The opposite opinion is based upon the idea that, because the constitution vests in con gress the power to declare war (which is lia ble to be a consequence of the recognition of a new government) not only is the action of that body necessary, but it is the proper de partment of the government to act in such case. At least it is contended that congress has the power to act even if its power is not exclusive.
The argument in favor of the absolute and exclusive control of the subject by congress is substantially this: The recognition of the in dependence of a people is from its very na ture the creation of obligations arising from international law, and therefore must belong to the law-making power ; it is also a su preme act of sovereignty and must be done by that department of the government in which the national sovereignty resides. Un der the constitution, congress is invested with almost all the prerogatives of sovereignty, the only one granted to the president being the pardoning power, and even that is denied in cases of impeachment. The power in ques tion is not directly granted to the president ; therefore, is not one of his functions unless necessary to the full and proper exercise of some power directly granted to him or inher ent in the office. His general inherent func tion is to execute the laws, to which this pow er of recognition has no relation, unless it be exercised in pursuance of law. The only expressed power from which it is sought to imply this far-reaching authority is that of receiving ambassadors and ministers, and that, it is urged, is simply a ceremonial duty, imposed upon him as the medium through which the government communicates with foreign governments. As the power of re ceiving ambassadors and ministers can be exercised pursuant to the direction of con gress in doubtful cases, the power to deter mine the existence or independence of a na tion is not necessarily involved in the con stitutional grant of power to receive am bassadors, etc. ' If this power is vested in the executive, it is unlimited and involves the authority, so far as this government is con cerned, to alter the map of the world, change the relation of this government to other gov ernments, and involve the country in war. That such uncontrolled executive power over foreign relations was intended, it is contend ed, cannot be reconciled with the fact that the president cannot declare war, or make a treaty, or appoint an ambassador or consul without the consent of the senate.
The argument from this point of view is very forcibly stated in a speech by Senator Bacon, Jan. 13, 1897, in the United States senate, made expressly to take issue with the position taken hy Secretary Olney, supra.
A third view, as stated in the preliminary statement of the question in the Hale randum, is that, under the constitution and according to ptecedent, "the recognition of tho independence of a new for eign power is an act of the executive (president alone, or president and senate), and not of the leg islative branch of the government, although the executive branch may properly first consult the legislative. While the legislative branch of the government cannot directly exercise the power of recognizing a foreign governmenv, because that is a power executive or judicial in nature (and one which the judiciary, by refusing independently to examine the question, coat entirely upon the execu tive), nevertheless, if a recognition of such inde pendence le liable to become a cases beili with some other foreign power, it is most advisable as well as proper for the executive first to consult the legislative branch as to its wishes and postpone its own action if not assured of legislative approval." Cong. Rec. 64th Cong. 2d Sess. 663.
The basis of the argument in favor of leg islative participation in such action is main ly the power to declare war and, as particu-, larly urged by Mr. Clay, as quoted in the Hale memorandum (id. 681), the power to reg ulate commerce. The argument in favor of exclusive executive power is found in the gen eral control of foreign relations, as to which the only expressed powers are to "make trea ties" and to "receive ambassadors and other ministers." The argument of greater force in favor of executive control is, however, not that the power in question is included in the specific powers named but that it is a part of the general grant of executive power ; that all duties in connection with foreign rela tions, not otherwise specified, are placed up on the executive, and that the two powers enumerated are merely illustrative and not exclusive. This third view is thus stated in a memorandum submitted to . the United States senate by Senator Hale in connection with resolutions pending for the recognition of Cuba, and printed as Ex. Doc. No. 56, 2d Sess. 54th Cong.