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time did the responsibility of the Cabinet to Parliament become established. Even during the 19th and 20th centuries, the prerogative in foreign relations has been exercised by the Crown in Council quite independently both of party politics and of parliamentary responsibility.28 The distinction has continued to exist between the foreign relations power exercised rather independently by the Crown in Council and the executive power exercised by the Crown under powers delegated by Parliament and through ministers responsible to that body.

The executive power as known to the constitutional fathers in the colonial governor was similar to that of the British Crown in the 18th century with the very important exception of the foreign relations power. The colonial governor exercised merely such powers as summoning and dissolving the legislature and appointing and removing officers.

"Administrative matters," says Goodnow, "outside of those directly connected with the military powers of the governor had not been attended to by the central colonial government but, in accordance with English principles of local government, by various officers in the local districts of the state who were regarded as local in character and who often at the same time discharged judicial functions." 29

This was also true of the succeeding state governors. Since all powers of the national government under the Continental Congress and Articles of Confederation were vested in Congress no conception of the scope of executive or legislative power could be gained from this experience, though the need of a more efficient control of foreign relations was strongly felt and was one leading motive toward the formation of the Constitution.30

ings, 1851; Committee on Education, later a Board of Education, in 1856; Local Government Board, 1871; Board of Agriculture and Fisheries, 1889. (Medley, op. cit., p. 112 et seq.)

27"The first definite recognition of this corporate responsibility (of the cabinet) may be said to date from 1782." (Medley, op. cit., p. 109.)

28 See Low, The Governance of England, N. Y., 1915, p. 301; Ponsonby, Democracy and Diplomacy, London, 1915, p. 45 et seq.

29 Goodnow, op. cit., p. 71.

30 Farrand, op. cit., 1: 426, 513.

85. A Fourth Department. Opinion of Constitutional Fathers.

When the presidency was first considered in the federal convention it was undoubtedly conceived as analogous to the colonial and state governors who exercised at that time neither foreign relations powers nor administrative powers but merely political powers in domestic affairs.31

The Senate was thought of as the repository of power in foreign relations.32 As discussion advanced, however, the analogy of the Presidency to the British Crown was pressed upon the convention. by such men as Hamilton and Gouverneur Morris, 33 while Madison referred to Montesquieu's conception of "executive power' as a definition of the President's powers.34 The view of these men which vested the President with political powers regarding foreign relations was, in the main, accepted, but to curb possible autocratic exercises of power by the President, the Senate was given a veto on treaties, while the power to declare war was left with Congress. The powers finally delegated to the President, and included in Article II of the Constitution as finally drafted by Gouverneur Morris, are mostly in the diplomatic fields.

The powers of domestic administration which we now regard as the essential executive powers were not within the power of either the colonial governor or the British monarch in the eighteenth century and it was not intended that they should be within the President's discretionary control. The fathers intended that these 31 James Wilson, Farrand, op. cit., 1: 65, 153.

32 Ibid., 1: 426.

33 Hamilton, Farrand, 1: 288; G. Morris, Ibid., 1: 513; 2: 104; Mercer, Ibid., 1: 297; Sherman, Ibid., 1: 97.

34" A dependence of the Executive on the Legislature would render it the executor as well as the maker of laws; and according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive and Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded and applied them for certain purposes as the latter did for others. The difference beween them seemed to consist chiefly in two circumstances-1. The collective interest and security were much more in the power belonging to the Executive than to the Judiciary department. 2. In the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter." Madison, Farrand, op. cit., 2: 34.

powers should be exercised by officers largely under the detailed. control of Congress and in the early acts organizing departments of government this plan was carried out.

“In the United States," says Willoughby, "it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should in the main consist in the performance of those political duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate administrative agents.” 35

Later, through the use of the implied or perhaps inherent power of the President to remove officers, and by a wide interpretation of the clause requiring the President "to take care that the laws be faithfully executed," originally indicating supervision rather than direction, the administrative powers of the President increased. At the same time the term "executive power" changed in meaning and although it still included the notion of political functions, its primary association was with the new administrative functions.

Thus when the constitutional convention gave "executive power" to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. This power ought to be distinguished from the power of the President as head of the administration which he exercises independently within the limits of congressional legislation and which by present usage forms the essential element in "executive power."

Whether consideration is given to the works of theoretical writers known to the fathers, the precedents of England, the colonies or the Confederation, or the discussion of the Federal convention itself, we may conclude that The Federalist expressed the opinion of the constitutional convention as to the nature of the foreign. relations power, so far as they had an opinion on that subject, when with prevision of the later significance of the term "executive power" it classified the treaty power as a fourth department of government; 36

35 Willoughby, op. cit., p. 1156. See also Goodnow, op. cit., p. 78.

36 The Federalist, No. 75 (Hamilton), Ford ed., p. 500. Hamilton later shifted to a defense of the wholly executive nature of the foreign relations power. Supra, sec. 76.

"The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems, therefore, to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them."

86. A Fourth Department. Functional Classification.

Functionally it would seem that the foreign relations power, which both frames and carries out foreign policies, both contracts and meets international responsibilities, is essentially different from either the legislative power, which frames domestic laws and policies, or the executive power which administers domestic laws and policies. According to the terminology of Professors Goodnow 37 and other writers on administrative law the conduct of foreign relations involves both "politics" and "administration" in external affairs and is distinct from either "politics" or "administration" in internal affairs.

87. A Fourth Department. Practice.

In practice the control of foreign relations has differed from the control of either legislation or domestic administration. While the President has suggested legislation in messages to Congress he has not as a rule taken a position of active leadership in the formulation of domestic policy. The initiative has been with the committees of Congress. The President's discretion is closely limited by law enforceable in the courts. It is true the President controls administrative officials through his removal power. He instructs officials as to the method of executing the laws under au37 Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156.

thority given him by Congress and sometimes he even supplements legislation by instructions or regulations of a general character not specifically authorized.38 But he must always act within the confines of an ever-increasing mass of congressional legislation. Congress has described the powers of officials and the methods of administration in considerable detail and the President, or rather his subordinates, are forced by the courts to observe such legislation. As legislation of this character increases in mass and detail, and as the practices and methods of permanent services become fixed by tradition as well as law, the President's discretion as head of the administration becomes reduced. His functions in this capacity tend to assume a purely supervisory and ministerial character.

In foreign relations, however, the President exercises discretion, both as to the means and as to the ends of policy. He exercises a discretion, very little limited by directory laws, in the method of carrying out foreign policy. He has moved the navy and the marines at will all over the world. He has exercised a broad discretion in issuing both standing regulations and instructions and special instructions for the diplomatic, consular, military and naval services. Though Congress has legislated on broad lines for the conduct of these services it has descended to much less detail than in the case of services operative in the territory of the United States. In the foreign affairs the President, also, has a constitutional discretion as the representative organ and as commander-in-chief which cannot be taken away by Congress and because of the exterritorial character of most of his action, his subordinates are not generally subject to judicial control.

But more than this he has initiated foreign policies, even those leading to treaties and those leading to war, and has generally actively pushed these policies when the cooperation of other organs of government is necessary for their carrying out. Though Congress. may by resolution suggest policies its resolutions are not mandatory and the President has on occasion ignored them. Ultimately, however, his power is limited by the possibility of a veto upon matured policies, by the Senate in the case of treaties, by Congress in the case of war.

38 Goodnow, op. cit., pp. 47, 75.

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