' ' ■ ! 'i'Xi/ui.y4 T ' A NATIONAL PAPER, PUBLISHED WEDNESDAYS AND SATURDAYS BY JOHN FENNO, No. 34, NORTH FI FTH-STRF&T, PHILADELPHIA [No. 130 of Vol. IV.] FOR TIIF. GAZETTE. "■ " ' ■ T Mk. Fenno, Please to give a place in yo T tr Ca?ttlc to the fpf(ow i//g observations. Ttt /'>inters who tuay have re pirMiJhed the pieces, ft pert Pucivicvs, are a'fo 'rtqucflfd to re-pubhjfi theje, and iviif no doubt be candid enough to do jo Number 1. \Conchtded) from our last.] ANOTHER important inference to be no ted i*, that the powers of making war and treaty being fub&mtVify of a Utgiflative, not an executive nature, the rule of interpreting.-ex ceptions fttiiftly, muft> narrow inftehd. of en larging executive pretentions on those fuhje&s,. 3, It remains to tye enquired whether there In? any thing in the constitution irfelf which fl'.ews that the ot makiug war and peace are confidsretf as of an executive nature, and s*s comprehended within a<general grant of exe* C utive power. Ic will not be-pretended that this appears from any dircß petition to be found in the inftruntent. If it were dcJucitle from any particular ex p reffious it may be prefumusd that the pubHca ti on would have saved us the trouble of the re i't ;arch. Docs the do4lrtne then tefult from the a An al distribution of powers aniaug the fcveral branches of the government ? Or from any fair ai lalogy between the powers of war and treaty ajad the enumerated powers veiled in execu te iVe alone ? Let us examine. In the general diftrihution of powers, we f ipd that of declaring war expr«£sly veiled in ' Ihe Congress, where every other legislative j >ower is declared to be veiled, and without any other qualification than what is common to ev {••ry other legislative a&. The constitutional idea of this power would seem then- clearly to fctt, that it-isol a legiilative and not an exec ac tive nature. This' cbncluGon become* irrrfiftable, when Jl: is recollecfted, that the contention cannot be si jppofed to hive placed either any power legi j) ative ill its nature, entirely among executive j .owers, or anypower executive in its nature, « nriieiy among legiflativepowers, without char -5 'Uijj the constitution, with that kind of inter mixture and eotnfoiidation of different powers, vhich Would viola.'a a fundamental principle in the organization of free governments, If it i vere not unnecessary to enlarge on this topic I lere, it could be (hewn, that the constitution 1 vas originally vindicated, and has been con -1 iaatly expounded, with a dUavowal of any fucb 1 nrerniixture. The power ol treaties is vefled jointly in I he Prelidcnt and *. the Senate, which is a (branch of the legifl'tire, From this arran£e jmcnt merely, there N can be no inference that 1 votild ceceffintfp «;:cl*dje the power from the i xzcutjre cl»fs i liuce t!se filiate i» joined with J'ttcPi fi'li it in another wower, that of appoint ing to offices, which as far as relate to exetu ti ve offices at ieart, is considered as of au exe- Ci .tive natiire. . Yet on the other hand, there it t fufficicnt indications thtit the power of trea ties w regarded by the constitution as jiiateriat ly different ii winners «xacu.tL»e power, and as viqg more affinity to the legislative than to t"( . executive charactcr. Onecircumftance indScatiug this, lsthe'con fllttitional regulation under which the fen-ate I ive their .content in the cafe of treaties. In a il other clrfe* the eo»*fent of the tyody is exprcf i;<l by a majority of vuicci. In this particular c ale',' a c incurrence of two thirds at least is s vide insceflary, as a substitute or compensation the other branch of the tagiflature, which on certain occasions, codlJ not be conveniently a party to the tram£i&ion. But the coiuciufivfe tinea raftaziee is, that trea ties according to the eonftitirtion 4it mode, ;ire coufeflcdly to have the force and •operation of laivs y and are to be a rule for the courts ui controyeifics between man and man, as much as anv othe- laivs. They are even em phatically declared by the constitution to be gt the foprcflTic law of the land.'* So far tht; argument from the constitution is precifeiy in oppoQtitm to the dosrine. As lit tle will be gamed in its favour fropi a compa rison of the two powers,with those particular ly veiled in the President alone. As there are bat few it wifl tie most fatisfac tnry to review them one by one. 4t The President shall be commander in chief of the army and navy of the United States, an»d of the militia when called into the a&ual lcrvice of the United States." There can he no relation worth examining between this power and the general power of makiijg treaties. .'And instead of being analo gou«to the power of declaring war, it affords a striking i!luft?atien of the incompat bility of the two powers in the fame hands. Those who are to a irar cannot in the nature of be proper or fate judges., *vhe her a iitfr ought to Ue cornnienctd, or conclud ed. They are barred from the latter fun<2ions by a,gfeat principle in free .govern ment, analo gous to that which fcpaxates rile fwoid from the Wednesday, Au purse, or the power of executing from the " exeitfon of the TtnAJwft* power M ena<3ing laws. Are contrails with foreign nations, which "He may require the. opinion in writing of •" have the fane of law, but derive it from the principal officers in each of the executive " obligation* of good faith. They are not departments upon any fubjeA relating to th& •' rules prescribed by the sovereign to thefub duties of their n.-i'pedtive officcs; and he (hail " jed, but agreements between sovereign and have power to grant reprieves and pardons for " fowereign; The power in question seems offcneos agfiinft the United States, except iu " therefore to form a diftinift department, and caXe.of impeachment" thtfe.powers cau have "to belong properly neither to the legislative nothing to do with the lubjeit. " nprtothe executive. The qiialitieielfewfrure " Thv Prdident jhali have power to fill up ill detailed as ind-.fpt'nfible in the management vacancies that may happen during, the receft of "of foreign pbint out the execu the fenafe, by granting cummiflions which (hall " five as the most fit agent in thofc trahfaili • expire at the end of the N ne*t The ons : whilst the vast importance of the trufl, fame remark is applicable to this power, as alio " and the operation of treaties as la-ws, plead to that of " iimbaifadors, other pub- " itrongly for.the participation of the whole or lie ministers and consuls" tbe particular use " a part-os tfce legi/lativi body, in the office of attempted to be made of this iaft power will " nultiijg theiv." Fedpraliit vol. 2. p. 173, be considered in anotnerpla.ee. It will not fail to be remarked on this com "He (hall take care that the laws shall be mentary, that whatever doubts may be darted faithfully executed and (liall commiflion all ofii- as to the correAnefs of its realigning against th« cers of the Unjted States." To fee the laws legiflarive nature of the power to make treaties: faithfully executed constitutes the effente of, the it is dcttr xrmftjltnt and confident, in deciding that executive (authority. But what, relation has it the power is plainly and evidently not an execu to the power of making treaties and war, that live foioer. HHiyVIDIUS. is, of determining what the laivs jhull be with — , , „ r;gard t,O other nations? No other certainly th.m what subsists between the powers of exe cuting and enadfcing laws ; no other, conse quently, than what foftuds a coalition of the poweis ill the lame department. I the few other fpecifieji fundb'ons a Signed-to the Prciident, such as that of, con vening of the liigiftUtu'e, &c. &c. which cannot be drawn into the present question. It may lie proper however to take notice of the power of removal from office, which ap pears to have been adjudged to the President by the lawseftabliftring the executive departments; and which the- writer has endeavoured to press intohis fcrvice. To jufciiy favourabij in feregce from this cafe, it must be (hewn, that the powers of war and treaties are of a kin dreds nature to the power of removal, or at least are equally within ,a grant of executive power. Nothing of this fort has been attemp ted, nor probably will be attempted. Nothing can in truth be. clearer,, than that no analogy, or shade of analogy, can be traced4>etwccn a power in the iupreme officer responsible for the faithful execution of the laws, to displace a fiib altera officer employed in the execution of the laws; and a power to make treaties, and to de clare war, such as these Aave been foundto be in their nature, their operation, and their conse quences. / Thus it appears that by whatever standard we .try this do&rine, it mull be condemned is no less vicious in theory than it would be dange rous io pra&ice. his countenanced neither by the writers on law; nor by the nature of the powers themfelyes ; nor by any general arrang n.ents or exprefli on 6, orplaufible a nalogies, to be found in the conilitution. Whence then can the writer have borrowed it ? There is but one answer ta this question. The power of making treaties and the pow er of deflating war, are royal prerogatives in the Britijh govit'nmenti and are accordingly treated a.3 Executant prerogatives by Britijh comjrcntators We shall be the more confirmed in the neces sity of this solution of the problem, by looking back to the aera of the confbtutiea, an«i Satisfy ing ourjwlves that the writer could not have been milled by the do&rines maintained by our own commentators on our own government. That I may not ramble beyond prescribed limits, I ihall content myfelf with an extra<sl from a work which entered into a systematic explana tion and defence of the constitution, and to which frequently been a fori bed some* influence iii conoiliaxing the public affant to the government in form proposed. Three cir ciiqaftancen conspire in giving weight to this co temporary e&p/6fition. It was made at a time when no application to persons or measures could btas: The opinion given was not transiently mentioned, but formally and critically elucidat ed : It related to a point in the constitution which must consequently have been viewed as of importance in the public mind. The paflage relates to the power of making treari«s ; that of declaring war, being arranged with fwch ob vious propriety among the legillative powers, as tobepaffed over without particular difcufiion. " Tho* ftveral writers on the fub>jc& of govern " ment place that power sos making treaties Jin the class of Executive authorities, yet this is '• evidently an arbitrary dijpojttioti. For ifweat *i tend carefully, to its operation, it wiil be " found to partake more of the leg'Jlative than " of the executive chafer, though it does not « feemftri&ly to fall within the definition of " either of them. The eifence of the legisla tive authority, is to ena& laws; or iti other u words, to prescribe rules for the regulation u of the society. While the execution of the u laws and the enaoloyment of the common " strength, either for this purpose, or for the * common defence, feent to comprize all she " fun&ions of the Executive magi/irate. 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 enaitiou of new ones, aadftilllcfs to au 517 st 28, 1 7^3. fUH TIIE GAZETTE. Ta Mr. 7. />. W. member-of the Literary Society in this i iiy i and author of. an rfjav pubUfli:d in the National «f 2j.jt,4uguJl 1793. Sir, HAVING perceivrd in the National G.azette of the 21 ft inft. an t fTiy, fa id to have been r,ead in t.hij cify., before a certain society., calling it-felt. litera.l y, L was.rnnch induced tp gjve-it an attentive peiufal, not forth ol crt ticifinjr on us merit, but for the-fake ps dciiv ing inftru&ion and c niertainmcm. When a pplitira! eij>y is handed to the pub lic, through thnt channel of a gazette, wc havq a to expect ihat the author has maturely con sidered all the opinions of which he thus pu}.>- lickly avow* )umf(4f (he patron ; an<f he iiidft expes ihaf fpntiments sent forth in this wav, will meet left indulgence thai* when delivered befofe an afTembiy o£ inmates and Observing, however, a degree of 4< republican rnoder/Jtir>iY, w (as the author seems to recom mend) I ffiaJl examine a few of his do&rines.—. Indeed from the t manner iri which this eir.iy meets the public eye, tfre author will 11.0,1, 11 is Jioptfd, be cjifpleaf.'d with a few ttri&uve.s upon pf-hrs cornpofnion, and the accu racy;.•>£ his. Thru fooiety, of which He-is a mfwibw, is an io dilution ddlgned for the »douifiti<Wof literature m gener.al-r-iu, par tic rf*sr For improvement in compofuion. Whether rms eflfay is intended as a (pecimen of ?he authoi's taiVnt in writing, or as an evi deijteof h»s in poiitical. and-tnformatirM), I, am at a, loss to decide.. Nor arti T less iiicapatile of accoutring for the nip. fives, which could iitduce the editor of (he Na tion*! Gaaettc to adroit it to the honors of his press. Beoter far had it bci o for lutrt to have exrrcifrd a p;i.ren'al Cowards this child of a nj;fgukled judgment, by refsjVnj* it a public expbfxire, than to have, cast }t foulj, with all its nakedness and poverty, to meet the fcoft's of an moulted public. The introdutioT) sentences to this notable ef- Tay arc, perhaps, as worthv of renjark as any in the whole production. i#e are tol<} that " It roust .afford singular (Vtisflftionf toUhe friends of freedom to contemplate the havoc, which, HriCe the revolution, has imdfc a monijft those numerous cuiloms pnd prejudice*, whi<ih fwavrd the (center over our ijrillocratic and appfeffed anofftnis. 1 " That the 44 contemplation of havoc" by the friends of freedom in amy country and upon \ any occasion, fcaij " affoid matter of fibular fa ns' v£M .ii M !S a Which may he navel, i but is not therefore t'Fie less abfird. 'To make { havoc among •* cuftoma io>l prejudices" too, is a mapifer of getting fiA" 9f {His clafc of ene m: s wlp-ch i»' V?r belore to my mind. l f is a new invention ip the art of political war fare, for which the discoverer Cfedff, -fuppefing h»'m perfe&iy competent to explain its utility j>us whv fhwld we fuipc£t the author's abrjiiy to define the operations of his new invented engine, since he tells us it is to extirpate tyrants arid despots, v/ho swayed the fcejtutf r over our arijlodratic and oppressed an- D»*ar departed (had;*, we will weep i f>r the wrongs "ye fuHFrred while here op but we will also execrate you; memories, that ■ye were .-riftocrat* ! Our author proceeds —" Ic is however an cquai taufe of tl»?t so many opinions, usa %r$ and Hm's ftilf cx ; ll in our Qotu|fry v vvhjcfa can "ae juOilied only by the piirnmfcribed rea- of a Burke, and which fuffcred to re r main may gather increasing fttcngih, arid open the sluices for an inlet of poittical terefity, that may inundate oyr coun iry, and involve our citizens in ruin." N-ow k let mc ask this profound, erudite, mem ber of the lifrr-trv focie'v, difc>iminative faculties (cero so accute—.What opinions, usages and fltll c|filt in our country, that so replete with crior, m fchicf, and tit in ? Since when have they exiftccf—and when ought they to have t>ern exploded ? whether Mr. Burke ha'j lately confined himfelf t« any particular limits of reasoning? a?rd wherhe/ a pert unlet tered boy is more capable ps denning the na t'ire of laws than the mcvll accompli died febo tlr, Eurofe now can bnaft ? I shall "hardly at tempt to follow our au hor through hu lengthy [Whole No. 4^2.] efiF<»y r Hul fh.iU only fnhj In a or rvyo ? Ynult' natuiMilv fug£?& rhcnr. Mve.s. uo-m a cnnfideraii-on of ih<* fe »j>e and t'xecuuod of the' whole privet. It uupofis to have Ue< u frrll er- hefme a -focicxv "f vmjtig men in (his city J-r-bad it gcwie no farther, rlioc would-have been no complaint o 4 the authors arrogance, however his Wre,tliereo have judged .o' hi« . indent 9(f a scholar. Bit, to exhity.t a tnosetf c >lle£h >n of newfanwlr 1, cnrwmon»>liee ? ••nrj ( mav v add opinions upon jxjfiijf principles under r.the a (Turned c of modern truth and orthodoxy, no (mall deficiency of judgment in a vomh; one too, who comes for ward as a censor of mmnCrs, a reprover of ettifenmt, a corrector of political be refies—*md finally, an improver of laws, poli tics, atvd jurisprudence in general. It lias be* ' come fafhionable of late for voting men to have a complete system of political faith, long before they are initiated into the fit ft principles of law and government; an intue set of canonical ar. 'iciest as a kind of preface to ibeir political tef tameiK. The essay tb«ro<so«ifions-thcfe ftri&ur.ei is in the hackneyed mortem declara tion j is incorrc# in its IHOguage, and poflVflVs f«wsbeauti*« As comoofnipn. te ( rms anf tocracv, monarchy, def?»otifm, a> conua-di/Un- fr ( oni which in the writer's 'interpretation is Km anotfre-r name for republic canifnj, are perfc&jv r ai command when he w;fil es to vent an-e-xecraiion, and he of;«*n makes uie of them for no other apparent reason, than be cauft he lias heard th> y a e MghlUtf things. These remark*, may Have she appearance of illiberal fevefity ; but their sole intention is to inducethe author of the efTiy that gave rife to them, to re-exaitline hi* opinions, and fn'futurc to be more careful' how he hazards a publica tion noon political fobjc'&s, which ii n<u the moll difficult are at leait the tnoft important themes, which can engage the peri of r.he best informed, ftatefmeri. A youth therefore ffiould enter the lifts with timidity and diffidence, en deavoring. rtither t.o perluade his readers, than . impose his f£Dtim,ems upon thepyhlic. S h N E X. PbiladrldhU', 23d Anguft. FROM IHE W-fvSI'ERN STAR. IT ha* often Wen observed, and for a long time not doubted, by mauy, that the o'jvft Of*that horde (\v •jfe employment has been, ever since the adoptron of the fedei al Govern ment, to abuse and vLlliJy its officers, and all a&ing \i) authority under il», and fl.;n dei 1 lifts at length been vented even aga nft the exalted virtues and unsullied patriotism of a WashiNOTONy) was to involve this country in distress an.d: coijfufion.—if there aje. yet those w.hnfe candor may haver led $bem to be lieve that the Fraternity oj America* "facobirrs a,r£ \ncfted' by none# motives to prefer their rn cendi'ary and complaints, weekly, to the public, the dec fiouotn P cvnflxxxm* ju ry, pubribed in our paper of this w<fsk 9 wider the Philadelphia.head, must remove thje veil, and' convince*them that their dandor has been extended towards, ohjjfts in every lenie 'high ly unworthy of it.—Contrary to the nnani mo us opinion, of the Judges, and di realty in opposition to the clearly definp,d, ai d parti cular! \ pointed put, true intent and meaning of tlve laws of the land, an inhabitant of the United States, who had voluntary tranfgrefled byenHfting on board an armed privateer, and against whom a bill of indidhnent had been' found, for the oflfence, has been declared ifct guilty, by a jury- The right of trial ( v jury, is a privifege that will be always held dear by all who ivilh to hold their lives, their liberties, and their poffrfljons, upon a founda tion mpre iaie and feenre than the precarious tenure of afluijiptive and arbitrary power. But of what avail is this_ sacred bulwark of freedom, if law and evidence, which fhoujld ever be the ground-woik of a jnry's verdidfr, are made to give place to caprice and will? 'Tis_a bubble, 'tis a fhado.w, 'tis nothing J>pt a name, the fbqijd of which, though it b« grateful to the ear, yet the thing it (elf* in its operation, may be made an engine more de ftru&ive to the sacred rights of the commu nity, than fetters de catcket and a Baft He But the door is now opened, we fha 11 proba bly be told, for the exercise of gratitude to France— Pi racy upon the high seas, we may hear, will feeure aiid establish Gallic freedom : —this will be animating dodbine to the pil ferers of property, who may now ef»- lift under the bapriers of a Kid, and travetfe the ocean,in search of plunder, and be dl&rfu fted with the appellation of defenders of the figkts of mankind—patriotic freem,77, fighting hi the cause of Fj\tnce and humau nature. But what ever degree qf fiatHptifm may actuate fnch patrioti in thei;* patriotic purfnits, it is mod probable that a large majority of the commu nity will wifli them the patriotic punifliment of a halter.—Let tbofe who really wish to risk their lives in defence of that heavtn bnm principle which fjrft roused the enlightened sons ps America to oppose the strides of un jtift power, take paflage for the invaded ter ritory of our allies, and, under the heroes of France, gather laurels in 6jgnting the battles of freedom : bu; let not the name of defend ers of liberty be bestowed on those who seek prote'ftion under the lhadow of pretended right, for the purpose of robbing induftrj o£
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