« ZurückWeiter »
the ensuing observations, it may not be improper to premise, that he is a friend to the constitution, that he wishes for the perservation of peace, and that the present chief magistrate has not a fellow-citizen, who is penetrated with deeper respect for his merits, or feels a purer solicitude for his glory.
This declaration is made with no view of courting a more favourable ear to what may be said than it deserves. The sole purpose of it is, to obviate imputations which might weaken the impressions of truth; and which are the more likely to be resorted to, in proportion as solid and fair arguments may be wanting.
The substance of the first piece, sifted from its inconsistencies and its vague expressions, may be thrown inte the following propositions :
That the powers of declaring war and making treatics are, in their nature, executive powers :
That being particularly vested by the constitution in other departments, they are to be considered as exceptions out of the general grant to the executive department:
That being, as exceptions, to be construed strictly, the powers not strictly within them, remain with the executives
That the executive consequently, as the organ of intercourse with foreign nations, and the interpreter and executor of treaties, and the law of nations, is authorized to expound all articles of treaties, those involving questions of war and peace, as well as others ;....to judge of the obligations of the United States to make war or not, under any casus federis or eventual operation of the contract, relating to war; and, to pronounce the state of things resulting from the obligations of the United States, as understood by the executive :
That in particular the executive had authority to judge whether in the case of the mutual guarantee between the United States and France, the former were bound by it to engage in the war:
That the executive has, in pursuance of that authority, decided that the United States are not bound :.... And,
That its proclamation of the 22d of April last, is to be taken as the effect and expression of that decision.
The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive, and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of
Let us examine this doctrine: and that we may avoid the possibility of mistaking the writer, it shall be laid down in his own words; a precaution the more necessary, as scarce any thing else could outweigh the improbability, that so extravagant a tenet should be hazarded, at so early a day, in the face of the public.
His words are...." Two of these [exceptions and qua6 lifications to the executive powers] have been already “noticed....the participation of the senate in the appoint. “ment of officers, and the making of treaties. A third “ remains to be mentioned....the right of the legislature “ to declare war, and grant letters of marque and re“ prisal.”
Again.... “ It deserves to be remarked, that as the “participation of the senate in the making of treaties, " and the power of the legislature to declare war, are “ exceptions out of the general executive power, vested “ in the president; they are to be construed strictly, and " ought to be extended no further than is essential to "their execution."
If there be any countenance to these positions, it must be found either, 1st, in the writers, of authority, on pub. lic law; or 2d, in the quality and operation of the pow. ers to make war and treaties; or 3d, in the constitution of the United States.
It would be of little use to enter far into the first source of information, not only because our own reason and our own constitution, are the best guides; but because a just analysis and discrimination of the powers of government, according to their executive, legisla. tive and judiciary qualities are not to be expected in the works of the most received jurists, who wrote before a
critical attention was paid to those objects, and with their eyes too much on monarchial governments, where all powers are confounded in the sovereignty of the prince. It will be found bowever, I believe, that all of them, particularly Wolsius, Burlamaqui and Vatel, speak of the powers to declare war, to conclude peace, and to form alliances, as among the highest acts of the sovereignty; of which the legislative power must at least be an integral and pre-eminent part.
Writers, such as Locke, and Montesquieu, who have discussed more particularly the principles of Liberty and the structure of government, lie under the same disadvantage, of having written before these subjects were illuminated by the events and discussions wbich distinguish a very recent period. Both of them too are evidently warped by a regard to the particular government of England, to which one of them owed allegiance ;* and the other professed an admiration bordering on idolatry. Montesquieu, however, has rather distinguished himself by enforcing the reasons and the importance of avoiding a confusion of the several powers of government, than by enumerating and defining the powers which belong to each particular class. And Locke, notwithstanding the early date of his work on civil government, and the example of his own government before his eyes, admits that the particular powers in ques. tion, which, after some of the writers on public law he calls federative, are really distinct from the executive, though almost always united with it, and hardly to be separated into distinct hands. Had he not lived under a monarchy, in which these powers were united; or had he written by the lamp which truth now presents to lawgivers, the last observation would probably never have dropped from his pen. But let us quit a field of research which is more likely to perplex than to decide, and bring the question to other tests of which it will be more easy to judge.
* The chapter on prerogative, shews how much the reason of the Philosopher was clouded by the royalism of the Englishman.
2. If we consult, for a moment, the nature and opera. tion of the two powers to declare war and to make trea. ties it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws : it does not pre-suppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are con. fessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity....in practice a tyranny.
The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws; it does not suppose pre-existing laws to be executed : it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.
These remarks will be strengthened by adding, that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and complete.
From this view of the subject it must be evident, that although the executive may be a convenient organ of preliminary communications with foreign governwents,
on the subjects of treaty or war ; and the proper agent for carrying into execution the final determinations of the competent authority ; yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.
It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.
Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.
3. It remains to be inquired whether there be any thing in the constitution itself which shews that the powers of making war and peace are considered as of an executive nature, and as comprehended within a general grant of executive power.
It will not be pretended that this appears from any direct position to be found in the instrument.
If it were deducible from any particular expressions, it may be presumed that the publication would have saved us the trouble of the research.
Does the doctrine then result from the actual distribution of powers among the several branches of the government ?" Or from any fair analogy between the powers of war and treaty and the enumerated powers vested in the executive alone ?
Let us examine :
In the general distribution of powers, we find that of declaring war expressly vested in thre congress, where every other legislative power is declared to be vested ; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.