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James Madison
##Helvidius No. 1 | August 24, 1793
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 us, who hate our republican government, and the French revolution; whilst the publication seems to have been too little regarded, or too much despised by the steady friends 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; thALTalent11!!ey are mingled with a few truths that may serve them as 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 shew, from the publication itself, that under colour of vindicating an important public act, of a chief magistrate, who enjoys the confidence and love of his country, principles are advanced which strike at the vitals of its constitution, as well as at its honor 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 favorable 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 authorised, 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 federis or eventual operation of the contract, relating to war; and, to pronounce the state of things resulting from the obligations 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 22d 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 specially and strictly excepted out of the grant.
Let us examine this doctrine; and that we may avoid the possibility of mistating 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 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 farther than is essential to their execution.”
If there be any countenance to these positions, it must be found either 1st, in the writers, of authority, on public law; or 2d, in the quality and operation of the powers to make war and treaties; or 3d, in the constitution of the United 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, are 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 Wolfius, Burlamaqui and Vattel, 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 particularly 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; * 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 executive, 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 dropt 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.
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 preexisting laws to be executed: it is not in any respect, an act merely executive. It is, on the contrary, one of the most deliberative 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.
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 compleat.
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 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 of powers among the several branches of the government? 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 shewn, 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 regulation under which the senate give their consent in the 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 the 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 shall have power to grant reprieves and pardons for offences 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 of 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 shewn, 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 declare war, such as these have been found to be in their nature, 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 aera 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.
“Tho’ several writers on the subject of government place that power (of making treaties ) in the class of Executive authorities, yet this is evidently an arbitrary disposition. For 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 comprize 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 negociations, 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 vol. 2. p. 273. 1
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.
##Helvidius No. 2 | August 31, 1793
The doctrine which has been examined, is pregnant with inferences and consequences against which no ramparts in the constitution could defend the public liberty, or scarcely 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 chuse 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, tho’ 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 declare war includes the right to judge whether the United 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; tho’ 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 these 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 of the obligations to declare war, and this must be intended 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 a fair 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 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 right to declare as it has to judge; & 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 enquiry 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 operate separately in each. Still more evident is it, that the 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 each 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 to perform the same function with respect to the same thing, 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, thro’ 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 branches, would be thrown into absolute hotchpot, and exposed 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 recognizes, 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 master piece 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 there is nothing in them (obligations) 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.
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 obey.
Take this sentence in connection with the preceeding 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 circumstance of other nations being at war. The term has no reference to the existence or non-existence 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 authorised 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 with neutrality, the question returns upon him, what laws are to be inforced 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 recognizes 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 the force of external laws, than its duty to preserve internal 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.
The Pacificus-Helvidius Debates of 1793-1794 | Online Library of Liberty. (n.d.). Oll.libertyfund.org. https://oll.libertyfund.org/titles/frisch-the-pacificus-helvidius-debates-of-1793-1794