The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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NO. III. |
 | The writings of James Madison, |  |
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.
| The writings of James Madison, | |