As attempts are making very dangerous to the peace, and, it is to be feared, not very friendly to the Constitution, of the United States, it becomes the duty of those who wish well to both, to endeavor to prevent their success.
The objections which have been raised against the proclamation of neutrality, lately issued by the President, have been urged in a spirit of acrimony and invective, which demonstrates that more was in view than merely a free discussion of an important public measure. They exhibit evident indications of a design to weaken the confidence of the people in the author of the measure, in order to remove or lessen a powerful obstacle to the success of an opposition to the government, which, however it may change its form according to circumstances, seems still to be persisted in with more untiring industry.
This reflection adds to the motives connected with the measure itself, to recommend endeavors by proper explanations, to place it in a just light. Such explanations, at least, cannot but be satisfactory to those who may not themselves have leisure or opportunity for pursuing an investigation of the subject, and who may wish to perceive that the policy of the government is not inconsistent with its obligations or its honor.
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 succors 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 corresponding conduct by performing towards each the duties of neutrality; to warn all persons within the jurisdiction 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 the 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 succors 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.2
2. See Vatel, Book III., chap. vi., § 101.
But no special aids, succors, or favors, 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 guaranty, 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 succor, previously ascertained.
It follows that the proclamation is virtually a manifestation of the sense of government, that the United States are, under the circumstances of the case, not bound to execute the clause of guaranty.
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 neutrality3; an object of the greatest moment to a country whose true interest lies in the preservation of peace.
3. See Vatel, Book III., chap. vii., § 113.
The inquiry, then, is, what department of our government 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, and therefore 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 on 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 the litigation in particular cases. It is indeed charged with the interpretations 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 President 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 President; 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 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 on the government; and when 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 admit, 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 government 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 activity 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 "executive power" to do whatever else the law of nations, co-operating 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, he had a right, and if in his opinion the interest of the nation required it, it was his duty as executor of the laws, to proclaim the neutrality of the nation, 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.
