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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 ac. knowledged to be errors, they confirm, rather than im. peach the truth and value of the maxim.
It may happen also that different independent departments, the legislative and executive, for example, may, in tlie exercise of their functions, interpret the constitu. tion differently, and thence lay claim cach to the same 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 exa pound 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 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 depart. ments 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 fol. low 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 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 w the several branches, would be thrown into absolute hotchpot, and exposed to a general scramble.
It is time however for the writer bimself 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 66 one hand, it is on the other the duty of the executive to 66 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 6 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 6 both its province and its duty to enforce the laws inci66 dent to that state of the nation. The executive is charg. 66 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 6 executing the laws of neutrality, when that is the state “ of the nation, to avoid giving a cause of war to foreign “ powers."
and its & state of mcludes
peace oughould be performed if evident that
To do full justice to this master piece of logic, the rcader 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 executire 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 say, in fulfilling the duty to preserre 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 excludes it.
And 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 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 i he 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 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 circum. stance of other nations being at war. T'he 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 Jaws 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 therefore be duly authorized 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 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 suppose, if you please, the existence of obligations to join in war to be inconsistent with neutrality, the question returns upon him, what laws are to be enforced 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 obli. gations existed? Admit this, which you must admit if you reject the other alternative, and the argument lands precisely where it embarked.... in the position, that it is the absolute duty of the executive in all cases to preserve peace till waris declared, not that it is to become the pro"í vince 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 shall 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 laro
cident to those lo the doctrine it will not be
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 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 executive 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 as of all other laws internal and external, by the nature of its trust and the sanction of its oath, even if turbulent citizens should consider its so doing as a cause of war at home, or unfriendly nations should consider its so doing, as a cause of war abroad. The duty of the executive to preserve external peace, can no more suspend the force of external laws, than its duty to preserve in. ternal 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 force, and leave it to the legislature to decide whether they ought to be altered or not. The executive has no other discretion than to convene and give information to the legislatore on occasions that may demand it; and whilst this discretiou 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 neutrality" means simply what the words import, and what alone they can mean, to give force or colour to the inference of the writer from his own premises. As the inference itself however in its proper meaning, does not approach
suppos simply what the force or colour to the inference