palpable usurpation. Should the legislature ever attempt to transgress their authority in this manner, the general rule which I have stated as a guide to the Chief Magistrate, could not apply. Under such exceptional circumstances, should they ever arise, he must interpose his prerogative; he must "preserve, protect, and defend the Constitution." SECTION IV. THE POWER OF THE PRESIDENT TO MANAGE THE FOREIGN AND INTERNATIONAL RELATIONS OF THE UNITED STATES. § 669. This general power is contained in the following special grants: "He shall receive ambassadors and other public ministers" accredited from foreign governments. "He shall nominate, and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls." "He shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur." "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." All foreign relations are thus confided exclusively to the President, or to him in connection with the Senate. Congress as such has no voice in, or control over, these matters, except the secondary power or duty of passing laws in certain instances to carry out the provisions of treaties. § 670. Of the unlimited extent and transcendent importance of this function thus confided to the Executive, either alone or in connection with the Senate, there can be no doubt. When we reflect on the results for good or evil, flowing from the condition of international relations, results which must be felt by the nation in all their internal affairs, we can judge of the responsibility which rests upon the Chief Magistrate personally, by virtue of these powers. The function, as a whole, is divided into two distinct branches: the power of intercourse, intercommunication, and negotiation, through the means of resident or special ministers ; and the power of entering into formal and binding international compacts, which must be compulsive on all departments of the government, and which are made, by the, express terms of the Constitution, the supreme law of the land. I shall consider these two branches separately, the latter being much the more important. § 671. The President is the sole organ of communication between our own and all other governments. Foreign ministers and ambassadors are accredited to him; to him they present their credentials and pay their formal official visits. The communications which they make, and the negotiations which they conduct, are, in fact, made and conducted to and with the Secretary of State, but only as that officer is the direct and personal organ of the President. All replies of the Secretary are supposed to be suggested by the Chief Magistrate, and he may, and doubtless often does, take an actual and leading part in the negotiation. Our own ministers are nominated by the President. When appointed they communicate alone with the Executive through the State Department. Instructions are sent to them, despatches forwarded, demands made, claims insisted on, principles adopted and enforced, as the President deems proper. How far he will actually interfere with the Secretary of State, and how far leave that officer to the exercise of his own discretion, must depend upon his own sense of duty and propriety, and the completeness of his own convictions. § 672. Over all these proceedings the Congress has absolutely no control. The correspondence and negotiations may be, and generally are, conducted secretly; and although it is customary for the President to communicate despatches to the legislature, this is never done until after their transmission, and, if necessary, they may be indefinitely withheld when the President deems that the public interests require it. Congress may pass resolves in relation to questions of an international character; but these can only have a certain moral weight they have no legal effect; they cannot bind the Executive. The necessity for this is evident. Negotiations generally require a certain degree of secrecy; one mind and will must always be more efficient in such matters than a large deliberative assembly. The President has thus intrusted to him a most momentous power, and one which he cannot entirely delegate. Our foreign ministers must undoubtedly use their own judgment and discretion within narrow limits, but in all important matters, they receive definite and positive instructions from home. The magnitude of this function may be easily illustrated. The President cannot declare war; Congress alone possesses this attribute. But the President may, without any possibility of hindrance from the legislature, so conduct the foreign intercourse, the diplomatic negotiations with other governments, as to force a war, as to compel another nation to take the initiative; and that step once taken, the challenge cannot be refused. How easily might the Executive have plunged us into a war with Great Britain by a single despatch in answer to the demands of the British Cabinet made in relation to the affair of the Trent. How easily might he have provoked a condition of active hostilities with France by the form and character of the reclamations made in regard to the occupation of Mexico. I repeat that the Executive Department, by means of this branch of its power over foreign relations, holds in its keeping the safety, welfare, and even permanence of our internal and domestic institutions. And in wielding this power, it is untrammelled by any other department of the government; no other influence than a moral one can control or curb it; its acts are political, and its responsibility is only political. - § 673. But the other branch of this executive function the treaty-making power is even more important. The language by which this authority is conferred and described, is peculiar. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two thirds of the Senators present concur. All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. The President must, of course, take the initiative in making all treaties. Congress, as such, has nothing to say in the matter. As a treaty is necessarily the result of negotiation, and as such negotiation is exclusively within the province of the President, the Senate having not the least authority to communicate with a foreign government, it is absolutely impossible for that body to dictate a treaty, or to force the Chief Magistrate into any particular line of action. He must negotiate the treaty, make all the stipulations, determine all the subject-matter, and then submit the perfected convention to the Senate for ratification or rejection. They must take his finished work and approve or disapprove. § 674. But there is another principle of the utmost moment, involving conclusions of far-reaching importance. The Constitution places no express limits whatever upon the subjects, conditions, or contents of treaties. The President shall have power to make treaties. Now, the subjects to which these international compacts may legitimately refer, are innumerable; the stipulations they may legitimately contain, are equally varied, dependent upon numberless changes of circumstances and relations. They may affect most vitally the interests of the nation as a whole, or the private and personal interests of individuals. They may be the results of successful war or of negotiation, by which territory is added; or of unsuccessful war or of negotiation, by which territory is ceded. They may regulate navigation, the import and export of goods, the imposition of duties, the rights of aliens, the tenure of property. Congress, having no power over them, cannot abrogate or modify them. In general, therefore, the President, with the consent of the Senate, may enter into any species of treaty known in the intercourse of nations, any species known to the international law. The genus "treaties" includes all the usual kinds and sorts. §675. While the President's function is in general so unrestricted, and although the Constitution places no express limits upon its exercise, there is plainly an implied limitation. I have no doubt that a treaty may be made which cuts off the authority of Congress to adopt certain particular means and measures by which they might have otherwise exercised some of their general powers. The convention by which certain reciprocal privileges of trade were established between the United States and the Canadas; that by which certain tonnage duties and other commercial imposts are abandoned by the United States and France; that by which a certain local jurisdiction in peculiar cases is given to some foreign officials resident here, are illustrations of international compacts having this restraining effect. But I think it is equally certain that a treaty would be a mere nullity which should attempt to deprive Congress, or the Judiciary, or the President, of any general powers which are granted to them by the Constitution. The President cannot, by a treaty, change the form of government, or abridge the general functions created by the organic law. That a treaty may add particular functions and attributes not expressly conferred or described in the Constitution, cannot be doubted; indeed, almost every such convention must have this effect in a greater or less degree. Note, also, that all treaties made by authority of the United States are, equally' with the Constitution and the laws of Congress passed under it, the supreme law of the land, and are binding upon, and superior to, state authority, whether that be expressed in state constitutions or state laws. § 676. Let us inquire in what manner treaties operate: whether they are compulsive by and of themselves, or whether they require a statute of Congress to make them effective? The language of the Constitution would seem to be explicit on this point; but the Supreme Court has given the authoritative rule. Some treaties are so worded that, by their very terms, they apply directly to the subject-matter. They do not stipulate for any thing to be done in the future; their provisions are not promissory; but they declare that a certain thing, state, condition, or right does thereby exist. Other treaties are wholly or partly executory; they agree that a certain thing shall be done. In regard to the first class, they are of themselves law; binding as such upon all public officers, and upon all private persons. In regard to the second class, they are, as such, binding only upon the government, and require legisla 1 See Hauenstein v. Lynham, 100 U. S. 483. |