague in 1899. In his instructions to the American delegation he used the following inspiring language:

Nothing can secure for human government and for the authority of law which it represents so deep a respect and so firm a loyalty as the spectacle of sovereign and independent states, whose duty it is to prescribe the rules of justice and impose penalties upon the lawless, bowing with reverence before the august supremacy of those principles of right which give to law its eternal foundation.'

I could not and would not support any constitutional amendment which I thought would impair in the slightest degree the ability of the United States Government to continue its participation in that movement, the success of which I regard as vital to the maintenance of our civilization.

There is nothing in the amendment approved by the American Bar Association that can have any effect upon the ratification by the United States of treaties for the establishment of mixed claims commission, arbitral tribunals, joint boundary commissions, or international courts for the adjudication of disputes with foreign nations arising under international law or treaties. Such international differences are not within the domestic jurisdiction and cannot be subject to internal law.

The States of the Union are expressly forbidden by the Constitution to enter into any agreement or compact with a foreign power without the consent of Congress (art. 1, sec. 8, clause 10).

The National Government, by virtue of its control of our foreign relations, is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be found to be appropriate, through treaty. agreement or arbitration, or otherwise (Chief Justice Charles Evans Hughes in Monaco v. Mississippi, 1934, 292 U. S. 313).

1 For this and other references on the subject, see letter dated February 17, 1923, from Secretary of State Charles Evans Hughes to President Warren G. Harding, recommending the participation of the United States in the Permanent Court of International Justice at The Hague (Congressional Record, 67th Cong., fourth sess., vol. 64, No. 74, p. 4508).

I am putting these in because I wish to make it perfectly clear that there is nothing in this amendment which would require the consent of the States to any of these arrangements for preserving the peace of the United States.

The function of the Federal Government to enter into treaties, through constitutional processes, for the submission of international controversies of all kinds to peaceful solution in lieu of resort to armed force, must not be confused with the conclusion of treaties which would impose criminal and civil liability upon persons within the United States without action by the Legislature, or that would be destructive of the existing division of authority between the States and the Federal Government.

Mr. Chairman, I have taken a long time and I appreciate your patience and I appreciate the chance you have given to me to give you my best thought upon what these proposals mean, and also to express what is in my mind and heart about what position this Government. should take in the world we are trying to straighten out today.

The CHAIRMAN. Believe me, the committee is very, very grateful

to you.

Senator SMITH. I quite approve of what the chairman said. I think we should be very grateful to you, Dr. Finch. I feel as though I have been a member of one of his classes and I just wish that the opponents of these amendments could likewise hear him.

The CHAIRMAN. I suppose this represents months and months and months of work; is that not true?

Mr. FINCH. Mr. Chairman, this paper represents a lifetime of work devoted to this subject. It has taken me several weeks to put it down in this which to me is condensed form.

Senator BRICKER. Mr. Chairman, let me say that I deeply appreciate the contribution that Mr. Finch has made. He has had a lifetime of service in this field and his responsibility and experience is unique. It may be as extensive as any man that has ever practiced in this field in the history of our country, and I think it is a great exposition of the principles that are involved in this consideration.

Senator SMITH. I wish that every Member of the Senate could have heard what he had to say.

Senator WATKINS. May I join with my associates and with the other members of the committee in their praise of Mr. Finch and expression of gratitude for his fine services to us and to the country.

Mr. FINCH. I thank you all for these very fine expressions. I deeply appreciate it.

The CHAIRMAN. Is there a gentleman here by the name of Mr. David Whatley?

He wanted 6 minutes.

We will give you 6 minutes, Mr. Whatley. That is all you asked for.

STATEMENT OF DAVID WHATLEY, ATTORNEY AT LAW,

WASHINGTON, D. C.

Mr. WHATLEY. I will confine myself to the number of minutes I requested. I appreciate so much the patience the committee members have shown in these long hearings and the diligence and devotion and time they have given to this very complex question.

The CHAIRMAN. Will you identify yourself?

Mr. WHATLEY. I am representing no organization. I am a member of the District of Columbia bar, a private citizen, who spends more time in political activity that I consider in the public interest, and in real estate, than I do in the practice of law.

However, I take these few moments to call your attention to an aspect of this question that I consider to be most important and not to have been adequately covered, particularly the abuse of the treatymaking power by the Executive in nullifying the power of Congress to declare war.

The history of the North Atlantic pact the members of this committee know very well, but for the record may I cite two public documents which I hope the chairman shall place before each member of the full committee as they consider this important resolution: House Report 2495 of the 81st Congress, second session, entitled "Background Information on Korea," and House Report 127, 82d Congress first session, entitled "Background Information on the Use of United States Armed Forces in Foreign Countries."

I think the members of this full committee who have not had an opportunity to read in the first document at page 61 the memorandum of the Department of State, on the authority of the President to go to war in Korea without a declaration of war, will be simply amazed at the contentions therein raised, particularly such specious allegations as that the President acted under the provisions of the United Nations Charter, which has been so ably refuted by the distinguished and patriotic Senator from Utah, who is a member of this committee, in a speech which has not received enough public attention, though it was inserted in the Record by Senator Taft, and is the only article I have seen delineating the illegality, under the Charter, of the President's action.

I therefore ask, because it is brief and it covers this most important question in relation to these resolutions, that it be placed in the record.

The CHAIRMAN. Is that a speech by Senator Watkins?

Mr. WHATLEY. Yes, sir.

Senator WATKINS. I might make a correction there. I think that was probably an article prepared for the Western Political Science Quarterly, and the article was put in the Record by Senator Taft. Senator SMITH. You do not want to change it?

Senator WATKINS. No; I do not want to change it.

The CHAIRMAN. How long ago was this?

Senator WATKINS. I wrote the article 2 years ago. It is an article written for the Western Political Science Quarterly.

The CHAIRMAN. All right, we will insert it in the record. (The material referred to follows:)

WAR BY EXECUTIVE ORDER

Extension of Remarks of Hon. Robert A. Taft of Ohio in the Senate of the United

States Tuesday, January 29, 1952

Mr. TAFT. Mr. President, Utah's Senior Senator Arthur V. Watkins has written an article entitled "War by Executive Order," which appears in the December 1951 issue of the Western Political Quarterly. This article should be required reading for those who are interested in the legality of the actions by which the Armed Forces of the United States were ordered into the Korean war.

The Western Political Quarterly, which has honored Senator Watkins by publishing his article, is a reputable, scholarly publication devoted to the study of