232 WRIGHT— POSITION OF FOREIGN RELATIONS 



tions 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 reser- 

 vations. 



8i. 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 : ^® 



"Mr. Beveridge (Indiana). I will ask this question: If the Constitution 

 had said nothing about the treaty-making power, where would the treaty- 

 making 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 Gov- 

 ernment, for reasons which I will' give. 



" Mr. Beveridge. That is the whole question. 



" Mr. Bacon. Here is where the sovereignty of the Government was 

 intended to be in almost its totality — in the legislative branch of the Govern- 

 ment, 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 frotn Either Ex- 

 ecutive 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 Sen- 

 ator Spooner. We are inclined to reject both views in their ex- 

 treme 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.-" 



19 Supra, note 16. 



20 Infra, sec. 85. 



