University of Virginia Library

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,

and exercised sooner or later by those who may have an
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

same right, as executor of public treaties, to employ the public
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

withstand. An avaricious man might be tempted to betray
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

case, is incident to it in the other. If the constitution therefore
has deemed it unsafe or improper in the one case, it
must be deemed equally so in the other case.