general statement in Part Second, and shall not here repeat the arguments and authorities therein relied upon. I shall only add some reasons peculiar to the President. The Chief Magistrate has the express power of objecting to a proposed statute by means of his veto. Armed with this weapon, he may oppose the passage of any act which he deems unconstitutional or even inexpedient. In most cases his objections will have power to defeat the measure; but he may be overruled by a vote of two thirds of the Congress. When this is done, or when the statute receives his assent, it certainly has the form of law, and the presumption must unquestionably be that it is valid. No one would contend that the President may now refuse to execute this statute on the ground that, in his opinion, it is inexpedient or impolitic. This would be to give him the dispensing power which was so long claimed by the British crown, and so vigorously resisted by the English people. The legislative function is given to Congress; and if the statute be within the grants of the Constitution, and be passed according to the forms required by that Constitution, the President, aside from his power to accord or withhold his consent, has no responsibility for or control over its mere policy or expediency. Every writer on the public law, and every practical statesman, will concede the correctness of this position.

§ 665. But the conclusion thus reached is entirely independent of the further inquiry whether the President may still judge of the validity of the law on constitutional grounds. As a general rule, applicable in a great majority of cases, he cannot thus exercise an independent judgment. This opinion has been maintained by most American publicists and statesmen, although its correctness has been denied by political writers of no small reputation and ability. The arguments of those who assert the President's absolute power to pronounce upon the validity of a law, are based on two provisions of the Constitution. He is to take care that the laws are faithfully executed. It is said that he must only execute the laws, and not those legislative acts which have a legal semblance merely, but are void. An unconstitutional statute is no more a law

than though it had never been passed, and the President has no power whatever to execute this nullity. Again: the President is compelled to take the following oath: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." It is said this oath imposes on the President a personal and peculiar responsibility; that he is to be guided by his own judgment, by his own conviction of what is lawful, and not by the judgments and convictions of any other per

sons.

§ 666. These arguments, though not without a certain degree of plausibility, are of little weight. They either prove too much, or they beg the whole question. The senators and representatives, the members of state legislatures, and all executive and judicial officers of the states and of the nation, are also required to take an oath to support the Constitution. The President's oath is but an amplification of this; it enters into more detail, but does not add another compulsive clause. The solemn promise in particulars "to preserve, protect and defend the Constitution," does not imply more than the equally solemn. promise in generals "to support" it. The former is no more binding upon the President's conscience, than is the latter upon that of every ministerial, legislative, and judicial officer: the sanction of the former does not more rigidly restrain the President in the discharge of his high public duties, than does the sanction of the latter hold all other officers to a strict accountability in the performance of their special functions. If the President, therefore, receives from the terms of his oath a power to judge independently as to the validity of a statute, to the same extent and for the same reason, every legislative, executive, and judicial officer of the states and of the nation, acquires the same power to construe and interpret the organic law for himself. Indeed the instances have not been wanting where subordinate officials have asserted their claim to this authority. Should such a practice become general, anarchy would immediately take the place of a well ordered government.

§ 667. When it is said that the President is only bound to execute the laws, and not void statutes, and that he must therefore decide for himself, and refuse to enforce those enactments which he deems to be unconstitutional, this is assuming the very point in dispute. The question really is, are the laws in controversy valid or void; and giving him the power to decide this question is to make him the sole dispenser of statutes; it is to introduce immediate confusion into the whole machinery of government; it is to set the Executive against the Legislature, or against the Judiciary. Of course, if the law is void, it is not to be executed; this is conceded. But who is to determine this question? It can only be the Judiciary; and their decision, as long as it stands unreversed, is final and compulsive upon the President. The statute having passed through the prescribed forms of legislation, is to be taken as presumptively valid; it certainly carries with it the prima facie character of legality, and until declared a nullity by the proper courts, should be treated as binding, and should be faithfully executed. In fact, there are many legislative enactments where the President must take the initiative, and commence to execute, or they will remain a dead letter; he must move, or no one else can, and thus no opportunity can arise for a judicial decision upon their validity. If the President may determine for himself, and refuse to execute, his action would be final; no person affected by such statutes could establish any rights thereunder. Another large class of laws, however, can be set in motion by private persons or subordinate officers, and thus their legality may be presented to the judicial tribunals for discussion and judgment.

§ 668. To the general rule stated in the foregoing paragraphs, there are, I think, two important exceptions. A statute may be passed of such a form and character as to be addressed directly to the President; it assumes to regulate his official action; no private person and no subordinate officer is affected by its provisions. If the Chief Magistrate enforces this law, no question as to its validity can be raised, no opportunity can be given to deny the power of the legislature. It is only by a refusal to execute such a statute that the Presi

dent can possibly create an issue between himself and Congress; so long as he continues to carry out its mandates, it must be taken as legal. In such a case the President, unless he chooses to acquiesce, may plainly exercise an independent judgment, and act upon his own separate convictions. To illustrate So long as the Executive obeys the recent act of Congress in relation to removals from office, and appointments thereto, the statute must be taken as valid; no officer removed or appointed can complain, for his rights have not been impaired. The law, therefore, must stand unquestioned, unless the President should disregard its commands and proceed to remove from office without consulting the Senate.

Again: it is possible to conceive the case that Congress should pass a statute which was plainly opposed to the very letter of the Constitution; concerning which there could be no doubt or difference of opinion; which was, in fact, an act of 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.

"He

§ 669. This general power is contained in the following special grants: "He shall receive ambassadors and other public ministers" accredited from foreign governments. 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 thePresident, 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 inspired 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 in