POWER IN THE CONSTITUTIONAL SYSTEM. 231 



actually entered the lists and wrote, under the name of " Hel- 

 vidius" : ^^ 



" In the general distribution of powers, we find that of declaring war 

 expressly vested in the Congress, where every other legislative power is de- 

 clared 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 particu- 

 lar case, a concurrence of two-thirds at least is made necessary, as a substi- 

 tute 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 

 laii'Sj 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. . . . 



" 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 prac- 

 tice. It is countenanced neither by the writers on law ; nor by the nature of 

 the powers themselves ; nor by any general arrangements, or particular ex- 

 pressions, 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 execu- 

 tive 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 negotia- 

 tions 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 na- 



18 Madison, Writings, Hunt, ed., 6: 147-150. 



