On 23 February 1793 James Madison in a letter to
Virginia’s Chief Justice Edmund Pendleton wrote,
You will have discovered from the Newspapers
that a pretty interesting scrutiny has been started
into the administration of the Treasury Department.
The documents furnished show that there has been
at least a very blamable irregularity & secrecy
in some particulars of it and many appearances
which at least require explanation.
With some, suspicions are carried very far;
others resolve the whole that is wrong into favoritism
to the Bank &c. while the partisans of the Fisc
either see nothing amiss, or are willing to ascribe
everything that is so to venial if not laudable motives.1
George Nicholas was a lawyer who had helped get the Constitution ratified,
and he wrote a constitution for the state of Kentucky.
On March 15 Madison wrote this letter to him about what was going on in Congress:
The enclosed list of Acts passed at the late Session
will be a clue to most of the business which employed it.
Some of the most interesting objects
presented for consideration were either
not taken up or not pursued into effect.
In this number is the plan reported by the Secretary
of the Treasury for paying off the public debt,
which you will probably have seen in the Newspapers.
A proposition for varying the provision for the Western
defense was brought to a final decision & failed.
Two subjects which have been particularly interesting
are the inquiries into the War & Treasury departments.
The Report of the Committee last Session on the former
underwent revision & Alteration in a second Report,
which has not been decided on.
The other inquiry was suggested by some casual light on
certain pecuniary operations which were unknown &
unsuspected by the body of the House of Representatives.
It produced long & elaborate reports from the Head of the
Treasury, which were so far unsatisfactory & particularly
to Mr. Giles, that he presented the resolutions enclosed.
The Session was too near its close for a proper discussion,
and it is very unfortunate that they were offered.
You will find the result also enclosed.
An accurate knowledge of all the circumstances under which
it took place, but which cannot here be detailed, will render
it of little estimation with impartial & judicious people.
In order to give you some view of the merits of the case,
I shall enclose as much of the printed debates
as the privilege of franking will permit.
Our accounts from abroad are not of very late date
nor of a very decisive cast.
It is still a problem whether war will take place
between England & France.
The war in which the latter is at present engaged
seems likely to be pushed by her enemies
during the ensuing campaign.
As yet her conduct has been great
both as free and a martial nation.
We hope it will continue so and finally baffle all her
enemies, who are in fact the enemies of human nature.
We have every motive in America to pray for her success,
not only from a general attachment to the liberties
of mankind, but from a peculiar regard to our own.
The symptoms of disaffection to Republican government
have risen & subsided among us in such visible
correspondence with the prosperous and adverse
accounts from the French Revolution, that a miscarriage
of it would threaten us with the most serious dangers
to our present forms & principles of our Governments.
I can give you no information from Spain
with regard to the Mississippi.
The first dispatches to Mr. Short having been lost
with the Ship that carried them, it is but lately
that he has undertaken the Mission.2
News of the war between France and Britain arrived in April 1793,
and President Washington on the 19th called a cabinet meeting.
On April 22 he proclaimed neutrality.
Jefferson, Madison, and many Republicans were for supporting France
while Hamilton and the Federalists favored Great Britain.
In response Madison on May 8 wrote this in the first of three letters to Jefferson:
I anxiously wish that the reception of Genêt may testify
what I believe to be the real affections of the people.
It is the more desirable as a seasonable plum after
the bitter pills which it seems must be administered.
Having neither the Treaty nor Law of Nations at hand
I form no opinion as to the stipulations of the former,
or the precise neutrality defined by the latter.
I had always supposed that the terms of the Treaty
made some sort of difference, at least as far as would
consist with the Law of Nations, between France
& Nations not in Treaty, particularly Great Britain.
I should still doubt whether the term impartial in the
Proclamation is not stronger than was necessary,
if not than was proper.
Peace is no doubt to be preserved at any price
that honor and good faith will permit.
But it is no less to be considered that the least
departure from these will not only be most likely
to end in the loss of peace, but is pregnant with
every other evil that could happen to us.
In explaining our engagements under the Treaty with
France, it would be honorable as well as just to adhere to
the sense that would at the time have been put on them.
The attempt to shuffle off the Treaty altogether
by quibbling on Vattel is equally contemptible
for the meanness & folly of it.
If a change of Government is an absolution
from public engagements, why not from those
of a domestic as well as of a foreign nature;
and what then becomes of public debts &c &c.
In fact, the doctrine would perpetuate every existing
Despotism, by involving in a reform of the Government a
destruction of the Social pact, an annihilation of property,
and a complete establishment of the State of Nature.
What most surprises me is that
such a proposition should have been discussed.3
On 27 May 1793 Madison wrote this in a short letter to Jefferson:
I feel for your situation, but you must bear it.
Every consideration private as well as public
require a further sacrifice of your longings
for the repose of Monticello.
You must not make your final exit from public life till it will
be marked with justifying circumstances which all good
citizens will respect, and to which your friends can appeal.
At the present crisis, what would the former think,
what could the latter say?
The real motives, whatever they might be, would
either not be admitted or could not be explained;
and if they should be viewed as satisfactory at a future day,
the intermediate effects would not be lessened
and could not be compensated.
I am anxious to see what reception
Genêt will find in Philadelphia.
I hear that the fiscal party in Alexandria was an overmatch
for those who wished to testify the American Sentiment.
George Town it is said repaired the omission.
A public dinner was intended for him at Fredericksburg,
but he passed with such rapidity
that the compliment miscarried.
It would not be amiss, if a knowledge of this
could in a proper mode get to him.
I think it certain that he will be misled if he takes either the
fashionable cant of the Cities or the cold caution of the
Government for the sense of the public; and I am equally
persuaded that nothing but the habit of implicit respect
will save the Executive from blame if through the mask
of Neutrality, a secret Anglomania should betray itself.4
Madison in the next letter to Jefferson on 13 June 1793 wrote this:
I observe that the Newspapers continue to
criticize the President’s proclamation, and I find
that some of the criticisms excite the attention
of dispassionate & judicious individuals here.
I have heard it remarked by such with some surprise
that the President should have declared the U. S. to be
neutral in the unqualified terms used, when we were so
notoriously & unequivocally under eventual engagements
to defend the American possessions of France.
I have heard it remarked also that the impartiality enjoined
on the people was as little reconcilable with their moral
obligations, as the unconditional neutrality proclaimed by
the Government is with the express articles of the Treaty.
It has been asked also whether the Authority
of the Executive extended by any part of the
Constitution to a declaration of the Disposition
of the U. S. on the subject of war & peace?
I have been mortified that on these points I could offer
no bona fide explanations that ought to be satisfactory.
On the last point I must own my surprise that
such a prerogative should have been exercised.
Perhaps I may have not attended to some part of
the Constitution with sufficient care, or may have
misapprehended its meaning: But, as I have always
supposed & still conceive, a proclamation on the
subject could not properly go beyond a declaration
of the fact that the U. S. were at war or peace, and
an injunction of a suitable conduct on the Citizens.
The right to decide the question whether the duty
& interest of the U. S. require war or peace under
any given circumstances, and whether their disposition
be towards the one or the other seems to be essentially
& exclusively involved in the right vested in the
Legislature, of declaring war in time of peace; and in
the President & Secretary of making peace in time of war.
Did no such view of the subject present itself
in the discussions of the Cabinet?
I am extremely afraid that the President may not be
sufficiently aware of the snares that may be laid
for his good intentions by men whose politics
at bottom are very different from his own.
An assumption of prerogatives not clearly found in the
Constitution & having the appearance of being copied from
a Monarchical model, will beget animadversion equally
mortifying to him & disadvantageous to the Government.
While animadversions of this sort can be plausibly ascribed
to the spirit of party, the force of them may not be felt.
But all his real friends will be anxious that his public conduct
may bear the strictest scrutiny of future times as well as
of the present day: and all such friends of the Constitution
will be doubly pained at infractions of it under auspices
that may consecrate the evil till it be incurable.
It will not be in my power to take the step
with the Friend of our Friend, which you recommend.
It is probable too that it would be either
unnecessary or without effect.
If the complexion of the former be such as is presumed,
he will fairly state the truth & that alone is wanted.
If, as I deem not impossible, his complexion be a
little different from the general belief, there would
be more harm than good in the attempt.
The great danger of misconstruing the sentiment of Virginia
with regard to Liberty & France is from the heretical tone
of conversation in the Towns on the post-road.
The voice of the Country is universally and warmly right.
If the popular disposition could be collected &
carried into effect, a most important use might be
made of it in obtaining contributions of the necessaries
called for by the danger of famine in France.
Unfortunately the disaffection of the Towns
which alone could give effect to a plan for the purpose,
locks up the public gratitude & beneficence.5
On June 19 Madison wrote in this letter to Jefferson:
Every Gazette I see (except that of the U. S.)
exhibits a spirit of criticism on the anglified
complexion charged on the Executive politics.
I regret extremely the position into which
the President has been thrown.
The unpopular cause of Anglomania
is openly laying claim to him.
His enemies masking themselves under the
popular cause of France are playing off
the most tremendous batteries on him.
The proclamation was in truth a most unfortunate error.
It wounds the National honor by seeming to disregard
the stipulated duties to France.
It wounds the popular feelings by a seeming
indifference to the cause of liberty.
And it seems to violate the forms & spirit of the Constitution
by making the executive Magistrate the organ of the
disposition the duty & the interest of the Nation in
relation to war & peace, subjects appropriated
to other departments of the Government.
It is mortifying to the real friends of the President
that his fame & his influence should have been
unnecessarily made to depend in any degree on
political events in a foreign quarter of the Globe: and
particularly so that he should have anything to apprehend
from the success of liberty in another country, since he
owes his preeminence to the success of it in his own.
If France triumphs the ill-fated proclamation will be
a mill-stone, which would sink any other character,
and will force a struggle even on his.6
Jefferson on July 7 wrote in a letter to Madison:
You will see in these Col. Hamilton’s 2d & 3d pacificus.
Nobody answers him, & his doctrine will
therefore be taken for confessed.
For god’s sake, my dear Sir, take up your pen,
select the most striking heresies, and
cut him to pieces in the face of the public.
There is nobody else who can & will
enter the lists with him.7
On July 18 Madison wrote back to Jefferson explaining,
I have read over the subject
which you recommend to my attention.
It excites equally surprise & indignation and ought certainly
to be taken notice of by someone who can do it justice.
In my present disposition which is perfectly alienated
from such things, and in my present situation which
deprives me of some material facts and many important
lights, the task would be in bad hands
if I were otherwise better qualified for it.
I am in hopes of finding that
someone else has undertaken it.
In the mean time I will feel my own pulse,
and if nothing appears,
may possibly try to supply the omission.8
Madison wrote this to Jefferson on 2 September 1793:
The conduct of Genêt as developed in these,
and in his proceedings as exhibited in the newspapers,
is as unaccountable as it is distressing.
The effect is beginning to be strongly felt here in the
surprise and disgust of those who are attached to the
French cause and viewed this minister as the instrument
for cementing instead of alienating the two Republics.
These sensations are powerfully reinforced by
the general and habitual veneration for the President.
The Anglican party is busy as you may suppose in making
the worst of everything and in turning the public feelings
against France, and thence in favor of England.
The only antidote for their poison is to distinguish between
the nation & its Agent, between principles and events;
and to impress the well meaning with the fact that the
enemies of France & of Liberty are at work to lead them
from their honorable connection with these into the arms
and ultimately into the Government of Great Britain.
If the genuine sense of the people could be collected on the
several points comprehended in the occasion, the calamity
would be greatly alleviated if not absolutely controlled.
But this is scarcely possible.
The Country is too much uninformed and too inert
to speak for itself; and the language of the towns
which are generally directed by an adverse
interest will insidiously inflame the evil.
It is however of such infinite importance to our own
Government as well as to that of France, that the real
sentiments of the people here should be understood,
that something ought to be attempted on that head.
I enclose a copy of a train of ideas sketched
on the first rumor of the war between the
Executive & Genêt, and particularly suggested by
the Richmond Resolutions, as a groundwork for
those who might take the lead in county meetings.
It was intended that they should be modified
in every particular according to the state of
information and the particular temper of the place.
A copy has been sent to Caroline with a hope that
Mr. Pendleton might find it not improper to step forward.
Another is gone to the District Court at Staunton in the
hands of Monroe, who carried a letter from me on the
subject to Archibald Stuart; and a third will be for
consideration at the District Court at Charlottesville.
If these examples should be set, there may be
a chance of like proceedings elsewhere:
and in themselves they will be respectable
specimens of the principles and sensations of the
Agricultural, which is the commanding part of the Society.
I am not sanguine however that the effort will succeed.
If it does not, the State Legislatures and the federal
also if possible must be induced to take up
the matter in its true point of view.
Monroe& myself read with attention your dispatch
by David Randolph and had much conversation
on what passed between you & the President.
It applied to both of us that a real anxiety was marked
to retain you in office, that over & above other motives,
it was felt that your presence and implied sanction might
be a necessary shield against certain criticisms from
certain quarters; that the departure of the only counsellor
possessing the confidence of the Republicans would be a
signal for new & perhaps very disagreeable attacks; that in
this point of view, the respectful & conciliatory language of
the President is worthy of particular attention; and that it
affords a better hope than has existed of your being able to
command attention and to moderate the predominant tone.
We agreed in opinion also that while this end is pursued,
it would be wise to make as few concessions as
possible that might embarrass the free pursuit
of measures which may be dictated by Republican
principles & required by the public good.
In a word we think you ought to make the most
of the value we perceive to be placed
on your participation in the Executive Counsels.
I am extremely glad to find that
you are to remain another quarter.
The season will be more apropos in several respects;
and it will prevent any co-operation which a successor might
be disposed to make towards a final breach with France.
I have little hope that you will have one whose policy
will have the same healing tendency with yours.
I foresee, I think, that it will be either King,
if Johnson is put at the Treasury:
or Edward Rutledge, if Walcot should be put there.
I am glad the President rightly infers my
determination from antecedent circumstances,
so as to free me from imputations in his mind
connected with the present state of things.
Monroe is particularly solicitous that you
should take the view of your present position
& opportunities above suggested.
He sees so forcibly the difficulty of keeping the feelings
of the people as to Genêt distinct from those due to
his Constituents, that he can hardly prevail on himself
absolutely and openly to abandon him.
I concur with him that it ought to be done no further than
is forced upon us, that in general silence is better than
open denunciation and crimination; and that it is not unfair
to admit the apologetic influence of the errors in our own
Government which may have inflamed the passions which
now discolor every object to his eye: such as the refusal
in the outset of the Government to favor the commerce
of France more than that of Great Britain—the
unfortunate appointment of Great Britain to the former:
the language of the proclamation—the attempts of Pacificus
to explain away & dissolve the Treaty, the notoriety of
the Author, and the appearance of its being an informal
manifestation of the views of the Executive &c.
I paid a short visit to Mr. Wilson Nicholas as I proposed.
He talks like a sound Republican and sincere friend
to the French cause in every respect.
I collected from him that Edmund Randolph had admitted
to him that he drew the Proclamation, that he had been
attacked on it at Chatham by Mr. Joseph Jones,
that he reprobated the comment of Pacificus—&c.
Wilson Nicholas observed that Hamilton
had taken the Executive in by gaining phrases
of which he could make the use he has done.
The circumstances which derogate
from full confidence in Wilson Nicholas are
1st his being embarked in a variety of projects
which call for money and keep him in intercourse
with the merchants of Richmond.
2nd his communication & intimacy with Marshal
of whose disinterestedness as well as
understanding he has the highest opinion.
It is said that Marshal who is at the head of the
great purchase from Fairfax, has lately obtained
pecuniary aids from the Bank or people connected with it.
I think it certain that he must have felt in the moment
of the purchase an absolute dependence on the monied
interest, which will explain him to everyone that reflects,
in the active character he is assuming.
I have been obliged to write this in great haste,
the bearer impatiently waiting the whole time.
I hope you have received the five Nos. of “Helvidius.”
I must resume the task I suppose,
in relation to the Treaty—& Gratitude.
I feel however so much awkwardness under the new
posture of things, that I shall deliberate whether a
considerable postponement at least may not be advisable.
I found also on my return a House full of particular friends
who will stay some weeks and receive & return visits
from which I cannot decently exclude myself.
If I should perceive it impossible or improper to
continue the publication so as to avail myself the
channel used to the press, I shall suspend it
till I see & talk with you on the whole matter.
Adieu.9
Alexander Hamilton published his essay
“Defense of the President’s
Neutrality Proclamation” on 29 June 1793
and then using the pseudonym “Pacificus” he wrote a series of letters.
James Madison responded to Hamilton by writing his series “Helvidius.”
This is Number 1 which was published on August 24:
Several pieces with the signature of Pacificus were
lately published, which have been read with singular
pleasure and applause by the foreigners and degenerate
citizens among us, who hate our republican government,
and the French revolution; while the publication
seems to have been too little regarded
or too much despised by the steady friends to both.
Had the doctrines inculcated by the writer with the natural
consequences from them been nakedly presented to
the public, this treatment might have been proper.
Their true character would then have struck every eye
and been rejected by the feelings of every heart.
But they offer themselves to the reader in the dress of
an elaborate dissertation; they are mingled with a few
truths that may serve them as a passport to credulity;
and they are introduced with professions of anxiety for the
preservation of peace, for the welfare of the government,
and for the respect due to the present head of the
executive, that may prove a snare to patriotism.
In these disguises they have appeared to claim the
attention I propose to bestow on them with a view
to show from the publication itself, that under color
of vindicating an important public act of a chief
magistrate, who enjoys the confidence and love
of his country, principles are advanced which
strike at the vitals of its Constitution,
as well as at its honor and true interest.
As it is not improbable that attempts may be made
to apply insinuations which are seldom spared when
particular purposes are to be answered, to the
author of the ensuing observations, it may not
be improper to premise, that he is a friend to the
Constitution, that he wishes for the preservation of peace,
and that the present chief magistrate has not a
fellow-citizen, who is penetrated with deeper respect
for his merits or feels a purer solicitude for his glory.
This declaration is made with no view of courting a
more favorable ear to what may be said than it deserves.
The sole purpose of it is to obviate imputations which
might weaken the impressions of truth; and which
are the more likely to be resorted to, in proportion
as solid and fair arguments may be wanting.
The substance of the first piece, sifted from its
inconsistencies and its vague expressions,
may be thrown into the following propositions:
That the powers of declaring war and making treaties
are in their nature executive powers:
That being particularly vested by the Constitution in
other departments, they are to be considered as exceptions
out of the general grant to the executive department:
That being, as exceptions, to be construed strictly, the
powers not strictly within them remain with the executive:
That the executive consequently, as the organ of
intercourse with foreign nations, and the interpreter and
executor of treaties and the law of nations, is authorized
to expound all articles of treaties, those involving
questions of war and peace as well as others;
to judge of the obligations of the United States to
make war or not under any casus federis or eventual
operation of the contract relating to war; and to pronounce
the state of things resulting from the obligations of
the United States as understood by the executive:
That in particular the executive had authority
to judge whether in the case of the mutual guaranty
between the United States and France,
the former were bound by it to engage in the war:
That the executive has in pursuance of that authority
decided that the United States are not bound:
And that its proclamation of the 22nd of April last is
to be taken as the effect and expression of that decision.
The basis of the reasoning is, we perceive, the
extraordinary doctrine that the powers of making war and
treaties are in their nature executive and therefore
comprehended in the general grant of executive power,
where not specially and strictly excepted out of the grant.
Let us examine this doctrine; and that we may avoid
the possibility of misstating the writer, it shall be laid
down in his own words: a precaution the more necessary,
as scarce anything else could outweigh the improbability,
that so extravagant a tenet should be hazarded,
at so early a day in the face of the public.
His words are—“Two of these (exceptions and
qualifications to the executive powers) have been
already noticed—the participation of the Senate in
the appointment of officers and the making of treaties.
A third remains to be mentioned—the right of the legislature
to declare war and grant letters of marque and reprisal.”
Again—“It deserves to be remarked, that as the
participation of the Senate in the making treaties, and the
power of the legislature to declare war are exceptions
out of the general executive power vested in the President,
they are to be construed strictly and ought to be extended
no farther than is essential to their execution.”
If there be any countenance to these positions,
it must be found either
1st, in the writers of authority on public law;
or 2nd, in the quality and operation of the powers
to make war and treaties;
or 3rd, in the Constitution of the United States.
It would be of little use to enter far into the first source
of information, not only because our own reason and our
own Constitution are the best guides; but because a just
analysis and discrimination of the powers of government
according to their executive, legislative and judiciary
qualities are not to be expected in the works of the
most received jurists, who wrote before a critical
attention was paid to those objects, and with their eyes
too much on monarchical governments, where all
powers are confounded in the sovereignty of the prince.
It will be found however, I believe, that all of them,
particularly Wolfius, Burlamaqui and Vattel, speak
of the powers to declare war, to conclude peace,
and to form alliances, as among the highest acts
of the sovereignty; of which the legislative power
must at least be an integral and preeminent part.
Writers such as Locke and Montesquieu, who have
discussed more particularly the principles of liberty
and the structure of government, lie under the same
disadvantage of having written before these subjects
were illuminated by the events and discussions
which distinguish a very recent period.
Both of them too are evidently warped by a regard
to the particular government of England, to which
one of them owed allegiance; and the other
professed an admiration bordering on idolatry.
Montesquieu, however, has rather distinguished
himself by enforcing the reasons and the importance of
avoiding a confusion of the several powers of government,
than by enumerating and defining the powers
which belong to each particular class.
And Locke, notwithstanding the early date of his work on
civil government, and the example of his own government
before his eyes, admits that the particular powers in
question, which after some of the writers on public law
he calls federative, are really distinct from the executive,
though almost always united with it,
and hardly to be separated into distinct hands.
Had he not lived under a monarchy in which these powers
were united; or had he written by the lamp which truth
now presents to lawgivers, the last observation would
probably never have dropped from his pen.
But let us quit a field of research which is more likely
to perplex than to decide and bring the question
to other tests of which it will be more easy to judge.
2. If we consult for a moment the nature and operation
of the two powers to declare war and make treaties,
it will be impossible not to see that they can never
fall within a proper definition of executive powers.
The natural province of the executive magistrate is
to execute laws, as that of the legislature is to make laws.
All his acts therefore, properly executive,
must pre-suppose the existence of the laws to be executed.
A treaty is not an execution of laws:
it does not pre-suppose the existence of laws.
It is, on the contrary, to have itself the force of a law,
and to be carried into execution like
all other laws by the executive magistrate.
To say then that the power of making treaties
which are confessedly laws, belongs naturally to the
department which is to execute laws, is to say that the
executive department naturally includes a legislative power.
In theory this is an absurdity—in practice a tyranny.
The power to declare war is subject to similar reasoning.
A declaration that there shall be war is not an execution
of laws: it does not suppose pre-existing laws to be
executed: it is not in any respect an act merely executive.
It is, on the contrary, one of the most deliberative acts
that can be performed; and when performed,
has the effect of repealing all the laws operating
in a state of peace, so far as they are inconsistent
with a state of war: and of enacting as a rule for
the executive, a new code adapted to the relation
between the society and its foreign enemy.
In like manner a conclusion of peace annuls
all the laws peculiar to a state of war and
revives the general laws incident to a state of peace.
These remarks will be strengthened by adding that
treaties, particularly treaties of peace, have sometimes the
effect of changing not only the external laws of the society,
but operate also on the internal code, which is purely
municipal, and to which the legislative authority of
the country is of itself competent and complete.
From this view of the subject it must be evident,
that although the executive may be a convenient organ
of preliminary communications with foreign governments
on the subjects of treaty or war; and the proper agent
for carrying into execution the final determinations of
the competent authority; yet it can have no pretensions
from the nature of the powers in question compared
with the nature of the executive trust to that essential
agency which gives validity to such determinations.
It must be further evident that, if these powers be not in
their nature purely legislative, they partake so much more
of that than of any other quality, that under a constitution
leaving them to result to their most natural department,
the legislature would be without a rival in its claim.
Another important inference to be noted is that the powers
of making war and treaty being substantially of a legislative,
not an executive nature, the rule of interpreting exceptions
strictly must narrow instead of enlarging
executive pretensions on those subjects.
3. It remains to be enquired whether there be
anything in the Constitution itself which shows
that the powers of making war and peace are
considered as of an executive nature and as
comprehended within a general grant of executive power.
It will not be pretended that this appears
from any direct position to be found in the instrument.
If it were deducible from any particular expressions,
it may be presumed that the publication would
have saved us the trouble of the research.
Does the doctrine then result from the actual distribution
of powers among the several branches of the government?
Or from any fair analogy between the powers
of war and treaty and the enumerated powers
vested in the executive alone?
Let us examine.
In the general distribution of powers, we find that
of declaring war expressly vested in the Congress,
where every other legislative power is declared
to be vested, and without any other qualification
than what is common to every other legislative act.
The constitutional idea of this power
would seem then clearly to be that it is
of a legislative and not an executive nature.
This conclusion becomes irresistible when it is recollected,
that the Constitution cannot be supposed to have placed
either any power legislative in its nature entirely among
executive powers or any power executive in its nature
entirely among legislative powers without charging the
Constitution with that kind of intermixture and consolidation
of different powers, which would violate a fundamental
principle in the organization of free governments.
If it were not unnecessary to enlarge on this topic here,
it could be shown that the Constitution was originally
vindicated and has been constantly expounded with
a disavowal of any such intermixture.
The power of treaties is vested jointly in the President
and in the Senate, which is a branch of the legislature.
From this arrangement merely, there can be no inference
that would necessarily exclude the power from the
executive class: since the senate is joined with the
President in another power, that of appointing to offices,
which as far as relate to executive offices at least,
is considered as of an executive nature.
Yet on the other hand, there are sufficient indications
that the power of treaties is regarded by the Constitution
as materially different from mere executive power,
and as having more affinity to the legislative
than to the executive character.
One circumstance indicating this is the constitutional
regulation under which the senate
give their consent in the case of treaties.
In all other cases the consent of the body
is expressed by a majority of voices.
In this particular case, a concurrence of two thirds at least is
made necessary, as a substitute or compensation for the
other branch of the legislature, which on certain occasions,
could not be conveniently a party to the transaction.
But the conclusive circumstance is that treaties
when formed according to the constitutional mode,
are confessedly to have the force and operation of laws,
and are to be a rule for the courts in controversies
between man and man as much as any other laws.
They are even emphatically declared by the Constitution
to be “the supreme law of the land.”
So far the argument from the Constitution
is precisely in opposition to the doctrine.
As little will be gained in its favor from a
comparison of the two powers with those
particularly vested in the President alone.
As there are but few, it will be
most satisfactory to review them one by one.
“The President shall be commander in chief of the army
and navy of the United States and of the militia when
called into the actual service of the United States.”
There can be no relation worth examining between
this power and the general power of making treaties.
And instead of being analogous to the power of
declaring war, it affords a striking illustration of the
incompatibility of the two powers in the same hands.
Those who are to conduct a war cannot in the
nature of things be proper or safe judges whether
a war ought to be commenced, continued, or concluded.
They are barred from the latter functions by a great
principle in free government, analogous to that which
separates the sword from the purse, or the power
of executing from the power of enacting laws.
“He may require the opinion in writing of the
principal officers in each of the executive departments
upon any subject relating to the duties of their
respective offices; and he shall have power
to grant reprieves and pardons for offences against
the United States except in case of impeachment.”
These powers can have nothing to do with the subject.
“The President shall have power to fill up vacancies
that may happen during the recess of the senate,
by granting commissions which shall expire
at the end of the next session.”
The same remark is applicable to this power,
as also to that of “receiving ambassadors,
other public ministers and consuls.”
The particular use attempted to be made of this
last power will be considered in another place.
“He shall take care that the laws shall be
faithfully executed and shall commission
all officers of the United States.”
To see the laws faithfully executed constitutes
the essence of the executive authority.
But what relation has it to the power of making treaties
and war, that is, of determining what the laws
shall be with regard to other nations?
No other certainly than what subsists between
the powers of executing and enacting laws;
no other consequently, than what forbids a
coalition of the powers in the same department.
I pass over the few other specified functions assigned to
the President, such as that of convening of the legislature,
&c. &c. which cannot be drawn into the present question.
It may be proper however to take notice of the
power of removal from office, which appears to have
been adjudged to the President by the laws establishing
the executive departments; and which the writer
has endeavored to press into his service.
To justify any favorable inference from this case,
it must be shown that the powers of war and treaties
are of a kindred nature to the power of removal,
or at least are equally within a grant of executive power.
Nothing of this sort has been attempted,
nor probably will be attempted.
Nothing can in truth be clearer than that no analogy or
shade of analogy can be traced between a power in the
supreme officer responsible for the faithful execution of
the laws to displace a subaltern officer employed in the
execution of the laws; and a power to make treaties,
and to declare war; such as these have been found to be
in their nature, their operation, and their consequences.
Thus it appears that by whatever standard we try
this doctrine, it must be condemned as no less vicious
in theory than it would be dangerous in practice.
It is countenanced neither by the writers on law;
nor by the nature of the powers themselves;
nor by any general arrangements or particular expressions
or plausible analogies to be found in the Constitution.
Whence then can the writer have borrowed it?
There is but one answer to this question.
The power of making treaties and the power of declaring
war are royal prerogatives in the British government,
and are accordingly treated as Executive prerogatives
by British commentators.
We shall be the more confirmed in the necessity of this
solution of the problem by looking back to the era of the
Constitution, and satisfying ourselves that the writer
could not have been misled by the doctrines maintained
by our own commentators on our own government.
That I may not ramble beyond prescribed limits,
I shall content myself with an extract from a work
which entered into a systematic explanation and defense
of the Constitution, and to which there has frequently
been ascribed some influence in conciliating the public
assent to the government in the form proposed.
Three circumstances conspire in giving weight
to this cotemporary exposition.
It was made at a time when no application
to persons or measures could bias.
The opinion given was not transiently mentioned,
but formally and critically elucidated.
It related to a point in the Constitution
which must consequently have been viewed
as of importance in the public mind.
The passage relates to the power of making treaties;
that of declaring war, being arranged with such
obvious propriety among the legislative powers,
as to be passed over without particular discussion.
“Though several writers on the subject of
government place that power (of making treaties)
in the class of Executive authorities, yet this is
evidently an arbitrary disposition.
For if we attend carefully to its operation, it will be
found to partake more of the legislative than of the
executive character, though it does not seem strictly
to fall within the definition of either of them.
The essence of the legislative authority is
to enact laws; or in other words, to prescribe rules
for the regulation of the society.
While the execution of the laws and the employment
of the common strength, either for this purpose,
or for the common defense, seem to comprise
all the functions of the Executive magistrate.
The power of making treaties is plainly
neither the one nor the other.
It relates neither to the execution of the subsisting laws,
nor to the inaction of new ones, and still less
to an exertion of the common strength.
Its objects are contracts with foreign nations,
which have the force of law, but derive it
from the obligations of good faith.
They are not rules prescribed by the sovereign to the
subject, but agreements between sovereign and sovereign.
The power in question seems therefore to form
a distinct department and to belong properly
neither to the legislative nor to the executive.
The qualities elsewhere detailed as indispensable in the
management of foreign negotiations, point out the executive
as the most fit agent in those transactions: while the vast
importance of the trust and the operation of treaties as
Laws plead strongly for the participation of the whole or a
part of the legislative body in the office of making them.”
Federalist vol. 2. p. 273.7
It will not fail to be remarked on this commentary,
that whatever doubts may be started as to the
correctness of its reasoning against the legislative
nature of the power to make treaties: it is clear,
consistent and confident, in deciding that the power
is plainly and evidently not an executive power.10
In “Helvidius No. 2” published on August 31 Madison discussed how
the Congress and the Constitution can protect the people from wars.
The doctrine which has been examined is pregnant with
inferences and consequences against which no ramparts
in the Constitution could defend the public liberty
or scarcely the forms of Republican government.
Were it once established that the powers of war and
treaty are in their nature executive; that so far as they
are not by strict construction transferred to the legislature,
they actually belong to the executive;
that of course all powers not less executive in their nature
than those powers, if not granted to the legislature may be
claimed by the executive: if granted, are to be taken strictly,
with a residuary right in the executive; or as will hereafter
appear, perhaps claimed as a concurrent right by the
executive; and no citizen could any longer guess at the
character of the government under which he lives;
the most penetrating jurist would be unable to scan
the extent of constructive prerogative.
Leaving however to the leisure of the reader
deductions which the author having omitted might
not choose to own, I proceed to the examination
of one with which that liberty cannot be taken.
“However true it may be (says he) that the right
of the legislature to declare war includes the right of
judging whether the legislature be under obligations
to make war or not, it will not follow that the executive
is in any case excluded from a similar right of judging
in the execution of its own functions.”
A material error of the writer in this application of his
doctrine lies in his shrinking from its regular consequences.
Had he stuck to his principle in its full extent and
reasoned from it without restraint, he would only
have had to defend himself against his opponents.
By yielding the great point, that the right to declare war,
though to be taken strictly, includes the right to judge
whether the nation be under obligation to make war or not,
he is compelled to defend his argument not only against
others but against himself also.
Observe how he struggles in his own toils.
He had before admitted that the right
to declare war is vested in the legislature.
He here admits that the right to declare war
includes the right to judge whether the United States
be obliged to declare war or not.
Can the inference be avoided that the executive instead of
having a similar right to judge, is as much excluded
from the right to judge as from the right to declare?
If the right to declare war be an exception
out of the general grant to the executive power;
everything included in the right must be included
in the exception; and being included in the exception,
is excluded from the grant.
He cannot disentangle himself by considering
the right of the executive to judge as concurrent
with that of the legislature.
For if the executive have a concurrent right to judge,
and the right to judge be included in
(it is in fact the very essence of)
the right to declare, he must go on and say that
the executive has a concurrent right also to declare.
And then what will he do with his other admission, that the
power to declare is an exception out of the executive power.
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 Constitution 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 these functions belong—And no other department
can be in the execution 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 defense
is to be made, and which must either be maintained,
or the works erected on it, demolished;
it will be proper to give its strength a fair trial.
It 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
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 right to declare as it has to judge; & 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 want 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 enquiry 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 exercisable 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 this 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 exercisable 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, may be discovered among ourselves
where this maxim, has not been faithfully pursued; but
being generally acknowledged to be errors, they confirm,
rather than impeach the truth and 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 may 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 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 departments
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 today,
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.
Tomorrow 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 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 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 defense 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 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 both its province and its duty
to enforce the laws incident to that state of the nation.
The executive is charged with the execution of all laws,
the laws of nations as well as the municipal 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 powers.”
To do full justice to this masterpiece 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 executive 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 preserve 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 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 obey.
Take this sentence in connection 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
circumstance of other nations being at war.
The 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
laws 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 obligations 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 war is declared, not that it is “to become
the province 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 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 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, while 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 internal 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 while 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 legislature on occasions
that may demand it; and while this discretion 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 color
to the inference of the writer from his own premises.
As the inference itself however in its proper meaning,
does not approach towards his avowed object,
which is to work out a prerogative for the executive
to judge in common with the legislature whether there
because of war or not in a public obligation, it is to be
presumed that “in faithfully 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.11
Madison explained his interpretation of the United States Constitution
on the relations between the Executive and the Legislative branches of the
government in his “Helvidius No. 3” on September 7.
In order to give color to a right in the Executive to exercise
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
invested in another Department.
The second 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 shown 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 meantime 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.
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 privileges”—
was it in order to the enforcement of the article of guaranty,
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 receive public
Ministers; this right includes the right of deciding in the case
of a revolution whether the new government sending the
Minister ought to be recognized or not; and this again, the
right to give or refuse operation 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 endeavor to abridge or effect it by strained inferences,
and by hypothetical or singular occurrences,
naturally warns the reader of some lurking fallacy.
The words of the Constitution are “he (the President) shall
receive Ambassadors, other public 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 observe in general, and every
candid reader will second the observation, that little
if anything more was intended by the clause, than to
provide for a particular mode of communication,
almost grown into a right among modern 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 prerogative, even where no rights
of other departments could be affected by it.
To show that the view here given of the clause
is not a new construction, invented or strained for a
particular occasion—I will take the liberty of recurring
to the contemporary work already quoted, which
contains the obvious and original gloss put on this part
of the Constitution by its friends and advocates.
“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 circumstance that will be without consequence
in the administration of the government, and it is far more
convenient that it should be arranged in this manner,
than that there should be a necessity for convening the
Legislature or one of its branches upon every arrival
of a foreign Minister, though it were merely to take the
place of a departed predecessor.” Fed. vol. II. p. 237.5
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 consequence of deciding on the validity
of revolutions in favor of liberty, “of putting the
United States in a condition to become an associate in war,”
nay “of laying 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 have disowned his extravagance.
By the advocates of the Constitution his prediction must
have been treated as “an experiment on public credulity,
dictated either by a deliberate intention to deceive, or by
the overflowing 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 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 cognizance 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 Executive 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 humanity might require a government, whether
new or old, to be treated as an illegitimate despotism.
Such 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 national 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 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 new 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 hold their existence as a nation.
It is a principle incorporated with the above,
that governments 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 authority.
To silence or prevent cavil, I insert however,
the following extracts:
“Since then such a treaty
(a treaty not personal to the sovereign)
directly relates to the body of the State, it subsists though
the form of the republic happens to be changed, and
though it should be even transformed into a monarchy—
For the State and the nation are always the same whatever
changes are made in the form of the government—
and the treaty concluded with the nation, remains in force
as long as the nation exists.” Vattel, B. II. § 185.8
“It follows that as a treaty, notwithstanding the change
of a democratic government into a monarchy, continues in
force with the new King in like manner;
if a monarchy becomes a republic, the treaty made with the
King does not expire on that account, unless it was
manifestly personal.” Burlam. part IV, c. IX, § 16. ¶ 6.9
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 has happened.
Nor can it have any more right to suspend
the operation of a treaty in force as a law,
than to suspend the operation of any other law.
The logic employed by the writer on this occasion,
will be best understood by accommodating to it the
language of a proclamation, founded on the prerogative
and policy of suspending the treaty with France.
Whereas a treaty was concluded on the ? day of ?
between the United States and the French nation through
the kingly government, which was then the organ of its will:
And whereas the said nation hath since exercised its right
(no wise abridged by the said treaty)
of changing the organ of its will, by abolishing the said
kingly government, as inconsistent with the rights and
happiness of the people, and establishing a republican in lieu
thereof, as most favorable to the public happiness, and best
suited to the genius of a people become sensible of their
rights and ashamed of their chains:
And whereas, by the Constitution of the United States,
the executive is authorized to receive ambassadors,
other public ministers and consuls:
And whereas a public minister, duly appointed and
commissioned by the new Republic of France,
has arrived and presented himself to the executive,
in order to be received in his proper character:
Now be it known, that by virtue of the said right vested in
the executive to receive ambassadors, other public ministers
and consuls, & of the rights included therein, the executive
has refused to receive the said minister from the said
republic, and has thereby caused the activity and
operation of all treaties with the French nation,
hitherto in force as supreme laws of the land,
to be suspended until the executive, by taking off
the said suspension, shall revive the same; of which,
all persons concerned are to take notice at their peril.
The writer, as if beginning to feel that he was
grasping at more than he could hold, endeavors
all of a sudden to squeeze his doctrine into a
smaller size and a less vulnerable shape.
The reader shall see the operation in his own words.
“And where a treaty antecedently exists
between the United States and such nation (a nation whose
government has undergone a revolution) that right
(the right of judging whether the new rulers
ought to be recognized or not) involves the power
of giving operation or not to such treaty.
For until the new government is acknowledged,
the treaties between the nations, as far at least as
regards public rights, are of course suspended.”
This qualification of the suspending power,
though 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
department, 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, while 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 of the
government, it is clear that wherever they can be made
good to the nation, without the office of government,
they are not suspended by the want of an acknowledged
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 member 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
indignation as an ignominious perfidy?
With respect to public rights that cannot take effect
in favor 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 favor 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 prove 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 rights
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 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 where 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 showing how very superficially,
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, which is an express
right vested by the Constitution; it could be no proof,
that the same or a similar effect could be produced
by the direct operation of a constructive power.
Hence the embarrassments and gross contradictions
of the writer in defining and applying his ultimate
inference 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 nation with regard to foreign nations.”
Rising from that, it confers on the executive
a right “to put the United States in a condition
to become an associate in war.”
And at its full height authorizes the executive “to lay
the legislature under an obligation of declaring war.”
From this towering prerogative, it suddenly brings
down the executive to the right of “consequentially
affecting the proper or improper exercise
of the power of the legislature to declare war.”
And then by a caprice as unexpected as it is sudden,
it espouses the cause of the legislature; rescues it from the
executive right “to lay it under an obligation of declaring
war;” and asserts it to be “free to perform its own duties,
according to its own sense of them,” without any other
control 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 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 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 constituted.
But then it is of no use to the writer, and is also
in direct contradiction to the inference, that
the executive may “lay the legislature under
an obligation to decide in favor 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 only 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 show that the legislature is, at the same time,
constitutionally free to pursue its own judgment and
constitutionally bound by the judgment of the executive.12
Madison published “Helvidius” Number 4 on 14 September 1793
with more on issues of war and peace.
This is the entire text:
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 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
conclusive against the writer himself: while the doctrine—
that the powers of treaty and war are in their nature
executive powers—which forms the basis of those
arguments, is as indefensible and as dangerous as
the particular 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 principles and views which
are entertained and propagated in the community.
It is also to be remembered, that however the
consequences 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
deduced 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 to 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 landmarks 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 heard 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.
That it is fair reasoning to say that if the
prerogative exists at all, an operative rather
than an inert character ought to be given to it.
In support of this conclusion, there would be enough
to echo, “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 nations—as the interpreter of national treaties”
(a violation of which may be a cause of war)
“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 immediate consequence of a dissolution
of a treaty of peace is a restoration of a state of war.
If the executive is “to decide on the obligation of the nation
with regard to foreign nations”—“to pronounce the existing
condition (in the sense annexed by the writer) of the nation
with regard to them; and to admonish the citizens of their
obligations and duties as founded 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 declare 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 in that case 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 which the extraordinary
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 adherence
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 Congress, whenever such
a question seems to call for a decision, is all the right
which the Constitution has deemed requisite or proper:
and that for such more than for any other contingency,
this right was specially given to the executive.
In no part of the Constitution is more wisdom
to be found than in the clause which confides
the question of war or peace to the legislature
and not to the executive department.
Beside the objection to such a mixture of 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 as may be expected
in the ordinary successions of magistracy.
War is in fact the true nurse of executive aggrandizement.
In war a physical force is to be created,
and it is the executive will which is to direct it.
In war the public treasures are to be unlocked,
and it is the executive hand which is to dispense them.
In war the honors and emoluments of office
are to be multiplied; and it is the executive patronage
under which they are to be enjoyed.
It is in war finally, that laurels are to be gathered,
and it is the executive brow they are to encircle.
The strongest passions and most dangerous weaknesses
of the human breast; ambition, avarice, vanity, the
honorable or venial love of fame are all in conspiracy
against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the
department of power most distinguished by its propensity to
war: hence it is the practice of all states, in proportion as
they are free, to disarm this propensity of its influence.
As the best praise then that can be pronounced on an
executive magistrate is that he is the friend of peace;
a praise that rises in its value, as there may be a known
capacity to shine in war: so it must be one of the most
sacred duties of a free people to mark the first omen
in the society of principles that may stimulate the hopes
of other magistrates of another propensity to intrude
into questions on which its gratification depends.
If a free people be a wise people also,
they will not forget that the danger of surprise
can never be so great, as when the advocates for the
prerogative of war can sheathe it in a symbol of peace.
The Constitution has manifested a similar prudence in
refusing to the executive the sole power of making peace.
The trust in this instance also would be too great
for the wisdom and the temptations,
too strong for the virtue of a single citizen.
The principal reasons on which the Constitution
proceeded in its regulation of the power of treaties,
including treaties of peace are so aptly furnished
by the work already quoted more than once,
that I shall borrow another comment from that source.
“However proper or safe it may be in a government
where the executive magistrate is a hereditary monarch
to commit to him the entire power of making treaties,
it would be utterly unsafe and improper to entrust that
power to an elective magistrate of four years duration.
It has been remarked upon another occasion, and the
remark is unquestionably just, that a hereditary monarch,
though often the oppressor of his people, has personally
too much at stake in the government to be in any
material danger of being corrupted by foreign powers.
But that a man raised from the station of a private citizen
to the rank of chief magistrate, possessed of but a moderate
or slender fortune, and looking forward to a period not very
remote, when he may probably be obliged to return to the
station from which he was taken, might sometimes be
under temptations to sacrifice his duty to his interest,
which it would require superlative virtue to withstand.
An avaricious man might be tempted to betray the
interests of the state to the acquisition of wealth.
An ambitious man might make his own
aggrandizement by the aid of a foreign power,
the price of his treachery to his constituents.
The history of human conduct does not warrant that
exalted opinion of human virtue, which would make it
wise in a nation to commit interests of so delicate
and momentous a kind as those which concern its
intercourse with the rest of the world to the sole
disposal of a magistrate, created and circumstanced,
as would be a President of the United States.”
I shall conclude this paper and this branch
of the subject with two reflections, which
naturally arise from this view of the Constitution.
The first is that as the personal interest of a hereditary
monarch in the government is the only security against
the temptation incident to a commitment of the delicate
and momentous interests of the nation which concern its
intercourse with the rest of the world, to the disposal of
a single magistrate it is a plain consequence that every
addition that may be made to the sole agency and influence
of the Executive in the intercourse of the nation with foreign
nations is an increase of the dangerous temptation to
which an elective and temporary magistrate is exposed;
and an argument and advance towards the security afforded
by the personal interests of a hereditary magistrate.
Secondly, As the constitution has not permitted the
Executive singly to conclude or judge that peace ought
to be made, it might be inferred from that circumstance
alone that it never meant to give it authority singly
to judge and conclude that war ought not to be made.
The trust would be precisely similar
and equivalent in the two cases.
The right to say that war ought not to go on would be
no greater than the right to say that war ought to begin.
Every danger of error or corruption, incident to such a
prerogative in one case, is incident to it in the other.
If the Constitution therefore has deemed it unsafe
or improper in the one case, it must be deemed
equally so in the other case.13
Madison in his last “Helvidius Number 5” wrote about
the authority of the Executive in government.Having seen that the executive has no constitutional right to
interfere in any question whether there be or be not a cause
of war, and the extensive consequences flowing from the
doctrines on which a claim has been asserted, it remains to
be enquired whether the writer is better warranted in the
fact which he assumes, namely that the proclamation of the
Executive has undertaken to decide the question, whether
there be a cause of war or not, in the article of guaranty
between the United States and France, and in so doing has
exercised the right which is claimed for that department.
Before I proceed to the examination of this point, it may
not be amiss to advert to the novelty of the phraseology,
as well as of the doctrines expounded by this writer.
The source from which the former is evidently
borrowed may enlighten our conjectures with
regard to the source of the latter.
It is a just observation also that words have often
a gradual influence on ideas, and when used in an
improper sense may cover fallacies which
would not otherwise escape detection.
I allude particularly to his application of the term
government to the Executive authority alone.
The Proclamation is “a manifestation of
the sense of the government;”
“why did not the government wait, &c.”
“The policy on the part of the government of
removing all doubt as to its own disposition.”
“It was of great importance that our citizens
should understand as early as possible the opinion
entertained by the government, &c.”
If in addition to the rest, the early manifestation
of the views of the government had any effect
in fixing the public opinion, &c.
The reader will probably be struck with the reflection,
that if the Proclamation really possessed the character, and
was to have the effects, here ascribed to it, something more
than the authority of the government in the writer’s sense
of government would have been a necessary sanction to the
act, and if the term “government” be removed, and
that of “President” substituted in the sentences quoted,
the justice of the reflection will be felt with peculiar force.
But I remark only on the singularity of the style
adopted by the writer as showing either that the
phraseology of a foreign government is more
familiar to him than the phraseology proper to our own,
or that he wishes to propagate a familiarity
of the former in preference to the latter.
I do not know what degree of disapprobation others
may think due to this innovation of language,
but I consider it as far above a trivial criticism
to observe that it is by no means unworthy of attention
whether viewed with an eye to its probable cause
or its apparent tendency, “the government,” unquestionably
means in the United States the whole government,
not the executive part, either exclusively, or pre-eminently;
as it may do in a monarchy, where the splendor of
prerogative eclipses and the machinery of influence
directs, every other part of the government.
In the former and proper sense, the term
has hitherto been used in official proceedings,
in public discussions, and in private discourse.
It is as short and as easy and less liable to
misapprehension, to say the Executive or
the President, as to say the government.
In a word the new dialect could not proceed either
from necessity, convenience, propriety, or perspicuity;
and being in opposition to common usage, so marked
a fondness for it justifies the notice here taken of it.
It shall no longer detain me, however, from the
more important subject of the present paper.
I proceed therefore to observe that as a “Proclamation,”
in its ordinary use, is an address to citizens or subjects only;
as it is always understood to relate to the law actually
in operation, and to be an act purely and exclusively
Executive; there can be no implication in the name
or the form of such an instrument, that it was meant
principally for the information of foreign nations;
far less that it related to an eventual stipulation on a
subject acknowledged to be within the Legislative province.
When the writer therefore undertook to engraft
his new prerogative on the Proclamation by ascribing
to it so unusual and unimplied a meaning, it was
evidently incumbent on him to show that the text
of the instrument could not be satisfied
by any other construction than his own.
Has he done this?
No.
What has he done?
He has called the Proclamation a Proclamation of neutrality;
he has put his own arbitrary meaning on that phrase,
and has then proceeded in his arguments and his
inferences with as much confidence, as if no question
was ever to be asked, whether the term “neutrality”
be in the Proclamation; or whether, if there,
it could justify the use he makes of it.
It has appeared from observations already made
that if the term “neutrality” was in the Proclamation,
it could not avail the writer in the present discussion;
but the fact is no such term is to be found in it,
nor any other term of a meaning equivalent to that,
in which the term neutrality is used by him.
There is the less pretext, in the present case,
for hunting after any latent or extraordinary object
because an obvious and legal one is at hand to satisfy
the occasion on which the Proclamation issued.
The existence of war among several nations with which
the United States have an extensive intercourse;
the duty of the Executive to preserve peace by
enforcing its laws, while those laws continued in force;
the danger that indiscreet citizens might be tempted
or surprised by the crisis into unlawful proceedings,
tending to involve the United States in a war, which the
competent authority might decide them to be at liberty
to avoid, and which, if they should be judged not at liberty
to avoid, the other party to the eventual contract might
not be willing to impose on them; these surely might
have been sufficient grounds for the measure pursued by
the executive, and being legal and rational grounds it would
be wrong if there be no necessity to look beyond them.
If there be any thing in the Proclamation of which the
writer could have made a handle, it is the part which
declares the disposition, the duty and the interest of the
United States in relation to the war existing in Europe.
As the Legislature is the only competent and constitutional organ
of the will of the nation; that is of its disposition, its duty and its
interest in relation to a commencement of war,
in like manner as the President and Senate jointly,
not the President alone, are in relation to peace,
after war has been commenced—I will not dissemble
my wish that a language less exposed to criticism
had been preferred; but taking the expressions,
in the sense of the writer himself; as analogous to the
language which might be proper, on the reception of a
public Minister or any similar occasion, it is evident that his
construction can derive no succor, even from this resource.
If the Proclamation then does not require the construction
which this writer has taken the liberty of putting on it;
I leave it to be decided whether the following considerations
do not forbid us to suppose that the President could have
intended by that act to embrace and prejudge the
Legislative question whether there was or was
not under the circumstances of the case,
a cause of war in the article of guaranty.
It has been shown that such an intention would have
usurped a prerogative not vested in the Executive,
and even confessedly vested in another department.
In exercising the Constitutional power of
deciding a question of war, the Legislature ought
to be as free to decide, according to its own sense
of the public good, on one side as on the other side.
Had the Proclamation prejudged the question on either side
and proclaimed its decision to the world, the Legislature,
instead of being as free as it ought, might be thrown under
the dilemma of either sacrificing its judgment to that of the
Executive; or by opposing the Executive judgment of
producing a relation between the two departments,
extremely delicate among ourselves, and of the worst
influence on the national character and interests abroad;
a variance of this nature, it will readily be perceived,
would be very different from a want of conformity
to the mere recommendations of the Executive,
in the measures adopted by the Legislature.
It does not appear that such a Proclamation could have
even pleaded any call from either of the parties at war
with France, for an explanation of the light in which the
guaranty was viewed—while, indeed, no positive indication
whatever was given of hostile purposes, it is not conceived
that any power could have decently made such an
application—or if they had, that a Proclamation would have
been either a satisfactory or an honorable answer.
It could not have been satisfactory, if serious apprehensions
were entertained, because it would not have proceeded
from that authority which alone could definitely pronounce
the will of the United States on the subject.
It would not have been honorable, because a
private diplomatic answer only is due to a private
diplomatic application; and to have done so much
more would have marked a pusillanimity and
want of dignity in the Executive Magistrate.
But whether the Executive was or was not applied to,
or whatever weight be allowed to that circumstance,
it ought never to be presumed that the Executive
would so abruptly, so publicly, and so solemnly,
proceed to disclaim a sense of the contract, which
the other party might consider and wish to support
by discussion as its true and reasonable import.
It is asked, indeed, in a tone that sufficiently displays
the spirit in which the writer construes both the
Proclamation and the treaty, “Did the Executive stand
in need of the logic of a foreign agent to enlighten it
as to the duties or the interests of the nation; or was it
bound to ask his consent to a step which appeared to itself
consistent with the former and conducive to the latter?
The sense of treaties was to be learned
from the treaties themselves.”
Had he consulted his Vattel, instead of his animosity to
France, he would have discovered that however humiliating
it might be to wait for a foreign logic, to assist the
interpretation of an act depending on the national authority
alone, yet in the case of a treaty, which is as much the
treaty of a foreign nation, as it is ours; and in which foreign
duties and rights are as much involved as ours,
the sense of the treaty, though to be learned from the treaty
itself, is to be equally learned by both parties to it.
Neither of them can have a right more than the other,
to say what a particular article means; and where there is
equality without a judge consultation is as consistent with
dignity as it is conducive to harmony and friendship,
let Vattel however be heard on the subject.
“The third general maxim, or principle,
on the subject of interpretation (of Treaties) is:
‘That neither the one nor the other of the
interested or contracting powers has a right
to interpret the act or treaty at its pleasure.
For if you are at liberty to give my promise what sense you
please, you will have the power of obliging me to do
whatever you have a mind, contrary to my intention, and
beyond my real engagement: and reciprocally, if I am
allowed to explain my promises as I please, I may render
them vain and illusive by giving them a sense quite different
from that in which they were presented to you,
and in which you must have taken them in accepting them.’”
Vattel B. II. c. vii. §. 265.10
The writer ought to have been particularly sensible
of the improbability that a precipitate and ex parte decision
of the question arising under the guaranty,
could have been intended by the proclamation.
He had but just gone through his undertaking,
to prove that the article of guaranty like the rest
of the treaty is defensive, not offensive.
He had examined his books and retailed his quotations
to show that the criterion between the two kinds of war
is the circumstance of priority in the attack.
He could not therefore but know, that according to
his own principles, the question whether the United States,
were under an obligation or not to take part in the war,
was a question of fact whether the first attack
was made by France or her enemies.
And to decide a question of fact, as well as, of principle,
without waiting for such representations and proofs,
as the absent and interested party might have to produce
would have been a proceeding contrary to the ordinary
maxims of justice, and requiring circumstances of a very
peculiar nature, to warrant it, towards any nation.
Towards a nation which could verify her claim to more
than bare justice by our own reiterated and formal
acknowledgments, and which must in her present singular
and interesting situation have a peculiar sensibility to marks
of our friendship or alienation, the impropriety of such a
proceeding would be infinitely increased, and in the same
proportion the improbability of its having taken place.
There are reasons of another sort which
would have been a bar to such a proceeding.
It would have been as impolitic
as it would have been unfair and unkind.
If France meant not to insist on the guaranty,
the measure, without giving any present advantage,
would have deprived the United States of a future claim
which may be of importance to their safety.
It would have inspired France with jealousies of a secret
bias in this country toward some of her enemies,
which might have left in her breast a spirit of contempt and
revenge of which the effects might be felt in various ways.
It must in particular have tended to inspire her with a
disinclination to feed our commerce with those important
advantages which it already enjoys, and those more
important ones, which it anxiously contemplates.
The nation that consumes more of the fruits of our
soil than any other nation in the world, and supplies
the only foreign raw material of extensive use in the
United States would not be unnecessarily provoked
by those who understand the public interest and make it
their study, as it is their interest to advance it.
I am aware that the common-place remark will
be interposed that “commercial privileges are not
worth having, when not secured by mutual interest;
and never worth purchasing, because they will
grow of themselves out of a mutual interest.”
Prudent men, who do not suffer their reason to be misled
by their prejudices will view the subject in a juster light.
They will reflect, that if commercial privileges are not worth
purchasing, they are worth having without purchase;
that in the commerce of a great nation, there are valuable
privileges which may be granted or not granted, or granted
either to this or that country without any sensible influence
on the interest of the nation itself; that the friendly or
unfriendly disposition of a country is always an article of
moment in the calculations of a comprehensive interest;
that some sacrifices of interest will be made to other
motives; by nations as well as by individuals, though not
with the same frequency, or in the same proportions,
that more of a disinterested conduct or of a conduct founded
on liberal views of interest, prevails in some nations than in
others, that as far as can be seen of the influence of the
revolution on the genius and the policy of France;
particularly with regard to the United States,
everything is to be hoped by the latter on this subject,
which one country can reasonably hope from another.
In this point of view a greater error could not have been
committed than in a step that might have turned the present
disposition of France to open her commerce to us as far as
a liberal calculation of her interest would permit,
and her friendship towards us and confidence in our
friendship towards her could prompt into a disposition
to shut it as closely against us as the united motives
of interest, of distrust, and of ill-will, could urge her.
On the supposition that France might intend to claim the
guaranty, a hasty and harsh refusal before we were asked,
on a ground that accused her of being the aggressor in the
war against every power in the catalogue of her enemies,
and in a crisis when all her sensibility must be alive towards
the United States, would have given every possible irritation
to a disappointment which every motive that one nation
could feel towards another and towards itself,
required to be alleviated by all the circumspection
and delicacy that could be applied to the occasion.
The silence of the Executive since the accession
of Spain and Portugal to the war against France
throws great light on the present discussion.
Had the proclamation been issued in the sense, and for the
purposes ascribed to it, that is to say, as a declaration of
neutrality, another would have followed, on that event.
If it was the right and duty of the Government, that is,
the President, to manifest to Great Britain and Holland;
and to the American merchants and citizens, his sense,
his disposition, and his views on the question, whether the
United States were under the circumstances of the case,
bound or not, to execute the clause of guaranty, and not to
leave it uncertain whether the Executive did or did not
believe a state of neutrality to be consistent with our
treaties, the duty as well as the right prescribed a similar
manifestation to all the parties concerned after Spain and
Portugal had joined the other maritime enemies of France.
The opinion of the Executive with respect to a consistency
or inconsistency of neutrality with treaties in the latter case
could not be inferred from the proclamation in the former,
because the circumstances might be different.
Taking the proclamation in its proper sense, as reminding
all concerned, that as the United States were at peace
(that state not being affected by foreign wars, and only to
be changed by the legislative authority of the country)
the laws of peace were still obligatory and would be
enforced, and the inference is so obvious and so applicable
to all other cases whatever circumstances may distinguish
them, that another proclamation would be unnecessary.
Here is a new aspect of the whole subject admonishing us
in the most striking manner at once of the danger of the
prerogative contended for and the absurdity of the
distinctions and arguments employed in its favor.
It would be as impossible in practice, as it is in theory,
to separate the power of judging and concluding that the
obligations of a treaty do not impose war from that of
judging and concluding that the obligations do impose war.
In certain cases silence would proclaim the latter conclusion,
as intelligibly as words could do the former.
The writer indeed has himself abandoned the distinction in
his VIIth paper by declaring expressly that the object of the
proclamation would have been defeated “by leaving it
uncertain whether the Executive did nor did not believe a
state of neutrality to be consistent with our treaties.”14
Notes
1. From James Madison to Edmund Pendleton, 23 February 1793 (Online).
2. From James Madison to George Nicholas, 15 March 1793 (Online).
3. From James Madison to Thomas Jefferson, 8 May 1793 (Online).
4. To Thomas Jefferson from James Madison, 27 May 1793 (Online).
5. Writings by James Madison, p. 535-536.
6. From James Madison to Thomas Jefferson, 19 June 1793 (Online).
7. To James Madison from Thomas Jefferson, 7 July 1793 (Online).
8. From James Madison to Thomas Jefferson, 18 July 1793 (Online).
9. Writings by James Madison, p. 547-550.
10. Ibid., p. 537-546.
11. “Helvidius” Number 2, [31 August] 1793 (Online).
12. “Helvidius” Number 3, [7 September] 1793 (Online).
13. “Helvidius” Number 4, [14 September] 1793 (Online).
14. “Helvidius” Number 5, [18 September] 1793 (Online).