Letters of Pacificus and Helvidius on the Proclomation of Neutrality of 1793

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LETTERS

(

i PACIFICUS AND HELVIDIUS,

'i'J'f^^ ON THE

_ PROCLAMATION OP NEUTRALITY OF 1793,

S BT

ALEXANDER HAMILTON, (PACIFICUS,)

AND

JAMES MADISON, (HELVIDIUS,)
(

TO WHICH IS PREFIXED

THE PROCLAMATION.

WASHINGTON:

PRINTED AND rUBLISIIED BY J. AND G. S. GIDEON.

1845.

Cheeked

THENEWYORK

PUBLIC LIBRARY

ASTOR, LFN»X AND
TILOrN FOUHttATIONS

1000.

PROCLAMATION OF NEUTRALITY,
Aj)rU 22, 1793.

Whereas, it appears that a state of war exists between
Austria, Prussia, Sardinia, Great Britain, and the United
Netherland, of the one part; and France on the other —
and the duty and interests of the United States require
that they should with sincerity and good faith adopt and
pursue a conduct friendly and impartial towards the beli-
gerent powers.

I have therefore thought fit by these presents, to declare
the disposition of the United States to observe the conduct
aforesaid towards those powers respectively ; and to ex-
hort and warn the citizens of the United States carefully
to avoid all acts and proceedings whatsoever, which may
in any manner tend to contravene such disposition.

And I do hereby also make known, that whosoever of
the citizens of the United States shall render himself liable
to punishment or forfeiture under the law of nations, by
committing, aiding, or abetting hostilities against any of
the said powers, or by carrying to any of them those arti-
cles which are deemed contraband by the modern usuage
of nations, will not receive the protection of the United
States against such punishment or forfeiture; and further,
that I have given instructions to those officers, to whom it
belongs, to cause prosecutions to be instituted against all
persons who shall, within the cognizance of the courts of
the United States, violate the laws of nations, with respect
to the powers at war, or any of them.

In testimony whereof, I have caused the seal of the UniT
ted States of America to be affixed to these presents, and
signed the same with my hand. Done at the City of Phil-
adelphia, the 22d day of April, one thousand seven hundred
and ninety three, and of the Independence of the United
States of America, the seventeenth.

George Washington.

LETTERS

OF

PACinCUS AND HELVIDIUS,

ON

THE PROCLAMATION OF PRESIDENT WASHINGTON.
PACIFICUS.

BY ALEXANDER HAMILTON.

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 United States, 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 pro-
clamation 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 pubhc measure. They ex-
hibit evident indications of a design to weaken the confi-
dence 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 persisted in with unremitting industry.

This reflection adds to the motives connected with the
measure itself, to recommend endeavours, by proper ex-
planations, to place it in a just light. Such explanations
at least cannot but be satisfactory to those who may not

6 LETTERS OF

themselves have leisure or opportunity for pursuing an in-
vestigation of the subject, and who may wish to perceive,
that the policy of the government is not inconsistent with
its obligations or its honour.

The objections in question fall under four 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 afforded to us
in our own revolution.

4. That it was out of time and unnecessary.

In order to judge of the solidity of the first of these ob-
jections, it is necessary to examine what is the nature and
design of a proclamation of neutrality.

It 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 belligerant parties, and under no obhgations of
treaty to become an associate in the war with either, and
that this being its situation, its intention is to observe a
correspondent conduct, by performing towards each the
duties of neutrality ; to warn all persons within the jurisdic-
tion of that country, to abstain from acts that shall contra-
vene those duties, under the penalties which the laws of
the land, of which the just gentium is part, will inflict.

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 de-
claration, will forbear to perform to either of the warring
powers any stipulations in treaties which can be executed,
without becoming r party in the war. It therefore does
not imply in our case, that the United States will not make
those distinctions, between the present belligerant powers,
which are stipulated in the 7th and 22d articles of our

PACIFICUS. i

treaty with France •, because they are not incompatible with
the state of neutrahty ; and will in no shape render the
United States an associate or party in the war. This must
be evident, when it is considered that even to furnish de-
terminate succours of ships or troops, to a power at war,
in consequence of antecedent treaties having no particu-
lar reference to the existing quarrel, is not inconsistent
with neutrality : a position equally well established by the
doctrines of writers, and the practice of nations *

But no special aids, succours, or favours, 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
in the war, it is conceded that an execution of the clause of
guaranty, contained in the eleventh 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 auxiliary in the war ; it would be
much more than the case of a definite succoar, previously
ascertained.

It follows, that the proclamation is virtually a manifes-
tation of the sense of the government, that the United
States are, under the circumstances of the case, not bound
to execute the clause of guaranty.

If this be a just view of the force and import of the pro-
clamation, it will remain to see, whether the president, in
issuing it, acted within his proper sphere, or stepped be-
yond the bounds of his constitutional authority and duty.

It will not be disputed, that the management of the af

»Sec Vatel, Book III, Ch. 6, Sec. 101,

,, LETTERS OF

/ f

lairs of this country with foreign nations, is confided to the
government of the United States.

It can as httle be disputed, that a proclamation of neu-
trahty, when a nation is at hberty to dechne or avoid a war
in which other nations are engaged, and means to do so,
is a usual and a proper measure. Its main object is to
prevent the nation'' s being responsible for acts done by its
citizens^ without the privity or connivance of the govern-
ment^ in contravention of the principles of neutrality f an
object of the greatest moment to a country, whose true in-
terest hes in the preservation of peace.

The inquiry then is, what department of our govern-
ment is the proper one to make a declaration of neutrality,
when the engagements of the nation permit, and its inter-
ests require that it should be done ?

A correct mind will discern at once, that it can belong
neither to the legislative nor judicial department, of course
must belong to the executive.

The legislative department is not the organ of inter-
course between the United States and foreign nations. It
is charged neither with 7naking nor interpreting treaties.
It is therefore not naturally that member of the govern-
ment, which is to pronounce the existing condition of the
nation, with regard to foreign powers, or to admonish the
citizens of their obhgations and duties in consequence;
still less is it charged with enforcing the observance of
those obligations and duties.

It is equally obvious, that the act in question is foreign
to the judiciary department. The province of that depart-
ment is to decide litigations in particular cases. It is in-
deed charged with the interpretation of treaties, but it ex-
ercises this function only where contending parties bring
before it a specific controversy. It has no concern with

*See Vatel, Book III, Chap, 7, Sec. 113.

PACIFICUS. 0

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 de-
partment to exercise the function in question, when a pro-
per case for it occurs.

It appears to be connected with that department in va-
rious 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, between government and govern-
ment; as the power ^ which is charged with the execution
of the laws, of which treaties form a part ; as that which is
charged with the command and disposition 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 to be deduced
from particular provisions of the constitution of the United
States.

Let us see, then, if cause for such doubt is to be found
there.

The second article of the constitution of the United
States, section first, 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
delineate partiular cases of executive power. It declares,
among other things, that the president shall be commander
in chief of the army and navy of the United States, and
of the militia of the several States, when called into the
actual service of the United States ; that he shall have pow-
er, by and with the advice and consent of the senate, to
make treaties ; that it shall be his duty to receive ambas-

10 LETTERS OF

sadors and other public ministers, and to take care that
the laws he faithfully executed.

It would not consist with the rules of sound construc-
tion, to consider this enumeration of particular authorities
as derogating from the more comprehensive grant in the
general clause, further than as it may be coupled with ex-
press restrictions or limitations ; as in regard to the coop
eration of the senate in the appointment of officers, and
the making of treaties ; which are plainly qualifications of
the general executive powers of appointing officers and
making treaties. The difficulty of a complete enumeration
of all the cases of executive authority, would naturally
dictate the use of general terms, and would render it im-
probable, that a specification of certain particulars was de-
signed 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 gives the legislative powers of the govern-
ment, the expressions are, '*'• All legislative powers herein
" granted shall be vested in a congress of the United
"States.-' In that which grants the executive power, the
expressions are, " The executive power shall be vested in
" a president of the United Slates."

The enumeration ought therefore to be considered, as
intended merely to specify the principal articles implied in
the definition of executive power ; leaving the rest to How
from the general grant of that power, interpreted in con-
formity with other parts of the constitution, and with the
principles of free government.

The general doctrine of our constitution then 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.

PACIFICUS. 11

Two of these Iiave been already noticed ; the participa-
tion of the senate in the appointment of officers, and in 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
United States is completely lodged in the president. This
mode of construing the constitution has indeed been re-
cognised by congress in formal acts, upon full considera-
tion and debate ; of which the power of removal from office
is an important instance. It will follow, that if a procla-
mation of neutrality is merely an executive act, as, it is be-
lieved, has been shown, the step which has been taken by
the president is liable to no just exception on the score of
authority.

It may be said, that this inference would be just, if the
power of declaring war had not been vested in the legis-
lature ; but that this powder naturally includes the right of
judging, whether the nation is or is not under obhgations
to make war.

The answer is, that however true this position may be,
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 on the one hand, the legislature have a right to de-
clare war, it is, on the other, the duty of the executive to
preserve peace, till the declaration is made ; and in fulfil-
ling this 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 it has
concluded that there is nothing in them inconsistent with
neutrality, it becomes both its province and its duty to en-
force the laws incident to that state of the nation. The
executive is charged with the execution of all laws, the

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law of nations, as well as the municipal law, by which the
former are recognised and adopted. It is consequently
bound, by executing faithfully the laws of neutrality, when
the country is in a neutral position, to avoid giving cause
of war to foreign powers.

This is the direct end of the proclamation of neutrality.
It declares to the United States their situation with regard
to the contending parties, and makes known to the com-
munity, that the laws incident to that state will be en-
forced. 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 powers by its citizens.

Those who object to the proclamation will readily ad-
mit, that it is the right and duty of the executive to inter-
pret those articles of our treaties which give to France
particular privileges, in order to the enforcement of them :
but the necessary consequence of this is, that the execu-
tive must judge what are their proper limits; what rights
are given to other nations, by our contracts with them ;
what rights the law of nature and nations gives, and our
treaties permit, in respect to those countries with which
we have none ; in fine, what are the reciprocal rights and
obhgations of the United States, and of all and 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 ; vv'hich, where a treaty ante-
cedently exists between the United States and such nation,

PACIFIClTS. 13

involves the power of continuing or suspending its opera-
tion. For until the new government is acknowledged^ the
treaties between the nations, so far at least as regards
public rights, are of course suspended.

This power of determining virtually upon the operation
of national treaties, as a consequence of the power to re-
ceive public ministers, is an important instance of the right
of the executive, to decide upon the obligations of the
country with regard to foreign nations. To apply it to
the case of France, if there had been a treaty of alliance,
offensive and defensive, between the United States and
that country, the unqualified acknowledgment of the new
government would have put the United States in a condi-
tion to become an associate in the war with France, and
would have laid the legislature under an obligation, if re-
quired, and there was otherwise no valid excuse, of exercis-
ing its power of declaring war.

This serves as an example of the right of the executive,
in certain cases, to determine the condition of the nation,
though it may, in its consequences, affect the exercise of
the power of the legislature to declare war. Nevertheless,
the executive cannot thereby control the exercise of that
power. The legislature is still free to perform its duties,
according to its own sense of them ; though the executive,
in the exercise of its constitutional powers, may establish
an antecedent state of things, which ought to weigh in the
legislative decisions.

The division of the executive power in the constitution,
creates a concurrent authority in the cases to which it re-
lates.

Hence, in the instance stated, treaties can only be made
by the president and senate jointly ; but their activity may
be continued or suspended by the president alone.

No objection has been made to the president's having

14 LETTERS OF

acknowledged the republic of France, by the reception of
its minister, without having consulted the senate ; though
that body is connected with him in the making of treaties,
and though the consequence of his act of reception is, to
give operation to those heretofore made with that country.
But he is censured for having declared the United States
to be in a state of peace and neutrality, with regard to the
powers at war; because the right of changing that state
and declaring tear, belongs to the legislature.

It deserves to be remarked, that as the participation of
the senate in the making of treaties, and the power of the
legislature to declare war, are exceptions out of the gene-
ral " executive power" vested in the president-, they are to
be construed strictly, and ought to be extended no further
than is essential to their execution.

While, therefore, the legislature can alone declare war,
can alone actually transfer the nation from a state of peace
to a state of hostihty, it belongs to the " executive power "
to do whatever else the law of nations, cooperating with the
treaties of the country, enjoin in the intercourse of the
United States with foreign powers.

In this distribution of authority, the wisdom of our con-
stitution is manifested. It is the province and duty of the
executive to preserve to the nation the blessings of peace.
The legislature alone can interrupt them by placing the
nation in a state of war.

But though it has been thought advisable to vindicate
the authority of the executive on this broad and compre-
hensive ground, it was not absolutely necessary to do so.
That clause of the constitution which makes it his duty to
" take care that the laws be faithfully executed," might
alone have been rehed upon, and this simple process of ar-
gument pursued.

The president is the constitutional executor of the laws.

PACIFICUS. 15

Our treaties, and the laws of nations, form a part of the
law of the land. He, who is to execute the laws, must
first judge for himself of their meaning. In order to the
observance of that conduct which the laws of nations,
combined with our treaties, prescribed to this country, in
reference to the present war in Europe, it was necessary
for the president to judge for himself, whether there was
any thing in our treaties, incompatible with an adherence
to neutrality. Having decided that there was not, he had
a right, and if in his opinion the interest of the nation re-
quired it, it was his duty as executor of the laws, to pro-
claim the neutrality of the nation, to exhort all persons to
observe it, and to warn them of the penalties which would
attend its non-observance.

The proclamation has been represented as enacting
some new law. This is a view of it entirely erroneous.
It only proclaims afact^ with regard to the existing- state
of the nation; informs the citizens of what the laws pre-
viously established require of them in that state, and no-
tifies them that these laws will be put in execution against
the infractors of them.

No. II.

The second and principal objection to the proclamation,
namely, that it is inconsistent with the treaties between
the United States and France, will now be examined.

It has been already shown, that it does not militate
against the performance of any of the stipulations in those
treaties, which w ould not make us an associate or party in
the war, and especially that it does not interfere with the
privileges secured to France by the seventeenth and twen-
ty-second articles of the treaty of commerce ; which, ex-
cept the clause of guaranty, constitute the most material
discriminations to be found in our treaties in favour of that
country.

16 LETTERS OF

Official documents have likewise appeared in the public
papers, which serve as a comment upon the sense of the
proclamation in this particular, proving that it was not
deemed by the executive incompatible with the perform-
ance of the stipulations in those articles, and that in prac-
tice they are intended to be observed.

It has, however, been admitted, that the declaration of
neutrality excludes the idea of an execution of the clause
of guaranty.

It becomes necessary therefore to examine, w hether the
United States would have a valid justification for not com-
plying with it, in case of their being called upon for that
purpose by France.

Without knowing how far the reasons which have oc-
curred to me may have influenced the president, there ap-
pear to me to exist very good and substantial grounds for
a refusal.

The alHance between the United States and France, is
of the defensive kind. In the caption, it is denominated a
" treaty of alhance eventual and defensive." In the body
(article the second) it is called a defensive alliance. The
words of that article are as follows : " The essential and
" direct end of the present defensive alliance is to maintain
"effectually the liberty, sovereignty, and independence,
'" absolute and unlimited, of the United States, as well in
" matters of government, as of commerce."

The leading character then of our alliance with France
being defensive, it will follow that the meaning, obhgation,
and force of every stipulation in the treaty, must be tested
by the principles of such an alliance ; unless in any instance
terms have been used which clearly and unequivocally de-
noted a different intent.

The principal question consequently is : what is the na-
ture and effect of a defensive alliance.'* When does the
casus feeder is take place, in relation to it.'

JACIFICUS.

n

Reason, the concurring opinions of writers, and the prac-
tice of nations, will all answer: "When either of the allies
" is attacked^ when war is made upon him^ not when he
" makes war upon another ;" in other words, the stipulated
assistance is to be given " when our ally is engaged in a
" defensive, not when he is engaged in an offensive war."
This obligation to assist only in a defensive w^ar, consti-
tutes the essential difference between an alliance which is
merely defensive, and one which is both offensive and de-
fensive. In the latter case, there is an obligation to co-
operate as well when the war, on the part of our ally, is of
the latter, as when it is of the former description. To
affirm, therefore, that the United States are bound to as-
sist France in the war in which she is at present engaged,
will be to convert our treaty with her into an alliance of-
fensive and defensive, contrary to the express and reiter-
ated declarations of the instrument itself.

This assertion implies, that the war in question is an of-
fensive war on the part of France.

And so it undoubtedly is, with regard to all the powers
with whom she w^as at war, at the time of issuing the pro-
clamation.

No position is better established, than that the nation
which first declares, or actually begins a war, whatever
may have been the causes leading to it, is that which
makes an offensive war. Nor is there any doubt, that
France first declared and began the war, against Austria,
Prussia, Savoy, Holland, England, and Spain.

Upon this point, there is apt to be som** incorrectness of
ideas. Those who have not examined subjects of such a
nature, are led to imagine that the party which commits
the first injury, or gives the first provocation, is on the of-
fensive side, though hostilities are actually begun by the
other party.
3

18 LETTERS OF

But the cause or the occasion of the war, and the war
itself, are things entirely distinct. It is the commence-
ment of the war itself which decides the question, whether
it be offensive or defensive. All writers on the laws of na-
tions agree in this doctrine ; but it is most accurately laid
down in the following extracts from Burlemaqui.*

" Neither are we to beheve (says he) that he who first
" injures another, begins by that an offensive war, and that
" the other who demands the satisfaction for the injury re-
" ceived, is always on the defensive. There are a great
"many unjust acts, which may kindle a war, and which,
" however, are not the war itself; as the ill treatment of a
"prince's ambassadors, the plundering of his subjects,
" &c."

If, therefore, we take up arms to revenge such an unjust
act, we commence an offensive, but a just war; and the
prince who has done the injury, and will not give satisfac-
tion, makes a defensive, but an unjust war.

We must therefore affirm, in general, that the first who
takes up arms, whether justly or unjustly, commences an
offensive war ; and he who opposes him, whether with or
without reason, begins a defensive war.

France then being on the offensive in the present war,
and our alliance with her being defensive only, it follows,
that the casus feeder is ^ or condition of our guaranty, can-
not take place ; and that the United States are free to re-
fuse a performance of that guaranty, if demanded.

Those who are disposed to justify indiscriminately every
thing in the conduct of France, may reply that though the
war, in point of form, may be oftensive on her part, yet in
point of principle, it is defensive ; was in each instance a
mere anticipation of attacks meditated against her, and
was justified by previous aggressions of the opposite
parties.

* Vol. II, Book IV, Chap. Ill, Sec. 4, 5.

PACIFICUS. 19

It is believed that it would be a sufficient answer to this
observation to say, that in determining the legal and posi-
tive obligations of the United States, the only point of in-
quiry is, whether the war was in fact begun by France, or
by her enemies ; that all beyond this is too vague, too
liable to dispute, too much matter of opinion to be a pro-
per criterion of national conduct ; that when a war breaks
out between two nations, all others, in regard to the posi-
tive rights of the parties, and their positive duties towards
them, are bound to consider it as equally just on both
sides ; that consequently in a defensive alliance, when war
is made upon one of the allies, it is the duty of the other
to fulfil the conditions stipulated on its part, without in-
quiry, whether the war is rightfully begun or not ; as on
the other hand, when war is commenced by one of the
allies, the other is exempted from the obligation to assist,
however just the commencement of it may have been.

This doctrine is founded upon the utility of clear and
certain rules for determining the reciprocal duties of na-
tions, in order that as little as possible may be left to opin-
ion, and to the subterfuges of an over-refining or unfaithful
casuistry.

Some writers indeed of high authority affirm, that it is a
tacit condition of every alliance, that one ally is not bound
to assist the other in a war manifestly unjust. But this is
questioned by other respectable authorities on the ground
which has been stated. And though the manifest injustice
of the war has been affirmed by some, to be a good cause
for not executing the formal obligations of a treaty, I have
nowhere seen it maintained, that the abstract justice of a
war will of itself oblige a nation to do what its formal obli-
gations do not enjoin : if this however were not the true
doctrine, an impartial examination would prove, that with
respect to some of the powers, France is not blameless in

20 LETTERS OF

the circumstances which preceded and led to the war ;
that if she received, she also gave causes of offence, and
that the justice of the war, on her side, is in those cases
not a little problematical.

There are prudential reasons, which dissuade from going
largely into this examination, unless it shall be rendered
necessary by the future turn of the discussion.

It will be sufficient here to notice cursorily the follow-
ing facts :

France committed an aggression upon Holland, in de-
claring the navigation of the Scheldt free, and acting upon
that declaration ; contrary to treaties in which she had ex-
plicitly acknowledged, and even guarantied, the exclusive
right of Holland to the use of that river ; and contrary also
to the doctrines of the best writers, and the established
usages of nations in such cases.

She gave a general and very serious cause of alarm and
umbrage by the decree of the 19th of November, 1792,
whereby the convention, in the name of the French nation,
declare, that they will grant fraternity and assistance to
every people who wish to recover their liberty ; and charge
the executive power to send the necessary orders to the
generals to give assistance to such people, and to defend
those citizens who have been, or who may be vexed for
the cause of liberty ; which decree was ordered to be print-
ed in all languages.

This very extraordinary decree amounted exactly to
what France herself had most complained of; an inter-
ference by one nation in the internal government of an-
other.

When a nation has actually come to a resolution to
throw off a yoke, under w hich it may have groaned, and
to assert its liberties, it is justifiable and meritorious in an-
other, to afford assistance to the one which has been op-

PACIFICUS. 21

pressed, and is in the act of liberating itself; but it is not
warrantable for any nation beforehand, to hold out a gene
ral invitation to insurrection and revolution, by promising
to assist every people who may wish to recover their liber-
ty, and to defend those citizens of every country, who have
been, or who may be vexed for the cause of hberty ; still
less to commit to the generals of its armies the discretion-
ary power of judging, when the citizens of a foreign coun-
try have been vexed for the cause of liberty by their own
government.

For Vatel justly observes, as a consequence of the liber-
ty and independence of nations, " that it does not belong
" to any foreign power, to take cognizance of the adminis-
" tration of a sovereign of another country, to set himself
" up as a judge of his conduct, or to oblige him to alter
" it."

It had a natural tendency to disturb the tranquillity of
nations, and to excite everywhere fermentation and revolt :
it therefore justified neutral powers, who were in a situa-
tion to be affected by it, in taking measures to repress the
spirit by which it had been dictated.

But the principle of that decree received a more parti-
cular application to Great Britain, by some subsequent cir-
cumstances.

Among the proofs of this are two answers, which were
given by the president of the national convention, at a pub-
lic sitting on the 28th of November, to two different ad-
dresses ; one presented by a deputation from " the society
" for constitutional information in London," the other by a
deputation of English and Irish citizens at Paris.

The following are extracts from these answers :

" The shades of Penn, of Hambden, and of Sidney,
" hover over your heads ; and the moment, without doubt,
" approaches, in which the French will bring congratula-
" tions to the national convention of Great Britain."

22 LETTERS OF

'' Nature and principles draw towards us England, Scot
" land, and Ireland. Let the cries of friendship resound
"through the two Republics" — ''Principles are waging
" war against tyranny, which will fall under the blows of
" philosophy. Royalty in Europe is either destroyed or
" on the pofnt of perishing, on the ruins of feudality : and
" the declaration of rights placed by the side of thrones, is
" a devouring fire which will consume them — Worthy Re-

" PUBLICANS," <fec.

Declarations of this sort, cannot but be viewed as a di-
rect application of the principle of the decree to Great
Britain ; and as an open patronage of a revolution in that
country ; a conduct which, proceeding from the head of
the body that governed France, in the presence and on be-
half of that body, was unquestionably an offence and injury
to the nation to which it is related.

The decree of the 15th of November, is a further cause of
offence to all the governments of Europe. By that decree,
" the French nation declares, that it will treat as enemies the
" people, who, refusing or renouncing liberty and equality,
" are desirous of preserving their prince and privileged
" casts, or of entering into an accommodation with them,"
&c. This decree was little short of a declaration of war
against all nations having princes and privileged classes.

The formal and definitive annexation to France of the
territories over which her arms had temporarily prevailed,
is another violation of just and moderate principles, into
which the convention was betrayed by an intemperate
zeal, if not by a culpable ambition; and of a nature to jus-
tify the jealousy and ill will of every neighboring state.

The laws of nations give to a power at war nothing more
than a usufructuary or possessory right to the territories
which it acquires ; suspending the absolute property and
dominion, till a treaty of peace, or something equivalent,
shall have ceded or relinquished the conquered territory

PACIFICUS. 23

to the conqueror. This rule is one of primary importance
to the tranquilhty and security of nations — facihtating an
adjustment of their quarrels, and the preservation of an-
cient limits.

But France, by incorporating with herself in several in-
stances the territories she had acquired, violated that rule,
and multiplied infinitely the obstacles to peace and accom-
modation. The doctrine that a nation cannot consent to
its own dismemberment, but in a case of extreme necessi-
ty, immediately attached itself to all the conquered terri-
tories : while the progressive augmentation of the domin-
ions of the most powerful empire in Europe, on a principle
not of temporary possession, but of permanent acquisition,
threatened the independence of all other countries, and
gave to neighbouring neutral powers the justest cause of
discontent and apprehension. It is a principle well agreed,
and founded on substantial reasons, that whenever a par-
ticular state adopts maxims of conduct contrary to those
generally established among nations, calculated to inter-
rupt their tranquillity and to expose their safety, they may
justifiably make common cause to resist and control the
state which manifests a disposition so suspicious and ex-
ceptionable.

Whatever partiality may be entertained for the general
object of the French revolution, it is impossible for any
well-informed or sober-minded man, not to condemn the
proceedings which have been stated, as repugnant to the
rights of nations, to the true principles of liberty, to the
freedom of opinion of mankind ; or not to acknowledge as
a consequence of this, that the justice of the war on the
part of France, with regard to some of the powers with
which she is engaged, is from those causes questionable
enough to free the United States from all embarrassment
on that score, if indeed it be at all incumbent upon them
to go into the inquiry.

24 LETTERS OF

The policy of a defensive alliance is so essentially dis-
tinct from that of an offensive one, that it is every w^ay im-
portant not to confound their effects. The first kind has
in view the prudent object of mutual defence, when either
of the allies is involuntarily forced into a war by the attack
of some third power. The latter subjects the peace of
each ally to the will of the other, and obhges each to par-
take in the other's wars of policy and interest, as well as
in those of safety and defence. To preserve their bound-
aries distinct, it is necessary that each kind should be gov-
erned by plain and obvious rules.

This would not be the case, if instead of taking as a
guide the simple fact of who began the war, it was neces-
sary to travel into metaphysical niceties about the justice
or injustice of the causes which led to it:

Inasmuch also as the not fiirnishmg a stipulated succour,
when it is due, is itself a cause of war, it is very requisite
that there should be some palpable criterion for ascertain-
ing, when it is due. This criterion, as before observed, in
a defensive alliance, is the commencement or not, of the
war by our ally, as a mere matter of fact.

Other topics, serving to illustrate the position that the
United States are not bound to execute the clause of guar-
anty, are reserved for another paper.

No. III.

France, at the time of issuing the proclamation, was en-
gaged in war with a considerable part of Europe, and likely
to be embroiled with almost all the rest, without a single
ally in that quarter of the globe.

In such a situation, it is evident, that however she may
be able to defend herself at home, of which her factions and
internal agitations furnish the only serious doubt, she can-
not make external efforts in any degree proportioned to
those which can be made against her.

PACIFICUS. 25

This state of things alone discharges the United States
from an obhgation to embark in her quarrel.

It is known, that we are wholly destitute of naval force.
France, with all the great maritime powers united against
her, is unable to supply this deficiency. She cannot afford
us that species of cooperation which is necessary to render
our efforts useful to her, and to prevent our experiencing
the destruction of our trade, and the most calamitous in-
conveniences in other respects.

Our guaranty does not look to France herself It does
not relate to her immediate defence, but to the defence and
preservation of her American colonies; objects of which
she might be deprived, and yet remain a great, a powerful,
and a happy nation.

In the actual situation of this country, and in relation to
a matter of only secondary importance to France, it may
fairly be maintained, that an ability in her to supply, in a
competent degree, our deficiency of naval force, is a con-
dition of our obligation to perform the guaranty on our
part.

Had the United States a powerful marine, or could they
command one in time, this reasoning would not be solid ;
but circumstanced as they are, it is presumed to be well
founded.

There would be no proportion between the mischiefs and
perils to which the United States would expose themselves,
by embarking in the war, and the benefit which the nature
of their stipulation aims at securing to France, or that which
it would be in their power actually to render her by becom-
ing a party.

This disproportion would be a valid reason for not exe-
cuting the guaranty. All contracts are to receive a rea-
sonable construction. Self-preservation is the first duty of
a nation; and though in the performance of stipulations
4

26 LETTERS OF

relating to war, good faith requires that its ordinary hazards
should be fairly met, because they are directly contemplat-
ed by such stipulations, yet it does not require that extra-
ordinary and extreme hazards should be run ; especially
where the object to be gained or secured is only a partial
or particular interest of the ally, for whom they are to be
encountered.

As in the present instance, good faith does not require
that the United States should put in jeopardy their essen-
tial interests, perhaps their very existence, in one of the
most unequal contests in which a nation could be engaged,
to secure to France — what ? Her West India islands and
other less important possessions in America. For it is al-
ways to be remembered, that the stipulations of the United
States do, in no event, reach beyond this point. If they
were, upon the strength of their guaranty, to engage in the
war, and could make any arrangement with the belligerant
powers, for securing to France those islands and those
possessions, they would be at perfect liberty instantly to
withdraw. They would not be bound to prosecute the
war one moment longer.

They are under no obligation in any event, as far as the
laith of treaties is concerned, to assist France in defence of
her liberty ; a topic on which so much has been said, so
very little to the purpose, as it regards the present question.

The contest in which the United States would plunge
themselves, were they to take part with France, would pos
sibly be still more unequal than that in which France her-
self is engaged. With the possessions of Great Britain
and Spain on both flanks, the numerous Indian tribes un-
der the influence and direction of those powers, along our
whole interior frontier, with a long extended seacoast, M'ith
no maritime force of our own, and with the maritime force
of all Europe against us, with no fortifications whatever,

TACIFICUS. 27

and with a population not exceeding four millions : it is im-
possible to imagine a more unequal contest, than that in
which we should be involved in the case supposed. From
such a contest we are dissuaded by the most cogent mo-
tives of self-preservation, no less than of interest.

We may learn from Vatel, one of the best writers on the
laws of nations, " that if a state which has promised suc-
" cours, finds itself unable to furnish them, its very inability
^' is its exemption ; and if the furnishing the succours would
" expose it to an evident danger, this also is a lawful dis-
^' pensation. The case would render the treaty pernicious
" to the state, and therefore not obhgatory. But this ap"
" phes to an imminent danger threatening the safety of the
" state : the case of such a danger is tacitly and necessa-
" rily reserved in every treaty."*

If too, as no sensible and candid man will deny, the ex-
tent of the present combination against France, is in a de-
gree to be ascribed to imprudences on her part ; the exemp-
tion to the United States is still more manifest and com-
plete. No country is bound to partake in hazards of the
most critical kind, which may have been produced or pro-
moted by the indiscretion and intemperance of another.
This is an obvious dictate of reason, with which the com-
mon sense and common practice of mankind coincide.

To the foregoing considerations, it may perhaps be ad-
ded with no small degree of force, that mihtary stipulations
in national treaties, contemplate only the ordinary case of
foreign war, and are irrelative to the contests which grow
out of revolutions of government ; unless where they have
express reference to a revolution begun, or where there is
a guaranty of the existing constitution of a nation, or where
there is a personal alliance for the defence of a prince and
his family .f

^ See Book III, Chap. VI, Sec. 92. f Puflendoiir, Book VIII, Cli^p. IX. Section 9.

28 LETTERS OF

The revolution in France is the primitive source of the
war in which she is engaged. The restoration of the mon-
archy is the avowed object of some of her enemies, and the
impHed one of all. That question then is essentially in-
volved in the principle of the war ; a question certainly
never in the contemplation of the government with which
our treaty was made, and it may thence be fairly inferred,
never intended to be embraced by it.

The inference is, that the United States fulfilled the ut-
most that could be claimed by the nation of France, when
they so far respected its decision as to recognise the newly
constituted authorities ; giving operation to the treaty of
alliance for future occasions, but considering the present
war as a tacit exception. Perhaps too, this exception is,
in other respects, due to the circumstances under which
the engagements between the two countries were contract-
ed. It is impossible, prejudice apart, not to perceive a
delicate embarrassment between the theory and fact of our
political relations to France.

On these grounds, also, as well as that of the present
war being offensive on the side of France, the United States
have valid and honourable pleas to offer against the execu-
tion of the guaranty, if it should be claimed by France.
And the president was in every view fully justified in pro-
nouncing, that the duty and interest of the United States
dictated a neutrality in the war.

No. IV.

A THIRD objection to the proclamation is, that it is incon-
sistent with the gratitude due to France, for the services
rendered to us in our revolution.

Those who make this objection disavow, at the same
time, all intention to maintain the position, that the United

PACIFICUS. 29

States ought to take part in the war. They profess to be
friends to our remaining at peace. What then do they
mean by the objection ?

If it be no breach of gratitude to refrain from joining
France in the war, how can it be a breach of gratitude to
declare, that such is our disposition and intention ?

The two positions are at variance with each other; and
the true inference is, either that those who make the objec-
tion really wish to engage this country in the war, or that
they seek a pretext for censuring the conduct of the chief
magistrate, for some purpose very different from the pubhc
good.

They endeavour in vain to elude this inference by say-
ing, that the proclamation places France upon an equal
footing with her enemies ; while our treaties require dis-
tinctions in her favour, and our relative situation would
dictate kind offices to her, which ought not to be granted
to her adversaries.

They are not ignorant, that the proclamation is recon-
cileable with both those objects, as far as they have any
foundation in truth or propriety.

It has been shown, that the promise of " a friendly and
impartial conduct" towards all the belligerant powers, is
not incompatible with the performance of any stipulations
in our treaties, which would not include our becoming an
associate in the war ; and it has been observed, that the
conduct of the executive, in regard to the seventeenth and
twenty-second articles of the treaty of commerce, is an
unequivocal comment upon the terms. They were, indeed,
naturally to be understood, with the exception of those
matters of positive compact, which would not amount to
taking part in the war; for a nation then observes a friendly
and impartial conduct towards two contending powers,
when it only performs to one of them what it is obliged to

30 LETTERS OF

do by stipulations in antecedent treaties, which do not con-
stitute a participation in the war.

Neither do those expressions imply, that the United
States will not exercise their discretion in doing kind offi-
ces to some of the parties, without extending them to the
others, so long as they have no relation to war : for kind
offices of that description may, consistently with neutrality,
be shown to one party and refused to another.

If the objectors mean, that the United States ought to
favour France, in things relating to war, and where they
are not bound to do it by treaty ; they must in this case
also abandon their pretension of being friends to peace.
For such a conduct would be a violation of neutrality,
which could not fail to produce war.

It follows then, that the proclamation is reconcileable
with all that those who censure it contend for ; taking them
upon their own ground, that nothing is to be done incom-
patible with the preservation of peace.

But though this would be a sufficient answer to the ob-
jection under consideration; yet it may not be without use,
to indulge some reflections on this very favourite topic of
gratitude to France ; since it is at this shrine that we are
continually invited to sacrifice the true interests of the
country ; as if '• all for love, and the world well lost," were
a fundamental maxim in politics.

Faith and justice, between nations, are virtues of a na-
ture the most necessary and sacred. They cannot be too
strongly inculcated, nor too highly respected. Their obli-
gations are absolute, their utility unquestionable ; they re-
late to objects which, with probity and sincerity, generally
admit of being brought within clear and intelligible rules.

But the same cannot be said of gratitude. It is not
very often that between nations, it can be pronounced with
eertaintv, that there exists a sohd foundation for the senti-

PACIFICUS. 31

ment; and how far it can justifiably be permitted to operate,
is always a question of still greater difficulty.

The basis of gi'atitude is a benefit received or intended,
which there was no right to claim, originating in a regard
to the interest or advantage of the party on whom the ben-
efit is, or is meant to be, conferred. If a service is ren-
dered from views relative to the immediate interest of the
party who performs it, and is productive of reciprocal ad-
vantages, there seems scarcely in such a case, to be an
adequate basis for a sentiment like that of gratitude. The
effect at least would be wholly disproportioned to the cause,
if such a service ought to beget more than a disposition to
render in turn a correspondent good office, founded on
mutual interest and reciprocal advantage. But gratitude
would require much more than this ; it would exact to a
certain extent, even a sacrifice of the interest of the party
obliged to the service or benefit of the one by whom the
obligation had been conferred.

Between individuals, occasion is not unfrequently given
for the exercise of gratitude. Instances of conferring bene-
fits from kind and benevolent dispositions or feelings to-
wards the person benefited, without any other interest on
the part of the person who renders the service, than the
pleasure of doing a good action, occur every day among
individuals. But among nations they perhaps never occur.
It may be affirmed as a general principle, that the pre-
dominant motive of good offices from one nation to
another, is the interest or advantage of the nation which
performs them.

Indeed, the rule of morality in this respect is not pre-
cisely the same between nations, as between individuals.
The duty of making its own welfare the guide of its ac-
tions, is much stronger upon the former, than upon the
latter; in proportion to the greater magnitude and impor-

32 LETTERS OF

tance of national, compared with individual happiness, and
to the greater permanency of the effects of national, than
of individual conduct. Existing millions, and for the most
part future generations, are concerned in the present mea-
sures of a government ; while the consequences of the pri-
vate actions of an individual ordinarily terminate with
himself, or are circumscribed within a narrow compass :

Whence it follows, that an individual may, on numerous
occasions, meritoriously indulge the emotions of generosi-
ty and benevolence, not only without an eye to, but even
at the expense of, his own interest. But a government can
rarely, if at all, be justifiable in pursuing a similar course ;
and, if it does so, ought to confine itself within much strict-
er bounds.* Good offices which are indifferent to the in-
terest of a nation performing them, or which are compen-
sated by the existence or expectation of some reasonable
equivalent, or which produce an essential good to the na-
tion to which they are rendered, without real detriment to
the affairs of the benefactors, prescribe perhaps the hmits
of national generosity or benevolence.

It is not here meant to recommend a policy absolutely
selfish or interested in nations ; but to show, that a policy
regulated by their ovvn interest, as far as justice and good
faith permit, is, and ought to be, their prevailing one ; and
that either to ascribe to them a different principle of action,
or to deduce, from the supposition of it, arguments for a
self-denying and self-sacrificing gratitude on the part of a
nation, which may have received from another good offi-
ces, is to misrepresent or misconceive what usually are,
and ought to be, the springs of national conduct.

These general reflections will be auxiliary to a just esti-

*This conclusion derives confirmation from the reflection, tliat under every form of gov-
ernment, rulers are only trustees for the happiness and interest of their nation, and cannot,
consistently with their trust, follow the sua;2:eslionR of kindness or humanity towards oth-
ers, to the prejudice of their oonsthuents.

PACIFICUS. 33

mate of our real situation with regard to France ; of whicli
a closer view will be taken in a succeeding paper.

No. V.

France, the rival, time immemorial, of Great Britain,
had, in the course of the war which ended in 1763, suffer-
ed from the successful arms of the latter the severest loss-
es and the most mortifying defeats. Britain from that
moment had acquired an ascendant in the aftairs of Eu-
rope, and in the commerce of the world, too decided and
too humiliating to be endured without extreme impatience,
and an eager desire of finding a favourable opportunity to
destroy it, and to repair the breach which had been made
in the national glory. The animosity of wounded pride
conspired with calculations of interest, to give a keen edge
to that impatience, and to that desire.

The American revolution offered the occasion. It ear-
ly attracted the notice of France, though with extreme
circumspection. As far as countenance and aid may be
presumed to have been given prior to the epoch of the ac-
knowledgment of our independence, it will be no unkind
derogation to assert, that they were marked neither with
liberality, nor with vigour ; that they wore the appearance
rather of a desire to keep alive disturbances which might
embarrass a rival, than of a serious design to assist a revo-
lution, or a serious expectation that it could be effected.

The victories of Saratoga, the capture of an army, which
went a great way towards deciding the issue of the con-
test, decided also the hesitations of France. They estab-
lished, in the government of that country, a confidence of
our ability to accomplish our purpose, and, as a conse-
quence of it, produced the treaties of alliance and com-
merce.

It is impossible to see in all thi>> any thing more, than
5

34 LETTERS OF

the conduct of a jealous competitor, embracing a most
promising opportunity to repress the pride, and diminish
the power of a dangerous rival, by seconding a successful
resistance to its authority, with the object of lopping off a
valuable portion of its dominions. The dismemberment of
this country from Great Britain was an obvious, and a very
important interest of France. It cannot be doubted, that
it was both the determining motive and an adequate com-
pensation, for the assistance afforded to us.

Men of sense in this country, derived encouragement to
the part which their zeal for liberty prompted them to take
in our revolution, from the probability of the cooperation
of France and Spain. It will be remembered, that this
argument was used in the publications of the day ; but up-
on what was it bottomed ? Upon the known competition
between those nations and Great Britain, upon their evi-
dent interest to reduce her power and circumscribe her
empire; not certainly upon motives of regard to our inter-
est, or of attachment to our cause. Whoever should have
alleged the latter, as the grounds of the expectation held
out, would have been then justly considered as a visionary
or a deceiver. And whoever shall now ascribe to such
motives the aid which we did receive, would not deserve
to be viewed in a better light.

The inference from these facts is not obscure. Aid and
cooperation, founded upon a great interest, pursued and
obtained by a party rendering them, is not a proper stock
upon which to engraft that enthusiastic gratitude, which is
claimed from us by those who love France more than the
United States.

This view of the subject, extorted by the extravagancy
of such a claim, is not meant to disparage the just preten-
sions of France to our good will. Though neither in the
motives to the succours which she furnished, nor in their

PACIFICUS. 35

extent, (considering how powerfully the point of honour,
in such war, reinforced the considerations of interest when
she was once engaged,) can be found a sufficient basis for
that gratitude which is the theme of so much declamation;
yet we shall find, in the manner of affording them, just
cause for our esteem and friendship.

France did not attempt, in the first instance, to take ad-
vantage of our situation to extort from us any humihating
or injurious concessions, as the price of her assistance;
nor afterwards in the progress of the war, to impose hard
terms as the condition of particular aids.

Though this course was certainly dictated by policy ; yet
it was a magnanimous policy, such as always constitutes a
title to the approbation and esteem of mankind ; and a claim
to the friendship and acknowledgment of the party in whose
favour it is practised.

But these sentiments are satisfied on the part of a na-
tion, when they produce sincere wishes for the happiness
of the party from whom it has experienced such conduct,
and a cordial disposition to render all good and friendly
offices, which can be rendered without prejudice to its own
solid and permanent interests.

To ask of a nation so situated, to make a sacrifice of
substantial interest; to expose itself to the jealousy, ill will,
or resentment of the rest of the world ; to hazard, in an
eminent degree, its own safety, for the benefit of the party
who may have observed towards it the conduct which has
been described ; would be to ask more than the nature of
the case demands, more than the fundamental maxims of
society authorize, more than the dictates of sound reason
justify.

A question has arisen, with regard to the proper object
of that gratitude, which is so much insisted upon : whether
it be the unfortunate prince by whom the assistance receiv-

36 LETTERS OF

ed was given ; or the nation of whom he was the chief or
the organ? It is extremely interesting to the national jus-
tice, to form right conceptions on this point.

The arguments which support the latter idea, are as fol-
lows :

" Louis the XVI, was but the constitutional agent of the
'•'- French people. He acted for and on behalf of the na-
" tion ; it was with their money and their blood he support-
" ed our cause. It is to them, therefore, not to him, that
" our obligations are due. Louis the XVI, in taking our
" part, was no doubt actuated by state policy. An abso-
"lute prince could not love liberty. But the people of
" France patronized our cause with zeal, from sympathy in
"its object. The people therefore, not its monarch, are en-
" titled to our sympathy."

This reasoning may be ingenious ; but it is not founded
in nature or fact.

Louis the XVI, though no more than the constitutional
agent of the nation, had at the time the sole power of man-
aging its affairs, the legal right of directing its will and its
force. It belonged to him to assist us, or not, without con-
sulting the nation : and he did assist without such consulta-
tion. His will alone was active, that of the nation pas-
sive. If there was kindness in the decision, demanding a
return of good will, it was the kindness of Louis XVI — his
heart was the depository of the sentiment. Let the genu-
ine voice of nature then, unperverted by political subtleties,
pronounce whether the acknowledgment, which may be
due for that kindness, can be equitably transferred from him
to others, who had no share in the decision ; whether the
principle of gratitude ought to determine us to behold with
indifference his misfortunes, and with satisfaction the tri-
umphs of his foes.

The doctrine, that the prince is the organ of his nation.

PACIFICUS.

37

is conclusive to enforce the obligations of good faith be-
tween two states ; in other w ords, the observance of duties
stipulated in treaties for national purposes ; and it will even
suffice to continue to a nation a claim to the friendship and
good will of another, resulting from friendly offices done
by its prince ; but it would be to carry the principle much
too far, and to render it infinitely too artificial to attribute
to it the eftect of transferring such a claim from the prince
to the nation, by way of opposition and contrast. Friend-
ship, good will, gratitude for favours received, have so in-
separable a reference to the motives with which, and to
the persons by whom they were rendered, as to be incapa-
ble of being transferred to another at his expense.

But Louis XVI, it is said, acted from reasons of state,
without regard to our cause ; while the people of France
patronized it with zeal and attachment.

As far as the assertion with regard to the monarch may
be well founded, and is an objection to our gratitude to
him, it destroys the whole fabric of gratitude to France.
For our gratitude is, and must be, relative to the services
performed. The nation can only claim it on the score of
their having been rendered by their agent with their means.
If the views with which he performs them divested them
of the merit which ought to inspire gratitude, none is due.
The nation no more than their agent can claim it.

With regard to the individual good wishes of the citi-
zens of France, as they did not produce the services ren-
dered to us as a nation, they can be no foundation for na-
tional gratitude. They can only call for a reciprocation
of individual good wishes. They cannot form the basis of
public obhgation.

But the assertion takes more for granted than there is
reason to believe true.

Louis the XVI no doubt took part in our contest from

38 LETTERS OF

reasons of state; but Louis the XVI was a man, humane
and kind-hearted. The acts of his early youth had enti-
tled him to this character. It is natural for a man of this
disposition to become interested in the cause of those
whom he protects or aids ; and if the concurrent testimony
of the period may be credited, there was no man in France
more personally friendly to the cause of this country than
Louis the XVI. I am much misinformed, if repeated de-
clarations of the venerable Franklin did not attest this
fact.

It is a just tribute to the people of France to admit, that
they manifested a lively interest in the cause of America ;
but while motives are scanned, who can say how much of
it is to be ascribed to the antipathy which they bore to
their rival neighbour ; how much to their sympathy in the
object of our pursuit ? It is certain that the love of liberty
was not a national sentiment in France, when a zeal for
our cause first appeared among that people.

There is reason to believe too, that the attachment to
our cause, which ultimately became very extensive, if not
general, did not originate with the mass of the French peo-
ple. It began with the circles more immediately connect-
ed with the court, and was thence diffused through the na-
tion.

This observation, besides its tendency to rectify ideas,
which are calculated to give a false current to the public
feeling, may serve to check the spirit of illiberal invective,
which has been wantonly indulged against those distin-
guished friends of America, who, though the authors of
the French revolution, have fallen victims to it; because
their principles would not permit them to go the whole
length of an entire subversion of the monarchy.

The preachers of gratitude are not ashamed to brand
Louis the XVI. as a tyrant, La Fayette as a traitor. But

PACIFICUS. 39

how can we wonder at this, when they insinuate a distrust
even of a !!!

In urging the friendly disposition to our cause, manifest-
ed by the people of France, as a motive to our gratitude to-
wards that people, it ought not to be forgotten, that those
dispositions were not confined to the inhabitants of that
country. They were eminently shared by the people of
the United Provinces, produced to us valuable pecuniary
aids from their citizens, and eventually involved them in
the war on the same side with us. It may be added too,
that here the patronage of our cause emphatically began
with the mass of the community, not originating as in
France with the government, but finally implicating the
government in the consequences.

Our cause had also numerous friends in other countries ;
even in that with which we were at war. Conducted with
prudence, moderation, justice, and humanity, it may be
said to have been a popular cause among mankind, concil-
iating the countenance of princes, and the affection of na-
tions.

The disposition of the individual citizens of France can
therefore in no sense be urged, as constituting a peculiar
claim to our gratitude. As far as there is foundation for
it, it must be referred to the services rendered to us ; and,
in the first instance, to the unfortunate monarch that ren-
dered them. This is the conclusion of nature and reason.

No. VI.
The very men who not long since, with a holy zeal,
would have been glad to make an auto de fe of any one
who should have presumed to assign bounds to our obliga-
tions to Louis the XVI, are now ready to consign to the
flames those who venture even to think that he died a
proper object of our sympathy or regret. The greatest

40 ' LETTERS OF

pains are taken to excite against him our detestation. His
supposed perjuries and crimes are sounded in the pubhc
ear, with all the exaggerations of intemperate declaiming.
All the unproved and contradicted allegations, which have
been brought against him are taken for granted, as the
oracles of truth, on no better grounds than the mere gene-
ral presumptions, that he could not have been a friend to
a revolution which stripped him of so much power ; that it
is not likely the convention would have pronounced him
guilty, and consigned him to so ignominious a fate, if he
had been really innocent.

It is possible that time may disclose facts and proofs,
which will substantiate the guilt imputed to Louis : but
these facts and proofs have not yet been authenticated to
the world ; and justice admonishes us to wait for their pro-
duction and authentication.

Those who have most closely attended to the course of
the transaction, find least cause to be convinced of the
criminality of the deceased monarch. While his counsel,
whose characters give weight to their assertions, with an
air of conscious truth, boldly appeal to facts and proofs, in
the knowledge and possession of the convention, for the
refutation of the charges brought against him, the members
of that body, in all the debates upon the subject which
have reached this country, either directly from France, or
circuitously through England, appear to have contented
themselves with assuming the existence of the facts charged
and inferring from them a criminality which, after the abo-
lition of the royalty, they were interested to establish.

The presumption of guilt drawn from the suggestions
which have been stated, is more than counterbalanced by
an opposite one, which is too obvious not to have occurred
to many, though 1 do not recollect yet to have met with it
in print. It is this :

PACIFICUS. 41

If the convention had possessed clear evidence of the
guilt of Louis, they would have promulgated it to the world
in an authentic and unquestionable shape. Respect for
the opinion of mankind, regard for their own character, the
interest of their cause, made this an indispensable duty ;
nor can the omission be satisfactorily ascribed to any other
reason than the want of such evidence.

The inference is, that the melancholy catastrophe of
Louis XVI was the result of a supposed political expe-
diency, rather than of real criminality.

In a case so circumstanced, does it, can it consist with
our justice or our humanity, to partake in the angry and
vindictive passions which it is endeavored to excite against
the unfortunate monarch ? Was it a crime in him to have
been born a prince ? Could this circumstance forfeit liis
title to the commiseration due to his misfortunes as a man?

Would gratitude dictate to a people, situated as are the
people of this country, to lend their aid to extend to the
son the misfortunes of the father ? Should we not be more
certain of violating no obligation of that kind, and of not
implicating the delicacy of our national character, by taking
no part in the contest, than by throwing our weight into
either scale ?

Would not a just estimate of the origin and progress of
our relations to France, viewed with reference to the mere
question of gratitude, lead us to this result — that we ought
not to take part against the son and successor of a father,
on whose sole will depended the assistance which we re-
ceived ; that we ought not to take part with him against the
nation, whose blood and whose treasure had been in the
hands of the father, the means of that assistance.''

But we are sometimes told, by way of answer, that the
cause of France is the cause of liberty ; and that we are
bound to assist the nation on the score of their being en-
6

42 LETTERS OF

gaged in the defence of that cause. How far this idea
ought to carry us, will be the subject of future examination.

It is only necessary here to observe, that it presents a
question essentially different from that which has been in
discussion. If we are bound to assist the French nation,
on the principle of their being embarked in the defence of
liberty, this is a consideration altogether foreign to that of
gratitude. Gratitude has reference only to kind offices re-
ceived. The obhgation to assist the cause of liberty, must
be deduced from the merits of that cause, and from the in-
terest we have in its support. It is possible that the bene-
factor may be on one side ; the defenders and supporters
of liberty on the other. Gratitude may point one way, the
love of liberty another. It is therefore important to just
conclusions, not to confound the two things.

A sentiment of justice, more than the importance of the
question itself, has led to so particular a discussion respect-
inff the proper object of whatever acknowledgment may be
due from the United States, for the aid which they received
from France during their own revolution.

The extent of the obligation which it may impose is by
far the most interesting inquiry. And though it is pre-
sumed, that enough has been already said to evince, that
it does in no degree require us to embark in the war ; yet
there is another, and a very simple view of the subject,
which is too convincing to be omitted.

The assistance derived from France was afforded by a
great and powerful nation, possessing numerous armies, a
respectable fleet, and the means of rendering it a match
for the force to be encountered. The position of Europe
was favourable to the enterprise ; a general disposition pre-
vailing to see the power of Britain abridged. The coope-
ration of Spain was very much a matter of course, and the
probability of other powers becoming engaged on the same

PACIFICUS. 43

side not remote Great Britain was alone, and likely to
continue so : France had a great and persuasive interest
in the separation of this country from her. In this situa-
tion, with mucli to hope and little to fear, she took part in
our quarrel.

France is at this time singly engaged with the greatest
part of Europe, including all the first-rate powers except
one; and in danger of being engaged with the rest. To
use the emphatic language of a member of the national
convention, she has but one enemy, and that is all Europe.
Her internal affairs are, without doubt, in serious disorder;
her navy comparatively inconsiderable. The United States
are a young nation : their population, though rapidly in-
creasing, still small; their resources, though growing, not
great; without armies, without fleets; capable, from the
nature of the country and the spirit of its inhabitants, of
immense exertions for self-defence, but little capable of
those external efforts which could materially serve the
cause to France. So far from having any direct interest
in going to war, they have the strongest motives of interest
to avoid it. By embarking with France in the war, they
would have incomparably more to apprehend than to hope.

This contrast of situations and inducements is alone a
conclusive demonstration, that the United States are not
under an obligation, from gratitude, to join France in the
war. The utter disparity between the circumstances of the
service to be rendered, and of the service received, proves
that the one cannot be an adequate basis of obligation
for the other. There would be a manifest want of equality,
and consequently of reciprocity.

But complete justice would not be done to this question
of gratitude, were no notice to be taken of the address
which has appeared in the public papers, (the authenticity
of which has not been impeached,) from the convention of

44 LETTERS OF

France to the United States, announcing the appointment
of the present minister plenipotentiary. In that address
the convention informs us, that " the support which the
" ancient French court had afforded the United States to
" recover their independence, was only the fruit of a base
" speculation ; and that their glory offended its ambitious
" views, and the ambassadors of France bore the criminal
" orders of stopping the career of their prosperity."

If this information is to be admitted in the full force of
the terms, it is very fatal to the claim of gratitude towards
France. An observation similar to one made in a former
paper occurs here. If the organ of the nation, on whose
will the aid which was given depended, acted not only from
motives irrelative to our advantage, but from unworthy
motives, or, as is alleged, from a base speculation ; if after-
wards he displayed a temper hostile to the confirmation of
oar security and prosperity, he acquired no title to our
gratitude in the first instance, or he forfeited it in the sec-
ond. And the people of France, who can only demand it
in virtue of the conduct of their agent, must, together with
him, renounce the pretension. It is an obvious principle^
that if a nation can claim merit from the good deeds of its
sovereign, it must answer for the demerit of his misdeeds.
But some deductions are to be made from the sugges-
tions in the address of the convention, on account of the
motives which evidently dictated the communication. Their
zeal to alienate the good will of this country from the late
monarch, and to increase the odium of the French nation
against the monarchy, which was so ardent as to make
them overlook the tendency of their communication to de-
prive their votaries among us of the plea of gratitude, may
justly be suspected of exaggeration.

The truth probably is, that the base speculation charged,
amounts to nothing more than that the government of

PACIFICUS. 45

France, in affording us assistance, was actuated by the mo-
tives which have been attributed to it, namely, the desire
of promoting the interest of France, by lessening the pow-
er of Great Britain, and opening a new channel of com-
merce to herself; that the orders said to have been given
to the ambassadors of France, to stop the career of our
prosperity, are resolvable into a speculative jealousy of the
ministers of the day, lest the United States, by becoming
as powerful and great as they are capable of being under
an efficient government, might prove formidable to the
European possessions in America. With these qualifica-
tions, the address offers no new discovery to the intelligent
and unbiased friends of their country. They knew long
ago, that the interest of France had been the governing
motive of the aid afforded ; and they saw clearly enough
in the conversation and conduct of her agents, while the
present constitution of the United States was under con-
sideration, that the government, of which they were the
instruments, would have preferred our remaining under the
old form. They perceived also, that these views had their
effect upon some of the devoted partisans of France among
ourselves ; as they now perceive, that the same characters
are embodying, with all the aid they can obtain, under the
same banner, to resist the operation of that government of
which they withstood the establishment.

All this was, and is seen •, and the body of the people of
America are too discerning to be long in the dark about it :
too wise to have been misled by foreign or domestic ma-
chinations, they adopted a constitution which was neces-
sary to their safety and to their happiness : too wise still
to be ensnared by the same machinations, they will support
the government they have established, and will take care
of their own peace, in spite of the insidious efforts which
are employed to detach them from the one, and to disturb
the other.

46 LETTERS OF

The information which the address of the convention
contains, ought to serve as an instructive lesson to the peo-
ple of this country. It ought to teach us not to overrate
foreign friendships ; and to be upon our guard against for-
eign attachments. The former will generally be found
hollow and delusive ; the latter will have a natural tenden-
cy to lead us aside from our own true interest, and to make
us the dupes of foreign influence. Both serve to introduce
a principle of action, which, in its effects, if the expression
may be allowed, is anti-national. Foreign influence is truly
the Grecian horse to a republic. We cannot be too care-
ful to exclude its entrance. Nor ought we to imagine, that
it can only make its approaches in the gross form of direct
bribery. It is then most dangerous when it comes under
the patronage of our passions, under the auspices of nation-
al prejudice and partiality.

I trust the morals of this country are yet too good to
leave much to be apprehended on the score of bribery.
Caresses, condescensions, flattery, in unison with our pre-
possessions, are infinitely more to be feared : and as far as
there is opportunity for corruption, it is to be remembered,
that one foreign power can employ this resource as well
as another; and that the effect must be much greater,
when it is combined with other means of influence, than
where it stands alone.

No. VIII.

The remaining objection to the proclamation of neutral-
ity, still to be discussed, is, that it was out of time and un-
necessary.

To give colour to this objection it is asked, why did not
the proclamation appear, when the war commenced with
Austria and Prussia.? Why was it forborne, till Great
Britain, Holland, and Spain, became engaged ? Why did
not the Government wait, till the arrival at Philadelphia of

PACIFICUS. 47

the minister of the French Repubhc ? Why did it volun-
teer a declaration not required of it by any of the bellige-
rant parties ?

To most of these questions, solid answers have already
appeared in the public prints. Little more can be done,
than to repeat and enforce them.

Austria and Prussia are not maritime powers. Contra-
ventions of neutrality as against them, were not likely to
take place to any extent, or in a shape that w ould attract
their notice. It would therefore have been useless, if not
ridiculous, to have made a formal declaration on the sub-
ject, while they were the only parties opposed to France.

But the reverse of this is the case with regard to Spain,
Holland and England. These are all commercial and mar-
itime nations. It was to be expected, that their attention
would be immediately drawn towards the United States
with sensibility, and even with jealousy. It was to be fear-
ed, that some of our citizens might be tempted by the pros-
pect of gain to go into measures which would injure them,
and hazard the peace of the country. Attacks by some of
these powers upon the possessions of France in America,
were to be looked for as a matter of course. While the
views of the United States, as to that particular, were pro-
blematical, they would naturally consider us as a power
that might become their enemy. This they would have
been the more apt to do, on account of those public demon-
strations of attachment to the cause of France, of which
there has been so prodigal a display. Jealousy, every body
knows, especially if sharpened by resentment, is apt to lead
to ill treatment ; ill treatment to hostility.

In proportion to the probability of our being regarded
with a suspicious, and consequently an unfriendly eye, by
the powers at war with France ; in proportion to the dan-
ger of imprudences being committed by any of our citizens,

48 LETTERS OF

which might occasion a rupture with them, the pohcy on
the part of the government, of removing all doubt as to its
own disposition, and of deciding the condition of the Unit-
ed States, in the view of the parties concerned, became
obvious and urgent.

Were the United States, now, what, if we do not rashly
throw away the advantages we possess, they may expect
to be in fifteen or twenty years, there would have been
more room for an insinuation which has been thrown out,
namely, that they ought to have secured to themselves
some advantage, as the consideration of their neutrality :
an idea, however, the justice and magnanimity of which
cannot be commended. But in their present situation,
with their present strength and resources, an attempt of
that kind could have only served to display pretensions at
once excessive and unprincipled. The chance of obtain-
ing any collateral advantage, if such a chance there was,
by leaving doubt of their intentions, as to peace or war,
could not wisely have been put, for a single instant, in
competition with the tendency of a contrary conduct to se-
cure our peace.

The conduciveness of the declaration of neutrality to
that end, was not the only recommendation to the adop-
tion of the measure. It was of great importance that our
own citizens should understand, as soon as possible, the
opinion which the government entertained of the nature of
our relations to the warring parties, and of the propriety or
expediency of our taking a side, or remaining neuter. The
arrangements of our merchants could not but be very dif-
ferently effected by the one hypothesis or the other; and
it would necessarily have been very detrimental and per-
plexing to them to have been left in uncertainty. It is not
requisite to say, how much our agricidture and other inter-
ests would have been likely to have suffered by embarrass-
ments to our merchants.

PACIFICUS. 49

The idea of its having been incumbent on the govern-
ment to delay the measure for the arrival of the minister
of the French republic, is as absurd as it is humiliating.
Did the executive stand in need of the logic of a foreign
agent to enligliten it as to the duties or interests of the na-
tion ? Or was it bound to ask his consent to a step which
appeared to itself consistent with the former, and conducive
to the latter ?

The sense of our treaties was to be learnt from the in-
struments themselves. It was not difficult to pronounce
beforehand, that we had a greater interest in the preserva-
tion of peace, than in any advantages with which France
might tempt our participation in the war. Commercial
privileges were all that she could offer of real value in our
estimation, and a carte blanche on this head would have
been an inadequate recompense for renouncing peace, and
committing ourselves voluntarily to the chances of so pre-
carious and perilous a war. Besides, if the privileges which
might have been conceded were not founded in a real per-
manent mutual interest, of what value would be the treaty
that should concede them ? Ought not the calculation, in
such case, to be upon a speedy resumption of them, with
perhaps a quarrel as the pretext ? On the other hand, may
we not trust that commercial privileges, which are truly
founded in mutual interest, will grow out of that interest ;
without the necessity of giving a premium for them at the
expense of our peace ?

To what purpose then was the executive to have waited
for the arrival of the minister ? Was it to give opportuni-
ty to contentious discussions ; to intriguing machinations ;
to the clamours of a faction won to a foreign interest ?

Whether the declaration of neutrality, issued upon or
without the requisition of any of the bclligerant powers, can
only be known to their respective ministers, and to the pro-
7

50 LETTERS OF

per officers ol our government. But if it be true, tha^ it
issued without any such requisition, it is an additional indi-
cation of the wisdom of the measure.

It is of much importance to the end of preserving peace,
that the belhgerant nations should be thoroughly convinced
of the sincerity of our intentions to observe the neutrality
we profess ; and it cannot fail to have weight in producing
this conviction, that the declaration of it was a spontaneous
act ; not stimulated by any requisition on the part of either
of them ; but proceeding purely from our own view of our
duty and interest.

It was not surely necessary for the government to wait
for such a requisition ; while there were advantages, and
no disadvantages, in anticipation. The benefit of an early
notification to our merchants, conspired with the consider-
ation just mentioned to recommend the course which was
pursued.

If in addition to the rest, the early manifestation of the
views of the government has had any effect in fixing the
public opinion on the subject, and in counteracting the suc-
cess of the efforts which, it was to be foreseen, would be
made to distract and disunite, this alone would be a great
recommendation of the policy of having suffered no delay
to intervene.

What has been already said, in this and in preceding pa-
pers, affords a full answer to the suggestion, that the pro-
clamation was unnecessary. It would be a waste of time
to add more.

But there has been a criticism several times repeated,
which may deserve a moment''s attention. It has been
urged, that tlie proclamation ought to have contained some
reference to our treaties ; and that the generality of the
promise to observe a conduct friendly and impartial to-
wards the belhgerant powers, ought to have been qualified

PACIFIGUS. 51

With expressions equivalent to these, '•'• as far as may con-
sist with the treaties of the United States.''''

The insertion of such a clause would have entirely de-
feated the object of the proclamation, by rendering the in-
tention of the government equivocal. That object was to
assure the powers at war and our own citizens, that in the
opinion of the executive, it was consistent with the duty
and interest of the nation to observe neutrality, and that it
was intended to pursue a conduct corresponding with that
opinion. Words equivalent to those contended for would
have rendered the other part of the declaration nugatory,
by leaving- it uncertain^ whether the executive did or did
not believe a state of neutrality to be consistent with our
treaties. Neither foreign powers, nor our own citizens,
would have been able to have drawn any conclusion from
the proclamation-, and both w^ould have had a right to con-
sider it as a mere equivocation.

By not inserting any such ambiguous expressions, the
proclamation was susceptible of an intelligible and proper
construction. While it denoted on the one hand, that in
the judgment of the executive, there was nothing in our
treaties obliging us to become a party in the war; it left it
to be expected on the other, that all stipulations compati-
ble with neutrality, according to the laws and usages of
nations, would be enforced. It follows, that the procla-
mation was, in this particular, exactly what it ought to have
been.

The words, " make known the disposition of the United
" States," have also given a pretext for cavil. It has been
asked, how could the president undertake to declare the
disposition of the United States t The people, for ought
he knew, may have a very different sentiment. Thus, a
conformity with republican propriety and modesty is turned
into a topic of accusation.

52 LETTERS OF PACIFICUS.

Had the president announced his own disposition, he
would have been chargeable with egotism, if not presump-
tion. The constitutional organ of intercourse between the
United States and foreign nations, whenever he speaks to
them, it is in that capacity ; it is in the name and on the
behalf of the United States. It must therefore be with
greater propriety that he speaks of their disposition, than
of his own.

It is easy to imagine, that occasions frequently occur in
the communications to foreign governments and foreign
agents, which render it necessary to speak of the friendship
ov friendly disposition of the United States, o^ their dispo-
sition to cultivate harmony and good understanding, to re-
ciprocate neighbourly offices, and the hke. It is usual, for
example, when public ministers are received, for some com-
plimentary expressions to be interchanged. It is presum-
able that the late reception of the French minister did not
pass, without some assurance on the part of the president,
of the friendly disposition of the United States towards
France. Admitting it to have happened, would it be deem-
ed an improper arrogation } If not, why was it more so, to
declare the disposition of the United States to observe a
neutrality in the existing war }

In all such cases, nothing more is to be understood, than
an official expression of the political disposition of the na-
tion, inferred from its political relations, obligations, and
interests. It is never to be supposed, that the expression
is meant to convey the precise state of the individual sen-
timents or opinions of the great mass of the people.

Kings and princes speak of their own dispositions ; the
magistrates of republics, of the dispositions of their nations.
The president, therefore, has evidently used the style adap-
ted to his situation, and the criticism upon it is plainly a
cavil. PACIFICUS.

LETTERS OE IIELVIDIUS,

BY

JAMES MADISON.

No. I.

Several pieces with the signature of Pacificus were
lately pubhshed, which have been read with singular plea-
sure and applause, by the foreigners and degenerate citi-
zens 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 na-
tural 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 dis-
sertation ; they are mingled with a few truths that may
serve them as a passport to credulity ; and they are intro-
duced with professions of anxiety for the preservation of
peace, for the welfare of the government, and for the res-
pect due to the present head of the executive, that may
prove a snare to patriotism.

In these disguises they have appeared to claim the at-
tention I propose to bestow on them : with a view to show,
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 ad-
vanced which strike at the vitals of its constitution, as well
as at its honour and true interest.

As it is not improbable that attempts may be made to

54 LETTERS OF

apply insinuations, which are seldom spared when particu-
lar purposes are to be answered, to the author of the ensu-
ing 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 re-
spect 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 ar-
guments may be wanting.

The substance of the first piece, sifted from its inconsis-
tencies 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 inter-
course with foreign nations, and the interpreter and exe-
cutor of treaties, and the law of nations, is authorized to
expound all articles of treaties, those involving questions of
war and peace, as well as others; — to judge of the obliga-
tions of the United States to make war or not, under any
casus fcederis or eventual operation of the contract, relat-
ing to w^ar ; and to pronounce the state of things resulting
from the obligations of the United States, as understood
by the executive :

That in particular llie executive had authority to judge.

HELVIDIUS. .)i>

whether iii 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 22nd of April last, is to be
taken as the eflect and expression of that decision.

The basis of the reasoning is, we perceive the extraor-
dinary doctrine, that the powers of making war, and trea-
ties, are in their nature executive ; and therefore compre-
hended in the general grant of executive power, where not
especially and strictly excepted out of the grant.

Let us examine this doctrine : and that we may avoid
the possibility of mistaking the writer, it shall be laid down
in his own words ; a precaution the more necessary, as
scarce any thing else could outweigh the improbabihty,
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 qualifi-
" cations to the executive powers] have been already no-
" ticed — the participation of the senate in the appointment
" o/ officers^ and the making of treaties. A </«/r(Z 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 parti-
" cipation of the senate in the making of treaties^ and the
" power of the legislature to declare war^ are exceptions
"• out of the general executive power., vested in the presi-
" dent ; they are to be construed strictly., and ought to be
'' extended no further than is essential to their execution."

If there be any countenance to these positions, it must
be found either, first, 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.

56 LETTERS OF

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 qual-
ities, are not to be expected in the works of the most re-
ceived jurists, who wrote before a critical attention was
paid to those objects, and with their eyes too much on mo-
narchical governments, where all powers are confounded
in the sovereignty of the prince. It will be found however,
I believe, that all of them, particularly Wolsius, Burlema-
qui, and Vatel, speak of the powers to declare war, to con-
clude 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 dis-
cussed 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 admi-
ration bordering on idolatry. Montesquieu, however, has
rather distinguished himself by enforcing the reasons and
the importance of avoiding a confusion of the several pow-
ers 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 govern-
ment, 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 c^xW^ federative^
are really distinct from the executive^ though almost al-

* The chapter on prerogative shows, how much the reason of the pliilosopher was cloud-
ed by the royahsm of the Enghshnian.

HELVIDIUS. 57

ways united witli it, and hardlij to be separated into dis-
tinct 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 obser-
vation would probably never have dropped 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.

2. If we consult, for a moment, the nature and operation
of the two powers to declare war and to make treaties, it
will be impossible not to see, that they can never fall with-
in a proper definition of executive powers. The natural
province of the executive magistrate is to execute laws, as
that of the legislature is to make laws. All his acts, there-
fore, properly executive, must presuppose the existence of
the laws to be executed. A treaty is not an execution
of laws : it does not presuppose the existence of laws.
It is, on the contrary, to have itself the force of a
law.) and to be carried into execution.) like all other laws^
by the executive magistrate. To say then that the power
of making treaties, which are confessedly laws, belongs
naturally to the department which is to execute laws, is to
say, that the executive department naturally includes a le-
gislative power. In theory this is an absurdity — in prac-
tice a tyranny.

The power to declare war is subject to similar reason-
ing. A declaration that there shall be war, is not an exe-
cution of laws : it docs not suppose preexisting laws to be
executed : it is not, in any respect, an act merely execu-
tive. 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
8

58 LETTERS OF

to the relation between the society and its foreign enemy.
In Hke manner, a conclusion of peace annuls all the laws
peculiar to a state of war, and revives the general laws in-
cident to a state of peace.

These remarks will be strengthened by adding, that trea-
ties, particularly treaties of peace, have sometimes the ef-
fect of changing not only the external laws of the society,
but operate also on the internal code, which is purely mu-
nicipal, and to which the legislative authority of the coun-
try is of itself competent and complete.

From this view of the subject it must be evident, that
although the executive may be a convenient organ of pre-
liminary communications with foreign governments, on the
subjects of treaty or war; and the proper agent for carry-
ing into execution the final determinations of the compe-
tent authority ; yet it can have no pretensions, from the na-
ture 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 leo-islature 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, exe-
cutive pretensions on those subjects.

3. It remains to be inquired, whether there be any thing
in the constitution itself, which shows, that the powers of
making war and peace are considered as of an executive
nature, and as comprehended within a general grant of ex-
ecutive power.

HELVIDIUS. 59

It will not be pretended, that this appears from any di-
rect position to be found in the instrument.

If it were deduciblc from any particular expressions, it
may be presumed, that the publication would have saved
ws the trouble of the research.

Does the doctrine, then, residt 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 de-
claring war expressly vested in the congress, where every
other legislative power is declared to be vested ; and with-
out any other qualification than wliat is common to every
other legislative act. The constitutional idea of this pow-
er would seem then clearly to be, that it is of a legislative,
and not an executive nature.

This conclusion becomes irresistible, when it is recollect-
ed, 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 consolida-
tion of different powers, which would violate a fundamen-
tal principle in the organization of free governments. If it
were not unnecessary to enlarge on this topic liere, it could
be shown, 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 execu-

60 LETTERS OF

live 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 suffi-
cient indications that the power of treaties is regarded by
the constitution as materially different from mere execu-
tive 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 parti-
cular 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 confes-
sedly 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 emphati-
cally 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 arc but few, it will be most satisfactory to re-
view 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 in

HELVIDIUS. 61

stead 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 con-
duct a war cannot in the nature of things, be proper or
safe judges, whether a war ought to be commenced^ con-
tinued^ or concluded. They are barred from the latter
functions by a great principle in free government, analo-
gous 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 oiTences 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 he with regard to other
nations ^ No other certainly than what subsists between
the powers of executing and enacting laws ; no other, con-
sequently, than what iorbids a coalition of the powers in
the same de})artment.

62 LETTERS OF

I pass over the few other specified functions assigned to
the president, such as that of convening 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 ad-
judged to the president by the laws establishing the execu-
tive departments; and which the writer has endeavoured to
press into his service. To justify any favourable inference
from this case, it must be shown, 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 at-
tempted. 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 em-
ployed 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 consequen-
ces.

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 counte-
nanced 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 declar-
ing 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 necessitv of this

HELVIDIUS. 63

solution of the problem, by looking back to the area 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 syste-
matic 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, be-
ing arranged with such obvious propriety among the legis-
lative powers, as to be passed over without particular dis-
cussion.

"Though 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 es-
" sence 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 employ-
" ment of the common strength, either for this purpose, or
" for the common defence, seem to comprise all the func-
" tions of the executive magistrate. The power of making
" treaties is plainly neither the one nor the other. It re-

64 LETTERS OF

" lates 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 ques-
" tion seems therefore to form a distinct department, and
" to belong properly neither to the legislative nor to the
" executive. The qualities elsewhere detailed as indispen-
" sable in the management of foreign negotiations^ 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 hody^ in the office
" of making them." Federalist, p. 418.*

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 confidant^ in de-
ciding that the power is plainly and evidently not an execu-
tive power.

No. II.
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 con-
struction transferred to the legislature, they actually belong
to the executive ; that of course all powers not less execu-
tive in their nature than those powers, if not granted to the

*No. 75, written by Mr. Hamilton.

HELVIDIUS. 65

legislature, may be claimed by the executive ; if granted,
are to be taken strictly^ with a residuary right in the exe-
cutive ; 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 una-
ble to scan the extent of constructive prerogative.

Leaving however to the leisure of the reader deductions
which the author, having omitted, might not choose to own,
I proceed to the examination of one, with which that lib-
erty 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, though to he 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 ^
9

66 LETTERS OF

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 admis-
sion, 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 func-
tions." Here, again, he must equally fail.

Whatever difficulties may arise in defining the executive
authority in particular cases, there can be none in decid-
ing 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 ;
though 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 obhga-
tions to make war, is admitted to be included as a legisla-
tive function. Whenever, then, a question occurs, whether
war shall be declared, or whether public stipulations re-
quire it, the question necessarily belongs to the department
to which those 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

HELVIDIUh. 67

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 execu-
tive, as such, 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 concurrent right to declare, as it has to judge ;
and, by another analogy, the same right to judge of other
causes of war, as of the particular cause found in a pub-
lic 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 legislatire power. Now, omitting
the inquiry 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 depart-

68 LETTERS OF

ment, ov jointly in both ; a remark used on another occa-
sion is equally conclusive on this, that the same power
cannot belong, in the ivhole 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 diflfer-
ent legislative bodies. Executive powers may be concur-
rently vested in different executive magistrates. In legis-
lative acts the executive may have a participation, as in the
qualified negative on the laws. In executive acts, the legis-
lature, 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 indepen-
dent 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 hap-
pen 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 acknow-
ledged to be errors, they confirm, rather than impeach the
truth and value of the maxim.

It may happen also, that different independent depart-
ments, 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.

HELVIDIUS. 69

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 differ-
ently. The executive may proceed to consider the ques-
tion 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^ ex-
pressly contradicting the constitutional proclamation.

In what hght does this present the constitution to the
people who established it ? In what light would it present
to the world a nation, thus speaking, through two different
organs, equally constitutional and authentic, two opposite
languages, on the same subject, and under the same exist-
ing 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

70 LETTERS OF

in the executive, whenever a case for exercising it occurs,
in the course of its functions ; a right declared to be judi-
ciary and vested in that department may, on the same prin-
ciple, 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 legisla-
ture 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 follow-
ing :

" If the legislature have a right to make war on the one
" hand, it is on the other the duty of the executive to pre-
" serve 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 pursu-
" ance 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 recognises and adopts those laws.
" It is consequently bound, by faithfully executing the laws
" ofitdieutrality, when that is the state of the nation, to avoid
■-' giving a cause of war to foreign powers."

To do full justice to this masterpiece of logic, the read-
er must have the patience to follow it step by step.

HELVIDIUS. 71

If the legislature have a right to make war on the one
kand^ it i5, on the other ^ the duty of the executive to pre-
serve peace till war is declared.

It will be observed that here is an explicit and peremp-
tory 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 govern-
ment : That is to say, in fulfilling the duty to preserve
peace., it must necessarily possess the right to judge whe-
ther peace ought to he preserved ; in other words, tc^c^^er
its duty should he performed. Can words express a flat-
ter contradiction? It is self-evident that the duty in this
case is so far from necessarily implying the rights that it
necessarily excludes it.

Rnd when in pursuance of this right it has concluded
that there is nothing in them ( ohligations ) inconsistent
with a state of neutrality., it becomes hoth 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 preserve peace, till war is declared.

Take this sentence in connexion with the preceding, and
the contradictions are multiplied. Take it by itself, and it
makes the right to judge and conclude, whether war be
obhgatory, absolute and operative; and the duty to pre-
serve peace subordinate and conditional.

It will have been remarked by the attentive reader, that
the term peace in the first clause has been silently ex-
changed in the present one, for the term neutrality. No-

72 LETTERS OF

thing however is gained by shifting the terms. NeutraHty
means peace, with an alhision to the circumstance of other
nations being at war. The term has no reference to the
existence or nonexistence of treaties or alhances between
the nation at peace and the nations at war. The laws in-
cident to a state of neutrahty, 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 authorized 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 de-
fine, than to shift the term neutrality. For suppose, if you
please, the existence of obligations to join in war to be in-
consistent with neutrality, the question returns upon him,
what laws are to be enforced 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 ob-
ligations, 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 ar-
gument 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

HELVIDIUS. 73

" the province and duty of the executive '' after it has con-
cluded that there is nothing in those obHgations inconsis-
tent w^ith a state of peace and neutrahty. 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 fol-
lows :

The executive is charged with the execution of all laws^
the laws of nations as well as the municipal law which re-
cognises and adopts those laws. It is consequently bounds
by faithfully executing the laws of neutrality when that is
the state of the nation^ to avoid giving cause of war to for-
eign 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 neutral-
ity, 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 inter-
nal 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 neu-
trality 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 neu-
trality whilst in force, and leave it to the legislature to de-
cide, whether they ought to be altered or not. The exe
10

74 LETTERS OF

cutive has no other discretion than to convene and give in-
formation 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 res-
ponsible for the consequences. It could not be made res-
ponsible for them without vesting it with the legislative as
well as with the executive trust.

These remarks are obvious and conclusive, on the sup-
position 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 avow-
ed object, which is to work out a prerogative for the exe-
cutive to judge, in common with the legislature, whether
there be cause of war or not in a public obhgation, it is to
be presumed that "in faithfully executing the laws of neu-
" trality," 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.

No. III.

In order to give colour to a right in the executive to ex-
ercise 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 tliis : " 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 or-
'• der to the enforcement of those privileges ;" from which
it is stated, as a necessary consequence, that the executive

HELVIDIUS. 75

has certain other rights, among which is the right in ques-
tion.

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 ques-
tion, 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 declara-
tion 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 witii a right acknow-
ledged to be in the legislative department.

If nothing else could suggest this distinction to the wri-
ter, 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 pub-
lic 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 preex-
isting treaties.

The power of the legislature to declare w^ar, 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 hypothet-
ical or singular occurrences, naturally warns the reader of
some lurking fallacy.

The words of the constitution are, -' He (the president)

76 LETTERS OF

" 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 pro-
duce. 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 pro-
vide 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 cere-
mony of admitting public ministers, of examining their cre-
dentials, 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 oc-
casion— I will take the liberty of recurring to the cotempo-
rary 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 am-
^' bassadors 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 bran-
" ches upon every arrival of a foreign minister, though it
^' were merely to take the place of a departed predeces-
^' sor." Fed. p. 389.*

* Wo. 69. written by Mr. HuMiiltoa.

HELVIDIUS. 77

Had it been foretold in the year 1788, when this work
was pubhshed, that before the end of the year 1793, a wri-
ter, assuming the merit of being a friend to the constitu-
tion, would appear, and gravely maintain, that this func-
tion, which was to be without consequence in the adminis-
tration of the government, might have the consequence of
decidmg 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 pro-
bably 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 am-
bassadors and other public ministers, that so consequential
a prerogative may be exercised by the executive ? When
a foreign minister presents himself, two questions immedi-
ately arise : Are his credentials from the existing and act-
ing government of his country ? Are they properly authen-
ticated ? These questions belong of necessity to the exe-
cutive ; 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 dis-
cretion to reject public ministers. It is evident, therefore,
that if the executive has a right to reject a public minister,

78 LETTERS OF

it must be founded on some other consideration than a
change in the government, or the newness of the govern-
ment ; 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 res-
pect 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 dis-
cussed 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 ten-
ure by which the United States hold their existence as a
iiation.

It is a principle incorporated with the above, that gov-
ernments are established for the national good, and are or-
gans of the national will.

From these two principles results a third, that treaties

HELVIDIUS. 79

formed by the government, are treaties of the nation, un-
less otherwise expressed in the treaties.

Another consequence is, that a nation, by exercising the
right of changing the organ of its will, can neither disen-
gage itself from the obligations, nor forfeit the benefits of
its treaties. This is a truth of vast importance, and hap-
pily rests with sufficient firmness, on its own authority.
To silence or prevent cavil, I insert, however, the follow-
ing extracts : " Since then such a treaty (a treaty not per-
" sonal to 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 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 mani-
" festly personal."— Burlam. part IV, c. IX, § 16, H 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.

80 LETTERS OF

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 consti-
tution of the United States, the executive is authorized to
receive ambassadors, other public ministers, and consuls :
and whereas a public minister, duly appointed and com-
missioned 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 ambassa-
dors, 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 sus-
pension, shall revive the same : of which all persons con-
cerned 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 vulnera-
ble 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 gov-
" ernment has undergone a revolution,] that right [the right

HELVIDIUS. 81

" 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 acknow-
" ledged, the treaties between the nations as far at least
" as regards public rights^ are of course suspended."

This qualification of the suspending power, though re-
luctantly and inexphcitly made, was prudent, for two rea-
sons : first, because it is pretty evident that private rights^
whether of judiciary or executive cognizance, may be car-
ried into effect without the agency of the foreign govern-
ment: and therefore would not be suspended, of course,
by a rejection of that agency : secondly, because the judi-
ciary, 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 inforce^ whilst it would be the duty of another ex-
positor to consider them sls in force., would be a phenome-
non not so easy to be explained. Indeed, as the doc-
trine 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 enfor-
cing 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 sac-
rifice of one half of it. It is not true, that oil 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 conse-
quence 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.
H

8^ LETTERS OF

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 gov-
ernment, 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 al-
liance 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 peo-
ple 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 Caro-
lina 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 suspen-
sion 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 uni-
versal indignation, as an ignominious perfidy ?

With respect to public rights th?it 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 ac-
knowledge 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

HELVIDIUS. 83

government is suspended, it is a case of necessity *, it would
he 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 authori-
ty could be imphed 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 rul-
ers ; 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 re-
ceive 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 discre-
tion, on account of the date or form of the government, to
refuse to acknowledge it, either by rejecting its public min-
ister, 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.

84 LETTERS OF

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 asso-
" ciate 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 legisla-
" ture 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 du-
" ties according to its own sense of them," without any

HELVIDIUS. 85

other control than what it is hable to, in every other legis-
lative 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 han-
dle by which you take it ; and which at the same time, you
can take by no handle that does not clash with some infer-
ence preceding.

If "by weighing in the legislative decisions" be meant
having an influence on the expediency of this or that decis-
ion, 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 constitu-
tional 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 impHed by the force of the terms
" constitutional powers," that the antecedent state of
things produced by the executive, ought to have a consti-
tutional weight with the legislature ; or, in plainer words,
imposes a constitutional obligation on the legislative de-
cisions ; the writer will not only have to combat the argu-
ments by which such a prerogative has been disproved ;
but to reconcile it with his last concession, that " the legis-
" lature 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.

86 LETTERS OF

No. IV.

The last papers completed the view proposed to be ta-
ken 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 legisla-
ture 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, re-
main before the pubhc a striking monument of the princi-
ples and views which are entertained and propagated in
the community.

It is also to be remembered, that however the conse-
quences flowing from such premises, may be disavowed at
this time, or by this individual, we are to regard it as mor-
ally certain, that in proportion as the doctrines make their
way into the creed of the government, and the acquies-
cence 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 char-
acter 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 dan-
ger. A people, therefore, who are so happy as to possess

HELVIDIUS. 87

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 coun-
tenance, 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 rea-
soning, to say, that if the prerogative exists at all, an opera-
tive 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 connect-
" ed 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 i&
" charged with the execution of the laws, of which treaties
" make a part — as that power, which is charged with the
" command and application of the public forced

With additional force, it might be said, that the execu-
tive 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^ equal-
ly authorized to carry those obligations into effect. Should
there occur, for example, a casus foederis^ claiming a mili-^
tary 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 interpre
ter of public treaties to decide, whether it ought to be em-
ployed.

88 LETTERS OF

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 ob-
" ligations 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, more-
over, possesses all powers relating to war, not strictly with-
in 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 hap-
pen 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 hy 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 extraordinary
publication 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

HELVIDIUS. 89

had swallowed the gross sophistry which wrapped up the
original dose.

Every just view that can he taken of this subject, admon-
ishes 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 exclw
sively vested in the legislature *, that the executive has no
right, in any ease, to decide the question, whether there is
or is not cause for declaring war ; that the right of con-
vening and informing congress, whenever such a question
seems to call for a decision, is all the right which the con-
stitution has deemed requisite or proper •, and that for such,
more than for any other contingency, this right was speci-
ally 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 depart
ment. Beside the objection to such a mixture of hetero-
geneous 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 expect-
ed 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 patron-
age under which they are to be enjoyed. It is in war, final-
ly, 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; ambi-
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tion, 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 propen-
sity to war : hence it is the practice of all states, in pro-
portion as they are free, to disarm this propensity of its in-
fluence.

As the best praise then that can be pronounced on an
executive magistrate, is, that he is tlie friend of peace ; a
praise that rises in its value, as there may be a known ca-
pacity to shine in war : so it must be one of the most sa-
cred 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 principal reasons on which the consti-
tution 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 pow-
" er to an elective magistrate of four years' duration. It
'•'' has been remarked upon another occasion, and the re-
'''' mark is unquestionably just, that an hereditary monarch,

HELVIDIUS. 91

*' though often the oppressor of his people, has personally
" too much at stake in the government to be in any mate-
*■'■ rial 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 inter-
" ests of the state to the acquisition of wealth. An ambi-
" bitious 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 deli-
" cate and momentous a kind, as those which concern its
" intercourse with the rest of the world, to the sole dispos-
'• al of a magistrate created and circumstanced as would
" b-e a president of the United States." p. 418.*

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 inter-
course with the rest of the world, to the disposal of a sin-
gle magistrate, it is a plain consequence, that every addi-
tion 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

* Federalisf, No. 75, ^V)■if(^'ll by Mv. Tl.imillon.

92 LETTERS OF

an electice 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 exe-
cutive 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 great-
er than the right to say that war ought not to begin. Ev-
ery danger of error or corruption, incident to such a pre-
rogative 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.

No. V.

Having seen that the executive has no constitutional right
to interfere in any question, whether there be or be not a
cause of war, and the extensive consequences flowing from
the doctrines on which such a claim has been asserted ; it
remains to be inquired, whether the writer is better war-
ranted in the fact which he assumes, namely that the pro-
clamation of the executive has undertaken to decide the
question, whether there be a cause of war or not, in the
article of guaranty between the United States and France,
and in so doing has exercised the right which is claimed
for that department.

Before I proceed to the examination of this point, it may
not be amiss to advert to the novelty of the phraseology,
as well as of the doctrines, espoused by this writer. The
source from which the former is evidently borrowed, may
enlighten our conjectures with regard lo the source of the

HELVIDIUS. 93

latter. It is a just observation also that words have often
a gradual influence on ideas, and, when used in an impro-
per sense, may cover fallacies which would not otherwise
escape detection.

I allude particularly to his application of the term gov-
ernmenl to the executive authority alone. The proclama-
tion is " a manifestation of the sense of the government.'^''
<■<. Why did not the government wait," &.c. " The policy
" on the part of the government of removing all doubt as
" to its own disposition.''''* " It was of great importance,
" that our citizens should understand as early as possible
" the opinion entertained by the government^'' Sec. " If in
" addition to the rest, the early manifestation of the views
" of the government had any effect in fixing the public
" opinion,'''' &.c. The reader will probably be struck with
the reflection, that if the proclamation really possessed the
character, and was to have the effects, here ascribed to it,
something more than the authority of the government, in
the writer's sense of government, would have been a ne-
cessary sanction to the act ; and if the term " government"
be removed, and that of " president" substituted, in the sen-
tences quoted, the justice of the reflection will be felt with
peculiar force. But I remark only on the singularity of the
style adopted by the writer, as showing either that the
phraseology of a foreign government is more familiar to him
than the phraseology proper to our own, or that he wishes
to propagate a famiharity of the former hi preference to the
latter. I do not know what degree of disapprobation others
may think due to this innovation of language ; but I con-
sider it as far above a trivial criticism, to observe that it is
by no means unworthy of attention, whether viewed with
an eye to its probable cause, or its apparent tendency.

* The writer ought not in the same paper, No. Vll, to have said, " Had the president
" announced his oivn disposilion, la would have been chargeable with egotism, if not pre-
" sumption.''^

94 LETTERS OF

" The government" unquestionably means, in the United
States, the whole government, not the executive part, either
exclusively, or preeminently ; as it may do in a monarchy,
where the splendour of prerogative eclipses, and the ma-
chinery of influence directs, every other part of the govern-
ment. In the former and proper sense, the term has hith-
erto been used in official proceedings, in public discussions,
and in private discourse. It is as short and as easy, and
less liable to misapprehension, to say the executive, or the
president, as to say the government. In a word, the new
dialect could not proceed either from necessity, conveni-
ency, propriety, or perspicuity ; and being in opposition to
common usage, so marked a fondness for it justifies the
notice here taken of it. It shall no longer detain me, how-
ever, from the more important subject of the present paper.

I proceed therefore to observe, that as a "-'proclamation,"
in its ordinary use, is an address to citizens or subjects
only ; as it is always understood to relate to the law actu-
ally in operation^ and to be an act purely and exclusively
executive ; there can be no implication in the name or the
form of such an instrument, that it was meant principally
for the information of foreign nations ; far less that it rela-
ted to an eventual stipulation on the ii\\h']GQ,i acknowledged
to be within the legislative province.

When the writer therefore undertook to engraft his new
prerogative on the proclamation, by ascribing to it so un-
usual, and unimplied a meaning, it was evidently incumbent
on him to show, that the text of the instrument could not
be satisfied by any other construction than his own. Has
he done this } No. What has he done '^. He has called
the proclamation a proclamation of neutrality ; he has put
his own arbitrary meaning on that phrase ; and has then
proceeded in his arguments and his inferences, with as
much confidence, as if no question was ever to be asked,

HELVIDIUS. 95

whether the term "neutrality" be in the proclamation;
or whether, if there, it could justify the use he makes of it.

It has appeared from observations already made, that if
the term " neutrality" was in the proclamation, it could not
avail the writer in the present discussion ; but the fact is,
no such term is to be found in it, nor any other term, of a
meaning equivalent to that, in which the term neutrality is
used by him.

There is the less pretext in the present case, for hunting
after any latent or extraordinary object, because an obvious
and legal one is at hand, to satisfy the occasion on which
the proclamation issued. The existence of war among
several nations with which the United States have an ex-
tensive intercourse ; the duty of the executive to preserve
peace by enforcing its laws, whilst those laws continued
in force ; the danger that indiscreet citizens might be
tempted or surprised by the crisis, into unlawful proceed-
ings, tending to involve the United States in a war, which
the competent authority might decide them to be at liberty
to avoid, and which, if they should be judged not at liberty
to avoid, the other party to the eventual contract^ might
be willing not to impose on them ; these surely might have
been sufficient grounds for the measure pursued by the
executive : and being legal and rational grounds, it would
be wrong, if there be no necessity, to look beyond them.

If there be any thing in the proclamation of which the wri-
ter could have made a handle, it is the part which declares,
the disposition^ the daty^ and the interest of the United
States, in relation to the war existing in Europe. As the
legislature is the only competent and constitutional organ
of the will of the nation ; that is, of its disposition, its duty,
and its interest, in relation to a commencement of war, in
like manner as the president and senate jointly^ not the
president alone^ are in relation to peace, after war has been

96 LETTERS OF

commenced — I will not dissemble my wish that a language
less exposed to criticism had been preferred ; but taking
the expressions, hi the sense of the writer himself, as anal-
ogous to the language which might be proper, on the re-
ception of a public minister, or any similar occasion, it is
evident that his construction can derive no succour even
from this source.

If the proclamation, then, does not require the construc-
tion which this writer has taken the liberty of putting on
it ; I leave it to be decided, whether the following consid-
erations do not forbid us to suppose, that the president
could have intended by that act, to embrace and prejudge
the legislative question, whether there was, or was not, un-
der the circumstances of the case, a cause of war in the
article of guaranty.

It has been shown that such an intention would have
usurped the prerogative not vested in the executive, and
even confessedly vested in another department.

In exercising the constitutional power of deciding a
question of war, the legislature ought to be as free to de-
cide, according to its own sense of the public good, on one
side as on the other side. Had the proclamation prejudged
the question on either side, and proclaimed its decision to
the world ; the legislature, instead of being as free as it
ought, might be thrown under the dilemma, of either sac-
rificing its judgment to that of the executive; or, by oppos-
ing the executive judgment, of producing a relation be-
tween the two departments, extremely delicate among our-
selves, and of the worst influence on the national character
and interests abroad. A variance of this nature, it will
readily be perceived, would be very different from a want
of conformity to the mere recommendations of the execu-
tive, in the measure adopted by the legislature.

It does not appear that such a proclamation could have

HELVIDIUS. 97

even pleaded any call, from either of the parties at war
with France, for an explanation of the light in which the
guaranty ^^ as viewed. Whilst, indeed, no positive indica-
tion whatever was given of hostile purposes, it is not con-
ceived, that any power could have decently made such
an application ; or, if it had, that a proclamation would
have been either a satisfactory, or an honorable answer.
It could not have been satisfactory, if serious apprehensions
were entertained; because it would not have proceeded from
that authority which alone could definitively pronounce
the will of the United States on the subject. It would not
have been honourable, because a private diplomatic answer,
only, is due to a private diplomatic application ; and to
have done so much more, would have marked a pusillani-
mity and want of dignity in the executive magistrate.

But whether the executive was or was not applied
to, or whatever weight be allowed to that circumstance, it
ought never to be presumed, that the executive would so
abruptly, so publicly, and so solemnly, proceed to disclaim a
sense of the contract, which the other party might consider,
and wish to support by discussion, as its true and reasona-
ble import. It is asked, indeed, in a tone that sufficiently
displays the spirit in which the writer construes both the
proclamation and the treaty, " Did the executive stand
" in need of the logic of a foreign agent to enlighten it as
"to the duties or the interests of the nation ; or was it bound
" to ask his consent to a step, which appeared to itself
" consistent with the former, and conducive to the latter ?
" The sense of treaties was to be learned from the treaties
"themselves." Had he consulted his Vatel, instead of his
animosity to France, he would have discovered, that how-
ever humiliating it might be to wait for a foreign logic, to
assist the interpretation of an act depending on the national

authority alone, yet in the case of a treaty, which is as
13

98 LETTERS OF

much the treaty of a foreign nation, as it is ours, and in
which foreign duties and rights are as much involved as
ours, the sense of the treaty, though to be learned from
the treaty itself, is to be equally learned by both parties to
it. Neither of them can have a right more than the other,
to say what a particular article means ; and where there
is equality without a judge, consultation is as consistent
with dignity as it is conducive to harmony and friendship.
Let Vatel however be heard on the subject.

" The third general maxim, or principle, on the subject
" of interpretation [of treaties] is : that neither the one nor
" the other of the interested or contracting poivers has a
" right to interpret the act or the treaty at its pleasure.
" For if you are at liberty to give my promise what sense
" you please, you will have the power of obliging me to do
" whatever you have a mind, contrary to my intention, and
" beyond my real engagement : and reciprocally, if I am
" allowed to explain my promises as I please^ I may render
'-'• them vain and illusive^ by giving them a sense quite dif
'' ferent from that in which they were presented to you^
" and in which you must have taken them in accepting
" themy Vatel, B. II, c. vii, § 265.

The writer ought to have been particularly sensible of
the improbability that a precipitate and ex parte decision
of the question arising under the guaranty, could have been
intended by the proclamation. He had but just gone through
the undertaking, to prove that the article of guaranty like
the rest of the treaty is defensive, not offensive. He had
examined his books and retailed his quotations, to show
that the criterion between the two kinds of war is the cir-
cumstance of priority in the attack. He could not there-
fore but know, that according to his own principles, the ques-
tion, whether the United States were under an obligation or
not to take part in the war, was a question of fact whether

IIELVIDIUS. 99

the first attack was made by France or hei' enemies. And
to decide a question of fact, as well as of principle, without
waiting for such representations and proofs as the absent
and interested party might have to produce, would have
been a proceeding contrary to the ordinary maxims of jus-
tice, and requiring circumstances of a very peculiar nature,
to warrant it towards any nation. Towards a nation which
could verify her claim to more than bare justice by our
own reiterated and formal acknowledgments, and which
must in her present singular and interesting situation have
a peculiar sensibility to marks of our friendship or aliena-
tion, the impropriety of such a proceeding would be infin-
itely increased, and in the same proportion the improba-
bility of its having taken place.

There are reasons of another sort which would have
been a bar to such a proceeding. It would have been as
impolitic as it would have been unfair and unkind.

If France meant not to insist on the guaranty, the meas-
ure, without giving any present advantage, would have de-
prived the United States of a future claim which may be
of importance to their safety. It would have inspired
France with jealousies of a secret bias in this country to-
ward some of her enemies which might have left in her
breast a spirit of contempt and revenge, of which the effects
might be felt in various ways. It must in particular have
tended to inspire her with a disinclination to feed our com
merce with those important advantages which it already
enjoys, and those more important ones which it anxiously
contemplates. The nation that consumes more of the
fruits of our soil than any other nation in the world, and
supplies the only foreign raw* material of extensive use in
the United States, would not be unnecessarily provoked
by those who understand the public interest, and make it
their study, as it is their duty to advance it.

*Molas,ses.

100 LETTERS OF

I am aware that the common-place remark will be inter-
posed, that, '- commercial privileges are not worth having,
" when not secured by mutual interest ; and never worth
" purchasing because they will grow of themselves out of a
" mutual interest." Prudent men, who do not suffer their
reason to be misled by their prejudices, will view the sub-
ject in a juster light. They will reflect, that if commercial
privileges are not worth purchasing, they are worth having
without purchase ; that in the commerce of a great nation,
there are valuable privileges which may be granted or not
granted, or granted either to this or that country, without
any sensible influence on the interest of the nation itself;
that the friendly or unfriendly disposition of a country, is
always an article of moment in the calculations of a com-
prehensive interest ; that some sacrifices of interest will be
made to other motives, by nations as well as by individu-
als, though not with the same frequency, or in the same
proportions ; that more of a disinterested conduct, or of a
conduct founded on liberal views of interest, prevails in
some nations than in others ; that as far as can be seen of
the influence of the revolution on the genius and the pohcy
of France, particularly with regard to the United States,
every thing is to be hoped by the latter on this subject,
which one country can reasonably hope from another. In
this point of view, a greater error could not have been com-
mitted than in a step that might have turned the present
disposition of France to open her commerce to us as far as
a liberal calculation of her interest would permit, and her
friendship towards us, and confidence in our friendship to
wards her, could prompt, into a disposition to shut it as
closely against us as the united motives of interest, of dis-
trust, and of ill will, could urge her.

On the supposition tiiat France might intend to claim
the guaranty, a hasty and harsh refusal before we were

HELVIDIUS. 101

asked, on a ground that accused her of being the aggres-
sor in the war against every power in the catalogue of her
enemies, and in a crisis when all her sensibility must be
alive towards the United States, would have given every
possible irritation to a disappointment which every motive
that one nation could feel towards another and towards it-
self, required to be alleviated by all the circumspection and
delicacy that could be applied to the occasion.

The silence of the executive, since the accession of Spain
and Portugal to the war against France, throws great light
on the present discussion. Had the proclamation been is-
sued in the sense, and for the purposes ascribed to it, that
is to say, as a declaration of neutrality, another would have
followed, on that event. If it was the right and duty of the
government^ that is, the president^ to manifest to Great
Britain and Holland, and to the American merchants and
citizens, his sense^ his disposition., and his views on the
question, whether the United States were^ under the cir-
cumstances of the case^ bound or not., to execute the clause
of guaranty., and not to leave it uncertain., whether the ex-
ecutive did or did not believe a state of neutrality to be
consistent with our treaties ; the duty., as well as the right,
prescribed a similar manifestation to all the parties con-
cerned, after* Spain and Portugal had joined the other
maritime enemies of France. The opinion of the execu-
tive with respect to a consistency or inconsistency of neu-
trality with treaties, in the latter case., could not be infer-
red from the proclamation in the former, because the cir-
cumstances might be different: the war in the latter case.,
might be defensive on the side of France, though offensive
against her other enemies. Taking the proclamation in its
proper sense, as reminding all concerned, that as the Uni-

* The writer is betrayed into an acknowledgment of this in his seventh number, where
he appHes his reasoning to Spain as well as to Great Britain and Holland. He had forgot-
ten that Spain was not included in the proclamation.

102 LETTERS OF HELVIDIUS.

ted States were at peace, (that state not being affected by
foreign wars, and only to be changed by the legislative au-
thority of the country,) the laws of peace were still obliga-
tory, and would be enforced ; and the inference is so obvi-
ous and so applicable to all other cases, whatever circum-
stances may distinguish them, that another proclamation
would be unnecessary. Here is a new aspect of the whole
subject, admonishing us in the most striking manner at
once of the danger of the prerogative contended for, and
the absurdity of the distinctions and arguments employed
in its favour. It would be as impossible in practice, as it
is in theory, to separate the power of judging and conclud-
ing that the obligations of a treaty do not impose war, from-
that of judging and concluding that the obligations do im-
pose war. In certain cases, silence would proclaim the^
latter conclusion, as intelhgibly as words could do the for-r
mer. The writer indeed has himself abandoned the dis- -.
tinction in his seventh paper, by declaring expressly that,^
the object of the proclamation would have been defeated .^^
" by leaving it uncertain, whether the executive did or did j
" not believe a state of neutrality to be consistent with our :>^ \
" treaties." -t

HELVIDIUS, \^

W