Patrick J. Garrity
September 23, 2013
In April 1793 the United States was confronted with its most serious foreign policy crisis since the end of the American Revolution, when the Washington Administration learned that the recently-constituted French Republic had declared war on England and the Dutch Republic. France, with which the United States had a political-military alliance dating from the Revolution, was locked in an apparent death struggle with a broad coalition comprised of those two states along with Austria, Prussia, Spain, Portugal, and a number of Italian and German principalities. The United States had hitherto remained aloof from the conflict, but popular support for revolutionary France now surged in America.
There were complications. What was previously a continental war had recently transformed into a worldwide maritime conflict. The United States, with its extensive commerce across the Atlantic and in the Caribbean, could no longer remain simply a spectator, trading unencumbered with all parties (and growing rich as a consequence). American merchant ships were tempting prizes for both sides, particularly the British. A new French minister, Edmond-Charles Genêt, was known to be en route to the United States. Americans wondered what he might ask, or demand, of them. Perhaps he would invoke the French alliance and try to bring the United States directly into the war to aid its sister republic.
President George Washington summoned his Cabinet to Philadelphia to decide upon the proper course of American policy under these critical circumstances. The Cabinet members agreed that the United States should stay out of the military conflict, keeping with the Revolutionary-era objectives of maintaining commercial relations with Europe while remaining aloof from purely European controversies and wars. They disagreed strongly over the means and ends of implementing that policy, however, as the lines between commerce and politics, and European and American interests, were not easily established.
* * *
Secretary of the Treasury Alexander Hamilton, a critic of the French Revolution and a supporter of Anglo-American rapprochement, argued that America's treaty obligations to France, particularly the U.S. guarantee of the French West Indies, had been rendered non-binding by the overthrow of the Bourbon monarchy and by the fact that France was engaged in an offensive war. Given the continuing political turmoil in France and the possibility of a Bourbon restoration, he recommended against receiving Genêt as French minister—essentially, refusing to acknowledge the legitimacy of the French Republic. Secretary of State Thomas Jefferson, a supporter of the French Revolution and an opponent of Hamilton's British-oriented economic system, argued that this approach represented nothing more than legal hair-splitting and bad faith. At the level of principle, Jefferson argued, the change in regime did not excuse the United States from its obligations to the French nation. At the practical level, the French government was unlikely to invoke the treaty guarantees because it was in France's interest for the United States to remain a neutral carrier of vital supplies, especially foodstuffs. Jefferson insisted that the best course for the United States was to delay any formal action and use its economic leverage to force the belligerent powers (read: Britain) to "bid for [American] neutrality" on American terms.
* * *
In the end, on April 22, 1793, Washington decided to issue what became known as the Neutrality Proclamation (although the word neutrality, at Jefferson's behest, did not appear in the document).
Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France on the other; and the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent 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 respectfully; and to exhort 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 whatsoever 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 articles which are deemed contraband by the modern usage 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 law of nations, with respect to the Powers at war, or any of them.
The president, however, accepted Jefferson's argument about the legitimacy of the French Republic, the validity of the Franco-American treaties, and the need to accept its new minister without reservations.
* * *
Washington's decision caused immediate controversy among American supporters of France. The Proclamation had been issued by the executive during a congressional recess, without legislative review or approval, and it raised grave political and constitutional questions. Had the president usurped Congress's power to declare war by issuing a preemptive declaration of peace? Few Americans wanted to enter the conflict openly but those grateful for past French support, and sympathetic to the Revolutionary cause and the rights of mankind, demanded something better than a cold, legalistic approach. "Although America is not a party in the existing war," a group of prominent Philadelphia citizens proclaimed, "she may still be able in a state of peace to demonstrate the sincerity of her friendship by affording every useful assistance to the citizens of her sister republic." Honor demanded that the United States maintain fully its stipulated duties to France, something that the Proclamation did not address.
The political controversy increased over the next few months, as Hamilton and Jefferson, with Attorney General Edmund Randolph acting as something of an intermediary, battled to define the precise terms of American neutrality and to meet America's treaty commitments with France without justifying British retaliation. Minister Genêt's provocative approach to relations between the two republics complicated matters further.
In June, Federalist newspapers began to publish a series of essays by Pacificus—easily identified as Secretary Hamilton—which not only defended American neutrality, but did so by treating Hamilton's private arguments about the nullity of the Franco-American treaties and the questionable standing of the French Republic as if they were the authoritative position of the U.S. government. Hamilton argued that mutual interest and reciprocal advantage were much sounder bases for relations among nations than gratitude. He asserted that the executive had broad constitutional authority over matters of foreign policy.
The inquiry then is—what department of the Government of the UStates is the prop[er] 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 neit[her] to the Legislature nor Judicial Department and of course must belong to the Executive.
The Legislative Department is not the organ of intercourse between the United States 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 execution and observance of those obligations and those duties.
It is equally obvious that the act in question is foreign to the Judiciary Department of 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 the 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....
The general doctrine 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 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 Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideratioin and debate. The power of removal from office is an inportant 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 power naturally includes the right of judgwhether 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 law 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.
* * *
Jefferson was outraged. he called on his political ally, Congressman James Madison, to respond to Hamilton publicly:
Nobody answers him, & his doctrine will therefore be taken for confessed. For God's sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can & will enter the lists with him.
Madison reluctantly agreed, writing as Helvidius. The most striking heresy, in Madison's mind, had to do with the broad construction of executive power, which Madison understood to be part of Hamilton's larger plan to transform the United States into an English-style regime. Madison wrote with the implicit authority of having been a member of the Constitutional Convention as well as one of the principal co-authors of the The Federalist (Hamilton, of course, being the other).
The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not pre-suppose 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 legislative power. In theory, this is an absurdity—in practice a tyranny.
The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws: it does not suppose preexisting laws to be executed: it is not in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.
These remarks will be strengthened by adding that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and compleat.
From this view of the subject it must be evident, that although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war; and the proper agent for carrying into execution the final determinations of the competent authority; yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.
It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim....
Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements or particular expressions, or plausible analogies, to be found in the constitution.
Whence then can the writer have borrowed it?
There is but one answer to this question.
The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as Executive prerogatives by British commentators.
In a pleasing display of wit, Madison ends his first response with an appeal to an unamed authority on the nature of executive power—none other than Alexander Hamilton himself, writing in Federalist 75.
The Pacificus-Helvidius debate in many ways defined the parameters of the seemingly permanent constitutional controversy between the executive and legislative branches over primary control of American national security policy.