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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 | LETTERS OF HELVIDIUS.
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 | The writings of James Madison, |  |
LETTERS OF HELVIDIUS.[79]
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
revolution; whilst the publication seems to have been too
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;
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
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
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
States.
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
145executive, 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.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.146
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.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.
1.
2.
3.
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
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
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
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
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
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.
The chapter on prerogative shows, how much the reason of the
philosopher was clouded by the royalism of the Englishman.
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.
NO. III.
In order to give colour to a right in the executive to exercise
the legislative power of judging, whether there be a cause
of war in a public stipulation—two other arguments are subjoined
by the writer to that last examined.
The first is simply this: "It is the right and duty of the
executive to judge of and interpret those articles of our
treaties which give to France particular privileges, in order
to the enforcement of those privileges:" from which it is stated,
as a necessary consequence, that the executive has certain
other rights, among which is the right in question.
This argument is answered by a very obvious distinction.
The first right is essential to the execution of the treaty, as
a law in operation, and interferes with no right vested in
another department. The second, viz., the right in question,
is not essential to the execution of the treaty, or any other
law: on the contrary, the article to which the right is applied
cannot, as has been shown, from the very nature of it, be in
operation as a law, without a previous declaration of the
legislature; and all the laws to be enforced by the executive
remain, in the mean time, precisely the same, whatever be
the disposition or judgment of the executive. This second
right would also interfere with a right acknowledged to be in
the legislative department.
If nothing else could suggest this distinction to the writer,
he ought to have been reminded of it by his own words, "in
order to the enforcement of those privileges"—Was it in
order to the enforcement of the article of guaranty, that the
right is ascribed to the executive?
The other of the two arguments reduces itself into the following
form: the executive has the right to receive public
ministers; this right includes the right of deciding, in the
case of a revolution, whether the new government, sending
the minister, ought to be recognised, or not; and this, again,
the right to give or refuse operation to preexisting treaties.
The power of the legislature to declare war, and judge of
the causes for declaring it, is one of the most express and
explicit parts of the constitution. To endeavour to abridge
or affect it by strained inferences, and by hypothetical or
singular occurrences, naturally warns the reader of some
lurking fallacy.
The words of the constitution are, "He (the president)
shall receive ambassadors, other public ministers, and consuls."
I shall not undertake to examine, what would be the
precise extent and effect of this function in various cases
which fancy may suggest, or which time may produce. It
will be more proper to observe, in general, and every candid
reader will second the observation, that little, if any thing,
more was intended by the clause, than to provide for a particular
mode of communication, almost grown into a right
among modern nations; by pointing out the department of
the government, most proper for the ceremony of admitting
public ministers, of examining their credentials, and of authenticating
their title to the privileges annexed to their
character by the law of nations. This being the apparent
design of the constitution, it would be highly improper to
magnify the function into an important prerogative, even
where no rights of other departments could be affected by it.
To show that the view here given of the clause is not a new
construction, invented or strained for a particular occasion—
I will take the liberty of recurring to the cotemporary work
already quoted, which contains the obvious and original gloss
put on this part of the constitution by its friends and advocates.
"The president is also to be authorized to receive ambassadors
and other public ministers. This, though it has been
a rich theme of declamation, is more a matter of dignity than
of authority. It is a circumstance, that will be without consequence
in the administration of the government, and it is
far more convenient that it should be arranged in this manner,
than that there should be a necessity for convening the
legislature or one of its branches upon every arrival of a foreign
minister, though it were merely to take the place of a
departed predecessor." Fed., p. 389.[85]
Had it been foretold in the year 1788, when this work was
published, that before the end of the year 1793, a writer,
would appear, and gravely maintain, that this function, which
was to be without consequence in the administration of the
government, might have the consequence of deciding on
the validity of revolutions in favour of liberty, "of putting
the United States in a condition to become an associate in
war"—nay, "of laying the legislature under an obligation of
declaring war," what would have been thought and said of
so visionary a prophet?
The moderate opponents of the constitution would probably
have disowned his extravagance. By the advocates of
the constitution, his prediction must have been treated as
"an experiment on public credulity, dictated either by a
deliberate intention to deceive, or by the overflowings of a
zeal too intemperate to be ingenuous."
But how does it follow from the function to receive ambassadors
and other public ministers, that so consequential a
prerogative may be exercised by the executive? When a
foreign minister presents himself, two questions immediately
arise: Are his credentials from the existing and acting government
of his country? Are they properly authenticated?
These questions belong of necessity to the executive; but
they involve no cognizance of the question, whether those
exercising the government have the right along with the possession.
This belongs to the nation, and to the nation alone,
on whom the government operates. The questions before the
executive are merely questions of fact; and the executive
would have precisely the same right, or rather be under the
same necessity of deciding them, if its function was simply
to receive without any discretion to reject public ministers. It
is evident, therefore, that if the executive has a right to
reject a public minister, it must be founded on some other
consideration than a change in the government, or the newness
of the government; and consequently a right to refuse
to acknowledge a new government cannot be implied by the
right to refuse a public minister.
It is not denied that there may be cases in which a respect
to the general principles of liberty, the essential rights of
the people, or the overruling sentiments of humanity, might
require a government, whether new or old, to be treated as
an illegitimate despotism. Such are in fact discussed and
admitted by the most approved authorities. But they are
great and extraordinary cases, by no means submitted to so
limited an organ of the national will as the executive of the
United States; and certainly not to be brought by any torture
of words, within the right to receive ambassadors.
That the authority of the executive does not extend to a
question, whether an existing government ought to be recognised
or not, will still more clearly appear from an examination
of the next inference of the writer, to wit: that the
executive has a right to give or refuse activity and operation
to preexisting treaties.
If there be a principle that ought not to be questioned
within the United States, it is, that every nation has a right
to abolish an old government and establish a new one. This
principle is not only recorded in every public archive, written
in every American heart, and sealed with the blood of a host
of American martyrs; but is the only lawful tenure by which
the United States hold their existence as a nation.
It is a principle incorporated with the above, that governments
are established for the national good, and are organs
of the national will.
From these two principles results a third, that treaties
formed by the government, are treaties of the nation, unless
otherwise expressed in the treaties.
Another consequence is, that a nation, by exercising the
right of changing the organ of its will, can neither disengage
itself from the obligations, nor forfeit the benefits of its
treaties. This is a truth of vast importance, and happily
rests with sufficient firmness, on its own authority. To silence
or prevent cavil, I insert, however, the following extracts:
"Since then such a treaty (a treaty not personal to
subsists though the form of the republic happens to be
changed, and though it should be even transformed into a
monarchy—for the state and the nation are always the same,
whatever changes are made in the form of the government—
and the treaty concluded with the nation, remains in force
as long as the nation exists."—Vatel, B. II, § 85. "It follows
that as a treaty, notwithstanding the change of a democratic
government into a monarchy, continues in force with
the new king, in like manner, if a monarchy becomes a republic,
the treaty made with the king does not expire on that
account, unless it was manifestly personal."—Burlam, part
iv., c. ix., § 16, ¶ 6.
As a change of government then makes no change in the
obligations or rights of the party to a treaty, it is clear that
the executive can have no more right to suspend or prevent
the operation of a treaty, on account of the change, than to
suspend or prevent the operation, where no such change has
happened. Nor can it have any more right to suspend the
operation of a treaty in force as a law, than to suspend the
operation of any other law.
The logic employed by the writer on this occasion, will be
best understood by accommodating to it the language of a
proclamation, founded on the prerogative and policy of suspending
the treaty with France.
Whereas a treaty was concluded on the—day of—
between the United States and the French nation, through
the kingly government, which was then the organ of its will:
and whereas the said nation hath since exercised its right
(nowise abridged by the said treaty) of changing the organ
of its will, by abolishing the said kingly government, as inconsistent
with the rights and happiness of the people, and
establishing a republican in lieu thereof, as most favourable
to the public happiness, and best suited to the genius of a
people become sensible of their rights and ashamed of their
chains: and whereas, by the constitution of the United
other public ministers, and consuls: and whereas a public
minister, duly appointed and commissioned by the new republic
of France, hath arrived and presented himself to the
executive, in order to be received in his proper character,
now be it known, that by virtue of the said right vested in
the executive to receive ambassadors, other public ministers
and consuls, and of the rights included therein, the executive
hath refused to receive the said minister from the said republic,
and hath thereby caused the activity and operation of all
treaties with the French nation, hitherto in force as supreme
laws of the land, to be suspended until the executive, by taking
off the said suspension, shall revive the same: of which
all persons concerned are to take notice at their peril.
The writer, as if beginning to feel that he was grasping at
more than he could hold, endeavours all of a sudden to squeeze
his doctrine into a smaller size, and a less vulnerable shape.
The reader shall see the operation in his own words.
"And where a treaty antecedently exists between the
United States and such nation, [a nation whose government
has undergone a revolution,] that right [the right of judging,
whether the new rulers ought to be recognised or not] involves
the power of giving operation or not to such treaty.
For until the new government is acknowledged, the treaties
between the nations as far at least as regards public rights, are
of course suspended."
This qualification of the suspending power, though reluctantly
and inexplicitly made, was prudent, for two reasons:
first, because it is pretty evident that private rights, whether
of judiciary or executive cognizance, may be carried into
effect without the agency of the foreign government: and
therefore would not be suspended, of course, by a rejection
of that agency: secondly, because the judiciary, being an
independent department, and acting under an oath to pursue
the law of treaties as the supreme law of the land, might not
readily follow the executive example; and a right in one
it would be the duty of another expositor to consider them as
in force, would be a phenomenon not so easy to be explained.
Indeed, as the doctrine stands qualified, it leaves the executive
the right of suspending the law of treaties in relation to
rights of one description, without exempting it from the duty
of enforcing it in relation to rights of another description.
But the writer is embarked in so unsound an argument,
that he does not save the rest of his inference by this sacrifice
of one half of it. It is not true, that all public rights are of
course suspended by a refusal to acknowledge the government,
or even by a suspension of the government. And in
the next place, the right in question does not follow from the
necessary suspension of public rights, in consequence of a
refusal to acknowledge the government.
Public rights are of two sorts: those which require the
agency of government; those which may be carried into
effect without that agency.
As public rights are the rights of the nation, not of the
government, it is clear, that wherever they can be made
good to the nation, without the office of government, they
are not suspended by the want of an acknowledged government,
or even by the want of an existing government; and
that there are important rights of this description, will be
illustrated by the following case.
Suppose, that after the conclusion of the treaty of alliance
between the United States and France, a party of the enemy
had surprised and put to death every member of congress;
that the occasion had been used by the people of America
for changing the old confederacy into such a government as
now exists, and that in the progress of this revolution, an
interregnum had happened: suppose further, that during this
interval, the states of South Carolina and Georgia, or any
other parts of the United States, had been attacked, and been
put into evident and imminent danger of being irrecoverably
lost, without the interposition of the French arms; is it not
not of their government, the people of the United States
could not forfeit their right to the guaranty of their territory
by the accidental suspension of their government; and that
any attempt, on the part of France, to evade the obligations
of the treaty, by pleading the suspension of government, or
by refusing to acknowledge it, would justly have been received
with universal indignation, as an ignominious perfidy?
With respect to public rights that cannot take effect in
favour of a nation without the agency of its government, it
is admitted that they are suspended of course where there is
no government in existence, and also by a refusal to acknowledge
an existing government. But no inference in favour of
a right to suspend the operation of treaties, can be drawn
from either case. Where the existence of the government
is suspended, it is a case of necessity; it would be a case happening
without the act of the executive, and consequently
could prove nothing for or against the right. In the other
case, to wit, of a refusal by the executive to recognise an
existing government, however certain it may be, that a suspension
of some of the public rights might ensue; yet it is
equally certain, that the refusal would be without right or
authority; and that no right or authority could be implied
or produced by the unauthorized act. If a right to do whatever
might bear an analogy to the necessary consequence of
what was done without right, could be inferred from the
analogy, there would be no other limit to power than the
limit to its ingenuity.
It is no answer to say that it may be doubtful, whether a
government does or does not exist; or doubtful which may
be the existing and acting government. The case stated by
the writer is, that there are existing rulers; that there is an
acting government; but that they are new rulers; and that
it is a new government. The full reply, however, is to repeat
what has been already observed; that questions of this sort
are mere questions of fact; that as such only, they belong to
if it was tied down to the reception of public ministers,
without any discretion to receive or reject them; that where
the fact appears to be, that no government exists, the consequential
suspension is independent of the executive; that
where the fact appears to be, that the government does exist,
the executive must be governed by the fact, and can have no
right or discretion, on account of the date or form of the
government, to refuse to acknowledge it, either by rejecting
its public ministers, or by any other step taken on that account.
If it does refuse on that account, the refusal is a
wrongful act, and can neither prove nor illustrate a rightful
power.
I have spent more time on this part of the discussion than
may appear to some, to have been requisite. But it was
considered as a proper opportunity for presenting some important
ideas, connected with the general subject, and it
may be of use in showing how very superficially, as well as
erroneously, the writer has treated it.
In other respects, so particular an investigation was less
necessary. For allowing it to be, as contended, that a suspension
of treaties might happen from a consequential operation
of a right to receive public ministers, which is an express
right vested by the constitution; it could be no proof, that
the same or a similar effect could be produced by the direct
operation of a constructive power.
Hence the embarrassments and gross contradictions of the
writer in defining, and applying his ultimate inference from
the operation of the executive power with regard to public
ministers.
At first it exhibits an "important instance of the right of
the executive to decide the obligation of the nation with
regard to foreign nations."
Rising from that, it confers on the executive, a right "to
put the United States in a condition to become an associate
in war."
And at its full height, it authorizes the executive "to lay
the legislature under an obligation of declaring war."
From this towering prerogative, it suddenly brings down
the executive to the right of "consequentially affecting the
proper or improper exercise of the power of the legislature to
declare war."
And then, by a caprice as unexpected as it is sudden, it
espouses the cause of the legislature; rescues it from the
executive right "to lay it under an obligation of declaring
war;" and asserts it to be "free to perform its own duties
according to its own sense of them," without any other control
than what it is liable to, in every other legislative act.
The point at which it finally seems to rest, is, that "the
executive, in the exercise of its constitutional powers, may
establish an antecedent state of things, which ought to weigh
in the legislative decisions;" a prerogative which will import
a great deal, or nothing, according to the handle by which
you take it; and which at the same time, you can take by
no handle that does not clash with some inference preceding.
If "by weighing in the legislative decisions" be meant
having an influence on the expediency of this or that decision,
in the opinion of the legislature; this is no more than what
every antecedent state of things ought to have, from whatever
cause proceeding; whether from the use or abuse of
constitutional powers, or from the exercise of constitutional
or assumed powers. In this sense, the power to establish an
antecedent state of things is not contested. But then it is
of no use to the writer, and is also in direct contradiction to
the inference, that the executive may "lay the legislature
under an obligation to decide in favour of war."
If the meaning be as is implied by the force of the terms
"constitutional powers," that the antecedent state of things
produced by the executive, ought to have a constitutional
weight with the legislature; or, in plainer words, imposes a
constitutional obligation on the legislative decisions; the writer
will not only have to combat the arguments by which such a
last concession, that "the legislature is free to perform its
duties according to its own sense of them." He must show
that the legislature is, at the same time constitutionally free
to pursue its own judgment, and constitutionally bound by the
judgment of the executive.
NO. IV.
The last papers completed the view proposed to be taken
of the arguments in support of the new and aspiring doctrine,
which ascribes to the executive the prerogative of
judging and deciding, whether there be causes of war or not
in the obligations of treaties; notwithstanding the express
provision in the constitution, by which the legislature is
made the organ of the national will, on questions, whether
there be or be not a cause for declaring war. If the answer
to these arguments has imparted the conviction which dictated
it, the reader will have pronounced that they are generally
superficial, abounding in contradictions, never in the
least degree conclusive to the main point, and not unfrequently
conclusive against the writer himself: whilst the
doctrine—that the powers of treaty and war, are in their
nature executive powers, which forms the basis of those
arguments, is as indefensible and as dangerous as the particular
doctrine to which they are applied.
But it is not to be forgotten that these doctrines, though
ever so clearly disproved, or ever so weakly defended, remain
before the public a striking monument of the principles and
views which are entertained and propagated in the community.
It is also to be remembered, that however the consequences
flowing from such premises, may be disavowed at this time,
or by this individual, we are to regard it as morally certain,
that in proportion as the doctrines make their way into the
creed of the government, and the acquiescence of the public,
every power that can be deduced from them, will be deduced,
interest in so doing. The character of human nature gives
this salutary warning to every sober and reflecting mind.
And the history of government in all its forms and in every
period of time, ratifies the danger. A people, therefore, who
are so happy as to possess the inestimable blessing of a free
and defined constitution cannot be too watchful against the
introduction, nor too critical in tracing the consequences, of
new principles and new constructions, that may remove the
landmarks of power.
Should the prerogative which has been examined, be allowed,
in its most limited sense, to usurp the public countenance,
the interval would probably be very short, before it
would be heard from some quarter or other, that the prerogative
either amounts to nothing, or means a right to judge
and conclude that the obligations of treaty impose war, as
well as that they permit peace; that it is fair reasoning to
say, that if the prerogative exists at all, an operative rather
than an inert character ought to be given to it.
In support of this conclusion, there would be enough to
echo, "that the prerogative in this active sense, is connected
with the executive in various capacities—as the organ of
intercourse between the nation and foreign nations—as the
interpreter of national treaties" (a violation of which may
be a cause of war)—"as that power which is charged with
the execution of the laws, of which treaties make a part—as
that power, which is charged with the command and applica
tion of the public force."
With additional force, it might be said, that the executive
is as much the executor as the interpreter of treaties; that if
by virtue of the first character, it is to judge of the obligations
of treaties, it is, by virtue of the second, equally authorised
to carry those obligations into effect. Should there occur,
for example, a casus fœderis, claiming a military cooperation
of the United States, and a military force should happen to
be under the command of the executive, it must have the
force, as it has in quality of interpreter of public treaties to
decide, whether it ought to be employed.
The case of a treaty of peace would be an auxiliary to
comments of this sort: it is a condition annexed to every
treaty, that an infraction even of an important article, on
one side, extinguishes the obligations on the other: and the
immediate consequence of a dissolution of a treaty of peace
is a restoration of a state of war. If the executive is "to
decide on the obligation of the nation with regard to foreign
nations"—"to pronounce the existing condition (in the sense
annexed by the writer) of the nation with regard to them;
and to admonish the citizens of their obligations and duties,
as founded upon that condition of things"—"to judge what
are the reciprocal rights and obligations of the United States,
and of all and each of the powers at war;"—add, that if the
executive, moreover, possesses all powers relating to war
not strictly within the power to declare war, which any pupil
of political casuistry could distinguish from a mere relapse
into a war that had been declared: with this store of materials
and the example given of the use to be made of them, would
it be difficult to fabricate a power in the executive to plunge
the nation into war, whenever a treaty of peace might happen
to be infringed?
But if any difficulty should arise, there is another mode
chalked out, by which the end might clearly be brought
about, even without the violation of the treaty of peace,
especially if the other party should happen to change its
government at the crisis. The executive could suspend the
treaty of peace by refusing to receive an ambassador from the
new government; and the state of war emerges of course.
This is a sample of the use to which the extraordinarypublication
we are reviewing might be turned. Some of the inferences
could not be repelled at all. And the least regular
of them must go smoothly down with those who had swallowed
the gross sophistry which wrapped up the original dose.
Every just view that can be taken of this subject, admonishes
the public of the necessity of a rigid adherence to the
simple, the received, and the fundamental doctrine of the constitution,
that the power to declare war, including the power
of judging of the causes of war, is fully and exclusively vested
in the legislature; that the executive has no right, in any
case, to decide the question, whether there is or is not cause
for declaring war; that the right of convening and informing
congress, whenever such a question seems to call for a decision,
is all the right which the constitution has deemed requisite
or proper; and that for such, more than for any other
contingency, this right was specially given to the executive.
In no part of the constitution is more wisdom to be found,
than in the clause which confides the question of war or peace
to the legislature, and not to the executive department. Beside
the objection to such a mixture to heterogeneous powers,
the trust and the temptation would be too great for any one
man; not such as nature may offer as the prodigy of many
centuries, but such as may be expected in the ordinary successions
of magistracy. War is in fact the true nurse of executive
aggrandizement. In war, a physical force is to be
created; and it is the executive will, which is to direct it.
In war, the public treasures are to be unlocked; and it is the
executive hand which is to dispense them. In war, the
honours and emoluments of office are to be multiplied; and it
is the executive patronage under which they are to be enjoyed.
It is in war, finally, that laurels are to be gathered;
and it is the executive brow they are to encircle. The strongest
passions and most dangerous weaknesses of the human
breast; ambition, avarice, vanity, the honourable or venial
love of fame, are all in conspiracy against the desire and duty
of peace.
Hence it has grown into an axiom that the executive is
the department of power most distinguished by its propensity
to war: hence it is the practice of all states, in proportion
as they are free, to disarm this propensity of its influence.
As the best praise then that can be pronounced on an
executive magistrate, is, that he is the friend of peace; a
praise that rises in its value, as there may be a known capacity
to shine in war: so it must be one of the most sacred
duties of a free people, to mark the first omen in the society,
of principles that may stimulate the hopes of other magistrates
of another propensity, to intrude into questions on
which its gratification depends. If a free people be a wise
people also, they will not forget that the danger of surprise
can never be so great, as when the advocates for the prerogative
of war can sheathe it in a symbol of peace.
The constitution has manifested a similar prudence in
refusing to the executive the sole power of making peace.
The trust in this instance also, would be too great for the
wisdom, and the temptations too strong for the virtue, of a
single citizen. The principle reasons on which the constitution
proceeded in its regulation of the power of treaties, including
treaties of peace, are so aptly furnished by the work
already quoted more than once, that I shall borrow another
comment from that source.
"However proper or safe it may be in a government where
the executive magistrate is an hereditary monarch, to commit
to him the entire power of making treaties, it would be
utterly unsafe and improper to entrust that power to an
elective magistrate of four years' duration. It has been remarked
upon another occasion, and the remark is unquestionably
just, that an hereditary monarch, though often the
oppressor of his people, has personally too much at stake in
the government to be in any material danger of being corrupted
by foreign powers: but that a man raised from the
station of a private citizen to the rank of chief magistrate,
possessed of but a moderate or slender fortune, and looking
forward to a period not very remote, when he may probably
be obliged to return to the station from which he was taken,
might sometimes be under temptations to sacrifice his duty
to his interest, which it would require superlative virtue to
the interests of the state to the acquisition of wealth. An
ambitious man might make his own aggrandizement, by the
aid of a foreign power, the price of his treachery to his constituents.
The history of human conduct does not warrant
that exalted opinion of human virtue, which would make it
wise in a nation to commit interests of so delicate and momentous
a kind, as those which concern its intercourse with
the rest of the world, to the sole disposal of a magistrate
created and circumstanced as would be a president of the
United States." p. 418.[86]
I shall conclude this paper and this branch of the subject,
with two reflections, which naturally arise from this view of
the constitution.
The first is, that as the personal interest of an hereditary
monarch in the government, is the only security against the
temptation incident to the commitment of the delicate and
momentous interests of the nation, which concern its intercourse
with the rest of the world, to the disposal of a single
magistrate, it is a plain consequence, that every addition that
may be made to the sole agency and influence of the executive,
in the intercourse of the nation with foreign nations, is
an increase of the dangerous temptation to which an elective
and temporary magistrate is exposed; and an argument and
advance towards the security afforded by the personal interests
of an hereditary magistrate.
Secondly, as the constitution has not permitted the executive
singly to conclude or judge that peace ought to be made,
it might be inferred from that circumstance alone, that it
never meant to give it authority, singly, to judge and conclude
that war ought not to be made. The trust would be
precisely similar and equivalent in the two cases. The right
to say that war ought not to go on, would be no greater than
the right to say that war ought not to begin. Every danger
of error or corruption, incident to such a prerogative in one
has deemed it unsafe or improper in the one case, it
must be deemed equally so in the other case.
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,
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
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,"
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
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
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 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
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]
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
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
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."
TO THOMAS JEFFERSON.
. . . This hurries me; And has forced me to hurry what will be
inclosed herewith, particularly the last N°. V, which required particular
care in the execution. I shall be obliged to leave that & the greater
part of the other Nos to be transcrd, sealed up & forwarded in my
absence. It is certain therefore that many little errors will take place.
As I cannot let them be detained till I return, I must pray you to make
such corrections as will not betray your hand. In pointing & erasures
not breaking the sense, there will be no difficulty. I have already
requested you to make free with the latter.[88]
You will find more
quotations from the Fedt. Dash them out if you think the most
squeamish critic could object to them. In N°. 5. I suggest to your
attention a long preliminary remark into which I suffered myself to be
led before I was aware of the prolixity. As the piece is full long
without it, it had probably better be lopped off. The propriety of the
two last paragraphs claims your particular criticism. I wd not have
hazarded them without the prospect of your revisal, & if proper your
erasure. That which regards Spain &c may contain unsound reasoning,
or be too delicate to be touched in a Newspaper. The propriety
of the last, as to the President's answers to addressers depends on the
truth of the fact, of which you can judge. I am not sure that I have
seen all the answers. My last was of the 12th, & covered the 2 first
Nos. of H[elvidiu]s. I am assured that it was put into the post office
on tuesday evening. It ought therefore to have reached you on
saturday last. As an oppy to Fredg may happen before more than the
3d No. may be transcribed, it is possible that this may be accompanied
by that alone. . . .—Mad. MSS.
TO THOMAS JEFFERSON.
I left home the day before yesterday which was the date of my last,
it was to be accompanied by 2 & perhaps tho' not probably 3 additional
Nos of H-l-v-d-s. The last to wit N°. 5, contained two paragraphs
the one relating to the accession of S. & P. to the war against F. the
other to the answers of the P. to the addresses on his proclamation,
which I particularly requested you to revise, and if improper, to
erase. The whole piece was more hurried than it ought to have been,
and these paragraphs penned in the instant of my setting out which had
been delayed as late as would leave enough of the day for the journey.
I mention this as the only apology for the gross error of fact committed
with respect to the term neutrality, which it is asserted the P. has not
used in any of his answers. I find on looking into them here, that he
used it in the first of all, to the Merchts of Philada, and in one other
out of three which I have examined. I must make my conditional
request therefore an absolute one as to that passage. If he should
forbear the use of the term in all his answers subsequent to the perversion
of it by Pacificus, it will strengthen the argument used; but
that must be a future & contingent consideration. . . .—Mad.
MSS.
TO THOMAS JEFFERSON.
I wrote you a few lines by the last post from this place just to
apprise you of my movement to it. I have since seen the Richmond &
the Philada papers containing, the latter the certificate of Jay & King
& the publications relating to the subject of it, the [former,] latter, the
proceedings at Richmond dictated no doubt by the cabal at Philada.
It is painful to observe the success of the management for putting
Wythe at the head of them. I understand however that a considerable
revolution has taken place in his political sentiments under the
influence of some disgusts he has received from the State Legislature.
By what has appeared I discover that a determination has been
formed to drag before the public the indiscretions of Genet; and
turn them & the popularity of the P. to the purposes driven at. Some
impression will be made here of course. A plan is evidently laid in
Richd to render it extensive. If an early & well-digested effort for
calling out the real sense of the people be not made, there is room to
apprehend they may in many places be misled. This has employed the
conversation of—& myself. We shall endeavor at some means
of repelling the danger; particularly by setting on foot expressions of
the public mind in important Counties, and under the auspices of
respectable names. I have written with this view to Caroline, and
have suggested a proper train of ideas, and a wish that Mr. P. would
patronize the measure. Such an example would have great effect.
Even if it shd not be followed it would be considered as an authentic
specimen of the Country temper; and would put other places on their
guard agst the snares that may be laid for them. The want of opportunities,
and our ignorance of trustworthy characters, will circumscribe
our efforts in this way to a very narrow compass. The rains
for several days have delayed my trip to the Gentleman named in my
last. Unless to-morrow shd be a favorable day, I shall be obliged to
decline it altogether. In two or three days I shall be in a situation to
receive & answer your letters as usual. That by Mr. D R. has not yet
reached me.—Mad. MSS.
The writer ought not in the same paper, No. VII., to have said:
"Had the president announced his own disposition, he would have been
chargeable with egotism, if not presumption."
The writer is betrayed into an acknowledgment of this in his
seventh number, where he applies his reasoning to Spain as well as to
Great Britain and Holland. He had forgotten that Spain was not
included in the proclamation.
Pacificus (Alexander Hamilton) defended the proclamation of
neutrality in eight articles in the Gazette of the United States, the
last one appearing July 27. Jefferson was so alarmed at the effect
they were producing that he wrote Madison, July 7: "Nobody answers
him & his doctrines will therefore be taken for confessed. For God's
sake, my dear Sir, take up your pen, select the most striking heresies
and cut him to pieces in the face of the public. There is nobody else
who can & will enter the lists against him." (Writings, vi., 338.)
Madison's five articles under the name Helvidius appeared in the
same paper on the following dates: No. 1, August 24; No. 2, August
28, and September 11; No. 3, September 7; No. 4, September 14; and
No. 5, September 18. The interest in the articles was extraordinary
because there was no doubt who the real authors were. Madison's
arguments were chiefly directed against Hamilton's first paper which
unfolded his idea of the powers of the Executive. He had when he
began to write the articles the intention of meeting all of Hamilton's
arguments, but he abandoned the task. All the letters were reprinted
in 1845 by J. and G. S. Gideon (Washington) and in the Writings of
Hamilton (Lodge), iv., 135, seven of the Pacificus papers are given.
TO THOMAS JEFFERSON.
. . . As I intimated in my last I have forced myself into the
task of a reply. I can truly say I find it the most grating one I ever
experienced; and the more so as I feel at every step I take the want of
counsel on some points of delicacy as well as of information as to sundry
matters of fact. I shall be still more sensible of the latter want
when I get to the attack on French proceedings, & perhaps to the last
topic proposed by the writer, if I ever do get to it. As yet I have but
roughly and partially gone over the first; & being obliged to proceed
in scraps of time, with a distaste to the subject, and a distressing
lassitude from the excessive & continued heat of the season, I cannot
say when I shall finish even that. One thing that particularly vexes
me is that I foreknow from the prolixity & pertinacity of the writer,
that the business will not be terminated by a single fire, and of course
that I must return to the charge in order to prevent a triumph without
a victory.[82]
Do you know what is the idea of France with regard to the defensive
quality of the Guaranty; and of the criterion between offensive
& defensive war which I find differently defined by different jurists;
also what are the ideas of the P. on these points. I could lay my
course with more advantage thro' some other parts of the subject
if I could also know how far he considers the Procln as expressing a
neutrality in the sense given to that term, or how far he approves the
vindication of it on that ground.
I am sorry to find the journey to Virga [83]
from which useful lessons
were hoped, ending in a confirmation of errors. I can only account
for it by supposing the public sentiment to have been collected from
tainted sources, wch ought to have suggested to a cautious & unbiassed
mind the danger of confiding in them. The body of the people are
unquestionably attached to the Union, and friendly to the Constitution;
but that they have no dissatisfaction at the measures & spirit
of the Government, I consider as notoriously untrue. I am the more
surprised at the misconception of our Friend as the two latest sources
consulted, the two brothers[84]
I mean, are understood to be both of
them rightly disposed as well as correctly informed.—Mad. MSS.
TO THOMAS JEFFERSON.
. . . Your acct of the ticklish situation with respect to Genet
in the 14th is truly distressing. His folly would almost beget suspicions
of the worst sort. The consequences you point out in case
matters come to an extremity are so certain & obvious that it is hardly
conceivable he can be blind to them. Something must be done if
possible to get him into a better train. I find by the paper of the 27,
that Pacificus has entered & I suppose closed his last topic. I think
it a feeble defence of one important point I am striking at: viz., the
making a declaration in his sense of it, before the arrival of Genet.
I argue that the Act does not import a decision agst the cas: fed:
from the manifest impropriety of doing so on the ground that France
was the aggressor in every war, without at least waiting for evidence
as to the question of fact who made the first attack admitting for the
sake of argt that to be the intention. A difficulty has occurred which
will retard my remarks more than I expected. They must be prepared
for the same Gazette consequently copied into another hand.
I am laying a plan for havg. it done here, but it cannot be done as
quickly as I wish.—Mad. MSS.
TO THOMAS JEFFERSON.
The task on which you have put me, must be abridged so as not to
go beyond that period. You will see that the first topic is not yet
compleated. I hope the 2d, & 3d, to wit the meang of the Treaty &
the obligations of gratitude will be less essential. The former is
particularly delicate; and tho' I think it may be put in a light that
wd. reflect ignominy on the author of P., yet I had rather not meddle
with the subject if it cd. be avoided. I cannot say when I shall be able
to take up those two parts of the job. Just as I was embarking in the
general subject I recd. from the reputed Author of Franklyn a large
pamphlet written by him agst the fiscal system, particularly the
Bank; which I could not but attend to. It is put on a footing that
requires me to communicate personally with Monroe, whom I ought
to have seen before this, as the publication of the work is to be contrived
for the Author. It really has merit, always for its ingenuity,
generally for its solidity, and is enriched with many fine strokes of
imagination, and a continued vein of pleasantry & keen satire, that
will sting deeply. I have recd. a letter from the Author, wishing to
hear from me. I must therefore take a ride as far as Charlottesville
as soon as I make out the next packet for you, and suspend the residue
of the business till I return. I shall endeavour in my absence to
fulfill a promise to Wilson Nicholas which will lengthen the suspension.
I forwd. to F. a copy of the little thing of Ld Ch.; the last sentence is
struck out as not necessary, and which may perhaps wound too indiscriminately
certain characters not at present interested in supporting
public corruptions. . . .
The paper for J. F. could not otherwise get to him than with your
aid. You must therefore take the trouble of having it handed into
the post office whence the penny post will take it, unless you can do it
at some shorter hand. I wish you would look over what is sd. critically,
and if you think there be any thing of importance wrong, or that may
do more harm than good, that you will either erase it, where that will
not break the sense, or arrest the whole till I can make the correction.
Delay I know is bad; but vulnerable parts that wd. be seized for
victories & triumphs would be worse. I beg you also to attend
particularly to those passages slightly marked with a pencil, the first,
the declaration of the principles & sentiments of the Author—the 2d,
beginning with, "Writers such as Locke & Montesquieu &c. to the
pencil mark in the ¶. 3d. the quotation from the Federalist. If you
think the first had better be omitted it can come out without leavg the
least gap—so can the 2d. my doubts as to that proceed from the
danger of turning the controversy too much into the wilderness of
Books. I use Montesquieu also, from memory, tho I believe witht inaccuracy
—The 3d can also come out witht affecting the piece; and I
wish you to erase it if you think the most scrupulous delicacy, conjecturing
the author, cd disapprove it. One N° more or 2 short Nos
will close the first topic and supersede the last. They will be sent as
soon as finished & copied. These wd have been sent somewhat
sooner, but for the delay caused by the last circumstance. . . .—
Mad. MSS.
| The writings of James Madison, | |