Letters of Helvidius: written in reply to Pacificus, on the president's proclamation of neutrality. : Published originally in the year 1793.

Letters of Helvidius: written in reply to Pacificus, on the president's proclamation of neutrality. : Published originally in the year 1793.

Table of contents

Title page

LETTERS OF HELVIDIUS.

No. I.

No. II.

No. III.

No. IV.

No. V.

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§

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LETTERS OF HELVIDIUS: WRITTEN IN REPLY TO PACIFICUS, ON THE PRESIDENT's PROCLAMATION OF NEUTRALITY. Published originally in the Year 1793.

PHILADELPHIA: PRINTED BY SAMUEL H. SMITH, No. 118, CHESNUT STREET. M DCC.XCVI.

LETTERS OF HELVIDIUS.

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No. I.

SEVERAL pieces with the signature of PACIFICUS were lately published, which have been read with singular pleasure and applause, by the foreigners and degenerate citizens among us, who hate our republican government, and the French revolution; whilst the publication seems to have been too little regarded, or too much despised by the steady friends to both.

Had the doctrines inculcated by the writer, with the natural consequences from them, been nakedly presented to the public, this treatment might have been proper. Their true character would then have struck every eye, and been rejected by the feelings of every heart. But they offer themselves to the reader in the dress of an elaborate dissertation; they are mingled with a few truths that may serve them as a passport to credulity; and they [Page]are introduced with professions of anxiety for the preservation of pcace, for the welfare of the government, and for the respect due to the present head of the executive, that may prove a snare to patriotism.

In these disguises they have appeared to claim the attention I propose to bestow on them; with a view to shew, from the publication itself, that under colour of vindicating an important public act, of a chief magistrate, who enjoys the confidence and love of his country, principles are advanced which strike at the vitals of its constitution, as well as at its honor and true interest.

As it is not improbable that attempts may be made to apply insinuations, which are seldom spared when particular purposes are to be answered, to the author of the ensuing observations, it may not be improper to premise, that he is a friend to the constitution, that he wishes for the preservation of peace, and that the present chief magistrate has not a fellow-citizen, who is penetrated with deeper respect for his merits, or feels a purer solicitude for his glory.

This declaration is made with no view of courting a more favourable ear to what may be said than it deserves. The sole purpose of it is, to obviate imputations which might weaken the impressions of truth; and which are the more likely to be resorted to, in proportion as solid and fair arguments may be wanting.

The substance of the first piece, sifted from its inconsistencies and its vague expressions, may be thrown into the following propositions: That the powers of declaring war and making treaties are, in their nature, executive powers: That being particularly vested by the constitution in other departments, they are to be considered as exceptions out of the general grant to the executive department: That being, as exceptions, to be construed strictly, the powers not strictly within them, remain with the executive: That the executive consequently, as the organ of intercourse with foreign nations, and the interpreter and [Page]executor of treaties, and the law of nations, is authorised, to expound all articles of treaties, those involving questions of war and peace, as well as others;—to judge of the obligations of the United States to make war or not, under any casus federis or eventual operation of the contract, relating to war;—and, to pronounce the state of things resulting from the obligations of the United States, as understood by the executive: That in particular the executive had authority to judge whether in the case of the mutual guaranty between the United States and France, the former were bound by it to engage in the war: That the executive has, in pursuance of that authority, decided that the United States are not bound:— And, That its proclamation of the 22d of April last, is to be taken as the effect and expression of that decision.

The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant.

Let us examine this doctrine; and that we may avoid the possibility of mistating the writer, it shall be laid down in his own words: a precaution the more necessary, as scarce any thing else could outweigh the improbability, that so extravagant a tenet should be hazarded, at so early a day, in the face of the public.

His words are—"Two of these [exceptions and qualifications to the executive powers] have been already noticed—the participation of the senate in the appointment of officers, and the making of treaties. A third remains to be mentioned—the right of the legislature to declare war, and grant letters of marque and reprisal."

Again—"It deserves to be remarked, that as the participation of the Senate in the making treaties, and the power of the legislature to declare war, are exceptions out of the general executive power, vested in the President, [Page]they are to be coastrued strictly, and ought to be extended no farther than is offential to their execation."

If there be any countenance to these positions, it must be found either 1st, in the writers, of authocity, on public law; or 2d, in the quality and operation of the powers to make war and treaties: or 3d, in the constitution of the United States.

It would be of little use to enter far into the first source of information, not only because our own reason and our own constitution, are the best guides; but because a just analysis and discrimination of the powers of government, according to their executive, legislative and judiciary qualities are not to be expected in the works of the most received jurists, who wrote before a critical attention was paid to those objects, and with their eyes too much on monarchical governments, where all powers are confounded in the sovereignty of the prince. It will be found however, I believe, that all of them, particularly Wolfius, Burlamaqui and Vattel, speak of the powers to declare war, to conclude peace, and to form alliances, as among the highest acts of the sovereignty; of which the legislative power must at least be an integral and pre-eminent part.

Writers, such as Locke and Montesquieu, who have discussed more particularly the principles of liberty and the structure of government, lie under the same disadvantage, of having written before these subjects were illuminated by the events and discussions which distinguish a very recent period. Both of them too are evidently warped by a regard to the particular government of England, to which one of them owed allegiance; * and the other professed an admiration bordering on idolatry. Montesquieu, however, has rather distinguished himself by enforcing the reasons and the importance of avoiding a confusion of the several powers of government, than by enumerating and defining the powers which belong to each particular class. And Locke, notwithstanding [Page]the early date of his work on civil government, and the example of his own government before his eyes, admits that the particular powers in question, which, after some of the writers on public law he calls federative, are really distinct from the executive, though almost always united with it, and [...] to be separated into distinct bands. Had he not lived under a monarchy, in which these powers were united, or had he written by the lamp which truth now presents to lawgivers, the last observation would probably never have dropt from his pen. But let us quit a field of research which is more likely to perplex than to decide, and bring the question to other tests of which it will be more easy to judge.

2. If we consult, for a moment, the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not pre-suppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws by the executive magistrate. To say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity,— in practice a tyranny.

The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws; it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the [Page]society and its foreign enemy. In like manner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.

These remarks will be strengthened by adding that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and compleat.

From this view of the subject in must be evident, that although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war; and the proper agent for carrying into execution the final determinations of the competent authority; yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.

It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.

Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.

3. It remains to be enquired whether there be any thing in the constitution itself which shews that the powers of making war and peace are considered as of an executive nature, and as comprehended within a general grant of executive power.

It will not be pretended that this appears from any direct position to be found in the instrument.

If it were deducible from any particular expressions it may be presumed that the publication would have saved us the trouble of the research.

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Does the doctrine then result from the actual distribution of powers among the several branches of the government? Or from any fair analogy between the powers of war and treaty and the enumerated powers vested in the executive alone?

Let us examine.

In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.

This conclusion becomes irresistible, when it is recollected, that the constitution cannot be supposed to have placed either any power legislative in its nature, entirely among executive powers, or any power executive in its nature, entirely among legislative powers, without charging the constitution, with that kind of intermixture and consolidation of different powers, which would violate a fundamental principle in the organization of free governments. If it were not unnecessary to enlarge on this topic here, it could be shewn, that the constitution was originally vindicated, and has been constantly expounded, with a disavowal of any such intermixture.

The power of treaties is vested jointly in the President and in the Senate, which is a branch of the legislature. From this arrangement merely, there can be no inference that would necessarily exclude the power from the executive class: since the senate is joined with the President im another power, that of appointing to offices, which as far as relate to executive offices at least, is considered as of an executive nature. Yet on the other hand, there are sufficient indications that the power of treaties is regarded by the constitution as materially different from mere executive power, and as having more affinity to the legislative than to the executive character.

One circumstance indicating this, is the constitutional regulation under which the senate give their consent [Page]in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which on certain occasions, could net be conventiently a party to the transaction.

But the conclusive circumstance is, that treaties when formed according to the constitutional mode, are consessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any aber laws. They are even emphatically declared by the constitution to be ‘the supreme law of the land.’

So far the argument from the constitution is precisely in opposition to the doctrine. As little will be gained in its favour from a comparison of the two powers, with those particularly vested in the President alone.

As there are but sew, it will be most satisfactory to review them one by one.

"The President shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States".

There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.

"He cray require the opinion in writing of the principal officers in each of the executive departments upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardon for offences against the United States, except [Page]in case of impeachment." These powers can have nothing to do with the subject.

"The President shall have power to fill up vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of the next section." The same remark is applicable to this power, as also to that of "receiving ambassadors, other publicministers and consuls". The particular use attempted to be made of this last power will be considered in another place.

"He shall take care that the laws shall be faithfully executed and shall commission all officers of the United States." To see the laws faithfully executed constitutes the essence of the executive authority. But what relation has it to the power of making treaties and war, that is, of determining what the laws shall be with regard to other nations? No other certainly than what subsists between the powers of executing and enacting laws; no other, consequently, than what forbids a coalition of the powers in the same department.

I pass over the few other specified functions assigned to the President, such as that of convening the legislature, &c. &c. which cannot be drawn into the present question.

It may be proper however to take notice of the power of removal from office, which appeans to have been adjudged to the President by the laws establishing the executive departments; and which the writer has endeavoured to press into his service. To justify any favourable inference from this case, it must be thewn, that the powers of war and treaties are of a kindred nature to the power of removal, or at least are equally within a grant of excutive power. Nothing of this fort has been attempted, nor probably will be attempted. Nothing can in truth be clearer, than that no analogy, or shade of analogy, can be traced between a power in the supreme officer responsible for the faithful execution of the laws, to displace a subaltern officer employed in the execution of the laws; and a power to make treaties, and to declare war, such as these have been found to be in their [...]ture, their operation, and their consequences.

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Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writters on law; nor by the nature of the powers themselves; nor by any general arrangements or particular expressions, or plausible analogies, to be found in the constitution.

Whence then can the writer have borrowed it?

There is but one answer to this question.

The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as Executive prerogatives by British commentators.

We shall be the more confirmed in the necessity of this solution of the problem, by looking back to the aera of the constitution, and satissying ourselves that the writer could not have been misled by the doctrines maintained by our own commentators on our own government. That I may not ramble beyond prescribed limits, I shall content myself with an extract from a work which entered into a systematic explanation and defence of the constitution, and to which there has frequently been ascribed some influence in conciliating the public assent to the government in the form proposed. Three circumstances conspire in giving weight to this cotemporary exposition. It was made at a time when no application to persons or measures could bias: The opinion given was not transiently mentioned, but formally and critically elucidated: It related to a point in the constitution which must consequently have been viewed as of importance in the public mind. The passage relates to the power of making treaties; that of declaring war, being arranged with such obvious propriety among the legislative powers, as to be passed over without particular discussion.

Tho' several writers on the subject of government place that power (of making treaties) in the class of Executive authorities, yet this is evidently an arbitrary dispesition. For if we attend carefully, to its operation, it will be found to partake more of the legislative than of the executive character, though it does not [Page]seem strictly to fall within the definition of either of them. The essence of the legislative authority, is to enact laws; or in other words, to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common desence, seem to comprize 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 the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensible in the management of foreign negociations, point out the executive as the most fit agent in those transactions: whilst the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part of the legislative body, in the office of making them. Federalist, vol. 2. p. 273.

It will not fail to be remarked on this commentary, that whatever doubts may be started as to the correctness of its reasoning against the legislative nature of the power to make treaties: it is clear, consistent and confident, in deciding that the power is plainly and evidently not an executive power.

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No. II.

THE doctrine which has been examined, is pregnant with inferences and consequences against which no ramparts in the constitution could defend the public liberty, or scarcely the forms of Republican government. Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive, that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or, as will hereafter appear, perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.

Leaving however to the leisure of the reader deductions which the author having omitted might not chuse to own, I proceed to the examination of one, with which that liberty cannot be taken.

"However true it may be (says he) that the right of the legislature to declare war includes the right of judging whether the legislature be under obligations to make war or not, it will not follow that the executive is in any case excluded from a similar right of judging in the execution of its own functions."

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A material error of the writer in this application of his doctrine lies in his shrinking from its regular consequences. Had he stuck to his principle in its full extent, and reasoned from it without restraint, he would only have had to defend himself against his opponents. By yielding the great point, that the right to declare war, though to be taken strictly, includes the right to judge whether the nation be under obligation to make war of not, he is compelled to defend his argument not only against others but against himself also. Observe how he struggles in his own toils.

He had before admitted that the right to declare war is vested in the legislature. He here admits that the right to declare war includes the right to judge whether the United States be obliged to declaire war or not. Can the inference be avoided, that the executive instead of having a similar right to judge, is as much excluded from the right to judge as from the right to declare?

If the right to declare war be an exception out of the general grant to the executive power; every thing included in the right must be included in the exception; and being included in the exception, is excluded from the grant.

He cannot disentangle himself by considering the right of the executive to judge as concurrent with that of the legislature. For if the executive have a concurrent right to judge, and the right to judge be included in (it is in fact the very essence of) the right to declare, he must go on and say that the executive has a concurrent right also to declare. And then what will he do with his other admission, that the power to declare is an exception out of the executive power.

Perhaps an attempt may be made to [...] out of the difficulty through the words "in the execution of its functions." Here again he must equally sail.

Whatever difficulties may arise in defining the executive authority in particular cases, there can be none [...] on an authority clearly [...] by the constitution in another department. In this case the constitution [...] authority; [Page] though it may not have clearly decided in every case what shall be so deemed. The [...] of war is expressly made a legislative function. The judging of the obligations to make war; is admitted to be included as a legislative function. Whenever then a question occurs whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions belong —And no other department can be in the executive of its preper functions, if it should undertake to decide such a question.

There can be no refuge against this conclusion, but in the pretext of a concurrent right in both departments to judge of the obligations to declare war, and this must be intended by the writer when he says, "it will not sollow that the executive is excluded in any case from a similar right of judging, &c."

As this is the ground on which the ultimate defence is to be made, and which must either be maintained, or the works erected on it, demolished; it will be proper to give its strength a fair trial.

It has been seen that the idea of a concurrent right is at variance with other ideas advanced or admitted by the writer. Laying aside for the present that consideration, it seems impossible to avoid concluding that if the executive has a concurrent right with the legislature to judge of obligations to declare war, and the right to judge be essentially included in the right to declare, it must have the same right to declare as it has to judge; and by another analogy, the same right to judge of other causes of war, as of the particular cause found in a public stipulation. So that whenever the executive in the course of its functions shall meet with these cases, it must either infer an equal authority in all, or acknowledge its wants of authority in any.

If any doubt can remain, or rather if any doubt could ever have arisen, which side of the alternative ought to be embraced, it can be with those only who overlook or reject some of the most obvious and essential truths in political science.

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The power to judge of the causes of war as involved in the power to declare war, is expresly vested where all other legislative powers are vested, that is, in the Congress of the United States: It is consequently determined by the coastitution to be a Legislative power. New omitting the enquiry here in what respects a compound power may be partly legislative, and partly executive, and accordingly vested partly in the one, and partly in the other department, or jointly in both; a remark used on another occasion is equally conclusive on this, that the same power cannot belong in the whole, to both departments, or be peoperly so vested as to operate separately in each. Still more evident is it, that the same specific function [...], cannot possibly belong to the two departments, and be separately exerciseable by each.

Legislative power may be concurrently vested in different legislative bodies. Executive powers may be concurrently vested in different executive magistrates. In legislative acts the executive may have a participation, as in the qualified negative on the laws. In executive acts, the legislature, or at least a branch of it, may participate, as in the appointment to offices.— Arrangements of this sort are familiar in theory, as well as in practice. But an independent exercise of an executive act, by the legislature alone, or of a legislative act by the executive alone, one or other of which must happen in every case where the same act is exerciseable by each, and the latter of which would happen in the case urged by the writer, is contrary to one of the first and best maxims of a well organized government, and ought never to be founded in a forced construction, much less in opposition to a fair one. Instances, it is true, may be discovered among ourselves where this maxim, has not been faithfully pursued; but being generally acknowledged to be errors, they confirm, rather than impeach the truth and value of the maxim.

It may happen also that different independent departments, the legislative and executive, for example, may in the exercise of their functions, interpret the constitution differently, and thence lay claim each to the same [Page]power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution. But this species of concurrence is obviously and radically different from that in question. The former supposes the constitution to have given the power to one department only; and the doubt to be to which it has been given. The letter supposes it to belong to both; and that it may be exercised by either or both, according to the course of exigencies.

A concurrent authority in two independent departments to perform the same function with respect to the same thing; would be as awkward in practice, as it is unnatural in theory.

If the legislature and executive have both a right to judge of the obligations to make war or not, it must sometimes happen, though not at present, that they will judge differently.—The executive may proceed to consider the question to day, may determine that the United States are not bound to take part in a war, and in the execution of its functions proclaim that determination to all the world. To-morrow, the legislature may follow in the consideration of the same subject, may determine that the obligations impose war on the United States, and in the execution of its functions, enter into a constitutional declaration, expressly contradicting the constitutional proclamation.

In what light does this present the constitution to the people who established it? In what light would it present to the world, a nation, thus speaking, through two different organs, equally constitutional and authentic, two opposite languages, on the same subject and under the same existing circumstances?

But it is not with the legislative rights alone that this doctrine interferes. The rights of the judiciary may be equally invaded. For it is clear that if a right declared by the constitution to be legislative, and actually vested by it in the legislature, leaves, notwithstanding a similar right in the executive whenever a case for exercising it occurs, in the course of its functions; a right declared to be judiciary and vested in that department may, on the [Page]same principle, be assumed and exercised by the executive in the course of its functions; and it is evident that occasions and pretexts for the latter interference may be as frequent as for the former. So again the judiciary department may find equal occasions in the execution of its functions, for usurping the authorities of the executive; and the legislature for stepping into the jurisdiction of both. And thus all the powers of government, of which a partition is so carefully made among the several branches, would be thrown into absolute hotchpot, and exposed to a general scramble.

It is time however for the writer himself to be heard, in defence of his text. His comment is in the words following: "If the legislature have a right to make war on the one hand, it is on the other the duty of the executive to preserve peace, till war is declared; and in fulfilling that duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose, on the government; and when in pursuance of this right it has concluded that there is nothing inconsistent with a state of neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. The executive is charged with the execution of all laws, the laws of nations, as well as the municipal law which recognizes and adopts those laws. It is consequently bound, by faithfully executing the laws of neutrality, when that is the state of the nation, to avoid giving a cause of war to foreign powers."

To do full justice to this master piece of logic, the reader must have the patience to follow it step by step.

If the legislature have a right to make war on the one hand, it is on the other, the duty of the executive to preserve peace till war is declared.

It will be observed that here is an explicit and peremptory assertion, that it is the duty of the executive to preserve peace till war is declared.

And in fulfilling that duty it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government: That is to [Page]say, in fulfilling the duty to preserve peace, it must necessarily possess the right to judge whether peace ought to be preserved; in other words whether its duty should be performed. Can words express a flatter contradiction? It is self evident that the duty in this case is so far from necessarily implying the right, that it necessarily exchudes it.

And when in pursuance of this right is has concluded that there is nothing in them ( [...]ligations) inconsistent with a state of neutrality, IT BECOMES both its province and its duty to enforce the laws incident to that state of the nation.

And what if it should conclude that there is something inconsistent? Is it or is it not the province and duty of the executive to enferce the same laws? Say it is, you destroy the right to judge. Say it is not, you cancel the duty to obey.

Take this sentence in connection with the proceding and the contradictions are multiplied. Take it by itself, and it makes the right to judge and conclude whether war be obligatory, absolute, and operative, and the duty to preserve peace, subordinate and conditional.

It will have been remarked by the attentive reader that the term peace in the first clause has been silently exchanged in the present one, for the term neutrality. Nothing however is gained by shifting the terms. Neutrality means peace, with an allusion to the circumstance of other nations being at war. The term has no reference to the existence or non-existence of treaties or alliances between the nation at peace and the nations at war. The laws incident to a state of neutrality, are the laws incident to a state of peace, with such circumstantial modifications only as are required by the new relation of the nations at war: Until war thercfore be duly authorised by the United States they are as actually neutral when other nations are at war, as they are at peace (if such a distinction in the terms is to be kept up) when other nations are not at war. The existence of eventual engagements which can only take effect on the declaration of the legislature, cannot, without that declaration, change the actual state of the country, any more in the [Page]eye of the executive than in the eye of the judiciary department. The laws to be the guide of both, remain the same to each, and the same to both.

Nor would more be gained by allowing the writer to define than to shift the term neutrality. For fuppose, if you please, the existence of obligations to join in war to be inconsistens with neutrality, the question returns upon him, what laws are to be inforced by the executive until effect shall be given to those obligations by the declaration of the legislature? Are they to be the laws incident to those obligations, that is incident to war? However strongly the doctrines or deductions of the writer may tend to this point, it will not be avowed. Are the laws to be enforced by the executive, then, in such a state of things, to be the same as if no such obligations existed? Admit this, which you must admit if you reject the other alternative, and the argument lands precisely were it embarked—in the position, that it is the absolute duty of the executive in all cases to preserve peace till war is declared, not that it is "to become the province and duty of the executive" after it has concluded that there is nothing in those obligations inconsistent with a state of peace and neutrality. The right to judge and conclude therefore so solemnly maintained in the text is lost in the comment.

We thall see whether it can be reinstated by what follows—

The executive is charged with the execution of all laws, the laws of nations as well as the municipal law which recognizes and adopts those laws. It is consequently bound, by faithfully exccuting the laws of neutrality when that is the state of the nation, to avoid giving cause of war to foreign powers.

The first sentence is a truth, but nothing to the point in question. The last is partly true in its proper meaning, but totally untrue in the meaning of the writer. That the execurive is bound faithfully to execute the laws of neutrality, whilst those laws continue unaltered by the competent authority, is true; but not for the reason here given, to wit; to avoid giving cause of war to foreign powers. It is bound to the faithful execution of these [Page]as of all other laws internal and external, by the natura of its trust and the sanction of its oath, even if turbulent citizens should confider its so doing as a cause of war at home, or unfriendly nations snould consider its so doing, as a cause of war abroad. The duty of the exceutive to preserve external peace, can no more suspend the force of external laws, than its duty to preserve internal peace can suspend the force of municipal laws.

It is certain that a faithful execution of the laws of neutrality may tend as much in some cases, to incur war from one quarter, as in others to avoid war from other quarters. The executive must nevertheless execute the laws of neutrality whilst in sorce, and leave it to the legisiature to decide whether they ought to be altered or not. The executive has no other discretion than to convene and give intormation to the legislature on oceasions that may demand it; and whilst this diseretion is duly exercised the trust of the executive is satisfied, and that department is not responsible for the consequences. It could not be made responsible for them without vesting it with the legislative as well as with the executive trust.

These remarks are obvious and conclusive, on the supposition that the expression "laws of meutrality" means simely what the words import, and what alone they can mean, to give force or colour to the i-ference of the writer from his own premises. As the inference itself however in its proper meaning, does not approach towards his avowed object, which is to work out a prerogative for the executive to judge, in common with the legislature, whether there be cause of war or not in a public obligation, it is to be presumed that "in faithfully executing the laws of neutrality" an exercise of that prerogative was meant to be included. On this supposition the inference, as will have been seen, does not result from his own premises, and has been alneady so amply discussed, and, it is conceived, so clearly disproved, that not a word more can be necessary on this branch of his argument.

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No. III.

IN order to give colour to a right in the Executive to exercise the Legislative power of judging, whether there be a cause of war in a public stipulation— two other arguments are subjoined by the writer to that last examined.

The first is simply this, "It is the right and duty of the Executive to judge of and interpret those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges," from which it is stated as a necessary consequence, that the Executive has certain other rights, among which is the right in question.

This argument is answered by a very obvious distinction. The first right is essential to the execution of the treaty as a law in operation, and interferes with no right invested in another Department. The second is not essential to the execution of the treaty or any other law; on the contrary the article to which the right is applied, cannot as has been shewn, from the very nature of it be in operation as a law without a previous declaration of the Legislature; and all the laws to be enforced by the Executive remain in the mean time precifely the same, whatever be the disposition or judgment of the Executive. This second right would also interfere with a right acknowledged to be in the Legislative Department.

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If nothing else could suggest this distinction to the write, he ought to have been reminded of it by his own words "in order to the enforcement of those privileges" —Was it in order to the enforcement of the article of guaranty, that the right is ascribed to the Executive?

The other of the two arguments reduces itself into the following form: The Executive has the right to receive public Ministers; this right includes the right of deciding, in the case of a revolution, whether the new government sending the Minister, ought to be recognized or not; and this again, the right to give or refuse operation to pre-existing treaties.

The power of the Legislature to declare war and judge of the causes for declaring it, is one of the most express and explicit parts of the Constitution. To endeavour to abridge or affect it by strained inferences, and by hypothetical or singular occurrences, naturally waras the reader of some lurking fallacy.

The words of the Constitution are "he (the President) shall receive Ambassadors, other public Ministers and Consuls." I shall not undertake to examine what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe in general, and every candid reader will second the observation, that little if any thing more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public Ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the Constitution, it would be highly improper to magnify the function into an important prerogative, even where no rights of other departments could be affected by it.

To shew that the view here given of the clause is not a new construction, invented or strained for a particular occasion—I will take the liberty of recurring to the cotemporary [Page]work already quoted, which contains the obvious and original gloss put on this part of the Constitution by its friends and advocates.

The president is also to be authorised to receive Ambassadors and other public Ministers. This, though it has been a rich theme of declamation, is more a matter of [...] than of: authority. It is a circumstance, that will be without consequence in the administration of the government, and it is far more convenient that it should be arranged in this manner, than that there should be a necessity for convening the Legislature or one of its branches upon every arrival of a foreign Minister, though it were merely to take the place of a departed predecessor. Fed. Vol. II. p. 237.

Had it been foretold in the year 1788 when this work was published, that before the end of the year 1793, a writer, assuming the merit of being a friend to the Constitution, would appear, and gravely maintain, that this function, which was to be without consequence in the administration of the government, might have the consequence of deciding on the validity of revolutions in favor of liberty, "of putting the United States in a condition to become an associate in war,"—nay "of laying the legislature under an obligation of declaring war," what would have been thought and said of so visionary a prophet?

The moderate opponents of the Constitution would probably have disowned his extravagance. By the advocates of the Constitution, his prediction must have been treated as "an experiment on public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous."

But how does it follow from the function to receive Ambassadors and other public Ministers that so consequential a prerogative may be exercised by the Executive? When a foreign Minister presents himself, two questions immediately arise? Are his credentials from the existing and acting government of his country? Are they properly authenticated? These questions belong of necessity [Page]to the Executive; but they involve no cognizance of the question, whether those exercising the government have the right along with the possession. This belongs to the nation, and to the nation alone, on whom the government operates. The questions before the Executive are merely questions of fact; and the Executive would have precisely the same right, or rather be under the same necessity of deciding them, if its function was simply to receive without any discretion to reject public Ministers. 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 effential rights of the people, or the over-ruling 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 approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the Executive of the United States; and certainly not to be brought, by any torture of words, within the right to receive Ambassadors.

That the authority of the Executive does not extend to question, whether an existing government ought to be recognized or not, will still more clearly appear from an examination of the next inference of the writer, to wit, that the Executive has a right to give or refuse activity and operation to pre-existing treaties.

If there be a principle that ought not to be questioned within the United States, it is, that every nation has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of a host of American martyrs; but is the only lawful tenure by which the United States hold their existence as a nation.

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It is a principle incorporated with the above, that governments are established for the national good and are organs of the national will.

From these two principles results a third, that treaties formed by the government, are treaties of the nation, unless otherwise expressed in the treaties.

Another consequence is that a nation, by exercising the right of changing the organ of its will, can neither disengage itself from the obligations, nor forfeit the benefits of its treaties. This is a truth of vast importance, and happily rests with sufficient firmness on its own anthority. To silence or prevent cavil, I insert however, the following extracts: ‘Since then such a treaty (a treaty not personal to the sovereign) directly relates to the body of the State, it subsists though the form of the republic happens to be changed, and though it should be even transformed into a monarchy—For the State and the nation are always the same whatever changes are made in the form of the government—and the treaty concluded with the nation, remains in force as long as the nation exists." Vattel, B. II. § 85.— It follows that as a treaty, notwithstanding the change of a democratic government into a monarchy, continues in force with the new King, in like manner; if a monarchy becomes a republie, the treaty made with the King does not expire on that account, unless it was manifestly personal. Burlam. part IV. c. IX, § 16, ¶ 6.’

As a change of government then makes no change in the obligations or rights of the party to a treaty, it is clear that the Executive can have no more right to suspend or prevent the operation of a treaty, on account of the change, than to suspend or prevent the operation, where no such change has happened. Nor can it have any more right to suspend the operation of a treaty in force as a law, than to suspend the operation of any other law.

The logic employed by the writer on this occasion, will be best understood by accommodating to it the language of a proclamation, founded on the prerogative and policy of suspending the treaty with France.

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Whereas [...] treaty was concluded on the— day of—between the. United States and the French nation, through the kingly government, which was then the organ of its will: And whereas the said nation hath since exercised its right (no wise abridged by the faid treaty) of changing the organ of its will, by abolishing the said kingly government, as inconsistent with the rights and happiness of the people, and establishing a republican in lieu thereof, as most favourable to the public happiness, and best suited to the genius of a people become sensible of their rights and ashamed of their chains: And, whereas, by the constitution of the United States, the Executive is authorised to receive ambassadors, other public ministers and consuls: And whereas a public minister, duly appointed and commissioned by the new Republic of France, hath arrived and prefented himself to the Executive, in order to be received in his proper character: Now be it known, that by virtue of the said right rested in the Executive to receive ambassadors, other public ministers and consuls, and of the rights included therein, the Executive hath refused to receive the said minister from the said republic, and hath thereby caused the activity and operation of all treaties with the French nation, bitterto in force as supreme laws of the land, to be suspended until the Executive, by taking off the said suspension, shall revive the same; of which all persons concerned are to take notice, at their peril.

The writer, as if beginning to feel that he was grasping at more than he could hold, endeavours all of a sudden, to squeeze his doctrine into a smaller size, and a less vulnerable shape—The reader shall see the operation in his own words.

"And whereas a treaty antecedently exists between the United States and such nation (a nation whose government has undergone a revolution) that right (the right of judging whether the new rulers ought to be recognized or not) involves the power of giving operation or not to such treaty. For until the new government is acknowledged, the treaties between the nations as far at least as regards public rights, are of course suspended."

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This qualification of the suspending power, [...] reluctantly and inexplicitly made, was prudent, for two reasons; first, because it is pretty evident that [...] rights, whether of judiciary or executive cognizance, may be carried into effect without the agency of foreign government; and therefore would not be suspended of course by a rejection of that agency. Secondly, because the judiciary, being an independent department, and acting under an oath to pursue the law of treaties as the supreme law of the land, might nor readily follow the executive example, and a right in one expositor of treaties, to consider them as not in force, whilst it would be the duty of another expositor to consider them as in force, would be a phaenomenon not so easy to be explained. Indeed as the doctrine stands qualified, it leaves the executive the right of suspending the law of treaties in relation to rights of one description, without exempting it from the duty of enforcing it in relation to rights of another description.

But the writer is embarked in so unsound an argument, that he does not save the rest of his inference by this sacrifice of one half of it. It is not true, that all public rights are of course suspended by a refusal to acknowledge the government, or even by a suspension of the government. And in the next place, the right in question does not follow from the necessary suspension of public rights, in consequence of a refulsal to acknowledge the government.

Public rights are of two sorts; those which require the agency of government; those which may be carried into effect without that agency.

As public rights are the rights of the nation, not of the government, it is clear that wherever they can be made good to the nation, without the office of government, they are not suspended by the want of an acknowledged government, or even by the want of an existing government; and that there are important rights of this description, will be illustrated by the following case: Suppose, that after the couclusion of the treaty of alliance between the United States and France, a party [Page]of the enemy had surprised and put to death every member of congress; that the occasion had been used by the people of America for changing the old confederacy into such a government as now exists, and that in the progress of this revolution, an interregnum had happened. Suppose further, that during this interval, the states of South-Carolina and Georgia, or any other parts of the United States, had been attacked, and been put into evident and imminent danger of being irrecoverably loft, without the interposition of the French arms; is it not manifest, that as the Treaty is the Treaty of the United States, not of their government, the people of the United States, could not forfeit their right to the guarantee of their territory by the accidental suspension of their government; and that any attempt, on the part of France, to evade the obligations of the Treaty, by pleading the suspension of government, or by refusing to acknowledge it, would justly have been received with universal indignation, as an ignominious perfidy?

With respect to public rights that cannot take effect in favour of a nation without the agency of its government, it is admitted that they are suspended of course where there is no government in existence, and also by a refusal to acknowledge an existing government. But no inference in favour of a right to suspend the operation of Treaties, can be drawn from either case. Where the existence of the government is suspended, it is a case of necessity; it would be a case happening without the act of the executive, and consequently could prove nothing for or against the right.

In the other case, to wit, of a refusal by the executive to recognise an existing government, however certain it may be, that a suspension of some of the public rights might ensue; yet it is equally certain, that the refusal would be without right or authority; and that no right or authority could be implied or produced by the unauthorised act. If a right to do whatever might bear an analogy to the necessary consequence of what was done without right, could be inferred from the analogy, there would be no other limit to power than the limit to its ingenuity.

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It is no answer to say, that it may be doubtful whether a government does or does not exist; or doubtful which may be the existing and acting government. The case stated by the writer is, that there are existing rulers; that there is an acting government; but that they are new rulers; and that it is a new government. The full reply, however, is to repeat what has been already observed; that questions of this sort are mere questions of fact; that as such only, they belong to the executive; that they would equally belong to the executive, if it was tied down to the reception of public ministers, without any discretion to receive or reject them; that where the fact appears to be, that no government exists, the consequential suspension is independent of the executive; that where the fact appears to be, that the government does exist, the executive must be governed by the fact, and can have no right or discretion, on account of the date or form of the government, to refuse to acknowledge it, either by rejecting its public minister, or by any other step taken on that account. If it does refuse on that account, the refusal is a wrongful act, and can neither prove nor illustrate a rightful power.

I have spent more time on this part of the discussion than may appear to some, to have been requisite. But it was considered as a proper opportunity for presenting some important ideas, connected with the general subject, and it may be of use in shewing how very superficially, as well as erroneously, the writer has treated it.

In other respects so particular an investigation was less necessary. For allowing it to be, as contended, that a suspension of treaties might happen from a consequential operation of a right to receive public ministers, which is an express right vested by the constitution; it could be no proof, that the same or a similar effect could be produced by the direct operation of a constructive power.

Hence the embarrassments and gross contradictions of the writer in defining, and applying his ultimate inference from the operation of the executive power with regard to public ministers.

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As first it exhibits an "impertant instance of the right of the executive to decide the obligation of the nation: with regard to foreign nations."

Rising from that, it confers on the executive, a right "to put the United States in a condition to become an associate in war."

And, at its full height authorises the executive "to lay the legislature under an obligation of declaring war."

From this towering prerogative, it suddenly brings down the executive to the right of "consequentially affecting the proper or improper exercise of the power of the legislature to declare war.

And then, by a caprice as unexpected as it is sudden, it espouses the cause of the legislature; rescues it from the executive right "to lay it under an obligation of declaring war"; and asserts it to be "free to perform its own duties, according to its own sense of them," without any other controul than what it is liable to, in every other legislative act.

The point at which it finally seems to rest, is, that "the executive in the exercise of its constitutional powers, may establuh an antecedent state of things, which ought to [...] in the legislative decisions;" a prerogative which will import a great deal, or nothing, according to the handle by which you take it; and which, at the same time, you can take by no handle that does not clash with some inference preceding.

If "by weighing in the legislative decisions" be meant having an influence on the expediency of this or that decision in the opinion of the legislature; this is no more than what every antecedent state of things ought to have, from whatever cause proceeding; whether from the use or abuse of constitutional powers, or from the exercise of constitutional or assumed powers. In this sense the power to establish an antecedent state of things is not constituted. But then it is of no use to the writer, and is also in direct contradiction to the inference, that the executive may "lay the legislature under an obligation to decide in favour of war."

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If the meaning be as is implied by the force of the terms "constitutional powers," that the antecedent state of things produced by the executive, ought to have a constitutional weight with the legislature: or, in plainer words, imposes a constitutional obligation on the legislative decisions, the writer will not only have to combat the arguments by which such a prerogative has been disproved: but to reconcile it with his last concession, that "the legislature is free to perform its duties according to its own sense of them." He must shew that the legislature is, at the same time, constitutionally free to pursue its own judgment and constitutionally bound by the judgment of the executive.

No. IV.

THE last papers compleated the view proposed to be taken of the arguments in support of the new and aspiring doctrine, which ascribes to the executive the prerogative of judging and decidiag whether there be causes of war or not, in the obligations of treaties; notwithstanding the express provision in the constitution by which the legislature is made the organ of the national will, on questions whether there be or be not a cause for declaring war. If the answer to these arguments has imparted the conviction which dictated [Page]it, the reader will have pronounced, that they are generally superficial, abounding in contradictions, never in the least degree conclusive to the main point, and not unfrequently conclusive against the writer himself: whilst the doctrine—that the powers of treaty and war, are in their nature executive powers—which forms the basis of those arguments, is as indefensible and as dangerous, as the particular doctrine to which they are applied.

But it is not to be forgotten that these doctrines, though ever so clearly disproved, or ever so weakly defended, remain before the public a striking monument of the principles and views which are entertained and propagated in the community.

It is also to be remembered, that however the consequences flowing from such premises, may be disavowed at this time or by this individual, we are to regard it as morally certain, that in proportion as the doctrines make their way into the creed of the government, and the acquiescence of the public, every power that can be deduced from them, will be deduced, and exercised sooner or later by those who may have an interest in so doing: The character of human nature gives this salutary warning to every sober and reflecting mind. And the history of government, in all its forms and in every period of time, ratifies the danger. A people therefore, who are so happy as to possess the inestimable blessing of a free and defined constitution, cannot be too watchful against the introduction, nor too critical in tracing the consequences, of new principles and new constructions, that may remove the land marks of power.

Should the prerogative which has been examined, be allowed in its most limited sense, to usurp the public countenance, the interval would probably be very short, before it would be heard from some quarter or other, that the prerogative either amounts to nothing, or means a right to judge and conclude that the obligations of treaty impose war, as well as that they permit peace. That it is fair reasoning, to say, that if the prerogative exists at all, an operative rather than an inert character ought to be given to it.

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In support of this conclusion, there would be enough to echo, "that the prerogative in this active sense, is connected with the executive in various capacities—as the organ of intercourse between the nation and foreign nations—as the interpreter of national treaties" (a violation of which may be a cause of war) "as that power which is charged with the execution of the laws of which treaties make a part—as that power, which is charged with the command and application of the public force."

With additional force, it might be said, that the executive is as much the executor as the interpreter of treaties: that if by virtue of the first character, it is to judge of the obligations of treaties, it is by virtue of the second, equally authorised to carry those obligations into effect. Should there occur for example, a casus federis, claiming a military co-operation of the United States and a military force should happen to be under the command of the executive, it must have the same right, as executor of public treaties to employ the public force, as it has in quality of interproier of public treaties to decide whether it ought to be employed.

The case of a treaty of peace would be an auxiliary to comments of this sort: It is a condition annexed to every treaty that an infraction even of an important article, on one side, extinguishes the obligations on the other: and the immediate consequence of a dissolution of a treaty of peace is a restoration of a state of war. If the executive is "to decide on the obligation of the nation with regard to foreign nations"—"to pronounce the existing condition (in the sense annexed by the writer) of the nation with regard to them; and to admonish the citizens of their obligations and duties as founded upon that condition of things."—"to judge what are the recibrocal rights and obligations of the United States, and of all and each of the powers at war:"—add, that if the executive moreover possesses all powers relating to war not strictly within the power to declare war, which any pupil of political casuistry, could distinguish from a mere relapse into a war, that had been declared: With this store of materials and the example given of the use [Page]to be made of them, would it be difficult to fabricate a power in the executive to plunge the nation into war, whenever a treaty of peace might happen to be infringed?

But if any difficulty should arise, there is another mode chalked out by which the end might clearly be brought about, even without the violation of the treaty of peace; especially if the other party should happen to change its government at the crisis. The executive, in that case, could suspend the treaty of peace by refusing to receive an ambassador from the new government, and the state of war emerges of course.

This is a sample of the use to which the extraordinary publication we are reviewing, might be turned. Some of the inferences could not be repelled at all. And the least regular of them must go smoothly down with those, who had swallowed the gross sophistry which wrapped up the original dose.

Every just view that can be taken of this subject, admonishes the public, of the necessity of a rigid adherence to the simple, the received and the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature; that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war: that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper; and that for such, more than for any other contingency, this right was specially given to the executive.

In no part of the constitution is more wisdom to be sound than in the clause which consides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers; the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. [Page]In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.

As the best praise then that can be pronounced on an executive magistrate, is, that he is the friend of peace; a praise that rises in its value, as there may be a known capacity to shine in war: so it must be one of the most sacred duties of a free people, to mark the first omen in the society, of principles that may stimulate the hopes of other magistrates of another propensity, to intrude into questions on which its gratification depends. If a free people be a wise people also, they will not forget that the danger of surprise can never be so great, as when the advocates for the prerogative of war, can sheathe it in a symbol of peace.

The constitution has manifested a similar prudence in refusing to the executive the sole power of making peace. The trust in this instance also, would be too great for the wisdom, and the temptations too strong for the virtue, of a single citizen. The principal reasons on which the constitution proceeded in its regulation of the power of treatics, including treaties of peace, are so aptly furnished by the work already quoted more than once, that I shall borrow another comment from that source.

"However proper or safe it may be in a government where the executive magistrate is an hereditary monarch to commit to him the [...] power of making treaties, [Page]it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years duration. It has been remarked upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material danger of being corrupted by foreign powers. But that a man raised from the station of a private citizen to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents—The history of human conduct does not warrant that exalted opinion of human virtue, which would make it wise in a nation, to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate, created and circumstanced, as would be a President of the United States."

I shall conclude this paper and this branch of the subject, with two reflections, which naturally arise from this view of the constitution.

The first is, that as the personal interest of an hereditary monarch in the government, is the only security against the temptation incident to a commitment of the delicate and momentous interests of the nation which concern its intercourse with the rest of the world, to the disposal of a single magistrate, it is a plain consequence, that every addition that may be made to the sole agency and influence of the executive, in the intercourse of the nation with foreign nations, is an increase of the dangerous temptation to which an elective and temporary magistrate is exposed; and an argument and advance towards [Page]the security afforded by the personal interests of an hereditary magistrate.

Secondly, As the constitution has not permitted the executive singly to conclude or judge that peace ought to be made, it might be inferred from that circumstance alone, that it never meant to give it authority, singly, to judge and conclude that war ought not to be made. The trust would be precisely similar and equivalent in the two cases. The right to say that war ought not to go on, would be no greater than the right to say that war ought to begin. Every danger of error or corruption, incident to such a prerogative in one case, is incident to it in the other. If the Constitution therefore has deemed it unsafe or improper in the one case, it must be deemed equally so in the other case

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No. V.

HAVING seen that the executive has no constitutional right to interfere in any question whether there be or be not a cause of war, and the extensive consequences flowing from the doctrines on which a claim has been asserted, it remains to be enquired whether the writer is better warranted in the fact which he assumes, namely that the proclamation of the executive has undertaken to decide the question, whether there be a cause of war or not, in the article of guaranty between the United States and France, and, in so doing has exercised the right which is claimed for that department.

Before I proceed to the examination of this point, it may not be amiss to advert to the novelty of the phraseology, as well as of the doctrines, expounded by this writer. The source from which the former is evidently borrowed, may enlighten our conjectures with regard to the source of the latter. It is a just observation also that words have often a gradual influence on ideas, and when used in an improper sense, may cover fallacies which would not otherwise escape detection.

I allude panicularly to his application of the term government to the executive authority alone. The Proclamation is "a manifestation of the sense of the government;" why did not the government wait, &c.— "The policy on the part of the government of removing [Page]all doubt as to its own disposition" * "It was of great importance that our citizens should understand as early as possible the opinion entertained by the government, &c." If in addition to the rest, the early manifestation of the views of the government, had any effect in fixing the public opinion, &c. the reader will probably be struck with the reflection, that if the Proclamation really possesed the character, and was to have the effects, here [...] to it, something more than the authority of the government, in the writer's sense of government, would have been a necessary sanction to the act, and if the term "government" be removed, and that of "President" substituted, in the sentences quoted, the justice of the reflection will be felt with peculiar force. But I remark only, on the singularity of the stile adopted by the writer, as shewing either that the phraseology of a foreign government is more familiar to him than the phraseology proper to our own, or that he wishes to propagate a familiarity of the former in preference to the latter. I do not know what degree of disapprobation others may think due to this innovation of language, but I consider it as far above a trivial criticism, to observe that it is by no means unworthy of attention, whether viewed with an eye to its probable cause, or its apparent tendency. "The government," unquestionably means in the United States the whole government, not the executive part, either exclusively, or pre-eminently; as it may do in a monarchy, where the splendor of prerogative eclipses, and the machinary of influence, directs, every other part of the government.—In the former and proper sense, the term has hitherto been used in official proceedings, in public discussions, and in private discourse. It is as short and as easy, and less liable to misapprehension, to say, the Executive or the President, as to say the government. In a word the new dialect could not proceed either from necessity, conveniency, propriety, or perspicuity; and being in opposition to common usage, so marked a fondness for it, justifies the [Page]notice here taken of it. It shall no longer detain me, however, from the more important subject of the present paper.

I proceed therefore to observe that as a "Proclamation," in its ordinary use, is an ad ress to citizens or subjects only; as it is always understood to relate to [...] law actually in operation, and to be an act purely and exclusively executive; there can be no implication in the name or the form of such an instrument, that it was meant principally, for the information of foreign nations; far less that it related to an eventual stipulation on a subject, acknowledged to be within the legislative province.

When the writer therefore undertook to engrast his new prerogative on the Proclamation, by ascribing to it so unusual, and unimplied a meaning, it was evidently incumbent on him to shew, that the text of the instrument could not be satisfied by any other construction than his own. Has he done this? No. What has be done? He has called the Proclamation a Proclamation of neutrality; he has put his own arbitrary meaning on that phrase, and has then proceeded in his arguments and his inferences, with as much confidence, as if no question was ever to be asked, whether the term "neurality" be in the Proclamation; or whether, if there, it could justify the use he makes of it.

It has appeared from observations already made, that if the term "neutrality" was in the Proclamation, it could not avail the writer, in the present discussion; but the fact is no such term is to be found in it, nor any other term, of a meaning equivalent to that, in which the term neutrality is used by him.

There is the less pretext, in the present case, for hunting after any latent or extraordinary object because an obvious and legal one, is at band, to satisfy the occasion on which the Proclamation issued. The existence of war among several nations with which the United States have an extensive intercourse; the duty of the executive to preserve peace by enforcing its laws, whilst those laws continued in force; the danger that indiscreet citizens might be tempted or surprised by the crisis, into unlawful proceedings, tending to involve the United States in [Page]a war, which the competent authority might decide them to be at liberty to avoid, and which, if they should be judged not at liberty to avoid, the other party to the eventual contract, might not be willing to impose on them; there surely might have been sufficient grounds for the measure pursued by the executive, and being legal and rational grounds, it would be wrong, if there be no necessity, to look beyond them.

If there be any thing in the Proclamation of which the writer could have made a handle, it is the part which declares, the disposition, the duty and the interest of the United States, in relation to the war existing in Europe. As the Legislature is the only competent and constitutional organ of the will of the nation; that is, of its disposition, its duty and its interest, in relation to a commencement of war, in like manner as the President and Senate jointly, not the President alone, are in relation to peace, after war has been commenced—I will not dissemble my wish that a language less exposed to criticism had been preferred; but taking the expressions, in the sente of the writer himself; as analogous to the language which might be proper, on the reception of a public Minister, or any similar occasion, it is evident, that his construction can derive no succour, even from this resource.

If the Proclamation then does not require the construction which this writer has taken the liberty of putting on it; I leave it to be decided whether the following considerations do not forbid us to suppose, that the President could have intended, by that act, to embrace and prejudge the Legislative question whether there was, or was not, under the circumstances of the case, a cause of war in the article of guaranty.

It has been shewn that such an intention would have usurped a prerogative not vested in the executive, and even confessedly vested in another department.

In exercising the Constitutional power of deciding a question of war, the Legislature ought to be as free to decide, according to its own sense of the public good, on one side as on the other side. Had the Proclamation prejudged the question on either side, and proclaimed its decision to the world; the Legislature instead of being as free as it ought, might be thrown under the dilemma, [Page]of either sacrificing its judgment to that of the executive; or by opposing the executive judgment, of producing a relation between the two departments, extremely delicate among ourselves, and of the worst influence on the national character and interests abroad; a variance of this nature, it will readily be perceived, would be very different from a want of conformity to the mere recommendations of the executive, in the measures adopted by the Legislature.

It does not appear that such a Proclamation could have even pleaded any call, from either of the parties at war with France, for an explanation of the light in which the guaranty was viewed—whilst, indeed, no positive indication whatever was given of hostile purposes, it is not conceived, that any power could have decently made such an application—or if they had, that a Proclamation, would have been either a satisfactory, or an honorable answer. It could not have been satisfactory, if serious apprehensions were entertained, because it would not have proceeded from that authority which alone could definitely pronounce the will of the United States on the subject. It would not have been honorable, because a private diplomatic answer only is due to a private diplomatic application; and to have done so much more, would have marked a pusilanimity and want of dignity in the Executive Magistrate.

But whether the executive was or was not applied to, or whatever weight be allowed to that circumstance, it ought never to be presumed, that the executive would so abruptly, so publicly, and so solemnly, proceed to disclaim a sense of the contract, which the other party might consider and wish to support by discussion as its true and reasonable import. It is asked, indeed, in a tone that sufficiently displays the spirit in which the writer construes both the Proclamation and the treaty, "Did the executive stand in need of the logic of a foreign agent to enlighten it as to the duties or the interests of the nation; or was it bound to ask his consent to a step which appeared to itself consistent with the former, and conducive to the latter? The sense of treaties was to be learnt from the treaties themselves." Had he consulted his Vattel, instead of his animosity to [Page]France, he would have discovered that however humiliating it might be to wait for a foreign logic, to assist the interpretation of [...] act depending on the national authority alone, yet in the case of a treaty, which is as much the treaty of a foreign nation, as it is ours; and in which foreign duties and rights are as much involved as ours, the sense of the treaty, though to be learnt from the treaty itself, is to be equally learned by both parties to it. Neither of them can have a right more than the other, to say what a particular article means; and where there is equality without a judge, consultation is as consistent with dignity as it is conducive to harmony and friendship; let Vattel however be heard on the subject. ‘The third general maxim, or principle, on the subject of interpretation [of Treaties] is: "that neither the one nor the other of the interested or contracting powers has a right to interpret the act or treaty at us pleasure. For if you are at liberty to give my promise what sense you please, you will have the power of obliging me to do whatever you have a mind, contrary to my intention, and beyond my real engagement: and reciprocally, If I am allowed to explain my promises as I please, I may render them vain and illusive, by giving them a sense quite different from that in which they were presented to you, and in which you must have taken them in accepting them. Vat. B. II. c. vii. § 265.’

The writer ought to have been particularly sensible of the improbability that a precipitate and exparte decision of the question arising under the guaranty, could have been intended by the proclamation. He had but just gone through his undertaking, to prove that the article of guaranty like the rest of the treaty is defensive, not offensive. He had examined his books and retailed his quotations, to shew that the criterion between the two kinds of war is the circumstance of priority in the attack. He could not therefore but know, that according to his own principles, the question whether the United States, were under an obligation or not to take part in the war, was a question of fact whether the first attack was made by France or her enemies. And to decide a question of fact, as well as of principle, without waiting [Page]for such representations and proofs, as the absent and interested party might have to prudence, would have been a proceeding contrary to the ordinary maxims of justice, and requiring circumstances of a very peculiar nature, to warrant it, towards any nation. Towards a nation which could verify her claim to more than bare justice by our own reiterated and formal acknowledgments, and which must in her present singular and interesting situation have a peculiar sensibility to marks of our friendship or alienation, the impropriety of such a proceeding would be infinitely increased, and in the fame proportion the improbability of its having taken place.

There are reasons of another sort which would have been a bar to such a proceeding. It would have been as impolitic as it would have been unfair and unkind.

If France meant not to insist on the guaranty, the measure, without giving any present advantage, would have deprived the United States of a future claim which may be of importance to their safety. It would have inspired France with jealousies of a secret bias in this country toward some of her enemies, which might have left in her breast a spirit of contempt and revenge of which the effects might be felt in various ways. It must in particular have tended to inspire her with a disinclination to seed our commerce with those important advantages which it already enjoys, and those more important ones, which it anxiously contemplates. The nation that consumes more of the fruits of our soil than any other nation in the world, and supplies the only foreign raw material of extensive use in the United States would not be unnecessarily provoked by those who understand the public interest, and make it their study, as it is their interest to advance it.

I am aware that the common-place remark will be interposed, that, "commercial privileges are not worth having, when not secured by mutual interest; and never worth purchasing because they will grow of themselves out of a mutual interest." Prudent men, who do not suffer their reason to be misled by their prejudices will view the subject in a juster light. They will reflect, that if commercial privileges are not worth purchasing, they are worth having without purchase; that [Page]in the commerce of a great nation, there are valuable privileges which may be granted or not granted, or granted either to this or that country, without any sensible influence on the interest of the nation itself; that the friendly or unfriendly disposition of a country, is always an article of moment in the calculations of a comprehensive interest: that some sacrifices of interest will be made to other motives: by nations as well as by individuals, though not with the same frequency, or in the same proportions, that more of a disinterested conduct or of a conduct founded on liberal views of interest, prevails in some nations than in others, that as far as can be seen of the influence of the revolution on the genius and the policy of France, particularly with regard to the United States, every thing is to be hoped by the latter on this subject, which one country can reasonably hope from another. In this point of view a greater [...] could not have been committed than in a step, that might have turned the present disposition of France to open her commerce to us as far as a liberal calculation of her interest would permit, and her friendship towards us, and confidence in our friendship towards her. could prompt, into a disposition to shut it as closely against us as the united motives of interest, of distrust, and of ill-will, could urge her.

On the supposition that France might intend to claim the guaranty, a hasty and harsh refusal before we were asked. on a ground that accused her of being the aggressor in the war against every power in the catalogue of her enemies, and in a crisis when all her sensibility must be alive towards the United States, would have given every possible irritation to a disappointment which every motive that one nation could feel towards another and towards itself, required to be alleviated by all the circumspection and delicacy that could be applied to the occasion.

The silence of the Executive since the accession of Spain and Portugal to the war against France throws great light on the present discussion. Had the proclamation been issued in the sense, and for the purposes ascribed to it, that is to say, as a declaration of neutrality, another would have follouted, on that event. If it was the right and duty of the Government, that is, the President, to manifest to Great Britain and Holland; [Page]and to the American merchants and citizens his sense. his disposition, and his views on the question, whether the United States were under the circumstances of the case, bound or not, to execute the clause of guaranty, and not to leave it uncertain whether the Executive did or did not believe a state of neutrality, to be consistent with our treaties, the duty as well as the right prescribed a similar manifestation to all the parties concerned after * Spain and Portugal had joined the other maritime enemies of France. The opinion of the Executive with respect to a consistency or inconsistency of neutrality with treaties in the latter case could not be inserred from the proclamation in the former, because the circumstances might be different. Taking the proclamation in its proper sense, as reminding all concerned, that as the United States were at peace (that state not being affected by foreign wars, and only to be changed by the legislative authority of the country) the laws of peace were still obligatory and would be enforced, and the inference is so obvious and so applicable to all other cases whatever circumstances may distinguish them, that another proclamation would be unnecessary. Here is a new aspect of the whole subject, admonishing us in the most striking manner at once of the danger of the prerogative contended for, and the absurdity of the distinctions and arguments employed in its favour. It would be as impossible in practice, as it is in theory, to separate the power of judging and concluding, that the obligations of a treaty do not impose war from that of judging and concluding that the obligations do impose war. In certain cases, silence would proclaim the latter conclusion, as intelligibly as words could do the former. The writer indeed has himself abandoned the distinction in his VIIth paper, by declaring expressly that the object of the proclamation would have been defeated "by leaving it uncertain whether the Executive did or did not believe a state of neutrality to be consistent with our treaties".

HELVIDIUS.

THE END.

Notes

*

The chapter on prerogative, shews how much the reason of the Philosopher was clouded by the royalism of the Englishman.

↵

*

The writer ought not in the same paper. No. VII. to have said, "Had the President announced his own disposition, he would have been chargeable with egotism, if not presumption.

↵

*

The writer is betrayed into an acknowledgment of this in his 7th No. where he applies his reasoning to Spain as well as to Great Britain and Holland. —He had forgotten that Spain was not included in the proclamation.

↵

Information about this book

Title statement

Letters of Helvidius: written in reply to Pacificus, on the president's proclamation of neutrality. : Published originally in the year 1793.

Madison, James, 1751-1836.

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Text Creation Partnership,

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Ann Arbor, MI :

Date

2009-04.

ID [DLPS]

N23248

ID [TCP]

N23248

ID [STC]

Evans 30734

ID [NOTIS]

APW7406

ID [IMAGE-SET]

30734

ID [EVANS-CITATION]

99013560

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Early American Imprints, 1639-1800 ; no. 30734.

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(Evans-TCP ; no. N23248)

Transcribed from: (Readex Archive of Americana ; Early American Imprints, series I ; image set 30734)

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Source

— Letters of Helvidius: written in reply to Pacificus, on the president's proclamation of neutrality. : Published originally in the year 1793., Madison, James, 1751-1836..

Extent

48 p. ; 22 cm. (8vo)

Printed by Samuel H. Smith, no. 118, Chesnut Street.,. Philadelphia: :: MDCC.XCVI. [1796]. (Attributed to Madison in: Hunt, Gallard. The writings of James Madison.)

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