e is
still free to perform its duties, according to its own sense of them;
though the executive, in the exercise of its constitutional powers, may
establish an antecedent state of things, which ought to weigh in the
legislative decision. The division of the executive power in the
Constitution, creates a _concurrent_ authority in the cases to which it
relates."[344]

JEFFERSON'S REAL POSITION

Nor did Jefferson himself officially support Madison's point of view, as
the following extract from his "minutes of a Conversation," which took
place July 10, 1793, between himself and Citizen Genet, show: "He asked
if they [Congress] were not the sovereign. I told him no, they were
sovereign in making laws only, the executive was sovereign in executing
them, and the judiciary in construing them where they related to their
department. 'But,' said he, 'at least, Congress are bound to see that
the treaties are observed.' I told him no; there were very few cases
indeed arising out of treaties, which they could take notice of; that
the President is to see that treaties are observed. 'If he decides
against the treaty, to whom is a nation to appeal?' I told him the
Constitution had made the President the last appeal. He made me a bow,
and said, that indeed he would not make me his compliments on such a
Constitution, expressed the utmost astonishment at it, and seemed never
before to have had such an idea."[345]

THE POWER OF RECOGNITION

In his endeavor in 1793 to minimize the importance of the President's
power of reception Madison denied that it involved cognizance of the
question, whether those exercising the government of the accrediting
State have the right along with the possession. He said: "This belongs
to the nation, and to the nation alone, on whom the government operates.
* * * It is evident, therefore, that if the executive has a right to
reject a public minister, it must be founded on some other consideration
than a change in the government, or the newness of the government; and
consequently a right to refuse to acknowledge a new government cannot be
implied by the right to refuse a public minister. It is not denied that
there may be cases in which a respect to the general principles of
liberty, the essential rights of the people, or the overruling
sentiments of humanity, might require a government, whether new or old,
to be treated as an illegitimate despotism. Such are in fact discussed
and admitted by the most ap