to perceive, that the policy of the government is not inconsistent with its obligations or its honour.

The objections in question fall under four heads: 1. That the proclamation was without authority. 2. That it was contrary to our treaties with France. 3. That it was contrary to the gratitude which is due from this to that country, for the succours afforded to us in our own revolution.

4. That it was out of time, and unnecessary.

In order to judge of the solidity of the first of these objections, it is necessary to examine what is the nature and design of a proclamation of neutrality.

It is to make known to the powers at war, and to the citizens of the country whose government does the act, that such country is in the condition of a nation at peace with the belligerent parties, and under no obligations of treaty to become an associate in the war with either, and that this being its situation, its intention is to observe a correspondent conduct, by performing towards each the duties of neutrality; to warn all persons within the juris diction of that country, to abstain from acts that shall contravene those duties, under the penalties which the laws of the land, of which the jus gentium is part, will

inflict.

This, and no more, is conceived to be the true import of a proclamation of neutrality.

It does not imply, that the nation which makes the declaration, will forbear to perform to either of the warring powers any stipulations in treaties which can be executed, without becoming a party in the war. It therefore does not imply in our case, that the United States will not make those distinctions, between the present belligerent powers, which are stipulated in the 7th and 22d articles of our treaty with France: because they are not incompatible with a state of neutrality: and will in no shape render the United States an associate or party in the war. This must be evident, when it is considered, that even to furnish determinate succours of ships or troops, to a power at war, in consequence of antecedent treaties having no particular reference to

the existing quarrel, is not inconsistent with neutrality: a position equally well established by the doctrines of writers, and the practice of nations.*

But no special aids, succours, or favours, having relation to war, not positively and precisely stipulated by some treaty of the above description, can be afforded to either party, without a breach of neutrality.

In stating that the proclamation of neutrality does not imply the non-performance of any stipulations of treaties, which are not of a nature to make the nation an associate in the war, it is conceded, that an execution of the clause of guarantee, contained in the eleventh article of our treaty of alliance with France, would be contrary to the sense and spirit of the proclamation; because it would engage us with our whole force, as an auxiliary in the war; it would be much more than the case of a definite succour, previously ascertained.

It follows, that the proclamation is virtually a manifestation of the sense of the government, that the United States are, under the circumstances of the case, not bound to execute the clause of guarantee.

If this be a just view of the force and import of the proclamation, it will remain to see, whether the president, in issuing it, acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.

It will not be disputed, that the management of the affairs of this country with foreign nations, is confided to the government of the United States.

It can as little be disputed, that a proclamation of neutrality, when a nation is at liberty to decline or avoid a war in which other nations are engaged, and means to do so, is a usual and a proper measure. Its main object is to prevent the nation's being responsible for acts done by its citizens, without the privity or connivance of the government, in contravention of the principles of neutrality;† an object of the greatest moment to a country, whose true interest lies in the preservation of peace.

* See Vatel, Book III, Ch. 6, Sec. 101.

See Vatel, Book III, Chap. 7, Sec. 113.

The inquiry then is, what department of our govern. ment is the proper one to make a declaration of neutrality, when the engagements of the nation permit, and its interests require that it should be done?

A correct mind will discern at once, that it can belong neither to the legislative nor judicial department, of course must belong to the executive.

The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that member of the government, which is to pronounce the existing condition of the nation, with regard to foreign powers, or to admonish the citizens of their obligations and duties in consequence; still less is it charged with enforcing the observance of those obligations and duties.

It is equally obvious, that the act in question is foreign to the judiciary department. The province of that department, is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties, but it exercises this function only where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government. This position is too plain to need being insisted upon.

It must then of necessity belong to the executive department to exercise the function in question, when a proper case for it occurs.

It appears to be connected with that department in various capacities. As the organ of intercourse between the nation and foreign nations; as the interpreter of the national treaties, in those cases in which the judiciary is not competent, that is, between government and government; as the power, which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force.

This view of the subject is so natural and obvious, so analogous to general theory and practice, that no doubt can be entertained of its justness, unless to be deduced

from particular provisions of the constitution of the United States.

Let us see then, if cause for such doubt is to be found there.

The second article of the constitution of the United States, section first, establishes this general proposition, that "the EXECUTIVE POWER shall be vested in a pre"sident of the United States of America."

The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed.

It would not consist with the rules of sound construction, to consider this enumeration of particular authorities, as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable, that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, "all legislative powers herein granted "shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, "the executive power shall be vested in a "president of the United States."

The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the constitution and with the principles of free government.

The general doctrine of our constitution then is, that the executive power of the nation is vested in the presi dent; subject only to the exceptions and qualifications, which are expressed in the instrument.

Two of these have been already noticed: the participation of the senate in the appointment of officers, and in 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.”

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With these exceptions, the executive power of the United States is completely lodged in the president. This mode of construing the constitution, has indeed been recognized by congress in formal acts, upon full consideration and debate: of which the power of removal from office, is an important instance. It will follow, that if a proclamation of neutrality is merely an executive act, as it is believed has been shown, the step which has been taken by the president is liable to no just exception on the score of authority.

It may be said, that this inference would be just, if the power of declaring war had not been vested in the legislature, but that this power naturally includes the right of judging, whether the nation is or is not under obligations to make war.

The answer is, that however true this position may be, it will not follow, that the executive is in any case excluded from a similar right of judgment, in the execution of its own functions.

If on the one hand the legislature have a right to declare war, it is, on the other, the duty of the executive to preserve peace, till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose en the government and