“Helvidius” Number 5
[18 September 1793]
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 which1 a claim has been asserted, it remains to be enquired whether the writer is better warranted in the fact which he assumes, namely that the proclamation 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, expounded2 by this writer. The source from which the former is evidently borrowed, may enlighten our conjectures with regard to the source of the latter. It is a just observation also that words have often a gradual influence on ideas, and when used in an improper sense, may cover fallacies which would not otherwise escape detection.
I allude particularly to his application of the term government to the Executive authority alone. The Proclamation 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, &c.” If in addition to the rest, the early manifestation of the views of the government, had any effect in fixing the public opinion, &c.3 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 necessary sanction to the act, and if the term “government” be removed, and that of “President” substituted, in the sentences quoted, the justice of the reflection will be felt with peculiar force. But I remark only, on the singularity of the stile adopted by the writer, as shewing 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 familiarity of the former in preference to the latter. I do not know what degree of disapprobation others may think due to this innovation of language, but I consider 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 government,” unquestionably means in the United States the whole government, not the executive part, either exclusively, or pre-eminently; as it may do in a monarchy, where the splendor of prerogative eclipses, and the machinery of influence, directs, every other part of the government. In the former and proper sense, the term has hitherto 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, conveniency, 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, however, 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 actually 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 related to an eventual stipulation on a subject, 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 unusual, and unimplied a meaning, it was evidently incumbent on him to shew, 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, 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 extensive 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 proceedings, 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 not be willing5 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 writer could have made a handle, it is the part which declares, the disposition, the duty 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 commenced—I will not dissemble my wish that a language less exposed to criticism had been preferred; but taking the expressions, in the sense of the writer himself; as analogous to the language which might be proper, on the reception of a public Minister, or any similar occasion, it is evident, that his construction can derive no succour, even from this resource.6
If the Proclamation then does not require the construction which this writer has taken the liberty of putting on it; I leave it to be decided whether the following considerations 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, under the circumstances of the case, a cause of war in the article of guaranty.
It has been shewn that such an intention would have usurped a 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 decide, 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 sacrificing its judgment to that of the Executive; or by opposing the Executive judgment, of producing a relation between the two departments, extremely delicate among ourselves, 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 Executive, in the measures adopted by the Legislature.
It does not appear that such a Proclamation could have even pleaded any call, from either of the parties at war with France, for an explanation of the light in which the guaranty was viewed—whilst, indeed, no positive indication whatever was given of hostile purposes, it is not conceived, that any power could have decently made such an application—or if they7 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 definitely8 pronounce the will of the United States on the subject. It would not have been honorable, because a private diplomatic answer only is due to a private diplomatic application; and to have done so much more, would have marked a pusilanimity 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 reasonable 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 learnt from the treaties themselves.”9 Had he consulted his Vattel, instead of his animosity to France, he would have discovered that however 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 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 learnt 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 Vattel 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 powers has a right to interpret the act or 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 different from that in which they were presented to you, and in which you must have taken them in accepting them.’” Vat. B. II. c. vii. §. 265.10
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 his 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 shew that the criterion between the two kinds of war is the circumstance of priority in the attack. He could not therefore but know, that according to his own principles, the question whether the United States, were under an obligation or not to take part in the war, was a question of fact whether the first attack was made by France or her 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 justice, 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 alienation, the impropriety of such a proceeding would be infinitely increased, and in the same proportion the improbability 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 measure, without giving any present advantage, would have deprived 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 toward 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 commerce 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 raw11 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 interest12 to advance it.
I am aware that the common-place remark will be interposed, 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.”13 Prudent men, who do not suffer their reason to be misled by their prejudices will view the subject 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 comprehensive interest; that some sacrifices of interest will be made to other motives; by nations as well as by individuals, 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 policy 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 committed 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 towards her, could prompt, into a disposition to shut it as closely against us as the united motives of interest, of distrust, and of ill-will, could urge her.
On the supposition that France might intend to claim the guaranty, a hasty and harsh refusal before we were asked, on a ground that accused her of being the aggressor 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 itself, 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 issued 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 circumstances of the case, bound or not, to execute the clause of guaranty, and not to leave it uncertain whether the Executive 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 concerned after *Spain and Portugal had joined the other maritime enemies of France. The opinion of the Executive with respect to a consistency or inconsistency of neutrality with treaties in the latter case could not be inferred from the proclamation in the former, because the circumstances might be14 different. Taking the proclamation in its proper sense, as reminding all concerned, that as the United States were at peace (that state not being affected by foreign wars, and only to be changed by the legislative authority of the country) the laws of peace were still obligatory and would be enforced, and the inference is so obvious and so applicable to all other cases whatever circumstances 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 concluding that the obligations of a treaty do not impose war from that of judging and concluding that the obligations do impose war. In certain cases, silence would proclaim the latter conclusion, as intelligibly as words could do the former. The writer indeed has himself abandoned the distinction in his VIIth paper, by declaring expressly that the object of the proclamation would have been defeated “by leaving it uncertain whether the Executive did nor did not believe a state of neutrality to be consistent with our treaties.”16
Printed copy (Philadelphia Gazette of the U.S., 18 Sept. 1793). Reprinted in [Madison], Letters of Helvidius, pp. 40–48. For JM’s later revisions, see “Helvidius” No. 2, 31 Aug. 1793, n. 2, and nn. 1, 2, 5–8, 11, 12, and 15, below.
1. In later edition, “such” is here added (The Federalist with Helvidius [1818 ed.], p. 629).
2. In later edition, corrected to read “espoused” (ibid.).
3. “Pacificus,” nos. 1 and 7, Gazette of the U.S., 29 June and 27 July 1793 (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 15:36, 130, 131, 132, 134).
4. “Pacificus” No. 7 (ibid., 15:135).
5. In later edition, corrected to read “might be willing not” (The Federalist with Helvidius [1818 ed.], p. 632).
6. In later edition, corrected to read “source” (ibid.).
7. In later edition, corrected to read “it” (ibid., p. 633).
8. In later edition, corrected to read “definitively” (ibid.).
9. “Pacificus” No. 7 (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 15:132).
10. Vattel, Law of Nations, bk. 2, chap. 17, sect. 265. JM (or the printer) erred in citing chapter 7.
11. In later edition, an asterisk is here added and at the bottom of the page, “*Molasses” (The Federalist with Helvidius [1818 ed.], p. 635).
12. In later edition, corrected to read “duty” (ibid., p. 636).
13. JM paraphrased Hamilton’s argument in “Pacificus” No. 7: “If the privileges which might have been conceded were not founded in a real and permanent mutual interest—of what value would be the Treaty that should concede them? … 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 expence of our peace?” (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 15:133).
14. In later edition, this sentence concludes “different: the war in the latter case might be defensive on the side of France, though offensive against her other enemies” (The Federalist with Helvidius [1818 ed.], p. 637).
15. “Pacificus” No. 7 (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 15:130).
16. Ibid., 15:134.