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This conclusion becomes irresistible, when it is recol. lected, that the constitution cannot be supposed to have placed either any power legislative in its nature, entirely among executive powers, or any power executive in its nature, entirely among legislative powers, without charging the constitution, with that kind of intermixture and consolidation of different powers, which would violate a fundamental principle in the organization of free governments. If it were not unnecessary to enlarge on this topic here, it could be shewn, that the constitution was originally vindicated, and has been constantly expounded, with a disavowal of any such intermixture.
The power of treaties is vested jointly in the president and in the senate, which is a branch of the legislature. From this arrangement merely, there can be no inference that would necessarily exclude the power from the executive class : since the senate is joined with the presi. dent in another power, that of appointing to offices, which as far as relate to executive offices at least, is considered as of an executive nature. Yet on the other hand, 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 than 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."
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.
As there are but few, it will be most satisfactory to review them one by one.
“ The president shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States.”
There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declar. ing war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
“ He may require the opinion in writing of the prin. “ cipal officers in each of the executive departments upon
any subject relating to the duties of their respective of. 6 fices; and he shall have power to grant reprieves and “ pardons for offences against the United States, except “ in case of impeachment.". These powers can have nothing to do with the subject.
“ The president shall have power to fill up vacancies 6 that may happen during the recess of the senate, by « granting commissions which shall expire at the end of “ the next session.” The same remark is applicable to this power, as also to that of receiving ambassadors, 6 other public ministers and consuls." The particular use attempted to be made of this last power will be considered in another place.
6" He shall take care that the laws shall be faithfully 66 executed and shall commission all officers of the Uni. “ ted States.” To see the laws faithfully executed constitutes the essence of the executive authority. But
what relation has it to the power of making treaties and war, that is, of determining what the laws shall be with regard to other nations ? No other certainly than what subsists between the powers of executing and enacting laws; no other, consequently, than what forbids a coalition of the powers in the same department. : I pass over the few other specified functions assigned to the president, such as that of convening the legislature, &c. &c. which cannot be drawn into the present question.
It may be proper however to take notice of the power of removal from offiee, which appears to have been adjudged to the president by the laws establishing the executive departments; and wbich the writer has endeavoured to press into his service. To justify any favour. able inference from this case, it must be shewn, that the powers of war and treaties are of a kindred nature to the power of removal, or at least are equally within a grantóf executive power. Nothing of this sort has been attempted, nor probably will be attempted. Nothing can in truth be clearer, than that no analogy, or shade of analogy, can be traced between a power in the supreme officer responsible for the faithful execution of the laws, to displaco'a subaltern officer employed in the execution of the laws; and a power to make treaties, and to deblare war, such as these have been found to be in their hature, their operation, and their consequences. 91 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? - 11 There is bat 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 preqogatives by British commentators. 11. We shall be the more confirmed in the necessity of this solution of the problem, by looking back to the æra
of the constitution, and satisfying ourselves that tlie Writer could not have been misled by the doctrines maintained by our own commentators on our own government. That I may not ramble beyond prescribed limits, I shall content myself with an extract from a work which entered into a systematic explanation and defence of the constitution; and to which there has frequently been ascribed some influence in conciliating the public assent to the government in the form proposed. Three circumstances conspire in giving weight to this cotemporary exposition. It was made at a time when no application to persons or measures could bias: the opinion given was not transiently mentioned, but formally and critically elucidated : it related to a point in the constitution which must consequently have been viewed as of importance in the public mind. The passage relates to the power of making treaties; that of declaring war, being arranged with such obvious propriety among the legislative powers, as to be-passed over without particular discussion. “ ment place that power of making treaties) in the class 66 of executive autobus “ ry disposition. For if we attend carefully, to its opera“ation, it will be found to partake more of the legisla“tive than of the executive character, though it does not s seem strictly to fall within the definition of either of 66 . “ to enact laws; or in other words, to prescribe rules 6 for the regulation of the society. While the execu“ the employment of the 66 tion of the laws and ,
common 6 strength, either for this purpose, or for the common “ defence, seem to comprize 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 ex66 ertion of the common strength. Its objects are con" tracts
with foreign nations, which have the force of law, " but derive it from the obligations of good faith. They
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66 are not rules prescribed by the sovereign to the subject, “i but agreements between sovereign and sovereign. “ The power in question seems therefore to form a dis“tinct department, and to belong properly neither to the “ legislative nor to the executive. The qualities else“ where detailed as indispensable in the management of “ foreign negotiations, point out the executive as the “ most fit agent in those transactions : whilst the vast “ importance of the trust, and the operation of treaties “ as laws, plead strongly for the participation of the 6 whole or a part of the legislative body, in the office of “ making them.” Federalist, p. 476.*
It will not fail to be remarked on this commentary, that whatever doubts may be staréed as to the correctness of its reasoning against the legislative nature of the power to make treaties; it is clear, consistent and confident, in deciding that the power is plainly and evidently not an executive power.
No. II. THE doctrine which has been examined, is pregnant with inferences and consequences against which no ramparts in the constitution could defend the public liberty, or scarcely the forms of republican government. Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive ; that of course all pow. ers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a reresiduary right in the executive; or, as will hereafter appear, perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives ; the most penetrating jurist would be unable to scan the extent of constructive prerogative.
Leaving however to the leisure of the reader deductions which the author having omitted, might not choose
* No. 75, written by Mr. Hamilton.