In harmony with the whole transaction is the apology, which insists that the President may do indirectly what he cannot do directly,--that he may, according to old Polonius, “by indirections find directions out,”--in short, that, though he cannot declare war directly, he may indirectly. We are reminded of the unratified treaty, with its futile promise “against foreign interposition,”--that is, with the promise of the War Powers of our Government set in motion by the President alone, without an Act of Congress. Here are the precise terms:-- “The people of the Dominican Republic shall, in the shortest possible time, express, in a manner conformable to their laws, their will concerning the cession herein provided for; and the United States shall, until such expression shall be had, _protect the Dominican Republic against foreign interposition_, in order that the national expression may be free.”[81] 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]