notions as to the naval policy to be pursued, apparently because these matters were uppermost in their minds, but that when the question was broached of preserving peace by means of an agreement, they turned to Haldane, apparently because such matters were uppermost in his mind, and not in theirs.

Additional observations on these important negotiations will be made in a future number.

JAMES BROWN SCOTT.

THE GERMAN-SWISS COMMERCIAL AGREEMENT

The right of a neutral to supply a belligerent with commodities, even such as relate to war, is unquestioned. The right of the belligerent in turn to withhold from the neutral what he himself needs or what he can not afford to let pass through the neutral into his enemy's hands, is also unquestioned. Somewhere between these extremes the degree of permissible trade must lie. It is an economic and political question rather than a legal one, and complicated in the present war by the overwhelming superiority of the belligerent to the neutral influence. Now, of all the neutrals, the case of Switzerland is the hardest, because she is an inland state, needing to import coal and iron and foodstuffs, but having no ships and seaports to do it with, completely dependent therefore upon the will of one or other of the warring states which border her.

Early in the war there was no shortage of bread grain, but the raw material problem was apparent to the Swiss Government from the first. Thus the Minister for Foreign Affairs, Herr Hoffmann, in June, 1915, stated his country's point of view:

Our industry, extensive and varied as it is, is entirely dependent on the world's markets. It is therefore impossible to close our doors completely to one or other group of belligerents. If our industry is to live, it must be able to re-export into all countries the articles which it has manufactured with the raw materials supplied by one or other of the belligerents.

But the tendency of each set of belligerents was to insist, as far as possible, that what it furnished did not inure to the benefit of its enemy and that some compensation should be made for its sacrifice in letting Switzerland have material which it wanted for itself. An example of the first-mentioned principle was the prohibition of grain exports by the Swiss Government and the adoption after an interval of the

S. S. S., the Swiss Society of Economic Surveillance, patterned after the Dutch Oversea Trust, holding nearly all imports for domestic consumption solely. An example of compensations was the insistence by the German Government that iron and coal would be sent to Switzerland only if a certain amount of foodstuffs were sent by Switzerland in return, and this was to include not only food originating in the country, like cattle and dairy products, but also imports of food and of many other things, such as forage, lubricating oil, cotton and cotton fabrics, imported into Switzerland on German account. Thus, unless cotton (available for explosives) were let pass to Germany, Swiss industries bade fair to be starved by having their coal supply cut off.

The outcome of this controversy was an agreement by which coal to the amount of 253,000 tons was furnished by Germany, with the iron and steel required; German-owned goods in Switzerland were to be held by the government until the end of the war, and foodstuffs were furnished to Switzerland by the Entente Powers. Such was the arrangement until the spring of 1918 when the coal supply was reduced to 200,000 tons. At that time Germany appears to have insisted that no German coal should be used for the manufacture of any articles exported to her enemies. This was changed, however, to a demand that French coal to a minimum of 85,000 tons a month should be supplied by France. France had made this offer, provided no German restrictive conditions were annexed to it, so a temporary deadlock resulted. There was dispute also as to the price of German coal, which was set at $36 a ton. This was slightly reduced with a larger reduction for domestic coal up to 60,000 tons a month.

On May 22, 1918, a German-Swiss economic convention was signed. The French delivery of coal, which was not mentioned in it, was to have nothing to do with German deliveries. The writer has not the text of the convention nor information as to it except for the rather obscure references of the London Times. But the theory which governed seems to have been that, roughly speaking, the coal used in the manufacture of articles for Entente use should be furnished by France; that foodstuffs which the United States, as producer, might furnish, should not be objected to, and that the needed German coal for other purposes than those mentioned should be supplied up to 200,000 tons a month. Considerable food deliveries to Germany were obligatory. This then, or something like it, is the compromise arrived at between the two sets of rights with which this discussion began.

Granting that the neutral may fairly be ground between the upper and the nether millstones of belligerent necessities and animosities, the outcome in this case seems not unfair. But it may be questioned whether Switzerland is satisfied. The price of coal was considered unduly high, and as the Tagwacht of Berne said, none of the belligerents had ever considered Switzerland in any other light than in that of their own interests.

Is there any just guiding principle discoverable in such a problem as this?

By an obscure yet relentless system of economic bargaining, belligerents try to strike one another through the neutral. They forfeit thereby the neutral good will. They do serious damage to an innocent neighbor whose only fault is one of geographical position. Practically it amounts to an attempt to enlarge the old rule against contraband. Formerly the belligerent hindered the trade in contraband by intercepting it at sea if he could. This was expanded by the doctrine of the indirect voyage. Now he tries to hinder it by threats and trade reprisals. Should blockade be abolished and trade in contraband be made illegal, with the onus of prevention on the neutral, such practices as we have considered would disappear. But short of such a drastic, almost unthinkable, remedy, the writer does not see any guiding principle to apply or any remedy if the neutral or a league of neutrals is not strong enough to insist upon its interests as paramount to belligerent interests.

THEODORE S. WOOLSEY.

PRIVATE PEACE PARLEYS

From time to time statements occur in the press to the effect that a subject of the enemy acting unofficially, be it said - has broached the question of peace and the terms upon which it might be concluded to an American citizen residing permanently, temporarily, or passing through some neutral country, and from time to time the press informs its readers that an American citizen, Mr. John Doe, Mr. Richard Roe, or some other person known to the law, residing in this country, has discussed questions of peace with a diplomatic agent of a foreign government, or that the American citizen in question has gone abroad discuss such questions with officials of foreign governments or with unofficial persons, or that, residing in a neutral country, he has entered

to

into relations with official or unofficial persons of the enemy country whom he has chanced to meet in some neutral country where both happen to be.

Admitting that John Doe, Richard Roe, et al., are inspired by the best of motives, that they are honest and upright persons, they nevertheless come dangerously near the strong arm of the law, either when they engage in a self-imposed mission of the kind specified, or without making overtures, allow themselves to be drawn into discussions even although these do not assume the shape of formal negotiations. Even a democracy needs its agents for purposes of government, and while the citizens can and indeed, should control the policy of the country, the necessity for a division of labor obtains in the business of government as well as in the ordinary pursuits of daily life.

In the United States there is a threefold division of power. All legislative powers granted by the Constitution are vested in the Congress; the executive power is vested in the President; the judicial power in the Federal Courts. An examination of the second article of the Constitution, dealing with the executive branch of the government, discloses that the President "shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls," and that "he shall receive ambassadors and other public ministers." That is to say, the President shall choose the agents in whom he has confidence to conduct the foreign affairs of the country, and if the Senate concurs in his choice, they thereupon become agents of the United States for this purpose. He receives ambassadors and other public ministers without the advice and consent of the Senate, and necessarily he determines whether he shall or shall not receive them, as well as the conditions upon which they may be received, involving, as this action on his part does, the recognition of the independence of the country sending them, or of its right to send them under the circumstances. So much for selecting and receiving diplomatic agents.

In the matter of treaties, the President again, as would be expected, is authorized to direct the negotiations of the persons whom he has appointed; but as they are nominated with the advice and consent of the Senate, so their labors are to be passed upon by the confirming power. As by the second section of the second article of the Constitution the President is vested with the power "by and with the advice and consent of the Senate to make treaties, provided two-thirds

of the Senators present concur," it was foreseen by the framers of the Constitution that there would need to be under it, as under the Articles of Confederation, a department of foreign affairs to aid the President in their conduct. Therefore it was provided by the first Congress under the Constitution, in its Act of July 27, 1789, that 1

There shall be an Executive department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary for the Department of Foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs, as the President of the United States shall assign to the said department; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct.

Here again we have an agent of the President, in the conduct of foreign affairs, not to be selected at random and without formality, but like other officers of the United States, to be appointed by and with the advice and consent of the Senate. The President may appoint Messrs. John Doe and Richard Roe, but if he does not, it would seem to follow by necessary implication that they can neither negotiate abroad with foreign governments nor within the United States represent the government of the Union.

But we do not need to argue the question as if it were one of theory, or to subject the clauses which have been quoted to the canons of constitutional or statutory interpretation. Within ten years of the establishment of the government under its provisions, and likewise within ten years of the passage of the Act creating the Department of State, the legislative and the executive branches of government cooperated in the passage of the Act of January 30, 1799, contained in the first volume of the Statutes at Large, in company with the Constitution, and the Act of Congress creating the Executive Department. The young republic had already had experience with Messrs. John Doe and Richard Roe in the person of one George Logan, an American 11 Statutes at Large, 28.

By the Act of September 15, 1789, ch. 14 (1 Statutes at Large, 68), the name of the Department of Foreign Affairs was changed to that of the Department of State.