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Neutrality - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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On 1 February 1793, eleven days after the execution of Louis XVI, the infant French Republic, already at war with Austria and Prussia, declared war also on Great Britain. By April, as the Republic’s first ambassador, “Citizen” Edmond Genet, made his way triumphantly from Charleston to Philadelphia, Washington’s cabinet was meeting repeatedly to deliberate the proper policy for the country in what was now a worldwide war pitting the former mother country (and much the most important trading partner of the new United States) against the revolutionary nation with which America still had a treaty of alliance. Although the treaty of 1778 obliged the United States to defend the French West Indies only in the event of a defensive war, and all of Washington’s secretaries agreed that the United States was not obliged to fulfill this guarantee, other clauses gave France superior advantages as a belligerent in American ports. It was difficult to define a policy that would not, in practice, favor one or the other of the warring powers and risk entanglement in the conflict. The president’s decision incorporated some of both Hamilton’s and Jefferson’s advice. Genet would be received as the representative of the legitimate government of France. The treaty would not be abrogated. But on 22 April 1793, Washington proclaimed that the United States would pursue a “friendly and impartial” conduct toward the belligerent powers.
“An Old French Soldier” (Philadelphia) General Advertiser 27 August 1793
The period so earnestly wished for by your enemies and by ours is at length at hand. Who would have thought, when the blood of Frenchmen drenched the foundation of the temple of your liberty, that a day would come when the interests of your former tyrants and those of your allies should be weighed in the same balance, and that those of the first should preponderate? Who … would have imagined that efforts tending to break off the bonds that unite us would ever have obtained the approbation of the American people? I surely had no thoughts of this kind when, at Yorktown, I saw a whole army of your tyrants render homage to your rights to independence and bend under the united standards of America and France. Let those brave soldiers who witnessed that memorable day, let your illustrious general whose labors it crowned with victory, ask themselves, and let them tell me, whether a Frenchman will not ever be to them as a brother and a friend? Whether our interests, our perils, and our glory can be indifferent to them?
Who, then, has been able to effect the sudden change I am so unfortunate as to witness? Do you, also, wish to punish us for being free; and generous Americans, if it is a crime, recollect that you set the example. What; because we are free, rights are disputed which would have been acknowledged if the tyrant were yet alive; because we are free our friendship is disregarded when the good will of our last master was courted with so much care and attention. It is because we are free that our advances are despised and that advantages which were solicited so earnestly of our former government are now, when granted, disregarded—Americans: the whole world, posterity will judge you. What can you answer? Your public prints overflow with learned discussions. All the rubbish of low writers is brought forward, authorities are scraped up, all to prove to you that ingratitude is a virtue in certain cases. But do you not feel something within you that spurns at such a decline? My friends! the honest and upright man has no need to consult voluminous works to determine what is right; his heart and his conscience are sufficient guides. What is right cannot cease to be so, and virtue is out of the reach of elaborate calculations.
I am not deep in political knowledge, but I have been forcibly impressed with this truth—that the present war in Europe is a war of principle; it is a war between liberty and despotism. Your situation does not permit you to take a part in this war; well, then, we will fight alone in the common cause; but at least give us the consolation to see that on every occasion your wishes are with us, as you have sworn it. Let your own interest prevent your throwing yourselves in the arms of your bitterest enemies.—Do not furnish them with weapons against you by abandoning your only friends.
alexander hamilton “Pacificus,” No. 1 29 June 1793
Despite a sharp initial reaction, public opinion shifted steadily in support of the administration’s course. Among the reasons were the increasingly outrageous conduct of Citizen Genet, who eventually threatened to appeal his disagreements with the administration to the public, and the seven essays of “Pacificus,” which appeared initially in the Gazette of the United States between 29 June and 30 July 1793. The pseudonym, as usual, did not disguise the author’s pen.
… What is the nature and design of a proclamation of neutrality?
The true nature & design of such an act is—to make known to the powers at war and to the citizens of the country whose government does the act that such country is in the condition of a nation at peace with the belligerent parties and under no obligations of treaty to become an associate in the war with either of them; that this being its situation its intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality; and as a consequence of this state of things, to give warning to all within its jurisdiction to abstain from acts that shall contravene those duties, under the penalties which the laws of the land (of which the law of nations is a part) annexes to acts of contravention… .
… If this be a just view of the true force and import of the Proclamation, it will remain to see whether the President in issuing it acted within his proper sphere or stepped beyond the bounds of his constitutional authority and duty.
It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the U States.
It can as little be disputed that a Proclamation of Neutrality, when a nation is at liberty to keep out of a war in which other nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the nation being immediately responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principles of neutrality.
An object this of the greatest importance to a country whose true interest lies in the preservation of peace.
The inquiry then is—what department of the Government of the U States is the proper one to make a declaration of neutrality in the cases in which the engagements of the nation permit and its interests require such a declaration.
A correct and well informed mind will discern at once that it can belong neither to the Legislative nor Judicial Department and of course must belong to the Executive.
The Legislative Department is not the organ of intercourse between the U States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that organ of the Government which is to pronounce the existing condition of the nation with regard to foreign powers, or to admonish the citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.
It is equally obvious that the act in question is foreign to the Judiciary Department of the Government. The province of that Department is to decide litigations in particular cases. It is indeed charged with the interpre-tation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government. This po-sition is too plain to need being insisted upon.
It must then of necessity belong to the Executive Department to exercise the function in question—when a proper case for the exercise of it occurs.
It appears to be connected with that department in various capacities, as the organ of intercourse between the nation and foreign nations—as the interpreter of the national treaties in those cases in which the Judiciary is not competent, that is in the cases between government and government—as that power which is charged with the execution of the laws, of which treaties form a part—as that power which is charged with the command and application of the public force.
This view of the subject is so natural and obvious—so analogous to general theory and practice—that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the U States.
Let us see then if cause for such doubt is to be found in that constitution.
The second Article of the Constitution of the U States, section 1st, establishes this general proposition, That “The Executive Power shall be vested in a President of the United States of America.”
The same article in a succeeding section proceeds to designate particular cases of executive power. It declares among other things that the President shall be Commander in Chief of the army and navy of the U States and of the militia of the several states when called into the actual service of the U States, that he shall have power by and with the advice of the senate to make treaties; that it shall be his duty to receive ambassadors and other public ministers and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications, as in regard to the cooperation of the Senate in the appointment of officers and the making of treaties, which are qualifications of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of executive authority would naturally dictate the use of general terms—and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution in regard to the two powers the Legislative and the Executive serves to confirm this inference. In the article which grants the legislative powers of the government the expressions are—“All Legislative powers herein granted shall be vested in a Congress of the U States;” in that which grants the Executive Power the expressions are, as already quoted, “The Executive Power shall be vested in a President of the U States of America.”
The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.
The general doctrine then of our Constitution is that the Executive Power of the Nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument.
Two of these 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.”
With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.
And since upon general principles for reasons already given, the issuing of a proclamation of neutrality is merely an executive act, since also the general Executive Power of the Union is vested in the President, the conclusion is that the step which has been taken by him is liable to no just exception on the score of authority.
It may be observed that this inference would be just if the power of declaring war had not been vested in the Legislature, but that this power naturally includes the right of judging whether the nation is under obligations to make war or not.
The answer to this is that however true it may be that the right of the Legislature to declare war includes the right of judging whether the nation 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 judgment in the execution of its own functions.
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 in them 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.
This is the direct and proper end of the proclamation of neutrality. It declares to the U States their situation with regard to the powers at war and makes known to the community that the laws incident to that situation will be enforced. In doing this, it conforms to an established usage of nations, the operation of which as before remarked is to obviate a responsibility on the part of the whole society for secret and unknown violations of the rights of any of the warring parties by its citizens.
Those who object to the proclamation will readily admit that it is the right and duty of the Executive to judge of, or to interpret, those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges; but the necessary consequence of this is that the Executive must judge what are the proper bounds of those privileges—what rights are given to other nations by our treaties with them—what rights the law of nature and nations gives and our treaties permit in respect to those nations with whom we have no treaties; in fine what are the reciprocal rights and obligations of the United States & of all & each of the powers at war.
The right of the Executive to receive ambassadors and other public ministers may serve to illustrate the relative duties of the Executive and Legislative Departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will and ought to be recognized or not: And where a treaty antecedently exists between the U States and such nation that right 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 power of determining virtually in the case supposed upon the operation of national treaties as a consequence of the power to receive ambassadors and other public ministers is an important instance of the right of the Executive to decide the obligations of the nation with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance offensive and defensive between the U States and that country, the unqualified acknowledgment of the new government would have put the U States in a condition to become an associate in the war in which France was engaged—and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.
This serves as an example of the right of the Executive, in certain cases, to determine the condition of the nation, though it may consequentially affect the proper or improper exercise of the power of the Legislature to declare war. The Executive indeed cannot control the exercise of that power—further than by the exercise of its general right of objecting to all acts of the Legislature; liable to being overruled by two thirds of both houses of Congress. The Legislature is free to perform its own duties according to its own sense of them—though the Executive in the exercise of its constitutional powers may establish an antecedent state of things which ought to weigh in the legislative decisions. From the division of the Executive Power there results, in reference to it, a concurrent authority in the distributed cases.
Hence in the case stated, though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.
No objection has been made to the Presidents having acknowledged the Republic of France by the reception of its minister, without having consulted the Senate, though that body is connected with him in the making of treaties, and though the consequence of his act of reception is to give operation to the treaties heretofore made with that country: But he is censured for having declared the U States to be in a state of peace & neutrality with regard to the Powers at War, because the right of changing that state & declaring war belongs to the Legislature.
It deserves to be remarked that as the participation of the Senate in the making of treaties and the power of the Legislature to declare war are exceptions out of the general “Executive Power” vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution.
While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of war—it belongs to the “Executive Power” to do whatever else the laws of nations cooperating with the treaties of the country enjoin in the intercourse of the U States with foreign powers.
In this distribution of powers the wisdom of our constitution is manifested. It is the province and duty of the Executive to preserve to the nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the nation in a state of war.
But though it has been thought advisable to vindicate the authority of the Executive on this broad and comprehensive ground—it was not absolutely necessary to do so. That clause of the Constitution which makes it his duty to “take care that the laws be faithfully executed” might alone have been relied upon, and this simple process of argument pursued.
The President is the constitutional executor of the laws. Our treaties and the laws of nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations combined with our treaties prescribed to this country in reference to the present war in Europe, it was necessary for the President to judge for himself whether there was any thing in our treaties incompatible with an adherence to neutrality. Having judged that there was not, he had a right, and if in his opinion the interests of the nation required it, it was his duty, as executor of the laws, to proclaim the neutrality of the nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its non-observance.
The Proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact with regard to the existing state of the nation, informs the citizens of what the laws previously established require of them in that state, & warns them that these laws will be put in execution against the infractors of them.
james madison “Helvidius,” No. 1 24 August 1793
Though Jefferson seemed satisfied, at first, with the administration’s actions, Madison was quick to write him from Virginia of their countrymen’s dismay over a policy of strict neutrality and of his own concern that the executive’s initiative had usurped the legislature’s power to decide on war and peace. Quickly, Jefferson retreated, and as popular opinion moved behind the proclamation, he increasingly expressed his own concern, not least about the constitutional interpretations Hamilton was using to defend the proclamation. “Nobody answers him,” he wailed, “and his doctrines will therefore be taken for confessed. For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can and will enter the lists with him.” Madison’s response appeared in the Gazette of the United States between 24 August and 18 September 1793.
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 are introduced with professions of anxiety for the preservation of peace, 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 show, from the publication itself, that under color 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 favorable 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 executor of treaties and the law of nations, is authorized 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 22nd 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 of treaties and the power of the legislature to declare war are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no farther than is essential to their execution.”
If there be any countenance to these positions, it must be found either 1st, in the writers of authority on public law; or 2nd, in the quality and operation of the powers to make war and treaties; or 3rd, 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 preeminent 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 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 hardly to be separated into distinct hands. 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 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 it 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 shows 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 shown 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 in 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 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 not be conveniently a party to the transaction.
But the conclusive circumstance is that treaties, when formed according to the constitutional mode, are confessedly 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 other 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 favor from a comparison of the two powers with those particularly vested in the President alone.
As there are but few 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 may 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 pardons for offences against the United States, except 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 session.” The same remark is applicable to this power, as also to that of “receiving ambassadors, other public ministers 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 of 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 appears 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 favorable inference from this case, it must be shown 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 executive power. Nothing of this sort 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 nature, 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 writers on law, not by the nature of the powers themselves, not 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 era of the constitution and satisfying 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 disposition. 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 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 strength, either for this purpose, or for the common defence, 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 indispensable in the management of foreign negotiations 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.
james madison “Helvidius,” No. 4 14 September 1793
The last papers completed 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 deciding 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 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 landmarks 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 could 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 authorized 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 interpreter 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 reciprocal 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 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 the 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 publications 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 found than in the clause which confides 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. 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 treaties, 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 entire power of making treaties, 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 a 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 interest 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 circmstanced, 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 a 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 the security afforded by the personal interest of a 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.
[*]The chapter on prerogative shows how much the reason of the philosopher was clouded by the royalism of the Englishman.