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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 gore ernment, 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 showing 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 bis ultimate inference from the operation of the executive power with regard to public ministers.
At first it exhibits an “important 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, it authorizes the executive " 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 6 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 lay the
to be " free to perform its oron duties according to its own sense of " them,” without any other control than whut it is liable to, in every other legislative act.
The point at which it finally seems to rest, is, that “the execu“ tive, in the exercise of its constitutional powers, may establish an « antecedent state of things, which ought to weigh in the legisla“tive 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 haudle 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 contested. 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 “con“stitutional 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 leg“islature is free to perform its duties according to its own sepse " of them.” He must show that the legislature is, at the same time constitutionally free to pursue its own judgment and constitutionally bound by the judgment of the executive.
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 bimself: whilst the doctrine....that the powers of treaty and war, are in their nature executive powers, which forms tbe 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 wbicb 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 gosernment, and the acquiesence 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 governinent 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 blessings of a free and defined constitution, cannot be too watchful against the introduction, vor too critical in tracing the couisequences, 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 linnited sense, to usurp the public countenance, the interval would probably be very sbort, 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 be“tween the nation and foreign nations....as the interpreter of na“tional treaties” (a violation of which may be a cause of war.....
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 cooperation 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, wbether it ong it 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
If the executive is “ to decide on the obligation of the na“tion 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 obliga“ tions and duties, as founded upon that condition of things”....“ to “judge what are the reciprocal rights and obligations of the Unit" ed 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, wbich 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 bappen 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 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 inust 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 LETTERS OF
to which an elective and temporary magistrate is exposed ; and as
Secondly, as the constitution has not permitted the executive
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 such a claim bas been asserted; it remains to be inquired, whether the writer is better warranted in the fact which he assumes, namely, that the proclamation of the executive bas 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 wbich is de med for that department.
Before I proceed to the examination of this point, it mat ut be amiss to advert to the novelty of the phraseology, as weli s the doctrines, espoused by this writer. The source from wnci the former is evidently borrowed, may enlighten our conjections with
regard to the source of the latter. It is a just observe ako
at words hare often a gradual influence on ideas, and, un ased
armeularly to his applicativa of tbe ter wereld
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