University of Virginia Library

NO. V.[87]

Having seen that the executive has no constitutional right
to interfere in any question, whether there be or be not a
cause of war, and the extensive consequences flowing from
the doctrines on which such a claim has been asserted; it
remains to be inquired, whether the writer is better warranted
in the fact which he assumes, namely that the proclamation
of the executive has undertaken to decide the question,

whether there be a cause of war or not, in the article of guaranty
between the United States and France, and in so doing
has exercised the right which is claimed for that department.

Before I proceed to the examination of this point, it may
not be amiss to advert to the novelty of the phraseology, as
well as of the doctrines, espoused by this writer. The source
from which the former is evidently borrowed, may enlighten
our conjectures with regard to the source of the latter. It
is a just observation also that words have often a gradual
influence on ideas, and, when used in an improper sense, may
cover fallacies which would not otherwise escape detection.

I allude particularly to his application of the term government
to the executive authority alone. The proclamation is "a
manifestation of the sense of the government." "Why did not
the government wait," &c. "The policy on the part of the
government of removing all doubt as to its own disposition."[89]
"It was of great importance, that our citizens should understand
as early as possible the opinion entertained by the

government," &c. "If in addition to the rest, the early manifestation
of the views of the government had any effect in
fixing the public opinion." &c. The reader will probably be
struck with the reflection, that if the proclamation really
possessed the character, and was to have the effects, here
ascribed to it, something more than the authority of the
government, in the writer's sense of government, would have
been a necessary sanction to the act; and if the term, "government"
be removed, and that of "president" substituted,
in the sentences quoted, the justice of the reflection will be
felt with peculiar force. But I remark only on the singularity
of the style adopted by the writer, as showing either that
the phraseology of a foreign government is more familiar to
him than the phraseology proper to our own, or that he
wishes to propagate a familiarity of the former in preference
to the latter. I do not know what degree of disapprobation
others may think due to this innovation of language; but I
consider it as far above a trivial criticism, to observe that it
is by no means unworthy of attention, whether viewed with
an eye to its probable cause, or its apparent tendency. "The
government" unquestionably means, in the United States,
the whole government, not the executive part, either exclusively,
or pre-eminently: as it may do in a monarchy,
where the splendour of prerogative eclipses, and the machinery
of influence directs, every other part of the government.
In the former and proper sense, the term has hitherto been
used in official proceedings, in public discussions, and in private
discourse. It is as short and as easy, and less liable to
misapprehension, to say the executive, or the president, as
to say the government. In a word, the new dialect could not
proceed either from necessity, conveniency, propriety, or
perspicuity; and being in opposition to common usage, so
marked a fondness for it justifies the notice here taken of it.
It shall no longer detain me, however, from the more important
subject of the present paper.

I proceed therefore to observe, that as a "proclamation,"

in its ordinary use, is an address to citizens or subjects only;
as it is always understood to relate to the law actually in
operation, and to be an act purely and exclusively executive;
there can be no implication in the name or the form of such
an instrument, that it was meant principally for the information
of foreign nations; far less that it related to an eventual
stipulation on the subject acknowledged to be within the legislative
province.

When the writer therefore undertook to engraft his new
prerogative on the proclamation, by ascribing to it so unusual,
and unimplied a meaning, it was evidently incumbent
on him to show, that the text of the instrument could not be
satisfied by any other construction than his own. Has he
done this? No. What has he done? He has called the
proclamation a proclamation of neutrality; he has put his
own arbitrary meaning on that phrase; and has then proceeded
in his arguments and his inferences, with as much
confidence, as if no question was ever to be asked whether
the term "neutrality" be in the proclamation; or whether,
if there, it could justify the use he makes of it.

It has appeared from observations already made, that if
the term "neutrality" was in the proclamation, it could not
avail the writer in the present discussion; but the fact is,
no such term is to be found in it, nor any other term, of a
meaning equivalent to that, in which the term neutrality is
used by him.

There is the less pretext in the present case, for hunting
after any latent or extraordinary object, because an obvious
and legal one is at hand, to satisfy the occasion on which
the proclamation issued. The existence of war among several
nations with which the United States have an extensive
intercourse; the duty of the executive to preserve peace by
enforcing its laws, whilst those laws continued in force; the
danger that indiscreet citizens might be tempted or surprised
by the crisis, into unlawful proceedings, tending to involve
the United States in a war, which the competent authority

might decide them to be at liberty to avoid, and which, if
they should be judged not at liberty to avoid, the other party
to the eventual contract, might be willing not to impose on
them; these surely might have been sufficient grounds for
the measure pursued by the executive: and being legal and
rational grounds, it would be wrong, if there be no necessity,
to look beyond them.

If there be any thing in the proclamation of which the
writer could have made a handle, it is the part which declares,
the disposition, the duty, and the interest of the United
States, in relation to the war existing in Europe. As the
legislature is the only competent and constitutional organ of
the will of the nation; that is, of its disposition, its duty, and
its interest, in relation to a commencement of war, in like
manner as the president and senate jointly, not the president
alone, are in relation to peace, after war has been commenced
—I will not dissemble my wish that a language less exposed
to criticism had been preferred; but taking the expressions,
in the sense of the writer himself, as analogous to the language
which might be proper, on the reception of a public
minister, or any similar occasion, it is evident that his construction
can derive no succour even from this source.

If the proclamation, then, does not require the construction
which this writer has taken the liberty of putting on it;
I leave it to be decided, whether the following considerations
do not forbid us to suppose, that the president could have
intended by that act, to embrace and prejudge the legislative
question, whether there was, or was not, under the circumstances
of the case, a cause of war in the article of guaranty.

It has been shown that such an intention would have
usurped the prerogative not vested in the executive, and even
confessedly vested in another department.

In exercising the constitutional power of deciding a question
of war, the legislature ought to be as free to decide, according
to its own sense of the public good, on one side as on
the other side. Had the proclamation prejudged the question

on either side, and proclaimed its decision to the world:
the legislature, instead of being as free as it ought, might be
thrown under the dilemma, of either sacrificing its judgment
to that of the executive; or, by opposing the executive judgment,
of producing a relation between the two departments,
extremely delicate among ourselves, and of the worst influence
on the national character and interests abroad. A
variance of this nature, it will readily be perceived, would be
very different from a want of conformity to the mere recommendations
of the executive, in the measure adopted by the
legislature.

It does not appear that such a proclamation could have
even pleaded any call, from either of the parties at war with
France, for an explanation of the light in which the guaranty
was viewed. Whilst, indeed, no positive indication whatever
was given of hostile purposes, it is not conceived, that any
power could have decently made such an application; or, if
it had, that a proclamation would have been either a satisfactory,
or an honourable answer. It could not have been
satisfactory, if serious apprehensions were entertained; because
it would not have proceeded from that authority which
alone could definitively pronounce the will of the United
States on the subject. It would not have been honourable,
because a private diplomatic answer, only, is due to a private
diplomatic application; and to have done so much more,
would have marked a pusillanimity and want of dignity in
the executive magistrate.

But whether the executive was or was not applied to, or
whatever weight be allowed to that circumstance, it ought
never to be presumed, that the executive would so abruptly,
so publicly, and so solemnly, proceed to disclaim a sense of
the contract, which the other party might consider, and wish
to support by discussion, as its true and reasonable import.
It is asked, indeed, in a tone that sufficiently displays the
spirit in which the writer construes both the proclamation
and the treaty, "Did the executive stand in need of the logic

of a foreign agent to enlighten it as to the duties or the interests
of the nation; or was it bound to ask his consent to
a step, which appeared to itself consistent with the former,
and conducive to the latter? The sense of treaties was to be
learned from the treaties themselves." Had he consulted
his Vatel, instead of his animosity to France, he would have
discovered, that however humiliating it might be to wait for
a foreign logic, to assist the interpretation of an act depending
on the national authority alone, yet in the case of a treaty,
which is as much the treaty of a foreign nation, as it is ours,
and in which foreign duties and rights are as much involved
as ours, the sense of the treaty, though to be learned from
the treaty itself, is to be equally learned by both parties to
it. Neither of them can have a right more than the other,
to say what a particular article means; and where there is
equality without a judge, consultation is as consistent with
dignity as it is conducive to harmony and friendship. Let
Vatel however be heard on the subject.

"The third general maxim, or principle, on the subject of
interpretation [of treaties] is: that neither the one nor the
other of the interested or contracting powers has a right to interpret
the act or the treaty at its pleasure. For if you are at
liberty to give my promise what sense you please, you will
have the power of obliging me to do whatever you have a
mind, contrary to my intention, and beyond my real engagement:
and reciprocally, if I am allowed to explain my promises
as I please, I may render them vain and illusive, by giving them
a sense quite different from that in which they were presented
to you, and in which you must have taken them in accepting
them." Vatel, B. II., c. vii., § 265.

The writer ought to have been particularly sensible of the
improbability that a precipitate and ex parte decision of the
question arising under the guaranty, could have been intended
by the proclamation. He had but just gone through
the undertaking, to prove that the article of guaranty like
the rest of the treaty is defensive, not offensive. He had

examined his books and retailed his quotations, to show that
the criterion between the two kinds of war is the circumstance
of priority in the attack. He could not therefore but
know, that according to his own principles, the question,
whether the United States were under an obligation or not
to take part in the war, was a question of fact whether the
first attack was made by France or her enemies. And to
decide a question of fact, as well as of principle, without
waiting for such representations and proofs as the absent and
interested party might have to produce, would have been a
proceeding contrary to the ordinary maxims of justice, and
requiring circumstances of a very peculiar nature, to warrant
it towards any nation. Towards a nation which could verify
her claim to more than bare justice by our own reiterated and
formal acknowledgments, and which must in her present
singular and interesting situation have a peculiar sensibility
to marks of our friendship or alienation, the impropriety of
such a proceeding would be infinitely increased, and in the
same proportion the improbability of its having taken place.

There are reasons of another sort which would have been a
bar to such a proceeding. It would have been as impolitic
as it would have been unfair and unkind.

If France meant not to insist on the guaranty, the measure,
without giving any present advantage, would have deprived
the United States of a future claim which may be of importance
to their safety. It would have inspired France with
jealousies of a secret bias in this country toward some of her
enemies which might have left in her breast a spirit of contempt
and revenge, of which the effects might be felt in various
ways. It must in particular have tended to inspire her
with a disinclination to feed our commerce with those important
advantages which it already enjoys, and those more
important ones which it anxiously contemplates. The nation
that consumes more of the fruits of our soil than any other
nation in the world, and supplies the only foreign raw[90]

material of extensive use in the United States, would not be
unnecessarily provoked by those who understand the public
interest, and make it their study, as it is their duty to advance
it.

I am aware that the common-place remark will be interposed,
that, "commercial privileges are not worth having,
when not secured by mutual interest; and never worth purchasing
because they will grow of themselves out of a mutual
interest." Prudent men, who do not suffer their reason to
be misled by their prejudices, will view the subject in a juster
light. They will reflect, that if commercial privileges are not
worth purchasing, they are worth having without purchase;
that in the commerce of a great nation, there are valuable
privileges which may be granted or not granted, or granted
either to this or that country, without any sensible influence
on the interest of the nation itself; that the friendly or unfriendly
disposition of a country, is always an article of
moment in the calculations of a comprehensive interest; that
some sacrifices of interest will be made to other motives, by
nations as well as by individuals, though not with the same
frequency, or in the same proportions; that more of a disinterested
conduct, or of a conduct founded on liberal views
of interest, prevails in some nations than in others; that as
far as can be seen of the influence of the revolution on the
genius and the policy of France, particularly with regard to
the United States, every thing is to be hoped by the latter
on this subject, which one country can reasonably hope from
another. In this point of view, a greater error could not
have been committed than in a step that might have turned
the present disposition of France to open her commerce to
us as far as a liberal calculation of her interest would permit,
and her friendship towards us, and confidence in our friendship
towards her, could prompt, into a disposition to shut it
as closely against us as the united motives of interest, of
distrust, and of ill will, could urge her.

On the supposition that France might intend to claim the

guaranty, a hasty and harsh refusal before we were asked,
on a ground that accused her of being the aggressor in the
war against every power in the catalogue of her enemies, and
in a crisis when all her sensibility must be alive towards the
United States, would have given every possible irritation to
a disappointment which every motive that one nation could
feel towards another and towards itself, required to be alleviated
by all the circumspection and delicacy that could be
applied to the occasion.

The silence of the executive, since the accession of Spain
and Portugal to the war against France, throws great light
on the present discussion. Had the proclamation been issued
in the sense, and for the purposes ascribed to it, that is to
say, as a declaration of neutrality, another would have followed,
on that event. If it was the right and duty of the
government, that is, the president, to manifest to Great Britain
and Holland, and to the American merchants and citizens,
his sense, his disposition, and his views on the question,
whether the United States were, under the circumstances of the
case, bound or not, to execute the clause of guaranty, and not to
leave it uncertain, whether the executive did or did not believe a
state of neutrality to be consistent with our treaties; the duty,
as well as the right prescribed a similar manifestation to all
the parties concerned, after[91] Spain and Portugal had joined
the other maritime enemies of France. The opinion of the
executive with respect to a consistency or inconsistency of
neutrality with treaties, in the latter case, could not be inferred
from the proclamation in the former, because the circumstances
might be different: the war in the latter case, might
be defensive on the side of France, though offensive against
her other enemies. Taking the proclamation in its proper
sense, as reminding all concerned, that as the United States

were at peace, (that state not being affected by foreign wars,
and only to be changed by the legislative authority of the
country,) the laws of peace were still obligatory, and would
be enforced; and the inference is so obvious and so applicable
to all other cases, whatever circumstances may distinguish
them, that another proclamation would be unnecessary.
Here is a new aspect of the whole subject, admonishing us in
the most striking manner at once of the danger of the prerogative
contended for, and the absurdity of the distinctions
and arguments employed in its favour. It would be as impossible
in practice, as it is in theory, to separate the power
of judging and concluding that the obligations of a treaty do
not impose war, from that of judging and concluding that the
obligations do impose war. In certain cases, silence would
proclaim the latter conclusion, as intelligibly as words could
do the former. The writer indeed has himself abandoned the
distinction in his seventh paper, by declaring expressly that
the object of the proclamation would have been defeated "by
leaving it uncertain, whether the executive did or did not
believe a state of neutrality to be consistent with our treaties."