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would have no such power; as he argued that a treaty was a contract between two parties, and that it could only be repealed by the consent of both parties.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
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the negotiations. Congress has also assumed the func- tions 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 negotia- tions, but it is held that under the constitutional pro- vision, " 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 func- tion 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
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state, for the information of that government, that Congress is by the Constitution invested with no execu- tive power or responsibility whatever, but, on the con- trary, the President of the United States is, by the Constitution and laws, invested with the whole execu- tive 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." l
Mr. Bryce, the author of that admirable work, "The American Commonwealth," in speaking of the presi- dential 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 t faithful exe- cution of the laws,' the President is likely to be led to assume all the powers which the emergency requires." 2
John Quincy Adams, in his discourse on " The Ju- bilee 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. * l American Commonwealth, 60.
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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 unre- served in terms, e The executive power shall be vested in a President of the United States of America.' '
In the Constitutional Convention there was a numer- ous 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 exclu- sive power to make treaties and appoint ambassadors, thus reserving to one branch of the legislative depart- ment 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 advo- cates, 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 char- acter 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-
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perty against those irregular and high-handed combina- tions which sometimes interrupt the ordinary course of justice; to the security of liberty against the enter- prises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.
" There can be no need, however, to multiply argu- ments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execu- tion; and a government illy executed, whatever it may be in theory, must be, in practice, a bad government." l
It was the conclusion of the framers of the govern- ment that, especially respecting international affairs, involving matters of momentous national dignity and importance, and secret and delicate complications, the President should be intrusted with their sole conduct; and, hence, it was made his duty to appoint and receive ambassadors and ministers (thus making him the organ of communication with other governments), and to initiate negotiations and conclude treaties. At the same time they did not give him the unlimited
1 Lodge's Federalist, 436.
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powers possessed by the king of Great Britain, but conferred very important functions as to foreign affairs upon Congress and the Senate. It was thus made necessary that there should be cooperation and mutual confidence between the President and Congress, in order that the government of the United States should maintain a dignified and proper position before the nations of the world. And the expectations of the makers of the Constitution, as to the patriotic impulses which would inspire their successors, who would have in their hands the government of the country, have not been disappointed. In times of high political ex- citement, when the legislative and executive depart- ments were not in party harmony, Congress has been tempted to antagonize the President in his foreign policy, but rarely, if ever, has it failed to respond to his call when the honor or the interests of the country were plainly at stake.
The federal organic law having clothed the Presi- dent with vast powers and great responsibilities as
