New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-12-23
THE EXECUTIVE POWER.
THE PRESIDENT BOUND BY TREATY IN FOREIGN
RELATIONSHIP CONGRESS- ABLE TO
ABRoGATE TREATIES.


ABRoGATE TREATIES.
To the Editor OF The Tribune
Sir: The question whether the recognition OF =
foreign State is power exclusively Executive is one
about which high authorities differ Justice OF the
Supreme Court-name not dlsclosed-s quoted a.
supporting Mr. Olney and his predecessor. ex-Attor-
nsy-Cienerai Miller. and also Judge Cooley. while
other authorities take different view. Much OF the
difference arises from mstakng the exact point at
issue IL il not denied that the Executive power 70
receive an Ambassador" when exercised by the
President, is conclusive upon the Judicial Depart
ment." as Justice Mclean decided in the case cited
by Attorney General Miller. and other declarations
from high authorities that the judiciary must IN
such matter abide by the decision OF the political
department" are all wide OF the mark. because tina,
department includes both the Executive and the
legislative branches. Judge Cooley. while afhrming
that the power to recognize devoves upon the Execu'
tive. Is careful TO add:
Blu; the Presidents power is not complete and final
The sovereign legislative power must provide for final
Intercourse and pass laws for the purpose laws for
which the President would be impeacnaoie II ne
should fail TO join in executing them
Now the precise point a, issue is not whether the
President may not take Initiative responsibility. as
indeed he often must. but whether his act is com
ple,e and final" and that point Judge Cooley does
not to support Mr.. Olney. who asserts that
even II Congress should by Joint resolution recognize
the independence Of State and pass the resolution
would be under no obligation TO obey 1t as the law
OF the land.
The only provision OF the Constitution defining
Executive power IN this respect is that the President
shall receive Ambassadors and other public Minis
ters" (sec. 3. Art. ID II this might be con-
strued as implying power TO determine who are
Ambassadors from an independent Power. there is
on the other hand. the provision that the President
cannot appoint Ambassadors except with the advice
and consent Of the Senate. There would be palpaoie
absurdity in supposng that he alone had power 20
determine whether independent State exisseo
from which Ambassadors should be received. Out
had not power TO determine whether such Sta'e
existed TO whom Ambassadors could properly be ac-
credited The difficulty Is Increased by the provision
regarding treaties. which are held part OF the s"'
preme law. binding upon the President as upon any
body else and which cannot be made without con-
sent OF two-thirds OF the Senate. treaty SO mace
exists with Spain. involving recognition OF the SOW
ereIrn,y OF Spain over Cuba and obligation on the
mart Of the United States to respect that sovereignty
and not TO promote efforts to defeat IT, kecosnition
OF an insurrectionary Power within the territory OF
Spain would. In fact, promote. In the most enee'Ve
manner possible. the effort there 10 Destroy inc au
thor,ty of Spain. The President would seem TO %
houna nv the treaty as supreme law The Congress-
an the contrary has unquestioned power to aorcsats
a treaty by new law
This would he In effect declaration OF war; IN"
tho mower to declare war Is one OF those expressly
conferred upon Congress tSec. g. ATT. d. 1us'
,o,s come. ntly a citation from Chief Justice Mar
shsu who said, respecting the case OF the Cnssss
states against Palmer ct al:
Those questions which respect the rights Of for.
cien Power which asserts and Is contendng Tor is
what ss s place
,%a Nation In such respect a foreign Power az to
their own Judgment shall appear wise,
That power. to place the Nation at war with an
other Is expressly granted TO Congress 1t would b
strange indeed to construe the Constitution that
the Executive nigh, hold treaty binding. and there
fore refuse recognition Of insurgent body whiie
the Congress could at the same time declare war IN
aid Of those insurgents abrogating the treaty Such
Inconsistency cannot lightly be thrust into the Con-
stItution by Interpretation. 1t II the weesablished
rule that Interpretation shall be such. possible. ~
to give full effect and force to all parts Of the tnstru-
ment interpreted The power to declare war ssainst
. friendly nation obviously earrtea within = The