The sun., 1919-06-17
President and Senate a. Treaty
Makers Again.

Makers Again. |
It Is quite true, as our correspon-
dent Mr.. WEsTEHvEIr points out In
a letter printed In another column,
that IL the Constitution fails to say
specifically that the Senate shall par
ticipate in the negotiation Of a treaty,
It is equally silent as to any exclusive
and undivided power on the part of
the Executive to conduct the negotia- |
lions through diplomatic agents in
whose selection the Senate has not
participated by confirmation
The word negotiate does not oc-
cur in the clause governing the proc
ess. Treaty making is not there con-
sidered In the practical sequence OF
negotiation, signature, submission to
the Senate for ratification or rejec-
ton, and proclamation. Treaty max
ing Is q unit as far AZ the phrase
ology Of the Constitution b concerned;
and treaties are to be @made" by the
President. tby and with ths advice
and consent Of the Senatcss h af.s.
There is. a verbal arrangement in
this section which seems TO possess
some significance with regard to the
time when the advice and consent Of
the Senate comes in. II there Is
soundness In the view OF this much
controverted question which Is taken
by the supporters Of the Executive
pretensions- to negotiate without the
advice and consent of the Senate, and
without the confirmation by the Sen
ate OF, the diplomatic, persons chosen
by the President for the preliminary
work, the Colonel Houses, so to speak,
then 1t would appear that the clause
would have been framed thus: =
"Hs shall have power to negotiate.
and by and with the advice and
consent Of the Senate. 70 conclude
treaties, provided two-thirds Of the
Senators present concur"
Instead of that the clause reads:
He shall have power. by and
with the advice and consent Of the
Senate. to make treaties. provided
tWo-thiras of the Senators present
concur
Now, marked difference In the
sequence will be noted In the very
next. clause of the same section,
wherein is defined the Presidents
power with regard to the appointment
Of officers of the United States:
And he shall nominate. and. by
and With. tha advice and consent Of
tina Senate. shall appoint Anbassa-
doris -. and all other officers Of
the United States whose appoint
| ments are not herein otherwise pro-
vided for. and which shall be estab-
lished by law" IL.
| The exclusive power of initiative
in the nomination of officers CORE
spends exactly with the asserted ex-
elusive power of initiative In the ne
gotiauon Of treaties; but no doubt Of
that exclusive power Of domination
Is left by the language of the Consti-
4 tuition, as 1t is in the case Of treaty
making. He shall nominate" not
by and with, the advice and consent
! of the Senate, but on his own re-
sponsfbility. The nomination is the
sole act of the President. The advice
ind consent of the Senate does not
come in until later. when the actual
appointment is to be made. If the
scope Of the Senate's participation in
appointments was thus scrupulously
defined in chronological order and Its
advice and consent deferred until the
last stage Of the process, It may rea-
sonably be asked why the same thing
was not done in the case of treaty
making.
| We print to-day also the spirited
rejoinder of Mr. EDWARD FALEs Cow
ARD. based mostly upon a hurried
study of certain textbook on treaty
making compiled by a Mr.. SAMUEL
fB. CRANpALL and on a decision Of
Chief Justice MARSHALL that officers
appointed by the President on his sole
responsibility are not occupants OF
Offices established by law and do moi
require confirmation. This seems to
US to complete vicious circle Of ar
gumentation; for what does 1t leave OF
the status Of Colonel HOUSE and others
as representatives of the Government
of the United States In one of the
most important enterprises of nego
tiation ever undertaken by that Gov
ernment? And what Is left Of the
Senate's check on improper appoint
ments by the Executive II he can in
fact appoint on his sole responsibility
anybody to do anything in the name
of the United States, anywhere in the
, world, at the cost Of the Treasury Of
) the United States, so long as the ap
pointment Is to an Office created BY
. him and not to an Office created by
law? We wish Mr.. COWARD had car
e ried his inquiries little further.
" Mr., COWARD would have found, FOL
D example, that when Chief Justic,
{ OLIVER ELLswoKrH, PATRICK HENR,
a and W. v: Murray We're nominated