of express powers-it is not necessary that implied powers be traced always to a single express delegation.

"It is to be observed," said Chief Justice Marshall, "that it is not indispensable to the existence of every power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and to infer from them all that the power claimed has been conferred." 9

Thus the power to recognize foreign states and governments may be implied from the powers of receiving and commissioning diplomatic officers; 10 the power to exclude and expel aliens may be implied from the powers of regulating foreign commerce, naturalizing aliens and declaring war; " the power to annex and govern territory may be implied from the power of making treaties, declaring war, and admitting new states to the Union.12 We assume,

9 Cohens v. Va., 6 Wheat. 264; U. S. v. Gettysburg Electric Ry. Co., 165 U. S. 668, 681-683 (1896). See Willoughby, op. cit., p. 66, and Legal Tender Cases, 12 Wall. 457, quoted ibid., p. 65.

10 Corwin, The President's Control of Foreign Relations, p. 71.

11 Although in the Chinese Exclusion Cases (130 U. S. 581, 1889) and Fong Yue Ting v. U. S. (149 U. S. 698, 1893) certain expressions of the court support the contention that the power of exclusion and expulsion are derived from national sovereignty in foreign affairs, yet it is to be noted that in both of these cases the court carefully enumerated the specific grants of power of which these so-called sovereign powers are the resultant. The argument in the Chinese Exclusion Cases, that the power to make war for defense implies a power to take lesser defensive measure, and that the occasion for and methods of such defense is a political question not subject to judicial determination, may also be noticed. "It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers." Thus when the court spoke of "sovereign powers" it had in mind powers resultant from a group of express or implied powers, and not powers deduced from an abstract theory of sovereignty.

12 The case of Jones v. U. S. (137 U. S. 202), which is cited by Willoughby as not only practically upholding the right of the United States to acquire territory by discovery and occupation, but applying the principle that 'the

therefore, that the foreign relations power in common with all other national powers, exists only as far as (1) expressly delegated by the Constitution, (2) implied from expressly delegated powers, or (3) implied as a "resultant" from a group of express or implied powers.13

B. Essential Nature of the Foreign Relations Power. 74. Controversy as to Nature of Foreign Relations Power.

Since the beginning of the government under the Constitution there has been a controversy as to the essential nature of the for

"

United States may exercise a power not enumerated in the Constitution, provided it be an international power generally possessed by sovereign states (op. cit., p. 341), really turned on the principle of "political question." "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances." Apparently the President's power to recognize acquisitions of territory by the United States, through the operation of international law, flows from his constitutional position as the representative organ of the government. It is to be noted that he has recognized such acquisitions aside from congressional legislation. (Moore, Digest, 1: 555.) Thus such acquisitions are made by operation of international law. Recognition thereof is a political function of the President, and the courts are bound by such decision. The act of Congress (Act of Aug. 18, 1856, Rev. Stat., secs. 5570-5578) involved in this case defines the circumstances under which and the procedure by which American citizens, discovering Guano Islands, can benefit by the rule of international law and the rights and degree of protection to which they are entitled, thus falling under the power to govern territory. Constitution, (See Moore, Digest, 1: 556 et seq.) art. IV, sec. 3, par. 2.

13 Unquestionably the enumerated powers relating to foreign affairs, either by implication or combination, will permit Congress to pass practically any laws properly within that field. Consequently in practice this theory of congressional power differs little from the theory asserting that congressional in powers can be deduced from national sovereignty in foreign affairs. J. B. Moore in Proc. Am. Phil. Soc., Minutes, 60: xvi, quoting Taney, C. J., Holmes vs. Jennison, 14, Pet. 540; "all the powers which relate to our foreign intercourse are confided to the general government." The difficulty of the sovereignty theory, however, lies in the fact that a recognition of congressional sovereignty in foreign affairs would seem to exempt Congress from constitutional limitations arising from individual rights, states' rights and the 'Sovereignty" is not only plenitude of separation of powers in this field. power, but also absence of limitation. See supra, note 5.

eign relations power. One school has contended that such powers are essentially executive and hence all delegations of power to Congress in this field must be strictly construed while delegations of power to the President may be liberally construed. Some have gone even farther and in view of the constitutional statement that "The Executive power shall be vested in a President of the United States of America" have contended that all foreign relations powers not otherwise expressly delegated are by this general grant of executive power vested in the President. Another school has taken the reverse view, supporting a liberal legislative power and a narrow construction of executive powers.

75. Foreign Relations Power not Essentially Judicial.

The courts have been perfectly clear that these powers are not of an essential judicial nature, and consequently have considered themselves incompetent to decide them. They have usually called them "political questions" and have accepted the decisions of the political branches of the government without question.14 However, the political branches of the government include both the legislative and executive branches, consequently judicial opinions give us little assistance in our effort to determine whether these powers are essentially legislative or essentially executive.

76. Theory of Essentially Executive Nature. Early Opinion.

Supporters of the essentially executive character of foreign relations powers notice that writers with whom the members of the federal convention were familiar such as Locke, Montesquieu, De Lolme and Blackstone appeared to classify the control of foreign. relations as executive. In European countries, especially in Great Britain, the Chief Executive conducted foreign relations. Furthermore, they say, the debates in the federal convention tended in this. direction. The treaty-making power, vested in Congress under the Confederation, was first given to the Senate by the Convention, but finally the President was added and in the ultimate draft the subject is concluded in the section dealing with Executive power, indicating that the Convention had become convinced of its executive char

14 Infra, sec. 107,

acter. Washington's recognition of the new French republic by reception of Citizen Genet upon his own responsibility set a precedent which has since been followed. His proclamation of neutrality, when many thought the French alliance treaty required war, was loudly denounced by the Jeffersonian Republicans, but the precedent has been invariably followed since when occasion has arisen for proclaiming neutrality. This first neutrality proclamation occasioned a lively pamphlet debate between Hamilton and Madison under the names of "Pacificus" and "Helvidius," and Hamilton, who supported the executive character of the proclamation, won, if future practice is to be the judge.15

"It deserves to be remarked," he wrote, "that as the participation of the Senate in the making of treaties, and the power of the legislature to declare war, are exceptions out of the general executive power' vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution. While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the 'executive power' to do whatever else the law of nations, cooperating with the treaties, of the country enjoins in the intercourse of the United States with foreign powers."

77. Essentially Executive Nature. Practice.

Advocates of this theory notice that in practice the President alone has recognized foreign governments and states and proclaimed neutrality. He has initiated all foreign negotiations and has held himself free to ignore congressional resolutions or acts on the subject. He has even authorized foreign military expeditions on his own authority and has initiated all wars. He has on his own responsibility executed treaties of extradition, guarantee, and intervention. He has made executive agreements terminating hostilities, outlining terms of peace, annexing territory and providing for administration in foreign territory, and he has denounced treaties.

78. Essentially Executive Nature. Recent Opinion.

A debate on the extent of executive prerogative in foreign relations was indulged in by Senators in 1906 on the occasion of President Roosevelt's negotiation of the Algeciras convention through

15 Hamilton, Works (Federal ed., Lodge), 4: 443.

personal agents, whose appointments had not been consented to by the Senate. Senator Spooner of Wisconsin supported the President.16

"From the foundation of the Government it has been conceded in practice and in theory that the Constitution vests the power of negotiation and the various phases—and they are multifarious—of the conduct of our foreign relations exclusively in the President. And, Mr. President, he does not exercise that constitutional power, nor can he be made to do it, under the tutelage or guardianship of the Senate or of the House or of the Senate and House combined. . . .

"Mr. President, I do not stop at this moment to cite authorities in support of the proposition, that so far as the conduct of our foreign relations is concerned, excluding only the Senate's participation in the making of treaties, the President has the absolute and uncontrolled and uncontrollable authority. . . .

"We as the Senate, a part of the treaty-making power, have no more right under the Constitution to invade the prerogative of the President to negotiate treaties, and that is not all-the conduct of our foreign relations is not limited to the negotiation of treaties-we have no more right under the Constitution to invade that prerogative than he has to invade the prerogative of legislation. . .

"I do not know whether it will be any 'light' to the Senator from South Carolina, but in Mr. Jefferson's opinion on the Powers of the Senate, a very celebrated document, which he gave at the request of the President, this language was used: 'The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are especially submitted to the Senate. Exceptions are to be construed strictly.""

79. Theory of Essentially Legislative Nature. Early Opinion.

However, supporters of the essentially legislative character of the foreign relations power are not without ammunition. Whatever

16 Cong. Rec., Jan. 23, Feb. 6, 1906, 40: 1417-1421, 2125-2148; Reinsch, Readings in Am. Fed. Govt., 81–124; Corwin, op. cit., pp. 170, 172, 176, 203. Senator Beveridge remarked during this debate: "Does not the Senator (Bacon) think that in the natural division of the powers of the Government into legislative, executive, and judicial the treaty-making power has always been considered an executive function, and therefore, if the Constitution had been silent upon the subject of treaties, it would have been completely under the President's control, under that provision of the Constitution which confides in the President executive power, and that the section concerning treaties is merely a limitation upon that universal power?" Ibid., p. 184. “All duties in connection with foreign relations not otherwise specified fall within the sphere of the executive." Sen. Doc. No. 56, 54th Cong., 2d sess. See also infra, sec. 92.