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towards his avowed object, which is to work out a prerogative for the executive to judge, in common with the legislature, whether there be cause of war or not in a public obligation, it is to be presumed that " in faithfully 6 executing the laws of neutrality," an exercise of that prerogative was meant to be included. On this supposition the inference, as will have been seen, does not result from his own premises, and has been already so amply discussed, and, it is conceived, so clearly disproved, that not a word more can be necessary on this branch of his argument.
In order to give colour to a right in the executive to ex-, ercise the legislative power of judging whether there be a cause of war in a public stipulation....two other arguments are subjoined by the writer to that last examined.
The first is simply this: “It is the right and duty of “ the executive to judge of and interpret those articles of “ our treaties which give to France particular privileges, “ in order to the enforcement of those privileges ;" from which it is stated as a necessary consequence, that the executive has certain other rights, among which is the right in question.
This argument is answered by a very obvious distinction. The first right is essential to the execution of the treaty as a law in operation, and interferes with no right vested in another department. The second, viz. the right in question, is not essential to the execution of the treaty or any other law; on the contrary, the article to which the right is applied cannot, as has been shewn, from the very nature of it, be in operation as a law without a previous declaration of the legislature; and all the laws to be enforced by the executive remain in the mean time precisely the same, whatever be the disposition.or judgment of the executive. This second right would also interfere with a right acknowledged to be in the legislative department.
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If nothing else could suggest this distinction to the writer, he ought to have been reminded of it by his own words: “in order to the enforcement of those privi" leges”....Was it in order to the enforcement of the article of guarantee, that the right is ascribed to the executive?
The other of the two arguments reduces itself into the following form : the executive has the right to receire public ministers; this right includes the right of deciding, in the case of a revolution, whether the new go. vernment sending the minister, ought to be recognized or not; and this again, the right to give or refuse opera. tion to pre-existing treaties.
The power of the legislature to declare war and judge of the causes for declaring it, is one of the most express and explicit parts of the constitution. To endeavour to abridge or affect it by strained inferences, and by hypo. thetical or singular occurrences, naturally warns the reader of some lurking fallacy.
The words of the constitution are “ he (the president! 6 shall receive ambassadors, other publie ministers and - consuls." I shall not undertake to examine what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to ob. serve in general, and every candid reader will second the observation, that little if any thing more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among mo. dern nations ; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important pro, rogative, even where no rights of other departments coul be affected by it.
To shew that the view hore given of the clause is a new construction, invented or strained for a partici
occasion....I will take the liberty of recurring to the cotemporary work already quoted, which contains the obvious and original gloss put on this part of the constitution by its friends and advocates.
66 The president is also to be authorized to receive « ambassadors and other public ministers. This, " though it has been a rich theme of declamation, is “ more a matter of dignity than of authority. It is a 66 circumstance, that will be without consequence in the 6 administration of the government, and it is far more con66 venient that it should be arranged in this manner, than 66 that there should be a necessity for convening the le. “ gislature or one of its branches upon every arrival of a “ foreign minister, though it were merely to take the 66 place of a departed predecessor." Fed. p. 434.* .
Had it been foretold in the year 1788 when this work. was published, that before the end of the year 1793, a writer, assuming the merit of being a friend to the constitution, would appear, and gravely maintain, that this function, which was to be without consequence in the administration of the government, might have the conse.V quence of deciding on the validity of revolutions in favour of liberty, 66 of putting the United States in a con. 6 dition to become an associate in war,”....nay“ of laying 66 the legislature under an obligation of declaring war," what would have been thought and said of so visionary a prophet?
The moderate opponents of the constitution would probably bave disowned his extravagance. By the advocates of the constitution, his prediction must have been treated as “ an experiment on public credulity, 6 dictated either by a deliberate intention to deceive, or “ by the overflowings of a zeal too intemperate to be “ ingenuous."
But how does it follow from the function to receive ambassadors and other public ministers, that so consequential a prerogative may be exercised by the executive? When a foreign minister presents himself, two
* No. 69, written by Mr. Hamilton.
questions immediately arise? Are his credentials from the existing and acting government of his country? Are they properly authenticated? These questions belong of necessity to the executive; but they involve no cogni. zance of the question, whether those exercising the government have the right along with the possession. This belongs to the nation, and to the nation alone, on whom the government operates. The questions before the exe. cutive are merely questions of fact; and the executive would have precisely the same right, or rather be under the same necessity of deciding them, if its function was simply to receive without any discretion to reject public ministers. It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and, consequently, a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister.
It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of hu. manity, might require a government, whether new or old, to be treated as an illegitimate despotism. Sach are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases. by no means submitted to so limited an organ of the na. tional will as the executive of the United States; and certainly not to be brought, by any torture of words, within the right to receive ambassadors. .
That the authority of the executive does not extend to a question, whether an existing government ought to be recognized or not, will still more clearly appear from an examination of the next inference of the writer, to wit: that the executive has a right to give or refuse activity and operation to pre-existing treaties.
If there be a principle that ought not to be questioned within the United States, it is, that every nation has a right to abolish an old government and establish a belv one. This principle is not only recorded in every public
archive, written in every American heart, and sealed with the blood of a host of American martyrs; but is the only lawful tenure by which the United States bold their existence as a nation. · It is a principle incorporated with the above, that go. vernments are established for the national good, and are organs of the national will.
From these two principles results a third, that treaties formed by the government, are treaties of the nation, unless otherwise expressed in the treaties.
Another consequence is, that a nation, by exercising the right of changing the organ of its will, can neither disengage itself from the obligations, nor forfeit the benefits of its treaties. This is a truth of vast importance, and happily rests with sufficient firmness on its own au. thority. To silence or prevent cavil, I insert, however, the following extracts : 6 since then such a treaty (a “ treaty not personal to the sovereign) directly relates to 66 the body of the state, it subsists though the form of the 66 republic happens to be changed, and though it should 6 be even transformed into a monarchy....for the state 66 and the nation are always the same whatever changes 66 are made in the form of the government....and the 46 treaty concluded with the nation, remains in force as “ long as the nation exists."..... Vatel, B. II, § 85. “ It “ follows that as a treaty, notwithstanding the change of 6 a democratic government into a monarchy, continues « in force with the new king, in like manner; if a 66 monarchy becomes a republic, the treaty made with 66 the king does not expire on that account, unless it o was manifestly personal.”....Burlam. part IV. c. IX. $ 16, 16.
As a change of government then makes no change in the obligations or rights of the party to a treaty, it is clear that the executive can have no more right to suspend or prevent the operation of a treaty, on account of the change, than to suspend or prevent the operation, where no such change bas happened. Nor can it have any more right to suspend the operation of a treaty in