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