' ' ■ ! '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£