armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism." 1

Notwithstanding the efforts of the framers of the Constitution to that end, the division of powers as to foreign relations between the legislative and executive departments has not been so sharply defined as to prevent seeming conflict at times. Congress was given 1 Lodge's Federalist, 432.

the

power "to regulate commerce with foreign nations," and yet the President and the Senate have often modified our laws as to foreign commerce by treaty. Again, it is provided that Congress shall "declare war;" but the President, intrusted with the management of our foreign relations, or as commander-in-chief of the army and navy, can, without any action of Congress, so far commit the nation as to make war inevitable. For instance, we shall see in a later chapter that upon the annexation of Texas the President ordered the army of the United States into disputed territory, which brought on a war with Mexico, without any direct action of Congress.

On the other hand, it is within the power of Congress to nullify the action of the treaty-making power, the President and the Senate, by the passage of laws which operate to defeat the provisions of treaties. From the quotation made from the "Federalist,” it would seem that it was the opinion of Mr. Jay that Congress would have no such power; as he argued that a treaty was a contract between two parties, and that it could only be repealed by the consent of both parties. But Congress, as in the Chinese immigration law, has intentionally legislated in direct contravention of an existing treaty, and the Supreme Court has sustained the act as binding municipally, on the principle that the last act of Congress repeals all previous laws in conflict with it, even though they may be treaties.

Congress can also greatly embarrass the President in treaty negotiations by the passage of resolutions or laws not in harmony with the objects had in view in

the negotiations. Congress has also assumed the functions of treaty-making by joint resolution, a purely legislative act. Such was the case in the annexation of Texas and Hawaii.

The usual practice has been for the President to initiate and carry to a conclusion all treaty negotiations, but it is held that under the constitutional provision, "with the advice . . . of the Senate ;" it is in the power of that body to initiate treaty negotiations by a resolution expressive of its wishes for executive information and action. It has often occurred that the President has consulted the Senate as to the wisdom of certain negotiations before they have been initiated, or before their conclusion. Under the Constitution, the Senate was made an important factor in the conduct of our foreign affairs, and experience has shown that it was a wise provision on the part of the founders of the government. It makes negotiations cumbersome and uncertain, but it operates as a wholesome check upon the executive, and introduces into treaty-making an element of popular opinion which is not unbecoming in a democratic government.

While the Constitution reserves to Congress the function to declare war, when that act is taken the powers of the President suddenly become greatly enlarged. Lawrence, editor of Wheaton, says of the "war powers of the executive: "It was during the war of secession that the powers of the President were exercised to an extent unprecedented in English history." Secretary Seward, in a note to the British minister, in October, 1861, used this language. "It seems necessary to

state, for the information of that government, that Congress is by the Constitution invested with no executive power or responsibility whatever, but, on the contrary, the President of the United States is, by the Constitution and laws, invested with the whole executive power of the government, and charged with the supreme direction of all municipal and ministerial civil agents, as well as of the whole land and naval forces of the United States, and that, invested with these ample powers, he is charged by the Constitution and laws with the absolute duty of suppressing insurrections, as well as of preventing and repelling invasion, and that for these purposes he constitutionally exercises the right of suspending the writ of habeas corpus whenever and wherever and in whatsoever extent the public safety, endangered by treason or invasion in arms, in his judgment requires.” 1

Mr. Bryce, the author of that admirable work, "The American Commonwealth," in speaking of the presidential power, says that in war time "it expands with portentous speed. Both as commander-in-chief of the army and navy, and as charged with the 'faithful execution of the laws,' the President is likely to be led to assume all the powers which the emergency requires."

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John Quincy Adams, in his discourse on "The Jubilee of the Constitution," says: "It has perhaps never been duly remarked that, under the Constitution of the United States, the powers of the executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those 1 Dip. Cor. U. S. 1861, p. 171. 2 1 American Commonwealth, 50.

of the legislative. The language of the instrument in conferring authority is, 'All legislative power, herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' But the executive authority is unreserved in terms, - 'The executive power shall be vested in a President of the United States of America.'

In the Constitutional Convention there was a numerous and influential party strongly opposed to giving the President the large powers finally conferred upon him, and the "Committee on Detail" provided, in the first instance, that the Senate should possess the exclusive power to make treaties and appoint ambassadors, thus reserving to one branch of the legislative department these most important international functions. In defense of the ultimate action of the Convention in clothing the President with the large powers which he now possesses, Hamilton wrote at considerable length, from which I extract the following:

"There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers of this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of pro