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to own, I proceed to the examination of one, with which that liberty cannot be taken.
6. However true it may be (says he) that the right of “ the legislature to declare war includes the right of “ judging whether the legislature be under obligations 6 to make war or not, it will not follow that the executive 66 is in any case excluded from a similar right of judging « in the execution of its own functions."
A material error of the writer in this application of his doctrine lies in his shrinking from its regular consequences. Had he stuck to his principle in its full extent, and reasoned from it without restraint, he would only have had to defend himself against his opponents, By yielding the great point, that the right to declare war,' though to be taken strictly, 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 himself also. Observe how he struggles in his own toils.
He had before admitted that the right to declare war is vested in the 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 inference be avoided, that the executive instead of having a similar right to judge, is as much excluded 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 must be included in the exception ; and being included in the exception, is excluded from the grant.
He cannot disentangle himself by considering the right of the executive to judge as concurrent 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 fact the very essence of) the right to declare, he must go on and say that the executive has a concurrent right also to declare. And then what will he do with his other admission, that the power to declare is an exception out of the executive power?
Perhaps an attempt may be made to creep out of the difficulty through the words in the execution of its “ functions.” Here again he must equally fail.
Whatever difficulties may arise in defining the executive authority in particular cases, there can be none in deciding on an authority clearly placed by the constitu. tion in another department. In this case the constitution has decided what shall not be deemed an executive au. thority; though it may not have clearly decided in every case what shall be so deemed. The declaring of war is expressly made a legislative function. The judging of the obligations to make war, is admitted to be included as a legislative function. Whenever then a ques. tion occurs whether war shall be declared, or whether public stipulations require it, the question necessarily belongs to the department to which those functions belong....and no other department can be in the execution of its proper functions, if it should undertake to decide such a question.
There can be no refuge against this conclusion, but in the pretext of a concurrent right in both departments to judge of the obligations to declare war, and this must be intended by the writer when he says, “ it will not «« follow that the executive is excluded in any case from “ a similar right of judging, &c.
As this is the ground on which the ultimate defence is to be made, and which must either be maintained, or the works erected on it, demolished; it will be
will be proper to give its strength a fair trial.
It has been seen that the idea of a concurrent right is at variance with other ideas advanced or admitted by the writer. Laying aside for the present that consideration, it seems impossible to avoid concluding that if the executive as such has a concurrent right with the legis. lature to judge of obligations to declare war, and the right to judge be essentially included in the right to declare, it must have the same concurrent right to declare as it has to judge; and by another analogy, the same right to judge of other causes of war, as of the particular cause found in a public stipulation. So that whenever the
executive in the course of its functions shall meet with these cases, it must either infer an equal authority in all, or acknowledge its wants of authority in any.
If any doubt can remain, or rather if any doubt could ever have arisen, which side of the alternative ought to be embraced, it can be with those only who overlook. or reject some of the most obvious and essential truths in political science.
The power to judge of the causes of war as involved in the power to declare war, is expressly vested where all other legislative powers are vested, that is, in the congress of the United States. It is consequently determined by the constitution to be a legislative power. Now omitting the inquiry here in what respects a compound power may be partly legislative, and partly executive, and accordingly vested partly in the one, and partly in the other department, or jointly in both; a remark used on another oecasion is equally conclusive on this, that the same power cannot belong in the whole, to both departments, or be properly so vested as to operate separately in each. Still more evident is it, that the same specific function or act, cannot possibly belong to the two departments and be separately exerciseable by each.
Legislative power may be concurrently vested in different legislative bodies. Executive powers may be concurrently vested in different executive magistrates. In legislative acts the executive may have a participation, as in the qualified negative on the laws. In executive acts, the legislature, or at least a branch of it, may participate, as in the appointment to offices. Arrangements of this sort are familiar in theory, as well as in practice. But an independent exercise of an executive act, by the legislature alone, or of a legislative act by the executive alone, one or other of which must happen in
every case where the same act is exerciseable by each, and the latter of which would happen in the case urged by the writer, is contrary to one of the first and best maxims of a well organized government, and ought never to be founded in a forced construction, much less in opposition to a fair one. Instances, it is true, may be discovered among ourselves where this maxim has not been faithfully pursued ; but being generally acknowledged to be errors, they confirm, rather 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, interpret the constitu. tion differently, and thence lay claim cach to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution. But this species of concurrence is obviously and radically different from that in question. The former supposes the constitution to have given the power to one department only; and the doubt to be to which it has been given. The latter supposes it to belong to both ; and that it may be exercised by either or both, according to the course of exigencies.
A concurrent authority in two independent depart. ments to perform the same function with respect to the same thing, would be as awkward in practice, as it is unnatural in theory.
If the legislature and executive have both a right to judge of the obligations to make war or not, it must sometimes happen, though not at present, that they will judge differently. The executive may proceed to consider the question to day, may determine that the United States are not bound to take part in a war, and in the execution of its functions proclaim that determination to all the world. To-morrow, the legislature may fol. low in the consideration of the same subject, may determine that the obligations impose war on the United States, and in the execution of its functions, enter into a constitutional declaration, expressly contradicting the constitutional proclamation.
In wbat light does this present the constitution to the people who established it? In what light would it present to the world, a nation, thus speaking, through two different organs, equally constitutional and authentic,
two opposite languages, on the same subject, and under the same existing circumstances ?
But it is not with the legislative rights alone that this doctrine interferes. The rights of the judiciary may be equally invaded. For it is clear that if a right declared by the constitution to be legislative, and actually vested by it in the legislature, leaves, notwithstanding, a similar right in the executive whenever a case for exercising it occurs, in the course of its functions ; a right declared to be judiciary and vested in that department may, on the same principle, be assumed and exercised by the executive in the course of its functions; and it is evident that occasions and pretexts for the latter interference may be as frequent as for the former. So again the judiciary department may find equal occasions in the execution of its functions, for usurping the authorities of the executive; and the legislature for stepping into the jurisdiction of both. And thus all the powers of government, of which a partition is so carefully made among the several branches, would be thrown into absolute hotchpot, and exposed to a general scramble.
It is time however for the writer bimself to be heard, in defence of his text. His comment is in the words fol. lowing:
“ If the legislature have a right to make war on the one hand, it is on the other the duty of the executive to
preserve peace, till war is declared ; and in fulfilling “ihat duty, it must necessarily possess a right of judging “ what is the nature of the obligations which the treaties “ of the country impose on the government; and when, in
pursuance of this right, it has concluded that there is
nothing inconsistent with a state of neutrality, it becomes “ both its province and its duty to enforce the laws inci66 dent to that state of the nation. The executive is charg" ed with the execution of all laws, the laws of nations, as “ well as the muncipal law which recognizes and adopts “ those laws. It is consequently bound, by faithfully “ executing the laws of neutrality, when that is the state “ of the nation, to avoid giving a cause of war to foreign