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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.".
With these exceptions, the executive power of the United States is completely lodged in the president. This mode of construing the constitution, bas 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 de. clare 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 on the government : and wlien it has concluded that there is nothing in them inconsistent with neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. The executive is charged with the execution of all laws, the law of nations, as well as the municipal law, by which the former are recognized and adopted. It is consequently bound, by executing faithfully the laws of neutrality, when the country is in a neutral position, to avoid giving cause of war to foreign powers.
This is the direct end of the proclamation of neutrality. It declares to the United States their situation with regard to the contending parties, and makes known to the community, that the laws incident to that state will be enforced. In doing this, it conforms to an established usage of nations, the operation of which, as before remarked, is to obviate a responsibility on the part of the whole society, for secret and unknown violations of the rights of any of the warring powers by its citizens.
Those who object to the proclamation will readily ad. mit, that it is the right and duty of the executive to interpret those articles of our treaties which give to France particular privileges, in order to the enforcement of them: but the necessary consequence of this is, that the executive must judge what are their proper limits; what rights are given to other nations, by our contracts with them; what rights the law of nature and nations gives and our treaties permit, in respect to those countries with which we have none; in fine, what are the reciprocal rights and obligations of the United States, and of all, and each, of the powers at war.
The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new govern
ment is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended.
This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance offensive and defensive between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the legislature under an obligation if required, and there was otherwise no valid excuse, of exercising its power of declaring war.
This serves as an example of the right of the executive in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decisions.
The division of the executive power in the constitution, creates a concurrent authority in the cases to which it relates.
Hence, in the instance stated, treaties can only be made by the president and senate jointly, but their ac. tivity may be continued or suspended by the president alone.
No objection has been made to the president's having acknowledged the republic of France, by the reception of its minister, without having consulted the senate; though that body is connected with him in the making of treaties, and though the consequence of his act of reception is, to give operation to those heretofore made with that country. But he is censured for having declared
the United States to be in a state of peace and neutrality, with regard to the powers at war; because the right of changing that state, and declaring war, belongs to the legislature.
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.
While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of
peace to a state of hostility, it belongs to the execu“ tive power” to do whatever else the law of nations, cooperating with the treaties of the country, enjoin in the intercourse of the United States with foreign powers.
In this distribution of authority, the wisdom of our constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war.
But though it has been thought advisable to vindicate the authority of the executive on this broad and comprehensive ground, it was not absolutely necessary to do so. That clause of the constitution which makes it his duty to take care that the laws be faithfully executed," might alone have been relied upon, and this simple process of argument pursued.
The president is the constitutional EXECUTOR of the laws. Our treaties, and the laws of nations, form a part of the law of the land. He who is to execute the laws, must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations, combined with our treaties, prescribed to this country, in reference to the present war in Europe, it was necessary for the president to judge for himself, whether there was any thing in our treaties incompatible with an adherence to neutrality. Having decided that there was not, be had a right, and if in his opinion the interest of the nation required it, it was his duty as ex
ecutor of the laws, to proclaim the neutrality of the na. tion, to exhort all persons to observe it, and to warn them of the penalties which would attend its non-observance.
The proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact, with regard to the existing state of the nation; informs the citizens of what the laws previously established require of them in that state, and notifies them that these laws will be put in execution against the infractors of them.
No. II. THE second and principal objection to the proclamation, namely, that it is inconsistent with the treaties between the United States and France, will now be examined.
It has been already shown, that it does not militate against the performance of any of the stipulations in those treaties, which would not make us an associate or party in the war, and especially that it does not interfere with the privileges secured to France by the seventeenth and twenty-second articles of the treaty of commerce; which, except the clause of guarantee, constitute the most material discriminations to be found in our treaties in favour of that country.
Official documents have likewise appeared in the public papers, which serve as a comment upon the sense of the proclamation in this particular, proving that it was not deemed by the executive incompatible with the performance of the stipulations in those articles, and that in practice they are intended to be observed.
It has, however, been admitted, that the declaration of neutrality excludes the idea of an execution of the clause of guarantee.
It becomes necessary therefore to examine, whether the United States would have a valid justification for not complying with it, in case of their being called upon for that purpose by France.