Now nothing can be clearer than that this provision, introduced on the authority of the President alone, was beyond his powers, and therefore brutum fulmen, a mere wooden gun, until after the ratification of the treaty. Otherwise the President alone might declare war, without an Act of Congress, doing indirectly what he cannot do directly, and thus overturning that special safeguard which places under the guardianship of Congress what Story justly calls “the highest sovereign prerogative.”
Here we meet another distinctive principle of our Constitution. As the power to declare war is lodged in Congress with the concurrence of the President, so is the power to make a treaty lodged in the President with the concurrence of two thirds of the Senate. War is declared only by Congress and the President; a treaty is made only by the President and two thirds of the Senate. As the former safeguard was new, so was the latter. In England and all other monarchies at the time, the treaty-making power was a kingly prerogative, like the power to declare war. The provision in our Constitution, requiring the participation of the Senate, was another limitation of the One-Man Power, and a new contribution to Republican Institutions.
“The Federalist,” in an article written by Alexander Hamilton, thus describes the kingly prerogative:—
“The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description.… Every jurist of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the Crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction.”[82]
Such was the well-known kingly prerogative which our Constitution rejected. Here let “The Federalist” speak again:—
“There is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can only do with the concurrence of a branch of the Legislature.”[83]
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.