N^o. 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 4]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 5]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 6]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 7]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 8]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.

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 10]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 11]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.

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.

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.

N^o. 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."

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 16] 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.

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 18]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 19]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 20]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 21]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 22]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.

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.

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 25]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 26]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.

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.

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."

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 30]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.

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.

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."

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.

N^o. 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 34]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.

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 36]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 37]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 38]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 39]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

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 41]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 42]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 43]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 44]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 45]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 46]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 47]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 48]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".