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Perhaps an attempt may be made to creep out of the difficulty through the words “in the execution of its “functions.” Here again he must equally fail. Whatever difficulties may arise in defining the executive authority in particular cases, there can be none in deciding on an authority clearly placed by the constitu. tion in another department. In this case the constitution has decided what shall not be deemed an executive authority; 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 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 eacecution of 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 must be intended by the writer when he says, “it will not “follow 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 he maintained, or the works erected on it, demolished; it will be proper to give its strength a fair trial. t 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 as such 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 concurrent 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 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 tbis 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, mav be discovered among ourselves where this maxim ha. not been faithfully pursued; but being generally acknowledged to be errors, they confirm, rather than impeach the truth aud 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 power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what maj 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 doabt to be to which it has been given. The latter 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 perforin 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 hound 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 docs 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 he 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 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 he 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 ou the government; and when, hi "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 inci"dent to that state of the nation. Th'e executive is charg"ed with the execution of all laws, the laws of nations, as "well as the muncipal 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
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 eacecutive to preserve peace till war is declared. It will be observed that here is an explicit and peremp. tory 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 say, in fulfilling the duty to preserte 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 eaccludes it. olnd when in pursuance of this right it has concluded that there is nothing in them (obligations) inconsistent with a state of neutrality, it becomes both its province and its duty to enforce ihe 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 duly of the executive to enforce the same laws? Say it is, you destroy the right to judge. Say it is not, you cancel the duty to preserve peace, till war is declared. Take this sentence in connexion with the preceding and the contradictions are multiplied. Take it by itsels, and it makes the right to judge and conclude whether war be obligatory, absolute and operative; and the duly 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 circum: stance of other nations being at war. The term has no reference to the existence or non-existence of treaties" alliances between the nation at peace and the nations"