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exposiussons or millor mentio

treaties ; that of passage

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of the constitution, and satisfying ourselves that thie wri. ter could not have been misled by the doctrines main tained 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 appli. cation 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, bei ing arranged with such obvious propriety among the legislative powers, as to be passed over without particular discussion.

U 66 Though several writers on the subject of govern6 ment place that power of making treaties) in the class 6 of executive authorities, yet this is evidently an arbitra.. o ry disposition. For if we attend carefully, to its opera"ation, it will be found to partake more of the legisla" tive than of the executive character, though it does not s 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 66 for the regulation of the society. While the execu66 tion of the laws and the employment of the common 66 strength, either for this purpose, or for the common 66 defence, seem to comprize all the functions of the 66 executive magistrate. The power of making treaties 6 is plainly neither the one nor the other. It relates “ neither to the execution of the subsisting laws," nor 6 to the enaction of new ones, and still less to an ex « ertion of the common strength. Its objects are con6 tracts with foreign nations, which have the force of law, “ but derive it from the obligations of good faith. They

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6 are not rules prescribed by the sovereign to the subject, 6 but agreements between sovereign and sovereign. 6 The power in question seems therefore to form a dis“ tinct department, and to belong properly neither to the 66 legislative nor to the executive. The qualities else“ where detailed as indispensable in the management of 6 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 66 whole or a part of the legislative body, in the office of 6 making them.” Federalist, p. 476.*

It will not fail to be remarked on this commentary, that whatever doubts may be stared 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.

No. II. THE doctrine which has been examined, is pregnant with inferences and consequences against which no ram. parts 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 pow. ers 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 re. 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 deduc. tions which the author having omitted, might not choose

• No. 75, written by Mr. Hamilton.

others inted to defendation to malo judge

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 6 to make war or not, it will not follow that the executive 6 is in any case excluded from a similar right of judging 66 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 or 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 declare 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 creep out of the difficulty through the words “in the execution of its 66 functions.” Here again he must equally fail.

Whatever difficulties may arise in defining the execu. tive authority in particular cases, there can be vone in deciding on an authority clearly placed by the constitu. tion in another department. In tbis case the constitution has decided what shall not be deemed an executive au. thority; though it may not have clearly decided in every case what shall be so deemed. The declaring of war is expressly made a legislative function. The judging of the obligations to make war, is admitted to be in. cluded as a legislative function. Whenever then a ques. tion occurs whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions be. long....and no other department can be in the execution og its proper 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 m be intended by the writer when he says, “ it wil « follow that the executive is excluded in any case from “6 a similar right of judging, &c.

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

It has been seen that the idea of a concurrent rigos at variance with other ideas advanced or admitte the writer. Laying aside for the present that com ration, it seems impossible to avoid concluding that executive as such has a concurrent right with the lature to judge of obligations to declare war, and th to judge be essentially included in the right to a it must have the same concurrent right to? as it has to judge; and by another analogy, the right to judge of other causes of war, as of the part cause found in a public stipulation. So that when

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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 expressly vested where all other legislative powers are vested, that is, in the congress of the United States. It is consequently determined by the constitution to be a legislative power. Now omitting the inquiry 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 properly so vested as to operate separately in each. Still more evident is it, that the same specific function or act, 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

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