« AnteriorContinuar »
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 recognized 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 pre-existing 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 do the sovereign) “ directly relates to the body of the state, it subsists though the form of “the republic happens to be changed, and though it should be even 6 transformed into a monarchy - for the state and the nation are always " the same, whatever changes are made in the form of the
government, 6 and the treaty concluded with the nation remains in force as long as 66 the nation exists." – Vattel, B. II, § 85. 66 It follows that as a treaty, 6 notwithstanding the change of a democratic government into a mon« archy, continues in force with the new king, in like manner, if a mon" archy becomes a republic, the treaty made with the king does not ex“ pire 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
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 incon
sistent with the rights and happiness of the people, and establishing a republican in lieu thereof, as most favorable 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 Stutes, the executive is authorized to receive ambassadors, 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 can hold, endeavors 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.
s And where a treaty antecedently exists between the United States: “ and such nation, [a nation whose government has undergone a revo
lution,] that right (the right of judging, whether the new rulers ought "to be recognized 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 expositor of treaties, to consider them as not in force, whilst 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 ta acknowledge the government. Public rights are of two sorts : those which require the agency
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 manifest, that as the treaty is the treaty of the United States, 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 favor 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 favor 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 author. ity 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
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 the executive; that they would equally belong to the executive, 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 acknowl.
edge it, either by rejecting its public minister, or by any other step taken on that account. If it does refuse on that account, the refusal is a wrong. ful 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 gen. eral 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 direet 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 execu“tive to decide the obligation of the nation with regard to foreign nations."
Rising from that, it confess on the executive, a right “to put the Unit66ed 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 favor of war."
If the meaning be as is implied by the force of the terms constitu" tional 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 prerogative has been disproved; but to reconcile it with his 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 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 ; nothwithstanding the ex•press 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 the 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 ihe doctrine — that the powers of treaty and war, are in their nature executive powers, which forms the basis of those arguments, is ás indefensible and as dangerous as the particular doctrine to which they are aș lied.
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, 's 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 viola