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which is an express right vested by the coustitution; 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 his ultimate infer. ence from the operation of the executive power with regard to public ministers..
At first it exhibits an “ important instance of the “ 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 6 to put the United States in a condition to become an 6 associate in war.”
And, at its full height authorizes the executive 6 to “ lay the legislature under an obligation of declaring 66 war."
From this towering prerogative, it suddenly brings down the executive to the right of 6 consequentially 6 affecting the proper or improper exercise of the power 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 6 powers, may establish an antecedent state of things, “ which ought to weigh in the legislative decisions ;" a 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 elash 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 inser. ence, that the executive may “lay the legislature under 6 an obligation to decide in favour of war.”
If the meaning be as is implied by the force of the terms “ 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 bas been disproved ; but to reconcile it with his last concession, that “the legislature is free to perform its duties 66 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; notwithstanding the express provision in the constitution, by which the legislature is made the organ of the nation-, al 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
mertain that in pro of the governmat can be
ecutive powers, which forms the basis of those arga. ments, is as indefensible and as dangerous, as the parti. cular doctrine to which they are applied.
But it is not to be forgotten that these doctrines, though ever so clearly disproved, or ever so weakly defended, remain before the public a striking monument of the prisciples and views which are entertained and propa. gated in the community.
It is also to be remembered, that however the cousequences flowing from such premises, may be disavowed at this time or by this individual, we are to regard it as morally certain, that in proportion as the doctrines make their way into the creed of the government, and the acquiescence of the public, every power that can be de. duced from them, will be deduced, and exercised sooner or later by those who may have an interest in so doing. The character of human nature gives this salutary warning io every sober and reflecting mind. And the history of government, in all its forms and in every period of time, ratifies the danger. A people, therefore, who are so happy as to possess the inestimable blessing of a free and defined constitution, cannot be too watchful against the introduction, nor too critical in tracing the consequences, of new principles and new constructions, that may remove the land marks of power.
Should the prerogative which has been examined, be allowed, in its most limited sense, to usurp the public countenance, the interval would probably be very short, before it would be beard from some quarter or other, that the prerogative either amounts to nothing, or means a right to judge and conclude that the obligations of treaty impose war, as well as that they permit peace.
Tbat it is fair reasoning, to say, that if the prerogative exists at all, an operative rather than an inert characier ought to be given to it.
In support of this conclusion, there would be enough to echo, ó that the prerogative in this active sense, is “ connected with the executive in various capacities....as “ the organ of intercourse between the nation and foreign 66 nations....as the interpreter of national treaties" (a
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tiolation of which may be a cause of war) 6 as that “ power which is charged with the execution of the laws “ of which treaties make a part....as that power, which * is charged with the command and application of the • public force."
With additional force it might be said, that the executive is as much the executor as the interpreter of treaties : that if, by virtue of the first character, it is to judge of the obligations of treaties, it is, by virtue of the second, equally authorized to carry those obligations into effect. Should there occur, for example, a casus federis, claiming a military co-operation of the United States, and a military force should happen to be under the command of the executive, it must have the same right, as executor of public treaties, to employ the public force, as it has in quality of interpreter of public treaties to decide whether it ought to be employed.
The case of a treaty of peace would be an auxiliary to comments of this sort : it is a condition annexed to every treaty that an infraction even of an important article, on one side, extinguishes the obligations on the other : and the inmediate consequence of a dissolution of a treaty of peace is a restoration of a state of war. If the executive is 66 to decide on the obligation of the na6 tion with regard to foreign nations”...." to pronounce « the existing condition in the sense annexed by the 6 writer) of the uation with regard to them; and to admo-6 nish the citizens of their obligations and duties as found66 ed upon that condition of things”....“ to judge what are “ the reciprocal rights and obligations of the United “ States, and of all and each of the powers at war :".... add, that if the executive moreover possesses all powers relating to war not strictly within the power to de. clare war, which any pupil of political casuistry could distinguish from a mere relapse into a war, that had been declared : with this store of materials and the example given of the use to be made of them, would it be difficult to fabricate a power in the executive to plunge the nation into war, whenever a treaty of peace might happen to be infringed?
But if any difficulty should arise, there is another mode chalked out by which the end might clearly be brought about, even without the violation of the treaty of peace ; especially if the other party should happen to change its government at the crisis. The executive could suspend the treaty of peace by refusing to receive an ambassador from the new government, and the state of war emerges of course.
This is a sample of the use to wbich the extraordimary publication we are reviewing, might be turned. Some of the inferences could not be repelled at all. And the least regular of them must go smoothly down with those who had swallowed the gross sophistry which wrapped up the original dose.
Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adbe. rence to the simple, the received and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature : that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war: that the right of convening and informing con. gress, whenever such a question seems to call for a de: cision, is all the right which the constitution has deemed requisite or proper; and that for such, more than 10 any other contingency, this right was specially given the executive.
In no part of the constitution is more wisdom to be found than in the clause which confides the question war or peace to the legislature, and not to the executi department. Beside the objection to such a mixture heterogeneous powers, the trust and the temptation would be too great for any one man : not such as nature may offer as the prodigy of many centuries, but such. may be expected in the ordinary successions of magie tracy. War is in fact the true nurse of executive as grandizement. In war a physical force is to be cre and it is the executive will which is to direct it. war the public treasures are to be unlocked, at is the executive hand which is to dispense them.
unlocked, and it