A fAf ZONAL PAPER, PUBLISHED WEDNESDAYS AND SATURDAYS »" JOHN FENNO, No. 34, NORTH FrFTH-STRE£T, PHILADELPHIA ' No. i 5 i 'of Vol. IV.] h)R THE GdZErTB. ' * No. 11. THE do&rine which has been examined, is pregnant with inferences and consequen ces against which no ramparts in the tonftituti on could defend the public liberty, or scarcely the forms qf 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 <onflru<sion transfer red to the legislature, they actually belong to the executive ; that of course all powers not less executive in their nature than those powers, 1 if not granted to the legislature may be claim eel by the executive: if granted, are to be ta ken flriftly, with a refuluary right in the execu tive ; or,as will hereafter appear, perhaps claim ed as a concurrent right by the executive ; and no citizen could any longer guess at the charac ter of the government under which he lives ; the naoft penetrating jurist would be unable to (can conftru&ive prerogative. r.tt> the lctfurc • f the rc&- d« r deflation« which the author having omit ted might not chufe to own, I proceed to the examination of one, with which that liberty cannot be taken. " However true it may be (fays he) that the right of the legiflatufe to declare war includes the right of judging whether the legiilatura be under obligations to make war or not, it will not follow that the executive is in any cafe exclu ded from a [miliar rigfjt of judging * n 'be execu tion of its own firo&icyis." A material error of the writer in this appli cation of his doctrine lies in his Ihrinking from its regular consequences. Had he'ftuck to his principle in its f'.ill cKtjent, and reasoned from it without reftriiint, he would only have had to defend himfelf against bn opponents. By yield fng the great point, that the right to declare war, tho to be taken 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 himfelf also. ' Observe how he struggles in his •wn toils. He had before admitted that the right to de clare war i» vetted 'm rfre 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 infe rence be avoided, that the executive instead of having a similar right to judge, is as much ex cluded 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; every thing included in the right mufl be includ ed in the exception ; and being included in the exception, is excluded from the -grant. Ke cannot diftntanglfc himfelf by consider ing the right of the executive to judge as con current 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 fa<sl the very essence of) -the right to declare, he must go on and fay that the executive has a con- Current right, also ta dcclare. AthJ thfn what will he do with his other admission, that the power to declare is an exception out of the ex ceu:-Lve power. Perhaps an attempt may be made to creep out of the difficulty through the words " in rh' execution o f its functions," Here again h< mud equally fail. Whatever oifficulties may a rife in defining he executive i uthority in particular cases, there can be none in deciding on aR authority clearly placed by the in another depart ment. In this cafe the has decided what (hall not be deemed an executive autho rity,; tho' it may not have clearly decided in every cafe what {hall be so deemed. The decla ring of war is expressly made alegiflative func tion. 'The judging; of the obligations to make war, is admitfed to be included as a legifla'ive fnn&ion. Whenever then a question occurs whether '.var {ball be declared, or whether pub lic stipulations require it, the question neccflari ly belongs to the department to which those fun&ions belong—And no other department can be in the execution of it* proffer fun£2iotts y it it Ihould undertake to dceide such a question. There can be no refuge against this conclu sion, but in the pretext of a concurrent right in both to judge of the obligations to declare war, and this mull be intended by the writer when he fays, " it will not follow tha* - the exe<utive is excluded In any cafeivom a Ji nilar right of judging &c." As thisis the ground on which the ultimate defence is to be made, and which must either be maintained, or the works cre&ed on it, de tnolifhed ; it will be proper to give its strength a fair trial. It has been fecn that the idea of a coneurtc*t right is at variance with other ideas advanced or admitted by the writer. laying aside for the present that consideration, it feetfis im possible to avoid concluding that if the execu tive has a concurrent right with the to judge of obligations to declare war, and the right to judge be eflentialta included in the right to declare, ii mnik have the fame right to dc 7.. i- dare as it has to judge; &by another analogy, feh« fame right to judge of other cauies of war, as of the particular cause found in a public Sti pulation. So that'whenever the execmive in the ctutfe of itsfunftiens shall meet wi'.h these cases, it mutt either infer an equal authority in all, or acknowledge its want of authority in any. If any doubt c;in remain, or rather if any doubt could ever have arisen, which fide of the <the native ought to be embraced, it can be With those only who overlook or rcjdvSl; some of the mnft obviou«ajid eifemiaj (ruths in politi cal ftieoce. The power 'to judge of the causes of war as involved in the power to declare war, is exprqfs- Jy veiled where all uther leijiflative powers are vetted, that is, in theQopgrefs of the United State?, It is consequently determined by $he gonlbtution to be a Legjlativ£ fio-wer, Now omitting the enquiry here in what refpe&s a compound power may be partly legislative, and p.artly executive, and accordingly veiled partly in the one, and partly in the other department, or* 3 ;r'ift!y In %oth; <' v= T*ri<**: uO*d on another occafinn is equally conclusive on this, that the fame power, cannot belong in the rvboh, to both departments, or be properly so vested as to ope rate Separately in each. Still more evident is it, "that the fame jpccific function or cannot possi bly belong to the tivo departments and be fepe rately exercifeable by each. LegislatiVe power may be concurrently vested indifferent legislative bodies. Executive pow ers may be concurrently Vested in different exe cutive magistrates. In legislative a&s the exe cutive may have a participation, as in the qua lified negative on the laws. In executive a&s, the legislature, or at least a branch of it, may participate, as in ths appointment to offices.— Arrangements of this fort are familiar in theo ry, as well as in pra£lice. But an independent exercifeof ar» executive a£l % by the legislature a lone, or of a legtjlaitve aftky the executive alone y ' one or other of which mull happen in every cafe where the fame a& i* exercifeable by each, and the latter of which would happen in the cafe urged bv t' e writer, is contrary to one of the firft and best maxims of a well organized gbvernment, andought' never to be founded in a forced cenllrucfiipn, much less in opposition to a fair one. Ir.ftances, it is true, may be disco vered amohg ourselves where this maxim, has not been faithfully pursued ;*but being general ly acknowledged to be errors, they confirm, ra ther 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, conllitution differently, and thence lay claim each to the fame power. This diffe rence of opinion is an inconvenience not entire ly to be avoided. It results from what may be called, if it bethought fit, a concurrent right to expound the couftitution. But this fpectes of concurrence is obviously and radically different from that in question. The former supposes the conrtitwtion to l>ave given the power to one de partment only ; and the doubt to be to which it has been given. The latter supposes it to be long to both ; and that it may be exercised by either or both, according to the course of exi- gencies. A concurrent authority in two independent departments to perform the fame lun&ion with refpeift to the fame-thing, would be as awkward in practice, as it is unnatural in theory. If the legillature and executive have both a right to judge of the obligations to make War or not, it mud sometimes happen, though not at present, that they will judge differently. — The executive may proceed to consider the ques tion to-day, may determine that the United States are not bound to take part in a war, and in the execution ./ it, function, proclaim that de termination to all the world. To-morrow, the leeiflature may follow in the confutation of the fame fubje<ft, may determine that the obli gations impose war on the United States, and i„ tie execution of it, funaion,, enter into a enfli tutional'dtcUratio», expressly contradicting the conßitutional proclamation. In what light does this present the conlliruti on to the people who it ? In what light would it present to the world, a nation, thus speaking, thro' two different organs, c qually conftimtional and authentic, two eppo fite languiges, on the lame fubje& and under the fame exiftingcircumftaiices? But it is not with the legislative rights alone that this do&rine interferes. The rights of the judiciary may be equally invaded. For ,t is clear that if a right declared by thecontt.tut.on to be legislative, and actually veiled by it in the Wiflature, leaves, notwithftand.ng, a similar right in the executive whenever a cafe for exer eifing it occurs, in tie course of it, funaion,; a ri e ht declared to be judiciary and vested in that department may, on the fame principle, be as sumed and exercised by the executive .n lie course of it, funaion. . and it is evident that oc casion? and pie texts for the Utter interference may be as frequent as for the former. So again the judiciary department may find equal occa sions in the execution of it. funft.ons, for ufuro. ing the authorities »f the executive : and th e £I % 1795. 5 21 legislature for flapping into the jurifdi&ion of both. And thus all the powers of government,' of which a partition is so carefully made among the several blanches, would be thrown into ab solute hotchpot, and exposed to a general fcrahi ble. It is time however for the writer himfelf to be heard, in defence of his text. His comment is in the words following : " If the legislature have a right to make war on the one han4, it is on the other the duty of the executive to:preferve peace, till war is de clared ; and in fulfilling that duty, it mull ne.- ceffarily possess a right of judging what is the nature of the obligations which the treaties 6f j the country ijnpofc 011 the government; and when in pursuance of this right it has conclud ed that there is nothing inconsistent with a state 1 of neutrality, it becomes both its province and J its duty to enforce th<? laws incident to that state of the nation. The executive is charged with the execution of'all laws, the laws ol nati ons, aswe|l as the municipal law whjch recog nizes and adopts those laws. It is consequently by faithfully executing the laws of neu trality, when that is the state of the nation, to avoid giving a cause of war to foreign powers." To do full justice to this master piece of logic, the reader must have the patience to follow it step by llep. If the legislature have a right to make ivar on the one hand, it is on the other, the duty of the executive to preserve peace till ivar 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 mufl neccffarily pos sess. a tight of judging what is the nature of the ob ligations ivhich the treaties of the country impose on the government : That is to fay, in fulfilling the dutyto preserve peace, it must necessarily possess thfe right to judge whether pcace ought to be preserv ed; in other words ivhether its duty Jhould be per formed. Can words exprels a flatter contradic tion ? It is felf evident that the duty in thit cafe is so far from necessarily implying the right f that it neccffarily excludes it. And ivhen in pursuance of this right it has con cluded that there is nothing in them in conftfent rvith a fate of neutrality, IT BECOME 4 ooifo Us province and its duty to erjtrce the luivs in cident to that fate of the nation. And what if it (hould conclude that there is - fomethitig inconsistent ? Is it or is it not the province and duty of the executive to enforce the lame laws ? Say it is, you destroy the right to judge. Say it is not, you cancel the duty to obey. Take this sentence in connexion with the preceeding and the contradictions are multipli ed. Take it by itfelf, and it makes the right to judge and conclude whether war be obligatory, absolute, and operative ; and the duty to pre serve peace, subordinate and conditional. It will have been remarked by the attentive reader that the term peace in the firfl daufe has been silently exchanged in the present one, for ths term neutrality. Nfflthlng however is gain ed by fhifting the terms. Neutrality means peace, with an atlufion to the circumstance of other uations being at war. The term has no re ference to the existence or non existence of trea ties or alliances between the nation at peace and the nations at war. The laws incident to a state of neutrality, are the laws inc dent to a Hate of peace, with such circumstantial modi<- cations only as are required by the new relati on of the uations at war : Until war therefore be duly auihorifed by the United States they are as ad'ually neutral when other nations are at war, as they are at peace, (if such a diftinAi on in the terms is to be kept up) when other nations are not at war. The existence of even tual engagements which can only take effect on the declaration of the legislature, cannot, with out that declaration, change the iliual state of the country, any more in the eye of the execu tive than in the «ye of the judiciary department. The laws to be the guide ef both, remain the fame to each, and the fame to both. Nor would more be gained by allowing the writer to define than toihift the term neutrality* For fuppofc, if you please, the exifteuce of ob ligations to join in war to be inconsistent with neutrality, the question returns upon him, what laws are to be inforced by the executive until effed (hall 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 flrongiy the doc trine* of deductions of the writer may tend to this point, it will not be avowed. Are the laws to be enforced by the executive, tken, in such a state of thin gs, to be the fame as If no such obligations exifttd ? Admit this, which you must admit if you reject the other alternative, and the argument lands precisely where it em barked—in the polition, that it is the absolute duty of the executive in all cases to preserve peace till war is declared, not that it is " tote fame the province and duty of the executive" af ter 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 it 101 l in the comment. [Whale No. 455.] We shall fee whether it can be reinstated by what follows— The executive it charged Ivitb the execution of ail la US) the taivs of nations as ivdl as the municipal laiv ivbicb recognizes and adopts tfyofe laxvs. It is CQnfequentJ% bound, by faithfully executing the laivs of neutrality Kvhen that is the fifktt of the nati on, to a vdid giving cause of tvar to foreign powers. The fi'rft fgntence is a truth, hut nothing; to the point in quclViou. The last is partly true in its proper meaning, but totally untrue in the meaning of the writer. That the executive is bqund faithfully to execute the laws of neutra lity, wlii Ift 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 ot all other laws internal and external, by the nature of it 3 truftand the fan&ion «f its oath, even if turbu lent citizens (hould consider i-S so doing as a cause of war at home, or unfriendly nations should consider its so doing, as a cause of war a broad. The dmy of the executive to preserve external peace, can fib more iufpend the force of external laws, than its duty to preserve inter nal pcace 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 quarter*. Th« executive must nevertheleCs execute the laws of neutrality whilst in force, and leave it to the le gislature to decide whether they ought to be al tered or not. The executive has no othefr dif qretion than to convene and give information to the legislature on occasions that may demand it ; and whilst this discretion is duly exerciied the trust of the executive is fatisfied,and that de partment is not refpoaCble for the consequen ces. Jt 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 fuppofitiori that the cxpreflion " laws of neutrality" means simply what the words ihi port, and what alone they can mean, to give force or colour tb the inference of the writer from his own premises. As the inference itfelf however in its proper meaning, does not ap proach towards his avowed objedt, which is to work out a prerogative for the executive to judgs, in common with the legislature, whether cause of war or not ina public obligati on, 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 fuppoiition the inference, as will have been seen, does not result from his own premife3, and has been already so amply difcufled, and, it is conceived, so.clearly that not a word more can be necessary on this branch of his ar- HELrVIDIUS. gumcnt. From the AMERICAN DAILY ADVERTISER, Mr. Dunlap, TWO Letters have just made their appear ance reipe&ing the threatened appeal from the President of the United States to the people, one from Mr. Genet to the President —'Another in answer to that from the Secre tary of State. It is understood, that these letters have come to the public eye, through the channel of Mr. Genet, What he could have meant by the promul gation, is truly a matter of curious specula tion. Did he Intend by it to have it believed, that he had not made the declaration which is af crihed to him ? If this was his object, he has totally failed in it. His letter contains no dired denial of his having made such a declaration ; though by an affetted circumlocution, he- endeavors to have the air of doing so—And his appeal to the Prefideiit is artfully ,confined to the question, •' whether he had ever intimated t» him an intention to appeal to the People i" i— He may never have exprefled such a threat to the President—-and yet he may have done it mora exceptionally ts others. Indeed it has not been aflerted, that it was addreticd immediately to the President—The contrary has been a matter of notoriety from the be ginning. What answer does the Secretary of State oa behalf of the President give enquiry ? One certainly the reverse of confirming what Mr. Genet endeavors to have believed. The President declines giving evidence again ft the declaration imputed to Mr, Genet—with this reason for it, that whether made to him or others was perhaps immaterial; a clear indita tion of his belief that it was made to some body. Whoever knows the circumfpeftinn and delicacy, which are charadteiiftjc of the President, will conclude, without heiitation, that he would neither have entertained nor intimated such a belief without fufficient ground for it. Did Mr. Genet intend by hij commnnic#- tl'in to remove all doubt from the public nrind, about the reality of a serious mifunderftaad V
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