Then, again, after showing that a treaty is a contract with a foreign nation, having the force of law, “The Federalist” proceeds:--
“The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world _to the sole disposal of a magistrate created and circumstanced as would be a President of the United States_.”[84]
Thus does this contemporary authority testify against handing over to “the sole disposal” of the President the delicate and momentous question in the unratified treaty.
Following “The Federalist” is the eminent commentator already cited, who insists that “it is too much to expect that a free people would confide to a single magistrate, however respectable, _the sole authority_ to act conclusively, as well as exclusively, upon the subject of treaties”; and that, “however proper it may be in a monarchy, there is no American statesman but must feel that such a prerogative in an American President would be inexpedient and dangerous,”--that “it would be inconsistent with that wholesome jealousy which all republics ought to cherish of all depositaries of power”; and then he adds:--
“The check which acts upon the mind, _from the consideration that what is done is but preliminary_, and requires the assent of other independent minds _to give it a legal conclusiveness_, is a restraint which awakens caution and compels to deliberation.”[85]
The learned author then dwells with pride on the requirement of the Constitution, which, while confiding the power to the Executive Department, “guards it from serious abuse by placing it _under the ultimate superintendence of a select body of high character and high responsibility_”; and then, after remarking that “the President is the immediate author and finisher of all treaties,” he concludes, in decisive words, that “no treaty so formed _becomes binding upon the country_, unless it receives the deliberate assent of two thirds of the Senate.”[86]
Nothing can be more positive. Therefore, even at the expense of repetition, I insist, that, as the power to declare war is under the safeguard of Congress with the concurrence of the President, so is the power to make a treaty in the President with the concurrence of two thirds of the Senate,--but the act of neither becomes binding without this concurrence. Thus, on grounds of authority, as well as of reason, is it clear that the undertaking of the President to employ the War Powers without the authority of Congress was void, and every employment of these War Powers in pursuance thereof was a usurpation.