"You have most perfectly seized the original idea of the proclamation. When first proposed as a declaration of neutrality, it was opposed, first, because the Executive had no power to declare neutrality; second, as such, a declaration would be premature, and would lose us the benefit for which it might be bartered. It was urged that there was a strong impression in the minds of many that they were free to join in the hos tilities on the side of France. Others were unapprised of the danger they would be exposed to in carrying contraband goods, etc. It was, therefore, agreed that a proclamation should issue, declaring that we were in a state of peace, admonishing the people to do nothing contravening it, and putting them on their guard as to contraband. On this ground, it was accepted or acquiesced in by all, and E. R., who drew it, brought it to me (the draft) to let me see there was no such word as neutrality in it. Circumstances forbid other verbal criticisms. The public, however, soon took it up as a declaration of neutrality, and it came to be considered at length as such. ⚫ With respect to our citizens who had joined in hostilities against a nation with whom we are at peace the subject was thus viewed: Treaties are law. By the treaty with England, we are in a state of peace with her. He who breaks that peace, if within our jurisdiction, breaks the laws, and is punishable by them. And if he is punishable, he ought to be punished, because no citizen should be free to commit his country to war." Mr. Jefferson, Sec. of State, to Mr. Monroe, July 14, 1793. 2 Randall's Life of Mr. Hamilton's circular instructions of Aug. 4, 1793, to collectors of customs are "On the declaration of war between France and England, the United States being at peace with both, their situation was so new and inexperienced by themselves, that their citizens were not, in the first instant, sensible of the new duties resulting therefrom, and of the restraints it would impose even on their dispositions towards the belligerent powers. Some of them imagined (and chiefly their transient sea-faring citizens, that they were free to indulge those dispositions to take side with either party, and enrich themselves by depredations on the commerce of the other, and were meditating enterprises of this nature, as there was reason to believe. In this state of the public mind, and before it should take an erroneous direction, difficult to be set right, and dangerous to themselves and their country, the President thought it expedient, through the channel of proclamation, to remind our fellow-citizens that we were in a state of peace with all the belligerent powers; that in that state it was our duty neither to aid nor injure any; to exhort and warn them against acts which might contravene this duty, and particularly those of positive hostility, for the punishment of which the laws would be appealed to, and to put them on their guard also as to the risks they would run if they should attempt to carry articles of contraband to any. This proclamation, ordered on the 19th and signed the 22d day of April, was sent to you in my letter of the 26th of the same month." Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Min. isters. "As in cases where vessels are reclaimed by the subjects or citizens of the belligerent powers as having been taken within the jurisdiction of the United States, it becomes necessary to ascertain that fact by testimony taken according to the laws of the United States, the governors of the several States, to whom the application will be made in the first instance, are desired immediately to notify thereof the attor neys of their respective districts. The attorney is thereupon instructed to give notice to the principal agent of both parties who may have come in with the prize, and also to the consuls of the nations interested, and to recommend to them to appoint, by mutual consent, arbiters to decide whether the capture was made within the jurisdiction of the United States, as stated to you in my letter of the 8th instant, according to whose award the governor may proceed to deliver the vessel to the one or the other party. But in case the parties or consuls shall not agree to name arbiters, then the attorney, or some person substi tuted for him, is to notify them of the time and place when and where he will be, in order to take the depositions of such witnesses as they may cause to come before him, which depositions he is to transmit for the information and decision of the President." Mr. Jefferson, Sec. of State, to Mr. Hammond, Nov. 10, 1793. MSS. Notes, For. Leg. 4 Jeff. Works, 76; 1 Am. St. Pap. (For. Rel.), 183; 1 Wait's St. Pap., 196. "As soon as the war in Europe had embraced those powers with whom the United States have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted and our disposition for peace drawn into question by the suspicions too often entertained by belligerent nations. It seemed, therefore, to be my duty to admonish our citizens of the consequences of a contraband trade and of hostile acts to any of the parties, and to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation. Under these impressions the proclamation which will be laid before you was issued. "In this posture of affairs, both new and delicate, I resolved to adopt general rules which should conform to the treaties and assert the priv ileges of the United States. These were reduced into a system, which will be communicated to you. Although I have not thought myself at liberty to forbid the sale of the prizes permitted by our treaty of commerce with France to be brought into our ports, I have not refused to cause them to be restored when they were taken within the protection of our territory, or by vessels commissioned or equipped in a warlike form within the limits of the United States. "It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions. "Where individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or usurp and exercise judicial authority within the United States, or where the penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive rem. edies. "Whatsoever these remedies will be, they will be well administered by the judiciary, who possess a long-established course of investigation, effectual process, and officers in the habit of executing it. “In like manner, as several of the courts have doubted, under particular circumstances, their power to liberate the vessels of a nation at peace, and even of a citizen of the United States, although seized under a false color of being hostile property, and have denied their powers to liberate certain captures within the protection of our territory, it would seem proper to regulate their jurisdiction in these points. But if the Executive is to be the resort in either of the two last-mentioned cases, it is hoped that he will be authorized by law to have facts ascertained by the courts when for his own information he shall require it.” President Washington, Fifth Annual Address, 1793. 1 Am. St. Pap. (For. Rel.), 21. President Washington's proclamation of December 3, 1793, which was the second of the series of important papers issued during his adminis tration settling neutral rights, as now generally understood, declared 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 them any of those articles which are deemed contraband by the modern usage of nations (the italics as in original) will not receive the protection of the United States," etc. The period fixed by the definition, therefore, was before the expansion of the term in the war that ensued. 1 Am. St. Pap. (For. Rel.), 140. Mr. Hamilton, in his essays entitled Pacificus, published in exposi tion of President Washington's "neutrality" proclamation of 1793, took the ground that all treaty-making and war powers are Executive prerogatives and belong to the President of the United States, except so far as limited by the Constitution. He insisted, therefore, that the proclamation in question was not merely an exposition of the intention of the Executive to enforce the laws, but an authoritative announcement of the position to be taken by the United States as to foreign powMr. Madison's reply, published shortly after over the name of ers. Helvidius, maintained that treaty-making and war-making are attri butes of sovereignty which, in popular governments, are in the nature of laws, to be enacted by the legislature and enforced by the Executive. From his argument the following passages are extracted: "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 within 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, therefore, 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 legislative power. In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem, then, clearly to be that it is of a legislative and not of an executive nature. The power of * treaties is vested jointly in the legislature and the Senate, which is a branch of the legislature. From this arrangement, merely, there can be no inference that would necessarily exclude the power from the Executive class; since the Senate is joined with the President in another power, that of appointing to offices, which, so far as relates to executive offices at least, is considered as of an executive nature. Yet, on the other hand, there are sufficient indications that the power of treaties is regarded by the Constitution as materially different from mere executive power, and as having more affinity to the legislative than to the executive character. One circumstance indicating this, is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case a concurrence of twothirds 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 cir- ' cumstance is that treaties, when formed according to the constitutional mode, are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man as much as any other laws. They are even emphatically declared by the Constitution to be the supreme law of the land.'" Mr. Hamilton, in Pacificus, argued that the clause declaring that "the President shall receive ambassadors, other public ministers, and consuls," might be so construed as to give the Executive the power "of putting the United States in a condition to become an associate in war." To this Mr. Madison, in Helvidins, replied by quoting and adopting' the following from No. 69 of the Federalist, written by Mr. Hamilton: The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of decla-" mation, is more a matter of dignity than of authority. It is a circum-` stance that will be without consequence in the administration of the 591 Government, and it is far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature or one of its branches upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor." Mr. Madison proceeded to comment as follows: "When a foreign minister presents himself, two questions immediately arise: Are his credentials from the existing and acting Government of his country? Are they perfectly authenticated? These questions belong of necessity to the Executive; 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 discretion to reject public ministers." 1 Madison's Writings, 632 ff. Mr. Madison's construction of this particular clause is no doubt logically correct. But at the same time, as Mr. Madison was among the first practically to assert, it is a function of the Executive primarily to determine the question of recognition of foreign revolutionary movements either as belligerents or Governments. See supra, §§ 87, 137. On the question how far the proclamation of April 22, 1793, was meant to be a settlement of the relation of the United States to the belligerent powers, and not simply the views of the Executive as to such relation, we have the following letter from Mr. Jefferson to Mr. Madison of June 23, 1793: "The proclamation as first proposed was to have been a declaration of neutrality. It was opposed on these grounds: (1) That a declaration of neutrality was a declaration that there should be no war, to which the Executive was not competent; (2) that it would be better to hold back the declaration of neutrality as a thing worth something to the powers at war-that they would bid for it, and we might reasonably ask for it the broadest privileges of neutral nations. The first objection was so far respected as to avoid inserting the term neutrality; and the drawing of the instrument was left to Edmund Randolph. That there should be a proclamation was passed unanimously, with the approbation or acquiescence of all parties." 3 Rives' Madison, 325. "A contest in the arena of the public press between two such champions could not fail to draw the earnest attention of their contempora ries, for, though they engaged with vizors down, they were easily recognized by the superior temper and polish of their weapons and the practiced skill with which they were wielded. Mr. Madison embarked in it, as we have seen, with great reluctance. His habitual aversion to controversy was in this instance increased by his knowledge of the particular character of his adversary. One thing that particularly vexes me,' he said in an unreserved letter to a friend, is that I foreknow, from the prolixity and tenacity of the writer, that the business will not be terminated by a single fire, and, of course, that I must return to the charge in order to prevent a triumph without a victory.' Happily, he was relieved from this annoyance. Pacificus attempted no reply, and the apologetic suggestion of one connected with him by the closest relations, that the papers of Pacificus, being written amid harassing |