The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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NO. II. |
 | The writings of James Madison, |  |
NO. II.
The doctrine which has been examined is pregnant with
inferences and consequences against which no ramparts in
the forms of republican government. Were it once established
that the powers of war and treaty are in their nature
executive; that so far as they are not by strict construction
transferred to the legislature, they actually belong to the
executive; that of course all powers not less executive in
their nature than those powers, if not granted to the legislature,
may be claimed by the executive; if granted, are to be
taken strictly, with a residuary right in the executive; or, as
will hereafter appear, perhaps claimed as a concurrent right
by the executive; and no citizen could any longer guess at
the character of the government under which he lives; the
most penetrating jurist would be unable to scan the extent
of constructive prerogative.
Leaving however to the leisure of the reader deductions
which the author, having omitted, might not choose to own,
I proceed to the examination of one, with which that liberty
cannot be taken.
"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 to make war or not, it
will not follow that the executive 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
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 constitution in another
department. In this case, the constitution has decided what
shall not be deemed an executive authority; 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
question 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
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 proper to give its strength
affair 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 legislature 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 want 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 occasion is equally
conclusive on this, that the same power cannot belong, in
the whole to both departments, or be properly so vested as to
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 constitution differently,
and thence lay claim 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 departments,
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 follow 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 what 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
to a general scramble.
It is time however for the writer himself to be heard, in
defence of his text. His comment is in the words following:
"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 that 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 incident to that state of the nation. The
executive is charged with the execution of all laws, the laws
of nations, as well as the municipal law which recognises 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 powers."
To do full justice to this masterpiece of logic, the reader
must have the patience to follow it step by step.
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.
It will be observed that here is an explicit and peremptory
assertion, that it is the duty of the executive to preserve peace
till war is declared.
And in fulfilling that 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; That is to say, in fulfilling
the duty to preserve peace, it must necessarily possess
the right to judge whether peace ought to be preserved; in
other words, whether its duty should be performed. Can words
express a flatter contradiction? It is self-evident that the
duty in this case is so far from necessarily implying the right,
that it necessarily excludes it.
And when in pursuance of this right it has concluded that
of neutrality, IT BECOMES both its province and its duty to
enforce the laws incident to that state of the nation.
And what if it should conclude that there is something
inconsistent? Is it or is it not the province and duty of the
executive to enforce the same laws? Say it is, you destroy
the right to judge. Say it is not, you cancel the duty to
preserve peace, till war is declared.
Take this sentence in connexion with the preceding, and
the contradictions are multiplied. Take it by itself, and it
makes the right to judge and conclude, whether war be
obligatory, absolute and operative; and the duty to preserve
peace subordinate and conditional.
It will have been remarked by the attentive reader, that
the term peace in the first clause has been silently exchanged
in the present one for the term neutrality. Nothing however
is gained by shifting the terms. Neutrality means peace,
with an allusion to the circumstances of other nations being
at war. The term has no reference to the existence or, nonexistence
of treaties or alliances between the nation at peace
and the nations at war. The laws incident to a state of
neutrality, are the laws incident to a state of peace, with such
circumstantial modifications only as are required by the new
relation of the nations at war: until war therefore be duly
authorized by the United States, they are as actually neutral
when other nations are at war, as they are at peace (if such
a distinction in the terms is to be kept up) when other nations
are not at war. The existence of eventual engagements which
can only take effect on the declaration of the legislature, cannot,
without that declaration, change the actual state of the
country, any more in the eye of the executive than in the
eye of the judiciary department. The laws to be the guide
of both, remain the same to each, and the same to both.
Nor would more be gained by allowing the writer to define,
than to shift the term neutrality. For suppose, if you please,
the existence of obligations to join in war to be inconsistent
are to be enforced by the executive, until effect shall be given
to those obligations by the declaration of the legislature?
Are they to be the laws incident to those obligations, that is,
incident to war? However strongly the doctrines or deductions
of the writer may tend to this point, it will not be
avowed. Are the laws to be enforced by the executive, then,
in such a state of things, to be the same as if no such obligations
existed? Admit this, which you must admit, if you
reject the other alternative, and the argument lands precisely
where it embarked—in the position, that it is the absolute
duty of the executive in all cases to preserve peace till war
is declared, not that it is "to become the province and duty
of the executive" after it has concluded that there is nothing
in those obligations inconsistent with a state of peace and
neutrality. The right to judge and conclude therefore, so
solemnly maintained in the text, is lost in the comment.
We shall see, whether it can be reinstated by what follows:
The executive is charged with the execution of all laws, the
laws of nations as well-as the municipal law which recognises
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 cause of war to foreign powers.
The first sentence is a truth, but nothing to the point in
question. The last is partly true in its proper meaning, but
totally untrue in the meaning of the writer. That the executive
is bound faithfully to execute the laws of neutrality,
whilst those laws continue unaltered by the competent authority,
is true; but not for the reason here given, to wit, to
avoid giving cause of war to foreign powers. It is bound to
the faithful execution of these as of all other laws internal
and external, by the nature of its trust and the sanction of
its oath, even if turbulent citizens should consider its so
doing as a cause of war at home, or unfriendly nations should
consider its so doing as a cause of war abroad. The duty of
the executive to preserve external peace, can no more suspend
peace can suspend the force of municipal laws.
It is certain that a faithful execution of the laws of neutrality
may tend as much in some cases, to incur war from one
quarter, as in others to avoid war from other quarters. The
executive must nevertheless execute the laws of neutrality
whilst in force, and leave it to the legislature to decide,
whether they ought to be altered or not. The executive has
no other discretion than to convene and give information to
the legislature on occasions that may demand it; and whilst
this discretion is duly exercised, the trust of the executive is
satisfied, and that department is not responsible for the
consequences. It could not be made responsible for them
without vesting it with the legislative as well as with the
executive trust.
These remarks are obvious and conclusive, on the supposition
that the expression "laws of neutrality" means simply
what the words import, and what alone they can mean, to
give force or colour to the inference of the writer from his
own premises. As the inference itself however, in its proper
meaning, does not approach towards his avowed object,
which is to work out a prerogative for the executive to judge,
in common with the legislature, whether there be cause of
war or not in a public obligation, it is to be presumed that
"in faithfully executing the laws of neutrality," an exercise
of that prerogative was meant to be included. On this supposition
the inference, as will have been seen, does not result
from his own premises, and has been already so amply discussed,
and, it is conceived, so clearly disproved, that not a
word more can be necessary on this branch of his argument.
| The writings of James Madison, | |