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pot ment has undergone a revolution) that right (the right “ of judging whether the new rulers ought to be recog66 nized or not) involves the power of giving operation or 66 not to such treaty. For until the new government is ac66 knowledged, the treaties between the nations as far at “ least as regards public rights, are of course suspend66 ed.”
This qualification of the suspending power, thougla reluctantly and inexplicitly made, was prudent, for two reasons ; first, because it is pretty evident that private rights, whether of judiciary or executive cognizance, may be carried into effect without the agency of the foreign government; and therefore would not be suspended of course by a rejection of that agency. Secondly, because the judiciary, being an independent departmert, and acting under an oath to pursue the law of treaties as the supreme law of the land, might not readily follow the executive example, and a right in one expositor of treaties, to consider them as not in force, whilst it would be the duty of another expositor to consider them as in force, would be a phenomenon not so easy to be explained. Indeed as the doctrine stands qualified, it leaves the executive the right of suspending the law of treaties in relation to rights of one description, without exempting it from the duty of enforcing it in relation to rights of another description.
But the writer is embarked in so unsound an argument, that he does not save the rest of his inference by this sacrifice of one half of it. It is not true, that all public rights are of course suspended by a refusal to acknowledge the government, or even by a suspension of the government. And in the next place, the right in question does not follow from the necessary suspension of public rights, in consequence of a refusal to acknowledge the government,
Public rights are of two sorts : those which require the agency of government; those which may be carried into effect without that agency.
As public rights are the rights of the nation, not af jhe government, it is clear that wherever they can be
rights on it from
e further, and Georgiaitacked, and suppls Carolina had been met of being charms
made good to the nation, without the office of goreroment, they are pot suspended by the want of an acknow. ledged government, or even by the want of an existing government; and that there are important rights of this description, will be illustrated by the following case:
Suppose, that after the conclusion of the treaty of alliance between the United States and France, a party of the enemy had surprised and put to death every mem. ber of congress ; that the occasion had been used by the people of America for changing the old confederacy into such a government as now exists, and that in the progress of this revolution, an interregnum had happened : suppose further, that during this interval, the states of South Carolina and Georgia, or any other parts of the United States, had been attacked, and been put into evident and imminent danger of being irrecoverably lost, without the interposition of the French arms; is it not manifest, that as the treaty is the treaty of the United States, not of their government, the people of the United States could not forfeit their right to the guarantee of their territory by the accidental suspension of their government; and that any attempt, on the part of France, to evade the obligations of the treaty, by pleading the suspension of government, or by refusing to acknowledge it, would justly have been received with universal indig. pation, as an ignominious perfidy?
With respect to public rights that cannot take effect in favour of a nation without the agency of its government, it is admitted that they are suspended of course where there is no government in existence, and also by a refusal to acknowledge an existing government. But no inference in favour of a right to suspend the operation of treaties, can be drawn from either case. Where the existence of the government is suspended, it is a case of necessity ; it would be a case happening without the act of the executive, and consequently could provo nothing for or against the right.
In the other case, to wit: of a refusal by the executive to recognize an existing government, however certain it may be, that a suspension of some of the public right
might ensue; yet it is equally certain, that the refusal would be without right or authority; and that no right or authority could be implied or produced by the unauthorized act. If a right to do whatever might bear an analogy to the necessary consequence of what was done without right, could be inferred from the analogy, there would be no other limit to power than the limit to its ingenuity.
It is no answer to say that it may be doubtful whether a government does or does not exist; or doubtful which may be the existing and acting government. The case stated by the writer is, that there are existing rulers; that there is an acting government ; but that they are new rulers; and that it is a new government. The full reply, however, is to repeat what has been already observed ; that questions of this sort are mere questions of fact; that you 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 wbere 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 government, 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 shewing how very supera ficially, 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, .
In other respe for allowing it to bean from a conse.
which is an express right vested by the courstitution; it could be no proof, that the same or a similiar effect could be produced by the direct operation of a construc. tive power.
Hence the embarrassments and gross contradictions of the writer in defining, and applying bis ultimate infer. ence from the operation of the executive power with regard to public ministers.
At first it exhibits an “ important instance of the r' " right of the executive to decide the obligation of the na6 tion with regard to foreign nations."
Rising from that, it confers on the executive, a right 66 to put the United States in a condition to become an 66 associate in war."
And, at its full height authorizes the executive 6 to 6 lay the legislature under an obligation of declaring 6 war."
From this towering prerogative, it suddenly brings down the executive to the right of " consequentially “ affecting the proper or improper exercise of the powe? 6 of the legislature to declare war."
And then, by a caprice as unexpected as it is sudden, ît espouses the cause of the legislatore; rescues it from the executive right to lay it under an obligation of • declaring war;" and asserts it to be “ free to perform 6 its own duties, according to its own sense of them," without any other controul than what it is liable to, in every other legislative act.
The point at which it finally seems to rest, is, that “ the executive in the exercise of its constitutional " poroers, may establish an antecedent state of things, “ which ought to weigh in the legislative decisions ;" & 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 handle 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 inserence, that the executive may “lay the legislature under 66 an obligation to decide in favour of war."
If the meaning be as is implied by the force of the terms 6 constitutional 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 noly have to combat the arguments by which such a prerogative has been disproved ; but to reconcile it with his last concession, that “ the legislature is free to perform its duties “ according to its own sense of them.” He must shew that the legislature is, at the same time, constitutionally free to pursue its own judgment, and constitutionally bound by the judgment of the executive.
No. IV. 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; not. withstanding 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 conelusive against the writer himself: whilst the doctrine.... that the powers of treaty and war, are in their nature ex