University of Virginia Library

NO. I.

Several pieces with the signature of Pacificus were lately
published, which have been read with singular pleasure and
applause, by the foreigners and degenerate citizens among

us, who hate our republican government, and the French
revolution; whilst the publication seems to have been too
little regarded, or too much despised by the steady friends
to both.

Had the doctrines inculcated by the writer, with the natural
consequences from them, been nakedly presented to the
public, this treatment might have been proper. Their true
character would then have struck every eye, and been rejected
by the feelings of every heart. But they offer themselves
to the reader in the dress of an elaborate dissertation;

they are mingled with a few truths that may serve them as
a passport to credulity; and they are introduced with professions
of anxiety for the preservation of peace, for the welfare
of the government, and for the respect due to the present
head of the executive, that may prove a snare to patriotism.

In these disguises they have appeared to claim the attention
I propose to bestow on them: with a view to show, from
the publication itself, that under colour of vindicating an

important public act, of a chief magistrate who enjoys the
confidence and love of his country, principles are advanced
which strike at the vitals of its constitution, as well as at its
honour and true interest.

As it is not improbable that attempts may be made to
apply insinuations, which are seldom spared when particular
purposes are to be answered, to the author of the ensuing
observations, it may not be improper to premise, that he is
a friend to the constitution, that he wishes for the preservation
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 into the
following propositions:

That the powers of declaring war and making treaties 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 executive.

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 fæderis
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 guaranty 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 22nd 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 especially and
strictly excepted out of the grant.

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 qualifications
to the executive powers] have been already noticed—
the participation of the senate in the appointment 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 reprisal."

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, first, in the writers of authority on public law;
or, 2d, in the quality and operation of the powers to make

war and treaties; or, 3d, in the constitution of the United
States.

1.

• 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, ate the best guides; but because a just
  analysis and discrimination of the powers of government,
  according to their executive, legislative, 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 monarchical
  governments, where all powers are confounded in the sovereignty
  of the prince. It will be found, however, I believe,
  that all of them, particularly Wolsius, Burlemaqui, 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 preeminent part.

  Writers, such as Locke, and Montesquieu, who have discussed
  more 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 which 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[80] ; 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 question, which, after some of the writers
  on public law he calls federative, are really distinct from the
  

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  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.

2.

• If we consult, for a moment, the nature and operation
  of the two powers to declare war and to make treaties, 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 presuppose the existence of the laws to
  be executed. A treaty is not an execution of laws: it does
  not presuppose 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 confessedly
  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 deliberate 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.

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  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 governments, 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 shows, 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 the 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.

This conclusion becomes irresistible, when it is recollected,
that the constitution cannot be supposed to have placed
either any power legislative in its nature, entirely among
executive powers, or any power executive in its nature, entirely
among legislative powers, without charging the constitution,
with that kind of intermixture and consolidation of
different powers, which would violate a fundamental principle
in the organization of free governments. If it were not
unnecessary to enlarge on this topic here, it could be shown,
that the constitution was originally vindicated, and has been
constantly expounded, with a disavowal of any such intermixture.

The power of treaties is vested jointly in the president and
in the senate, which is a branch of the legislature. From
this arrangement merely, there can be no inference that
would necessarily exclude the power from the executive class:
since the senate is joined with the president in another power,
that of appointing to offices, which, as far as relate to executive
offices at least, is considered as of an executive nature.
Yet on the other hand, there are sufficient indications that
the power of treaties is regarded by the constitution as materially
different from mere executive power, and as having
more affinity to the legislative than to the executive character.

One circumstance indicating this, is the constitutional

regulation under which the senate give their consent in the
case of treaties. In all other cases, the consent of the body
is expressed by a majority of voices. In this particular case,
a concurrence of two-thirds at least is made necessary, as a
substitute or compensation for the other branch of the legislature,
which, on certain occasions, could not be conveniently
a party to the transaction.

But the conclusive circumstance is, that treaties, when
formed according to the constitutional mode, are confessedly
to have force and operation of laws, and are to be a rule for
the courts in controversies between man and man, as much
as any other laws. They are even emphatically declared by
the constitution to be "the supreme law of the land."

So far the argument from the constitution is precisely in
opposition to the doctrine. As little will be gained in its
favour from a comparison of the two powers, with those particularly
vested in the president alone.

As there are but few, it will be most satisfactory to review
them one by one.

"The president shall be commander in chief of the army
and navy of the United States, and of the militia when called
into the actual service of the United States."

There can be no relation worth examining between this
power and the general power of making treaties. And instead
of being analogous to the power of declaring war, it
affords a striking illustration of the incompatibility of the
two powers in the same hands. Those who are to conduct a
war cannot in the nature of things, be proper or safe judges,
whether a war ought to be commenced, continued, or concluded.
They are barred from the latter functions by a great principle
in free government, analogous to that which separates the
sword from the purse, or the power of executing from the
power of enacting laws.

"He may require the opinion in writing of the principal
officers in each of the executive departments upon any subject
relating to the duties of their respective offices; and he

shall have power to grant reprieves and pardons for offences
against the United States, except in case of impeachment."
These powers can have nothing to do with the subject.

"The president shall have power to fill up vacancies that
may happen during the recess of the Senate, by granting
commissions which shall expire at the end of the next session."
The same remark is applicable to this power, as also to that
of "receiving ambassadors, other public ministers, and consuls."
The particular use attempted to be made of this last
power will be considered in another place.

"He shall take care that the laws shall be faithfully executed,
and shall commission all officers of the United States."
To see the laws faithfully executed constitutes the essence of
the executive authority. But what relation has it to the
power of making treaties and war, that is, of determining
what the laws shall be with regard to other nations? No
other certainly than what subsists between the powers of
executing and enacting laws; no other, consequently, than
what forbids a coalition of the powers in the same department.

I pass over the few other specified functions assigned to
the president, such as that of convening the legislature, &c.,
&c., which cannot be drawn into the present question.

It may be proper however to take notice of the power of
removal from office, which appears to have been adjudged
to the president by the laws establishing the executive departments;
and which the writer has endeavoured to press
into his service. To justify any favourable inference from
this case, it must be shown, that the powers of war and
treaties are of a kindred nature to the power of removal, or
at least are equally within a grant of executive power. Nothing
of this sort has been attempted, nor probably will be
attempted. Nothing can in truth be clearer, than that no
analogy, or shade of analogy, can be traced between a power
in the supreme officer responsible for the faithful execution
of the laws, to displace a subaltern officer employed in the
execution of the laws; and a power to make treaties and to

declare war, such as these have been found to be in their nature,
their operation, and their consequences.

Thus it appears that by whatever standard we try this doctrine,
it must be condemned as no less vicious in theory than
it would be dangerous in practice. It is countenanced neither
by the writers on law; nor by the nature of the powers themselves;
nor by any general arrangements, or particular expressions,
or plausible analogies, to be found in the constitution.

Whence then can the writer have borrowed it?

There is but one answer to this question.

The power of making treaties and the power of declaring
war, are royal prerogatives in the British government, and are
accordingly treated as executive prerogatives by British commentators.

We shall be the more confirmed in the necessity of this
solution of the problem, by looking back to the area of the
constitution, and satisfying ourselves that the writer could
not have been misled by the doctrines maintained by our
own commentators on our own government. That I may not
ramble beyond prescribed limits, I shall content myself with
an extract from a work which entered into a systematic
explanation and defence of the constitution; and to which
there has frequently been ascribed some influence in conciliating
the public assent to the government in the form
proposed. Three circumstances conspire in giving weight to
this cotemporary exposition. It was made at a time when
no application to persons or measures could bias: the opinion
given was not transiently mentioned, but formally and critically
elucidated: it related to a point in the constitution
which must consequently have been viewed as of importance
in the public mind. The passage relates to the power of
making treaties; that of declaring war, being arranged with
such obvious propriety among the legislative powers, as to
be passed over without particular discussion.

"Though several writers on the subject of government
place that power [of making treaties] in the class of executive

authorities, yet this is evidently an arbitrary disposition. For
if we attend carefully to its operation, it will be found to partake
more of the legislative than of the executive character,
though it does not seem strictly to fall within the definition
of either of them. The essence of the legislative authority,
is to enact laws; or; in other words, to prescribe rules for
the regulation of the society: while the execution of the laws
and the employment of the common strength, either for this
purpose, or for the common defence, seem to comprise all
the functions of the executive magistrate. The power of making
treaties is plainly neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to
the enaction of new ones, and still less to an exertion of the
common strength. Its objects are contracts with foreign
nations, which have the force of law, but derive it from the
obligations of good faith. They are not rules prescribed by
the sovereign to the subject, but agreements between sovereign
and sovereign. The power in question seems therefore
to form a distinct department, and to belong properly neither
to the legislative nor to the executive. The qualities elsewhere
detailed as indispensable in the management of foreign
negotiations, point out the executive as the most fit agent in
those transactions; whilst the vast importance of the trust,
and the operation of treaties as laws, plead strongly for the
participation of the whole or a part of the legislative body, in
the office of making them."—Federalist, p. 418.[81]

It will not fail to be remarked on this commentary, that
whatever doubts may be started as to the correctness of its
reasoning against the legislative nature of the power to make
treaties; it is clear, consistent, and confident, in deciding that
the power is plainly and evidently not an executive power.