The Essential Hamilton, page 31
9 To be an able and firm supporter of the Government of the Union is in the eyes of the men referred to a crime sufficient to justify the most malignant persecution. Hence the attacks which have been made and repeated with such persevering industry upon more than one public Character in that Government. Hence the effort which is now going on to depreciate in the eyes and estimation of the People the man whom their unanimous suffrages have placed at the head of it.
10 Hence the pains which are taking to inculcate a discrimination between principles and men and to represent an attachment to the one as a species of war against the other; an endeavour, which has a tendency to stifle or weaken one of the best and most useful feelings of the human heart—a reverence for merit—and to take away one of the strongest incentives to public virtue—the expectation of public esteem.
11 A solicitude for the character who is attacked forms no part of the motives to this comment. He has deserved too much, and his countrymen are too sensible of it to render any advocation of him necessary. If his virtues and services do not secure his fame and ensure to him the unchangeable attachment of his fellow Citizens, twere in vain to attempt to prop them by anonymous panygeric.
12 The design of the observations which have been made is merely to awaken the public attention to the views of a party engaged in a dangerous conspiracy against the tranquillity and happiness of their country. Aware that their hostile aims against the Government can never succeed til they have subverted the confidence of the people in its present Chief Magistrate, they have at length permitted the suggestions of their enmity to betray them into this hopeless and culpable attempt. If we can destroy his popularity (say they) our work is more than half completed.
13 In proportion as the Citizens of the UStates value the constitution on which their union and happiness depend, in proportion as they tender the blessings of peace and deprecate the calamities of War—ought to be their watchfulness against this success of the artifices which will be employed to endanger that constitution and those blessings. A mortal blow is aimed at both.
14 It imports them infinitely not to be deceived by the protestations which are made—that no harm is meditated against the Constitution—that no design is entertained to involve the peace of the Country. These appearances are necessary to the accomplishment of the plan which has been formed. It is known that the great body of the People are attached to the constitution. It would therefore defeat the intention of destroying it to avow that it exists. It is also known that the People of the UStates are firmly attached to peace. It would consequently frustrate the design of engaging them in the War to tell them that such an object is in contemplation.
15 A more artful course has therefore been adopted. Professions of good will to the Constitution are made without reserve: But every possible art is employed to render the administration and the most zealous and useful friends of the Government odious. The reasoning is obvious. If the people can be persuaded to dislike all the measures of the Government and to dislike all or the greater part of those who have been most conspicuous in establishing or conducting it—the passage from this to the dislike and change of the constitution will not be long nor difficult. The abstract idea of regard for a constitution on paper will not long resist a thorough detestation of its practice.
16 In like manner, professions of a disposition to preserve the peace of the Country are liberally made. But the means of effecting the end are condemned; and exertions are used to prejudice the community against them. A proclamation of neutrality in the most cautious form is represented as illegal—contrary to our engagements with and our duty towards one of the belligerent powers. The plain inference is that in the opinion of these characters the UStates are under obligations which do not permit them to be neutral. Of course they are in a situation to become a party in the War from duty.
17 Pains are likewise taken to inflame the zeal of the people for the cause of France and to excite their resentments against the powers at War with her. To what end all this—but to beget if possible a temper in the community which may overrule the moderate or pacific views of the Government.
c. May 1793
Pacificus No. I
As attempts are making very dangerous to the peace, and it is to be feared not very friendly to the constitution of the UStates—it becomes the duty of those who wish well to both to endeavour to prevent their success.
The objections which have been raised against the Proclamation of Neutrality lately issued by the President have been urged in a spirit of acrimony and invective, which demonstrates, that more was in view than merely a free discussion of an important public measure; that the discussion covers a design of weakening the confidence of the People in the author of the measure; in order to remove or lessen a powerful obstacle to the success of an opposition to the Government, which however it may change its form, according to circumstances, seems still to be adhered to and pursued with persevering Industry.
This Reflection adds to the motives connected with the measure itself to recommend endeavours by proper explanations to place it in a just light. Such explanations at least cannot but be satisfactory to those who may not have leisure or opportunity for pursuing themselves an investigation of the subject, and who may wish to perceive that the policy of the Government is not inconsistent with its obligations or its honor.
The objections in question fall under three heads—
1 That the Proclamation was without authority
2 That it was contrary to our treaties with France
3 That it was contrary to the gratitude, which is due from this to that country; for the succours rendered us in our own Revolution.
4 That it was out of time & unnecessary.
In order to judge of the solidity of the first of these objections, it is necessary to examine what is the nature and design of a proclamation of neutrality.
The true nature & design of such an act is—to make known to the powers at War and to the Citizens of the Country, whose Government does the Act that such country is in the condition of a Nation at Peace with the belligerent parties, and under no obligations of Treaty, to become an associate in the war with either of them; that this being its situation its intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality; and as a consequence of this state of things, to give warning to all within its jurisdiction to abstain from acts that shall contravene those duties, under the penalties which the laws of the land (of which the law of Nations is a part) annexes to acts of contravention.
This, and no more, is conceived to be the true import of a Proclamation of Neutrality.
It does not imply, that the Nation which makes the declaration will forbear to perform to any of the warring Powers any stipulations in Treaties which can be performed without rendering it an associate or party in the War. It therefore does not imply in our case, that the UStates will not make those distinctions, between the present belligerent powers, which are stipulated in the 17th and 22d articles of our Treaty with France; because these distinctions are not incompatible with a state of neutrality; they will in no shape render the UStates an associate or party in the War. This must be evident, when it is considered, that even to furnish determinate succours, of a certain number of Ships or troops, to a Power at War, in consequence of antecedent treaties having no particular reference to the existing war, is not inconsistent with neutrality; a position well established by the doctrines of Writers and the practice of Nations.†
But no special aids, succours or favors having relation to war, not positively and precisely stipulated by some Treaty of the above description, can be afforded to either party, without a breach of neutrality.
In stating that the Proclamation of Neutrality does not imply the non performance of any stipulations of Treaties which are not of a nature to make the Nation an associate or party in the war, it is conceded that an execution of the clause of Guarantee contained in the 11th article of our Treaty of Alliance with France would be contrary to the sense and spirit of the Proclamation; because it would engage us with our whole force as an associate or auxiliary in the War; it would be much more than the case of a definite limited succour, previously ascertained.
It follows that the Proclamation is virtually a manifestation of the sense of the Government that the UStates are, under the circumstances of the case, not bound to execute the clause of Guarantee.
If this be a just view of the true force and import of the Proclamation, it will remain to see whether the President in issuing it acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.
It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the UStates.
It can as little be disputed, that a Proclamation of Neutrality, where a Nation is at liberty to keep out of a War in which other Nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the Nation being immediately responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principles of neutrality.‡
An object this of the greatest importance to a Country whose true interest lies in the preservation of peace.
The inquiry then is—what department of the Government of the UStates is the proper one to make a declaration of Neutrality in the cases in which the engagements of the Nation permit and its interests require such a declaration.
A correct and well informed mind will discern at once that it can belong neither to the Legislative nor Judicial Department and of course must belong to the Executive.
The Legislative Department is not the organ of intercourse between the UStates and foreign Nations. It is charged neither with making nor interpreting Treaties. It is therefore not naturally that Organ of the Government which is to pronounce the existing condition of the Nation, with regard to foreign Powers, or to admonish the Citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.
It is equally obvious that the act in question is foreign to the Judiciary Department of the Government. The province of that Department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of Treaties between Government and Government. This position is too plain to need being insisted upon.
It must then of necessity belong to the Executive Department to exercise the function in Question—when a proper case for the exercise of it occurs.
It appears to be connected with that department in various capacities, as the organ of intercourse between the Nation and foreign Nations—as the interpreter of the National Treaties in those cases in which the Judiciary is not competent, that is in the cases between Government and Government—as that Power, which is charged with the Execution of the Laws, of which Treaties form a part—as that Power which is charged with the command and application of the Public Force.
This view of the subject is so natural and obvious—so analogous to general theory and practice—that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the UStates.
Let us see then if cause for such doubt is to be found in that constitution.
The second Article of the Constitution of the UStates, section 1st, establishes this general Proposition, That “The EXECUTIVE POWER shall be vested in a President of the United States of America.”
The same article in a succeeding Section proceeds to designate particular cases of Executive Power. It declares among other things that the President shall be Commander in Cheif of the army and navy of the UStates and of the Militia of the several states when called into the actual service of the UStates, that he shall have power by and with the advice of the senate to make treaties; that it shall be his duty to receive ambassadors and other public Ministers and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications; as in regard to the cooperation of the Senate in the appointment of Officers and the making of treaties; which are qualifications of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of Executive authority would naturally dictate the use of general terms—and would render it improbable that a specification of certain particulars was designd as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution in regard to the two powers the Legislative and the Executive serves to confirm this inference. In the article which grants the legislative powers of the Governt. the expressions are—“All Legislative powers herein granted shall be vested in a Congress of the UStates;” in that which grants the Executive Power the expressions are, as already quoted “The EXECUTIVE POWER shall be vested in a President of the UStates of America.”
The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.
The general doctrine then of our constitution is, that the EXECUTIVE POWER of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.
Two of these 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.”
With these exceptions the EXECUTIVE POWER of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.
And since upon general principles for reasons already given, the issuing of a proclamation of neutrality is merely an Executive Act; since also the general Executive Power of the Union is vested in the President, the conclusion is, that the step, which has been taken by him, is liable to no just exception on the score of authority.
It may be observed that this Inference would be just if the power of declaring war had not been vested in the Legislature, but that this power naturally includes the right of judging whether the Nation is under obligations to make war or not.
The answer to this is, that however true it may be, that the right of the Legislature to declare war includes the right of judging whether the Nation 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 Judgment, in the execution of its own functions.
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 in them 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.
This is the direct and proper end of the proclamation of neutrality. It declares to the UStates their situation with regard to the Powers at war and makes known to the Community that the laws incident to that situation will be enforced. In doing this, it conforms to an established usage of Nations, the operation of which as before remarked is to obviate a responsibility on the part of the whole Society, for secret and unknown violations of the rights of any of the warring parties by its citizens.
Those who object to the proclamation will readily admit that it is the right and duty of the Executive to judge of, or to interpret, those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges: But the necessary consequence of this is, that the Executive must judge what are the proper bounds of those privileges—what rights are given to other nations by our treaties with them—what rights the law of Nature and Nations gives and our treaties permit, in respect to those Nations with whom we have no treaties; in fine what are the reciprocal rights and obligations of the United States & of all & each of the powers at War.
The right of the Executive to receive ambassadors and other public Ministers may serve to illustrate the relative duties of the Executive and Legislative Departments. This right includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to be recognised or not: And where a treaty antecedently exists between the UStates and such nation that right involves the power of giving operation or not to such treaty. For until the new Government is acknowleged, the treaties between the nations, as far at least as regards public rights, are of course suspended.
