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THE YALE LAW JOURNAL VOLUME 54 MARCH, 1945 Numrmr, 2 TREATIES AND CONGRESSIONAL-EXECUTIVE OR PRESIDENTIAL AGREEMENTS: INTERCHANGEABLE INSTRUMENTS OF NATIONAL POLICY: I MYRES S. McDOUGALt AND ASHER LANS: "It seems to me that an executive agreement ratified by joint resolution differs from a treaty largely in name only." SENATOR FULRIGHT "It is now admitted that what was sought to be effected by the Treaty submitted to the Senate, may be secured by a joint resolu- tion of the two houses of Congress incorporating all its provisions. This mode of effecting it will have the advantage of requiring only a majority of the two houses, instead of two-thirds of the Senate." JoHN C. CA.Luou, in 1845, commenting on the procedure used for annexing Texas. I* Above the holocaust of the present war has arisen a demand from the people of the United States for a foreign policy that i,.ll do everything humanly possible to prevent future wars and to secure their other interests in the contemporary world. The people have made up their tWilliam K. Townsend Professor of Law, Yale Law School. tFormer Comment Editor, Yale Law Journal; sometime University Fellow in the Faculty of Political Science, Columbia University. *The following short-form citations are used in this article: BAILEY, DIPLOMATIC HIsTORY: Thomas A. Bailey. A Diplomatic History of the American People (2d ed. 1942). BENTON, ABRIDGEMENT: Thomas Hart Benton. Abridgement of the Debates of Congrec, from 1789 to 1856. 16 vols. (1857-1361). Borchard, Executire Agreements: Edwin Borchard. Shall the .ExecutireAgreement Relplace the Treaty? (1944) 53 YALE L. J. 664. Catudal, Executive Agreements: Honor6 Marcel Catudal. Executire Agreements: A Suppe- ment to tlw Treaty-MakingProcedure (1942) 10 GEo. WASH. L. REv. 653. Commerce Committee Hearings: Hearings before a Subcommittce of the Committee on Com- merce on S. 1385, a Bill to Providefor the Improvement of tl:e Great Lahes-St. Lawrence Basin in the Interest of National Defense, and for Other Purposes, 78th Cong., 2d Sess. (1944). THE YALE LAW JOURNAL (Vol. 54 :181 minds as to the general kind of foreign policy they want.' In elections and by-elections extending over a period of five years, in Congressional resolutions, and in the platforms and speeches of party candidates, a line of policy has been laid down as precisely as the processes of voting CORWIN, THE PRESIDENT: Edward S. Corwin. The President: Office and Powers (2d rev. ed. 1941). CRANDALL, TREATIES: Samuel B. Crandall. Treaties, Their Making and Enforcement (2d ed. 1916). ELLIOT, DEBATES: Jonathan Elliot. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. 5 vols. (2d ed. 1866). FARRAND, RECORDS: Max Farrand, ed. The Records of the Federal Convention of 1787. 4 vols. (rev. ed. 1937). FOREIGN RELATIONS: [date]: U. S. Department of State. Papers Relating to the Foreign Relations of the United States (1862- ). Frankfurter and Landis, The Compact Clause: Felix Frankfurter and James M. Landis. The Compact Clause of the Constitution-A Study in Interstate Adjustments (1925) 34 YALE L. J.685. HACKWORTH, DIGEST: Green Haywood Hackworth. Digest of International Law. 8 vols. (1940-1944). HARVARD RESEARCH, LAW OF TREATIES: Research in International Law of the Harvard Law School Law of Treaties: Draft Convention, with Comment (1935) (published as 29 Am. J. INT. L. Surpp., No. 4, pp. 652-1226). Judiciary Committee Hearings:Hearings before Subcommittee No. 3 of the Committee on the Judiciary and the Committee on the Judiciary on H. J. Res. 6, H. J. Res. 31, H. 1. Res. 64, H. J. Res. 238, H. J. Res. 246, H. J. Res. 264, and H. J. Res. 320 Proposingan Amendment to the Constitution of the United States Relative to the Making of Treaties, 78th Cong., 2d Sess. (1944). Levitan, Executive Agreements: David M. Levitan. Executive Agreements: A Study of the Executive in the Control of the Foreign Relations of the United States (1940) 35 ILL. L. REv. 365. McCLuRE, EXECUTIVE AGREEMENTS: Wallace McClure. International Executive Agree- ments: Democratic Procedure under theConstitution of the United States (1941). McLAUGHLIN, CONSTITUTIONAL HISTORY: Andrew C. McLaughlin. A Constitutional History of the United States (1935). MADISON, DEBATES: James Madison. The Debates in the Federal Convention of 1787 (Hunt and Scott, eds., 1920). MALLOY, TREATIES: William M. Malloy, comp. Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers, 1776-[1937]. 4vols. (1910, 1923, 1938). MILLER, TREATIES: U. S. Department of State. Hunter Miller, ed. Treaties and Other International Acts of the United States of America. 7 vols. published to date (1931- 1942). MOORE, DIGEST: John Bassett Moore. A Digest of International Law. 8 vols. (1906). RICHARDSON, MESSAGES: James D. Richardson, comp. Messages and Papers of the Presi- dents, 1789-1897. 10 vols. (1898). WILLOUGHBY, CONSTITUTIONAL LAW: Westel Woodbury Willoughby. The Constitutional Law of the United States. 3 vols. (2d ed. 1929). 1.- See, e.g., NATIONAL OPINION RESEARCH CENTER, THE PUBLIC LooKS AT WORLD ORGANIZATION (Report No. 19, April 1944). For figures as of Feb. 6, 1945, see 4 OPINION NEWS (National Opinion Research Center) No. 3. Typical of the attitude of the nation is a recent poll taken in New Hampshire, reported in N. Y. Times, March 15, 1945, p. 10, col. 3: 1945] TREATIES AND EXECUTIVE AGREEMENTS and popular expression permit. Firmly, deliberately, and in large majority, the people have said that they want a foreign policy which continues our war-time alliances and which seeks to create upon that foundation both a new general security organization, with the United States as a leading member, and all the other supporting institutions necessary to secure the full advantages-such as economic well-being and the promotion of health, knowledge, and the maintenance of human dignity-that can 2flow from the free and peaceful cooperation of the peoples of the world. This demand of the people of the United States is based upon an increasing consciousness that the world is shrinking ever more rapidly, irrevocably, and imperiously into what a late statesman aptly called "One World." 3 It is now common knowledge that revolutionary developments in instruments of destruction, transportation, communi- cation, and production; constant increases in population; increasing reliance upon natural resources of wide distribution; and consequent changes in the various institutions by which man carries on his ac- "Almost all of New Hampshire's 225 towns expressed overwhelmingly a dsire that the United States should enter a world organization which would have police power to maintain peace in the country's first popular vote on the question. "Returns from 213 towns showed today a vote of about 14,000 for a world organization, such as was proposed at Dumbarton Oaks, with about 800 against it. Unanimous approval came from 103 towns." 2. Secretary of State Stettinius has recently made a brief statement of the principal aims of contemporary American foreign policy. Secretary Stettinius includes, beyond giv- ing to the armed forces the "fullest possible support" in winning the wa-r and taking "effec- tive steps to prevent" the fascist nations "from again acquiring the power to wage aggrezzive war," the following: "3. Establishment at the earliest possible moment of a United Nations organization capable of building and maintaining the peace-by force if nece- sary-for generations to come. "4. Agreement on measures to promote a great expansion of our foreign trade and of productiveness and trade throughout the world, so that we can main- tain full employment in our own country and-together ith the other United Na- tions--enter an era of constantly expanding production and consumption and of rising standards of living. "S. Encouragement of all those conditions of international life favorable to the development by men and women everywhere of the institutions of a free and democratic way of life, in accordance with their own customs and desires." Statement before the Senate Foreign Relations Committee, Dec. 12, 1944, reported in N. Y. Times, Dec. 13, 1944, p. 14, col. 1. Compare the statement of President Roosevelt, Prime Minister Churchill, and Premier Stalin in the Yalta Declaration, Feb. 13, 1945: "We are resolved upon the earliest possible establishment with our Allies of a general international organization to maintain peace and security. We believe that this is essential, both to prevent aggression and to remove the political, economic and social causes of war through the close and continuing collaboration of all peace- loving peoples." 3. WILLKiE, ONE WoRLD (1943). THE YALE LAW JOURNAL [Vol. 54: 181 tivities have all combined to make the peace, prosperity, health, knowl- edge, respect for human dignity, and freedom of the contemporary world indivisible. The indivisibility of peace has seldom been stated with greater force than by Senator Henry Cabot Lodge, speaking in 1915: ... there is no escape from the proposition that the peace of the world can only be maintained as the peace and order of a single community are maintained, by the force which unified nations are willing to put behind thepeace and order of the world. Nations must unite as men unite to preserve peace and order. The great nations must be so united as to be able to say to any single coun- try, 'You must not go to war'; and they can only say that effec- tively when the country desiring war kno~s that the force which the united

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