The Washington herald., 1920-05-24

insurrection or foreign war Is be-
gun against US.
(b) The status Of peace succeed
ing war between two nations can
only come by agreement between
them. This agreement may be ex-
pressed or may be implied from the
circumstances. 1t therefore follows
that Congress can not declare peace
which will end a war between this
country and another country. be-
cause Congress sole act does not
constitute an agreement. Nor is
the war ended by an act of Con-
gress repeating the former declara-
tion of war, because Congress can
not thus end that which it could
begin by a un:lsteral act. This act
produced a status OF war, to the
ending of which both parties must
agree.
(c) An agreement ending war
may be by treaty of peace, and with
US under our Constitution the treaty
making power is entrusted to the
President and two-thirds of the
Senate. But this agreement can be
effected in any other way permitted
by our Constitution. In practice we
have made what in substance are
agreements and constitute a meet
ing of the minds of two nations by
co-ordinating legislative acts of the
legislatures of the two governments.
Thus the last proposed reciprocity
agreement with Canada was to be
constituted by an act of Congress,
by which certain duties were to be
imposed on Canadian products com.
ing into the United States, IL at the
same time by Canadian statute GER
tain duties were to be imposed on
goods going from the United States
into Canada.
This agreement made between the
two Executives was to be embodied
in these two statutes, neither OF
which became operative until the
other was passed. and each of which
would cease to be operative when
the other was repealed. This legis
lative method of making an agree
ment with another nation has had
sufficient precedents to negative the
claim that the Constitution in con-
ferring the treaty-making power OF
the United States upon the PresI-
dent and the Senate is entirely ex-
elusive.
. Cannot Bind Future.
On the other hand, the method OF
agreement by statute is limited as
the legislative power of Congress is
limited. One Congress cannot bin
another. Therefore, Congress could
not by joint resolution effectively
promise to another nation to dc
something in the future and bind
the United States, which another
Congress might not legally and hon.
orab1y withdraw from.
Whereas the treaty.making power
has that function fully developed
and though a subsequent Congress
may repeal the treaty as municipal
law, it does not end the obligation
of the United States in international
law, but only breaks the treaty
With this distinction in mind be-
tween, the two modes Of making
agreements. It is clear that where
the agreement only affects the pres
ent.. as: for example, changes the
state Of war into q state of peace
II Is within the power of the Con-
gress of the United States and the
Legislative power Of another gov
ernment effectively to declare peace
by .co-ordinating statutes. Peace
then becomes fait accompli. A sub
sequent Congress could not change
that except by a new declaration
Of war. II, therefore, this joint
resolution of Congress, in so far as
1t declares peace, were followed by
a declaration of peace at the same
time by the German government
the status of war would be ended as
an international fact. with all the
legal consequences in international
law that follow from such a change
Of status. ~
II. The text writers and prece-
dents Justify the conclusion that an
agreement for permanent peace
changing the status from war to
peace may be inferred from the
cessation of hostilities and from q
long continued acquiescenee of the
parties in an actual state Of peace
In the present case hostilities
ceased upon the making of an ar.
mistice by the President as COM
mander-in-chief, that by its terms
looked forward to a permanent
status of peace created by a treaty
And most of the nations have con-
cluded such a treaty. We have not
But we have not communicated to
Germany our refusal to agree to
the peace treaty which the other
associate nations have ratified.
The actual suspension of hostil-