Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/374

 366 Though some writers on government place this power in the class of executive authorities; yet, it is an arbitrary classification; and, if attention is given to its operation, it will be found to partake more of the legislative, than of the executive, character. The essence of legislation is to prescribe laws, or regulations for society; while the execution of those laws and regulations, and the employment of the common strength, either for that purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one, nor the other. It relates, neither to the execution of subsisting laws, nor to the enactment of new ones; and still less does it relate to the exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law with us; but, as to the foreign sovereigns, have only the obligation of good faith. Treaties are not rules prescribed by the sovereign to his subjects; but agreements between sovereign and sovereign. The treaty-making power, therefore, seems to form a distinct department, and to belong, properly, neither to the legislature, nor the executive, though it may be said to partake of qualities common to each. The president, from his unity, promptitude, and facility of action, is peculiarly well adapted to carry on the initiative processes; while the senate, representing all the states, and engaged in legislating for the interests of the whole country, is equally well fitted to be entrusted with the power of ultimate ratification.

§ 1514. The other objection, which would require a concurrence of two thirds of all the members of the