Mr. Livingston's motion in the House of Representatives, concerning the production of papers has attracted much attention. The opinion of those who think here is, that if the motion succeeds, it ought not to be complied with. Besides that in a matter of such a nature the production of the papers cannot fail to start [a] new and unpleasant Game--it will be fatal to the Negotiating Power of the Government if it is to be a matter of course for a call of either House of Congress to bring forth all the communication however confidential.

It seems to me that something like the following answer by the President will be advisable.

"A right in the House of Representatives, to demand and have as a matter of course, and without specification of any object all communications respecting a negotiation with a foreign power cannot be admitted without danger of much inconvenience. A discretion in the Executive Department how far and where to comply in such cases is essential to the due conduct of foreign negotiations and is essential to preserve the limits between the Legislative and Executive Departments. The present call is altogether indefinite and without any declared purpose. The Executive has no cases on which to judge of the propriety of a compliance with it and cannot therefore without forming a very dangerous precedent comply.

It does not occur that the view of the papers asked for can be relative to any purpose of the competency of the House of Representatives but that of an impeachment. In every case of a foreign Treaty the grounds for an impeachment must primarily be deduced from the nature of the Instrument itself and from nothing extrinsic. If at any time a Treaty should present such grounds and it shall have been so pronounced by the House of Representatives and a further inquiry shall be necessary to ascertain the culpable person, there being then a declared and ascertained object the President would attend with due respect to any application for necessary information."

This is but a hasty and crude outline of what has struck me as an eligible course. For while a too easy compliance will be mischievous, a too peremptory and unqualified refusal might be liable to just criticism.




Col Laurens, who will have the honor of delivering you this letter, is on his way to South Carolina, on a project, which I think, in the present situation of affairs there, is a very good one and deserves every kind of support and encouragement. This is to raise two three or four batalions of negroes; with the assistance of the government of that state, by contributions from the owners in proportion to the number they possess. If you should think proper to enter upon the subject with him, he will give you a detail of his plan. He wishes to have it recommended by Congress to the state; and, as an inducement, that they would engage to take those batalions into Continental pay.

It appears to me, that an expedient of this kind, in the present state of Southern affairs, is the most rational, that can be adopted, and promises very important advantages. Indeed, I hardly see how a sufficient force can be collected in that quarter without it; and the enemy's operations there are growing infinitely serious and formidable. I have not the least doubt, that the negroes will make very excellent soldiers, with proper management; and I will venture to pronounce, that they cannot be put in better hands than those of Mr. Laurens. He has all the zeal, intelligence, enterprise, and every other qualification requisite to succeed in such an undertaking. It is a maxim with some great military judges, that with sensible officers soldiers can hardly be too stupid; and on this principle it is thought that the Russians would make the best troops in the world, if they were under other officers than their own. The King of Prussia is among the number who maintain this doctrine and has a very emphatical saying on the occasion, which I do not exactly recollect. I mention this, because I frequently hear it objected to the scheme of embodying negroes that they are too stupid to make soldiers. This is so far from appearing to me a valid objection that I think their want of cultivation (for their natural faculties are probably as good as ours) joined to that habit of subordination which they acquire from a life of servitude, will make them sooner bec[o]me soldiers than our White inhabitants. Let officers be men of sense and sentiment, and the nearer the soldiers approach to machines perhaps the better.

I foresee that this project will have to combat much opposition from prejudice and self-interest. The contempt we have been taught to entertain for the blacks, makes us fancy many things that are founded neither in reason nor experience; and an unwillingness to part with property of so valuable a kind will furnish a thousand arguments to show the impracticability or pernicious tendency of a scheme which requires such a sacrifice. But it should be considered, that if we do not make use of them in this way, the enemy probably will; and that the best way to counteract the temptations they will hold out will be to offer them ourselves. An essential part of the plan is to give them their freedom with their muskets. This will secure their fidelity, animate their courage, and I believe will have a good influence upon those who remain, by opening a door to their emancipation. This circumstance, I confess, has no small weight in inducing me to wish the success of the project; for the dictates of humanity and true policy equally interest me in favour of this unfortunate class of men.




Agreeably to your request and my promise I sit down to give you my ideas of the defects of our present system, and the changes necessary to save us from ruin. They may perhaps be the reveries of a projector rather than the sober views of a politician. You will judge of them, and make what use you please of them.

The fundamental defect is a want of power in Congress. It is hardly worth while to show in what this consists, as it seems to be universally acknowleged, or to point out how it has happened, as the only question is how to remedy it. It may however be said that it has originated from three causes--an excess of the spirit of liberty which has made the particular states show a jealousy of all power not in their own hands; and this jealousy has led them to exercise a right of judging in the last resort of the measures recommended by Congress, and of acting according to their own opinions of their propriety or necessity, a diffidence in Congress of their own powers, by which they have been timid and indecisive in their resolutions, constantly making concessions to the states, till they have scarcely left themselves the shadow of power; a want of sufficient means at their disposal to answer the public exigencies and of vigor to draw forth those means; which have occasioned them to depend on the states individually to fulfil their engagements with the army, and the consequence of which has been to ruin their influence and credit with the army, to establish its dependence on each state separately rather than on them, that is rather than on the whole collectively.

It may be pleaded, that Congress had never any definitive powers granted them and of course could exercise none--could do nothing more than recommend. The manner in which Congress was appointed would warrant, and the public good required, that they should have considered themselves as vested with full power to preserve the republic from harm. They have done many of the highest acts of sovereignty, which were always chearfully submitted to--the declaration of independence, the declaration of war, the levying an army, creating a navy, emitting money, making alliances with foreign powers, appointing a dictator &c. &c.--all these implications of a complete sovereignty were never disputed, and ought to have been a standard for the whole conduct of Administration. Undefined powers are discretionary powers, limited only by the object for which they were given--in the present case, the independence and freedom of America. The confederation made no difference; for as it has not been generally adopted, it had no operation. But from what I recollect of it, Congress have even descended from the authority which the spirit of that act gives them, while the particular states have no further attended to it than as it suited their pretensions and convenience. It would take too much time to enter into particular instances, each of which separately might appear inconsiderable; but united are of serious import. I only mean to remark, not to censure.

But the confederation itself is defective and requires to be altered; it is neither fit for war, nor peace. The idea of an uncontrolable sovereignty in each state, over its internal police, will defeat the other powers given to Congress, and make our union feeble and precarious. There are instances without number, where acts necessary for the general good, and which rise out of the powers given to Congress must interfere with the internal police of the states, and there are as many instances in which the particular states by arrangements of internal police can effectually though indirectly counteract the arrangements of Congress. You have already had examples of this for which I refer you to your own memory.

The confederation gives the states individually too much influence in the affairs of the army; they should have nothing to do with it. The entire formation and disposal of our military forces ought to belong to Congress. It is an essential cement of the union; and it ought to be the policy of Congress to destroy all ideas of state attachments in the army and make it look up wholly to them. For this purpose all appointments promotions and provisions whatsoever ought to be made by them. It may be apprehended that this may be dangerous to liberty. But nothing appears more evident to me, than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people. Already some of the lines of the army would obey their states in opposition to Congress notwithstanding the pains we have taken to preserve the unity of the army--if any thing would hinder this it would be the personal influence of the General, a melancholy and mortifying consideration.

The forms of our state constitutions must always give them great weight in our affairs and will make it too difficult to bend them to the persuit of a common interest, too easy to oppose whatever they do not like and to form partial combinations subversive of the general one. There is a wide difference between our situation and that of an empire under one simple form of government, distributed into counties provinces or districts, which have no legislatures but merely magistratical bodies to execute the laws of a common sovereign. Here the danger is that the sovereign will have too much power to oppress the parts of which it is composed. In our case, that of an empire composed of confederated states each with a government completely organised within itself, having all the means to draw its subjects to a close dependence on itself--the danger is directly the reverse. It is that the common sovereign will not have power sufficient to unite the different members together, and direct the common forces to the interest and happiness of the whole.

The leagues among the old Grecian republics are a proof of this. They were continually at war with each other, and for want of union fell a prey to their neighbours. They frequently held general councils, but their resolutions were no further observed than as they suited the interests and inclinations of all the parties and at length, they sunk intirely into contempt.

Our own experience should satisfy us. We have felt the difficulty of drawing out the resources of the country and inducing the states to combine in equal exertions for the common cause. The ill success of our last attempt is striking. Some have done a great deal, others little or scarcely any thing. The disputes about boundaries &c. testify how flattering a prospect we have of future tranquillity, if we do not frame in time a confederacy capable of deciding the differences and compelling the obedience of the respective members.

The confederation too gives the power of the purse too intirely to the state legislatures. It should provide perpetual funds in the disposal of Congress--by a land tax, poll tax, or the like. All imposts upon commerce ought to be laid by Congress and appropriated to their use, for without certain revenues, a government can have no power; that power, which holds the purse strings absolutely, must rule. This seems to be a medium, which without making Congress altogether independent will tend to give reality to its authority.

Another defect in our system is want of method and energy in the administration. This has partly resulted from the other defect, but in a great degree from prejudice and the want of a proper executive. Congress have kept the power too much into their own hands and have meddled too much with details of every sort. Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system. Two thirds of the members, one half the time, cannot know what has gone before them or what connection the subject in hand has to what has been transacted on former occasions. The members, who have been more permanent, will only give information, that promotes the side they espouse, in the present case, and will as often mislead as enlighten. The variety of business must distract, and the proneness of every assembly to debate must at all times delay.

Lately Congress, convinced of these inconveniences, have gone into the measure of appointing boards. But this is in my opinion a bad plan. A single man, in each department of the administration, would be greatly preferable. It would give us a chance of more knowlege, more activity, more responsibility and of course more zeal and attention. Boards partake of a part of the inconveniencies of larger assemblies. Their decisions are slower their energy less their responsibility more diffused. They will not have the same abilities and knowlege as an administration by single men. Men of the first pretensions will not so readily engage in them, because they will be less cospicuous, of less importance, have less opportunity of distinguishing themselves. The members of boards will take less pains to inform themselves and arrive to eminence, because they have fewer motives to do it. All these reasons conspire to give a preference to the plan of vesting the great executive departments of the state in the hands of individuals. As these men will be of course at all times under the direction of Congress, we shall blend the advantages of a monarchy and republic in our constitution.

A question has been made, whether single men could be found to undertake these offices. I think they could, because there would be then every thing to excite the ambition of candidates. But in order to this Congress by their manner of appointing them and the line of duty marked out must show that they are in earnest in making these offices, offices of real trust and importance.

I fear a little vanity has stood in the way of these arrangements, as though they would lessen the importance of Congress and leave them nothing to do. But they would have precisely the same rights and powers as heretofore, happily disencumbered of the detail. They would have to inspect the conduct of their ministers, deliberate upon their plans, originate others for the public good--only observing this rule that they ought to consult their ministers, and get all the information and advice they could from them, before they entered into any new measures or made changes in the old.

A third defect is the fluctuating constitution of our army. This has been a pregnant source of evil; all our military misfortunes, three fourths of our civil embarrassments are to be ascribed to it. The General has so fully enumerated the mischief of it in a late letter of the [20th August] to Congress that I could only repeat what he has said, and will therefore refer you to that letter.

The imperfect and unequal provision made for the army is a fourth defect which you will find delineated in the same letter. Without a speedy change the army must dissolve; it is now a mob, rather than an army, without cloathing, without pay, without provision, without morals, without discipline. We begin to hate the country for its neglect of us; the country begins to hate us for our oppressions of them. Congress have long been jealous of us; we have now lost all confidence in them, and give the worst construction to all they do. Held together by the slenderest ties we are ripening for a dissolution.

The present mode of supplying the army--by state purchases--is not one of the least considerable defects of our system. It is too precarious a dependence, because the states will never be sufficiently impressed with our necessities. Each will make its own ease a primary object, the supply of the army a secondary one. The variety of channels through which the business is transacted will multiply the number of persons employed and the opportunities of embezzling public money. From the popular spirit on which most of the governments turn, the state agents, will be men of less character and ability, nor will there be so rigid a responsibility among them as there might easily be among those in the employ of the continent, of course not so much diligence care or economy. Very little of the money raised in the several states will go into the Continental treasury, on pretence, that it is all exhausted in providing the quotas of supplies, and the public will be without funds for the other demands of governments. The expence will be ultimately much greater and the advantages much smaller. We actually feel the insufficiency of this plan and have reason to dread under it a ruinous extremity of want.

These are the principal defects in the present system that now occur to me. There are many inferior ones in the organization of particular departments and many errors of administration which might be pointed out; but the task would be troublesome and tedious, and if we had once remedied those I have mentioned the others would not be attended with much difficulty.

I shall now propose the remedies, which appear to me applicable to our circumstances, and necessary to extricate our affairs from their present deplorable situation.

The first step must be to give Congress powers competent to the public exigencies. This may happen in two ways, one by resuming and exercising the discretionary powers I suppose to have been originally vested in them for the safety of the states and resting their conduct on the candor of their country men and the necessity of the conjuncture: the other by calling immediately a convention of all the states with full authority to conclude finally upon a general confederation, stating to them beforehand explicity the evils arising from a want of power in Congress, and the impossibily of supporting the contest on its present footing, that the delegates may come possessed of proper sentiments as well as proper authority to give to the meeting. Their commission should include a right of vesting Congress with the whole or a proportion of the unoccupied lands, to be employed for the purpose of raising a revenue, reserving the jurisdiction to the states by whom they are granted.

The first plan, I expect will be thought too bold an expedient by the generality of Congress; and indeed their practice hitherto has so rivetted the opinion of their want of power, that the success of this experiment may very well be doubted.

I see no objection to the other mode, that has any weight in competition with the reasons for it. The Convention should assemble the 1st of November next, the sooner, the better; our disorders are too violent to admit of a common or lingering remedy. The reasons for which I require them to be vested with plenipotentiary authority are that the business may suffer no delay in the execution, and may in reality come to effect. A convention may agree upon a confederation; the states individually hardly ever will. We must have one at all events, and a vigorous one if we mean to succeed in the contest and be happy hereafter. As I said before, to engage the states to comply with this mode, Congress ought to confess to them plainly and unanimously the impracticability of supporting our affairs on the present footing and without a solid coercive union. I ask that the Convention should have a power of vesting the whole or a part of the unoccupied land in Congress, because it is necessary that body should have some property as a fund for the arrangements of finance; and I know of no other kind that can be given them.

The confederation in my opinion should give Congress complete sovereignty; except as to that part of internal police, which relates to the rights of property and life among individuals and to raising money by internal taxes. It is necessary, that every thing, belonging to this, should be regulated by the state legislatures. Congress should have complete sovereignty in all that relates to war, peace, trade, finance, and to the management of foreign affairs, the right of declaring war of raising armies, officering, paying them, directing their motions in every respect, of equipping fleets and doing the same with them, of building fortifications arsenals magazines &c. &c., of making peace on such conditions as they think proper, of regulating trade, determining with what countries it shall be carried on, granting indulgencies laying prohibitions on all the articles of export or import, imposing duties granting bounties & premiums for raising exporting importing and applying to their own use the product of these duties, only giving credit to the states on whom they are raised in the general account of revenues and expences, instituting Admiralty courts &c., of coining money, establishing banks on such terms, and with such privileges as they think proper, appropriating funds and doing whatever else relates to the operations of finance, transacting every thing with foreign nations, making alliances offensive and defensive, treaties of commerce, &c. &c.

The confederation should provide certain perpetual revenues, productive and easy of collection, a land tax, poll tax or the like, which together with the duties on trade and the unlocated lands would give Congress a substantial existence, and a stable foundation for their schemes of finance. What more supplies were necessary should be occasionally demanded of the states, in the present mode of quotas.

The second step I would recommend is that Congress should instantly appoint the following great officers of state--A secretary for foreign affairs--a President of war--A President of Marine--A Financier--A President of trade; instead of this last a board of Trade may be preferable as the regulations of trade are slow and gradual and require prudence and experience (more than other qualities), for which boards are very well adapted.

Congress should choose for these offices, men of the first abilities, property and character in the continent--and such as have had the best opportunities of being acquainted with the several branches.

These offices should have nearly the same powers and functions as those in France analogous to them, and each should be chief in his department, with subordinate boards composed of assistant clerks &c. to execute his orders.

In my opinion a plan of this kind would be of inconceivable utility to our affairs; its benefits would be very speedily felt. It would give new life and energy to the operations of government. Business would be conducted with dispatch method and system. A million of abuses now existing would be corrected, and judicious plans would be formed and executed for the public good.

And, in future, My Dear Sir, two things let me recommend, as fundamental rules for the conduct of Congress--to attach the army to them by every motive, to maintain an air of authority (not domineering) in all their measures with the states. The manner in which a thing is done has more influence than is commonly imagined. Men are governed by opinion; this opinion is as much influenced by appearances as by realities; if a Government appears to be confident of its own powers, it is the surest way to inspire the same confidence in others; if it is diffident, it may be certain, there will be a still greater diffidence in others, and that its authority will not only be distrusted, controverted, but contemned.

I wish too Congress would always consider that a kindness consists as much in the manner as in the thing: the best things done hesitatingly and with an ill grace lose their effect, and produce disgust rather than satisfaction or gratitude. In what Congress have at any time done for the army, they have commonly been too late: They have seemed to yield to importunity rather than to sentiments of justice or to a regard to the accomodation of their troops. An attention to this idea is of more importance than it may be thought. I who have seen all the workings and progress of the present discontents, am convinced, that a want of this has not been among the most inconsiderable causes.As attempts are making very dangerous to the peace, and it is to be feared not very friendly to the constitution of the UStates--it becomes the duty of those who wish well to both to endeavour to prevent their success.

The objections which have been raised against the Proclamation of Neutrality lately issued by the President have been urged in a spirit of acrimony and invective, which demonstrates, that more was in view than merely a free discussion of an important public measure; that the discussion covers a design of weakening the confidence of the People in the author of the measure; in order to remove or lessen a powerful obstacle to the success of an opposition to the Government, which however it may change its form, according to circumstances, seems still to be adhered to and pursued with persevering Industry.

This Reflection adds to the motives connected with the measure itself to recommend endeavours by proper explanations to place it in a just light. Such explanations at least cannot but be satisfactory to those who may not have leisure or opportunity for pursuing themselves an investigation of the subject, and who may wish to perceive that the policy of the Government is not inconsistent with its obligations or its honor.

The objections in question fall under three heads--

1 That the Proclamation was without authority

2 That it was contrary to our treaties with France

3 That it was contrary to the gratitude, which is due from this to that country; for the succours rendered us in our own Revolution.

4 That it was out of time & unnecessary.

In order to judge of the solidity of the first of these objection[s], it is necessary to examine what is the nature and design of a proclamation of neutrality.

The true nature & design of such an act is--to make known to the powers at War and to the Citizens of the Country, whose Government does the Act that such country is in the condition of a Nation at Peace with the belligerent parties, and under no obligations of Treaty, to become an associate in the war with either of them; that this being its situation its intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality; and as a consequence of this state of things, to give warning to all within its jurisdiction to abstain from acts that shall contravene those duties, under the penalties which the laws of the land (of which the law of Nations is a part) annexes to acts of contravention.

This, and no more, is conceived to be the true import of a Proclamation of Neutrality.

It does not imply, that the Nation which makes the declaration will forbear to perform to any of the warring Powers any stipulations in Treaties which can be performed without rendering it an associate or party in the War. It therefore does not imply in our case, that the UStates will not make those distinctions, between the present belligerent powers, which are stipulated in the 17th and 22d articles of our Treaty with France; because these distinctions are not incompatible with a state of neutrality; they will in no shape render the UStates an associate or party in the War. This must be evident, when it is considered, that even to furnish determinate succours, of a certain number of Ships or troops, to a Power at War, in consequence of antecedent treaties having no particular reference to the existing war, is not inconsistent with neutrality; a position well established by the doctrines of Writers and the practice of Nations.

But no special aids, succours or favors having relation to war, not positively and precisely stipulated by some Treaty of the above description, can be afforded to either party, without a breach of neutrality.

In stating that the Proclamation of Neutrality does not imply the non performance of any stipulations of Treaties which are not of a nature to make the Nation an associate or party in the war, it is conceded that an execution of the clause of Guarantee contained in the 11th article of our Treaty of Alliance with France would be contrary to the sense and spirit of the Proclamation; because it would engage us with our whole force as an associate or auxiliary in the War; it would be much more than the case of a definite limited succour, previously ascertained.

It follows that the Proclamation is virtually a manifestation of the sense of the Government that the UStates are, under the circumstances of the case, not bound to execute the clause of Guarantee.

If this be a just view of the true force and import of the Proclamation, it will remain to see whether the President in issuing it acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.

It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the UStates.

It can as little be disputed, that a Proclamation of Neutrality, where a Nation is at liberty to keep out of a War in which other Nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the Nation being immediately responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principles of neutrality.

An object this of the greatest importance to a Country whose true interest lies in the preservation of peace.

The inquiry then is--what department of the Government of the UStates is the proper one to make a declaration of Neutrality in the cases in which the engagements of the Nation permit and its interests require such a declaration.

A correct and well informed mind will discern at once that it can belong neither to the Legislative nor Judicial Department and of course must belong to the Executive.

The Legislative Department is not the organ of intercourse between the UStates and foreign Nations. It is charged neither with making nor interpreting Treaties. It is therefore not naturally that Organ of the Government which is to pronounce the existing condition of the Nation, with regard to foreign Powers, or to admonish the Citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.

It is equally obvious that the act in question is foreign to the Judiciary Department of the Government. The province of that Department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of Treaties between Government and Government. This position is too plain to need being insisted upon.

It must then of necessity belong to the Executive Department to exercise the function in Question--when a proper case for the exercise of it occurs.

It appears to be connected with that department in various capacities, as the organ of intercourse between the Nation and foreign Nations--as the interpreter of the National Treaties in those cases in which the Judiciary is not competent, that is in the cases between Government and Government--as that Power, which is charged with the Execution of the Laws, of which Treaties form a part--as that Power which is charged with the command and application of the Public Force.

This view of the subject is so natural and obvious--so analogous to general theory and practice--that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the UStates.

Let us see then if cause for such doubt is to be found in that constitution.

The second Article of the Constitution of the UStates, section 1st, establishes this general Proposition, That "The Executive Power shall be vested in a President of the United States of America."

The same article in a succeeding Section proceeds to designate particular cases of Executive Power. It declares among other things that the President shall be Commander in Chief of the army and navy of the UStates and of the Militia of the several states when called into the actual service of the UStates, that he shall have power by and with the advice of the senate to make treaties; that it shall be his duty to receive ambassadors and other public Ministers and to take care that the laws be faithfully executed.

It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications; as in regard to the cooperation of the Senate in the appointment of Officers and the making of treaties; which are qualifications of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of Executive authority would naturally dictate the use of general terms--and would render it improbable that a specification of certain particulars was design[e]d as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution in regard to the two powers the Legislative and the Executive serves to confirm this inference. In the article which grants the legislative powers of the Governt. the expressions are--"All Legislative powers herein granted shall be vested in a Congress of the UStates;" in that which grants the Executive Power the expressions are, as already quoted "The Executive Power shall be vested in a President of the UStates of America."

The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.

The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument.

Two of these have been already noticed--the participation of the Senate in the appointment of Officers and the making of Treaties. A third remains to be mentioned the right of the Legislature "to declare war and grant letters of marque and reprisal."

With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.

And since upon general principles for reasons already given, the issuing of a proclamation of neutrality is merely an Executive Act; since also the general Executive Power of the Union is vested in the President, the conclusion is, that the step, which has been taken by him, is liable to no just exception on the score of authority.

It may be observed that this Inference would be just if the power of declaring war had not been vested in the Legislature, but that this power naturally includes the right of judging whether the Nation is under obligations to make war or not.

The answer to this is, that however true it may be, that the right of the Legislature to declare war includes the right of judging whether the Nation be under obligations to make War or not--it will not follow that the Executive is in any case excluded from a similar right of Judgment, in the execution of its own functions.

If the Legislature have a right to make war on the one hand--it is on the other the duty of the Executive to preserve Peace till war is declared; and in fulfilling that duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the Country impose on the Government; and when in pursuance of this right it has concluded that there is nothing in them inconsistent with a state of neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the Nation. The Executive is charged with the execution of all laws, the laws of Nations as well as the Municipal law, which recognises and adopts those laws. It is consequently bound, by faithfully executing the laws of neutrality, when that is the state of the Nation, to avoid giving a cause of war to foreign Powers.

This is the direct and proper end of the proclamation of neutrality. It declares to the UStates their situation with regard to the Powers at war and makes known to the Community that the laws incident to that situation will be enforced. In doing this, it conforms to an established usage of Nations, the operation of which as before remarked is to obviate a responsibility on the part of the whole Society, for secret and unknown violations of the rights of any of the warring parties by its citizens.

Those who object to the proclamation will readily admit that it is the right and duty of the Executive to judge of, or to interpret, those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges: But the necessary consequence of this is, that the Executive must judge what are the proper bounds of those privileges--what rights are given to other nations by our treaties with them--what rights the law of Nature and Nations gives and our treaties permit, in respect to those Nations with whom we have no treaties; in fine what are the reciprocal rights and obligations of the United States & of all & each of the powers at War.

The right of the Executive to receive ambassadors and other public Ministers may serve to illustrate the relative duties of the Executive and Legislative Departments. This right includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to be recognised or not: And where a treaty antecedently exists between the UStates and such nation that right involves the power of giving operation or not to such treaty. For until the new Government is acknowleged, the treaties between the nations, as far at least as regards public rights, are of course suspended.

This power of determining virtually in the case supposed upon the operation of national Treaties as a consequence, of the power to receive ambassadors and other public Ministers, is an important instance of the right of the Executive to decide the obligations of the Nation 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 UStates and that Country, the unqualified acknowlegement of the new Government would have put the UStates in a condition to become an associate in the War in which France was engaged--and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising 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 consequentially affect the proper or improper exercise of the Power of the Legislature to declare war. The Executive indeed cannot control the exercise of that power--further than by the exer[c]ise of its general right of objecting to all acts of the Legislature; liable to being overruled by two thirds of both houses of Congress. The Legislature is free to perform its own 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. From the division of the Executive Power there results, in referrence to it, a concurrent authority, in the distributed cases.

Hence in the case stated, though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.

No objection has been made to the Presidents having 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 the Treaties heretofore made with that Country: But he is censured for having declared the UStates to be in a state of peace & neutrality, with regard to the Powers at War; because the right of changing that state & declaring war 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 general "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 War--it belongs to the "Executive Power," to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the UStates with foreign Powers.

In this distribution of powers the wisdom of our constitution 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 those blessings, by placing the Nation in a state of War.

But though it has been thought adviseable to vindicate the authority of the Executive on this broad and comprehensive 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 relied upon, and this simple process of argument pursued.

The President is the constitutional Executor of the laws. 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 judged that there was not, he had a right, and if in his opinion the interests of the Nation required it, it was his duty, as Executor of the laws, to proclaim 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 a fact with regard to the existing state of the Nation, informs the citizens of what the laws previously established require of them in that state, & warns them that these laws will be put in execution against the Infractors of them.The Message of the President, by whatever motives it may have been dictated, is a performance which ought to alarm all who are anxious for the safety of our Government, for the respectability and welfare of our nation. It makes, or aims at making, a most prodigal sacrifice of constitutional energy, of sound principle, and of public interest, to the popularity of one man.

The first thing in it which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.

When the newspapers informed us, that one of these cruisers, after being subdued in a bloody conflict, had been liberated and permitted quietly to return home, the imagination was perplexed to divine the reason. The conjecture naturally was, that pursuing a policy, too refined perhaps for barbarians, it was intended by that measure to give the enemy a strong impression of our magnanimity and humanity. No one dreampt of a scruple as to the right to seize and detain the armed vessel of an open and avowed foe, vanquished in battle. The enigma is now solved, and we are presented with one of the most singular paradoxes, ever advanced by a man claiming the character of a statesman. When analyzed, it amounts to nothing less than this, that between two nations there may exist a state of complete war on the one side--of peace on the other.

War, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other. This is a rule of natural law; a necessary and inevitable consequence of the state of war. This state between two nations is completely produced by the act of one--it requires no concurrent act of the other. It is impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary. The moment therefore that two nations are, in an absolute sense, at war, the public force of each may exercise every act of hostility, which the general laws of war authorise, against the persons and property of the other. As it respects this conclusion, the distinction between offensive and defensive war, makes no difference. That distinction is only material to discriminate the agressing nation from that which defends itself against attack. The war is offensive on the part of the state which makes it; on the opposite side it is defensive: but the rights of both, as to the measure of hostility, are equal.

It will be readily allowed that the Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war: but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it, as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. That instrument has only provided affirmatively, that, "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produce[s] at once a complete state of war between both; and that no declaration on the other side can at all vary their relative situation: and in practice it is well known, that nothing is more common, than when war is declared by one party, to prosecute mutual hostilities, without a declaration by the other.

The doctrine of the Message includes the strange absurdity, that, without a declaration of war by Congress, our public force may destroy the life, but may not restrain the liberty, or seize the property of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat, and after she was subdued she was set free with the remainder. But it may perhaps be said, that she was the assailant, and that resistance was an act of mere defence, and self-preservation. Let us then pursue the matter a step further. Our ships had blockaded the Tripolitan Admiral in the bay of Gibraltar; suppose, he had attempted to make his way out, without first firing upon them: if permitted to do it, the blockade was a farce; if hindered by force, this would have amounted to more than a mere act of defence; and if a combat had ensued, we should then have seen an unequivocal illustration of the unintelligible right, to take the life but not to abridge the liberty, or capture the property of an enemy.

Let us suppose an invasion of our territory, previous to a declaration of war by Congress. The principle avowed in the Message would authorize our troops to kill those of the invader, if they should come within the reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships, with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home.

The inconvenience of the doctrine in practice, is not less palpable than its folly in theory. In every case it presents a most unequal warfare. In the instance which has occurred, the vanquished Barbarian got off with the loss of his guns. Had he been victorious, the Americans, whose lives might have been spared, would have been doomed to wear out a miserable existence in slavery and chains. Substantial benefits would have rewarded his success; while on our side, life, liberty and property, were put in jeopardy, for an empty triumph. This, however, was a partial inconvenience--cases may arise in which evils of a more serious and comprehensive nature wou'd be the fruits of this visionary and fantastical principle. Suppose that, in the recess of Congress, a foreign maritime power should unexpectedly declare war against the United States, and send a fleet and army to seize Rhode-Island, in order from thence to annoy our trade and our seaport towns. Till the Congress should assemble and declare war, which would require time, our ships might, according to the hypothesis of the Message, be sent by the President to fight those of the enemy as often as they should be attacked, but not to capture and detain them: If beaten, both vessels and crews whould be lost to the United States: if successful, they could only disarm those they had overcome, and must suffer them to return to the place of common rendezvous, there to equip anew, for the purpose of resuming their depredations on our towns and our trade.

Who could restrain the laugh of derision at positions so preposterous, were it not for the reflection that in the first magistrate of our country, they cast a blemish on our national character? What will the world think of the fold when such is the shepherd?