may have been the opinion of theoretic writers and the practice of European nations, the fact is undoubted that the first American. Government vested all foreign relations powers in Congress and the Constitutional Convention started from the assumption that these powers were legislative. The particular powers in the field which they delegated to the President in part or in full may have been in view of particular expediencies. But the most important foreign relations powers were left largely legislative. The power to declare war, to define piracies and offenses against the law of nations and to regulate foreign commerce are left with Congress and the power to make treaties and to appoint ambassadors, public ministers and consuls requires the consent of the Senate. Furthermore, whatever Jefferson may have said or done at other times, certainly he denounced Hamilton's theory of the essentially executive nature of the foreign relations power in 1793 and urged Madison to "take up your pen, select the most striking heresies, and cut him to pieces in face of the public.' Madison actually entered the lists and wrote, under the name of "Helvidius" 18 9917 "In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested; and without any other qualifications than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature. . . . "There are sufficient indications that the power of treaties is regarded by the Constitution as materially different from mere executive power, and as having more affinity to the legislative that to the executive character. "One circumstance indicating this is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two-thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which, on certain occasions, could not be conveniently a party to the transaction. "But the conclusive circumstance is, that treaties, when formed according to the constitutional mode, are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the Constitution to be 'the supreme law of the land.' 17 Jefferson, Writings, P. L. Ford, ed., 6: 338. "So far the argument from the Constitution is precisely in opposition to the doctrine. As little will be gained in its favour from a comparison of the two powers with those particularly vested in the President alone. . . . "Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements, or particular expressions, or plausible analogies, to be found in the Constitution. "Whence then can the writer have borrowed it? "There is but one answer to this question. "The power of making treaties and the power of declaring war are royal prerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators." 80. Essentially Legislative Nature. Practice. In practice it can be shown that Congress has occasionally passed resolutions advising or directing the opening of negotiations with a view to the conclusion or modification of treaties and the President has usually followed this advice. Congress has also passed resolutions directing the termination of treaties and the use of force abroad aside from the exercise of its express powers of declaring war, defining piracies and offenses against the law of nations and regulating foreign commerce. The Senate, moreover, has, throughout American history, exercised its power to reject treaties, or consent to their ratification with amendments or reservations. 81. Essentially Legislative Nature. Recent Opinion. In the Senatorial Debate of 1906 referred to, Senator Bacon of Georgia supported the legislative nature of the foreign relations power: 19 "Mr. Beveridge (Indiana). I will ask this question: If the Constitution had said nothing about the treaty-making power, where would the treatymaking power have been lodged? "Mr. Bacon. I have received that question from the Senator several times. I have said that I did not agree with him that it would be with the Executive. "Mr. Beveridge. Where would it be? "Mr. Bacon. I think, undoubtedly, in the legislative branch of the Government, for reasons which I will give. "Mr. Beveridge. That is the whole question. 19 Supra, note 16. "Mr. Bacon. Here is where the sovereignty of the Government was intended to be in almost its totality-in the legislative branch of the Government, and the vast array of powers in the first article of the Constitution proves it; and, further than that, the Constitution of the United States was intended to take the place of and to supersede the Articles of Confederation, under which articles the power to make treaties did lodge in Congress alone; and it was not to be presumed when the Constitution was formed in the absence of some special and particular designation, that it was the intention to confer it upon the Executive. The presumption would be the other way." 82. Theory of a Fourth Department Different from Either Executive or Legislative. Although on the whole those favoring the executive prerogative have the better of the argument, especially in the light of practice in such matters as recognition and treaty negotiation, yet there does not seem warrant for a full acceptance of the view stated by Senator Spooner. We are inclined to reject both views in their extreme forms and to accept that of the Federalist which held the foreign relations power to be neither legislative nor executive but a fourth department of government.20 However, to sustain this distinction we must recognize the ambiguity of the term "executive power." Writers on administrative law have recognized the two distinct functions frequently vested in the chief executive, designated respectively as "political" and "administrative" functions.21 The political functions exhausted the early conception of "executive power" and corresponded very closely to what we call the foreign relations power. During the nineteenth century, however, the administrative functions of the chief executive or the functions of executing the law and directing the national civil services have increased in importance and now it is to these that writers and courts usually refer when they speak of "executive power." Thus though foreign relations power is almost synonymous with executive power according to the earlier usage, under present usage the two are distinct. This is especially true in the United States. Here the political functions of the executive are largely in the field of foreign rela 20 Infra, sec. 85. 21 Goodnow, Principles of the Administrative Law of the U. S., p. 66; Willoughby, op. cit., p. 1156. tions.22 Though the President has been gaining an increasing political influence in domestic affairs through the veto, the patronage, and his extra-constitutional position as head of his political party, yet, lacking the powers of initiating legislation, personally forcing it through the legislature, and if necessary proroguing or dissolving that body, commonly exercised by European executives, he has not assumed the dominating position in domestic policy found there. His legal powers have been in the main confined to executing the law and directing the national civil service. In foreign affairs, on the other hand, the President's political powers are as great as those of the executive in most European countries, but for their exercise he usually requires the advice and consent of the Senate. Thus, these powers have tended to be dissociated from the ordinary executive powers exercised independently by the President but within the limits of detailed statutes. 83. A Fourth Department. Opinion of Theoretical Writers. A careful examination of the views of Locke and Montesquieu will indicate that they regarded the control of foreign relations as a distinct department of government. Locke used the term " federative" to designate this department and distinguished it from both the "executive" and "legislative" departments.23 "But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution or an attendance thereunto; therefore, it is necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated. "There is another power in every commonwealth. . . . Though in a commonwealth the members of it are distinct persons still in reference to one another, and as such are governed by the laws of the society; yet in reference to the rest of mankind, they make one body. . . . Hence it is that the con 22 The only ones which are not are the veto power given by Art. I, sec. 7, par. 3, and those in Art. II, sec. 3. "He shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such time as he shall think proper." 28 Treatise of Civil Government, secs. 144-148, Works, ed. 1801, 5: 425-6. troversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. This, therefore, contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth; and may be called federative, if anyone pleases. So the thing be understood, I am indifferent as to the name. "These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execution of the municipal laws of the society within itself, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from; yet they are always almost united. And though this federative power in the well- or ill-management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs, and interests, must be left in great part to the prudence of those who have this power committed to them to be managed by the best of their skill, for the advantage of the commonwealth. "Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated and placed at the same time in the hands of distinct persons; for both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the commonwealth in distinct, and not subordinate hands; or that the executive and federative power should be placed in persons that might act separately, whereby the force of the public would be under different commands: which would be apt some time or other to cause disorder and ruin." Montesquieu's triple division was the same: 24 "In every government," he says, "there are three sorts of power: the legislative; the executive, in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends, or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasion. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state." 24 L'Esprit des Lois, lxi, c. 6, Philadelphia, 1802, 1: 181. Note Madison's paraphrase of this in the Federal Convention, infra, note 34. |