24Q WRIGHT— POSITION OF FOREIGN RELATIONS 



" The essence of the legislative authority is to enact laws, or, in other 

 words, to prescribe rules for the regulation of the society ; while the execu- 

 tion of the laws and the employment of the common strength, either for this 

 purpose or for the common defense, seem to comprise 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 exertion of the common 

 strength. Its objects are contracts with foreign nations, which have the force 

 of law, but derive it from the obligations of good faith. They are not rules 

 prescribed by sovereign to the subject, but agreements between sovereign and 

 sovereign. The power in question seems, therefore, to form a distinct depart- 

 ment, and to belong, properly, neither to the legislative nor to the executive. 

 The qualities elsewhere detailed as indispensable in the management of foreign 

 negotiations point out the Executive as the most fit agent in those trans- 

 actions; while the vast importance of the trust, and the operation of treaties 

 as laws, plead strongly for the participation of the whole or a portion of the 

 legislative body in the office of making them." 



86. A Fourth Department. Functional Classification. 

 Functionally it would seem that the foreign relations pov^er, 



which both frames and carries out foreign policies, both contracts 

 and meets international responsibilities, is essentially different from 

 either the legislative power, which frames domestic laws and 

 policies, or the executive power which administers domestic laws 

 and policies. According to the terminology of Professors Good- 

 now ^" and other writers on administrative law the conduct of foreign 

 relations involves both " politics " and " administration " in external 

 affairs and is distinct from either " politics " or " administration " 

 in internal affairs. 



87. A Fourth Departiuent. Practice. 



In practice the control of foreign relations has differed from 

 the control of either legislation or domestic administration. While 

 the President has suggested legislation in messages to Congress 

 he has not as a rule taken a position of active leadership in the 

 formulation of domestic policy. The initiative has been with the 

 committees of Congress. The President's discretion is closely 

 limited by law enforceable in the courts. It is true the President 

 controls administrative officials through his removal power. He 

 instructs officials as to the method of executing the laws under au- 



3" Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156. 



