1801 Examination 1 · Founding Made Plain

1THE EXAMINATION.

2Number I.

3[New York, December 17, 1801]

4Instead of delivering a speech

5 to the House of Congress,

6 at the opening

7 of the present session,

8 the President has thought fit

9 to transmit a Message.

10Whether this has proceeded

11 from pride or from humility,

12 from a temperate love of reform,

13 or from a wild spirit of innovation,

14 is submitted

15 to the conjectures of the curious.

16A single observation shall be indulged—

17 since all agree,

18 that he is unlike his predecessors

19 in essential points,

20 it is a mark of consistency

21 to differ from them

22 in matters of form.

23Whoever considers

24 the temper of the day,

25 must be satisfied

26 that this Message

27 is likely to add much

28 to the popularity

29 of our chief magistrate.

30It conforms,

31 as far as would be tolerated

32 at this early stage

33 of our progress

34 in political perfection,

35 to the bewitching tenets

36 of that illuminated doctrine,

37 which promises man, ere long,

38 an emancipation

39 from the burdens and restraints

40 of government;

41 giving a foretaste

42 of that pure felicity

43 which the apostles

44 of this doctrine have predicted.

45After having,

46 with infinite pains and assiduity,

47 formed the public taste

48 for this species of fare,

49 it is certainly right,

50 in those whom the people

51 have chosen for their caterers,

52 to be attentive

53 to the gratification of that taste.

54And should the viands,

55 which they may offer,

56 prove baneful poisons

57 instead of wholesome aliments,

58 the justification

59 is both plain and easy—

60 Good patriots must at all events

61 please the people.

62But those

63 whose patriotism is of the old school,

64 who differ so widely

65 from the disciples of the new creed,

66 that they would rather risk

67 incurring the displeasure of the people

68 by speaking unpalatable truths,

69 than betray their interest

70 by fostering their prejudices,

71 will never be deterred

72 by an impure tide

73 of popular opinion

74 from honestly pointing out

75 the mistakes or the faults

76 of weak or wicked men,

77 who may have been selected

78 as guardians of the public weal.

79The Message of the President,

80 by whatever motives

81 it may have been dictated,

82 is a performance

83 which ought to alarm all

84 who are anxious

85 for the safety of our Government,

86 for the respectability

87 and welfare of our nation.

88It makes,

89 or aims at making,

90 a most prodigal sacrifice

91 of constitutional energy,

92 of sound principle,

93 and of public interest,

94 to the popularity of one man.

95The first thing in it

96 which excites our surprise,

97 is the very extraordinary position,

98 that though Tripoli

99 had declared war in form

100 against the United States,

101 and had enforced it

102 by actual hostility,

103 yet that there was not power,

104 for want of the sanction of Congress,

105 to capture and detain her cruisers

106 with their crews.

107When the newspapers informed us

108 that one of these cruisers,

109 after being subdued

110 in a bloody conflict,

111 had been liberated

112 and permitted quietly

113 to return home,

114 the imagination was perplexed

115 to divine the reason.

116The conjecture naturally was,

117 that pursuing a policy

118 too refined perhaps for barbarians,

119 it was intended, by that measure,

120 to give the enemy

121 a strong impression

122 of our magnanimity and humanity.

123No one dreamt of a scruple

124 as to the right

125 to seize and detain

126 the armed vessel

127 of an open and avowed foe,

128 vanquished in battle.

129The enigma is now solved,

130 and we are presented

131 with one of the most singular paradoxes

132 ever advanced

133 by a man claiming the character

134 of a statesman.

135When analyzed,

136 it amounts to nothing less than this,

137 that between two nations

138 there may exist

139 a state of complete war

140 on the one side—

141 of peace on the other.

142War, of itself,

143 gives to the parties

144 a mutual right to kill in battle,

145 and to capture

146 the persons and property

147 of each other.

148This is a rule of natural law;

149 a necessary and inevitable consequence

150 of the state of war.

151This state between two nations

152 is completely produced

153 by the act of one—

154 it requires no concurrent act

155 of the other.

156It is impossible to conceive the idea,

157 that one nation can be in full war

158 with another,

159 and this other not in the same state

160 with respect to its adversary.

161The moment that two nations are,

162 in an absolute sense, at war,

163 the public force of each

164 may exercise every act of hostility,

165 which the general laws of war authorize,

166 against the persons and property

167 of the other.

168As it respects this conclusion,

169 the distinction

170 between offensive and defensive war

171 makes no difference.

172That distinction is only material

173 to discriminate the aggressing nation

174 from that which defends itself

175 against attack.

176The war is offensive

177 on the part of the state which makes it;

178 on the opposite side it is defensive:

179 but the rights of both,

180 as to the measure of hostility,

181 are equal.

182It will be readily allowed,

183 that the constitution

184 of a particular country

185 may limit the organ,

186 charged with the direction

187 of the public force,

188 in the use or application

189 of that force,

190 even in time of actual war:

191 but nothing short

192 of the strongest negative words,

193 of the most express prohibitions,

194 can be admitted to restrain that organ

195 from so employing it,

196 as to derive the fruits

197 of actual victory,

198 by making prisoners of the persons

199 and detaining the property

200 of a vanquished enemy.

201Our Constitution, happily,

202 is not chargeable

203 with so great an absurdity.

204The framers of it

205 would have blushed at a provision,

206 so repugnant to good sense,

207 so inconsistent with national safety

208 and inconvenience.

209That instrument

210 has only provided affirmatively,

211 that,

212 "The Congress shall have power

213 to declare War;"

214 the plain meaning of which is,

215 that it is the peculiar

216 and exclusive province of Congress,

217 when the nation is at peace

218 to change that state

219 into a state of war;

220 whether from calculations of policy,

221 or from provocations,

222 or injuries received:

223 in other words,

224 it belongs to Congress only,

225 to go to War.

226But when a foreign nation declares,

227 or openly and avowedly makes war

228 upon the United States,

229 they are then by the very fact

230 already at war,

231 and any declaration

232 on the part of Congress

233 is nugatory;

234 it is at least unnecessary.

235This inference is clear in principle,

236 and has the sanction

237 of established practice.

238It is clear in principle,

239 because it is self-evident,

240 that a declaration by one nation

241 against another,

242 produces at once

243 a complete state of war

244 between both;

245 and that no declaration

246 on the other side

247 can at all vary

248 their relative situation;

249 and in practice, it is well known,

250 that nothing is more common

251 than when war is declared

252 by one party,

253 to prosecute mutual hostilities

254 without a declaration by the other.

255The doctrine of the Message

256 includes the strange absurdity,

257 that without a declaration of war

258 by Congress,

259 our public force may destroy the life,

260 but may not restrain the liberty,

261 or seize the property of an enemy.

262This was exemplified

263 in the very instance

264 of the Tripolitan corsair.

265A number of her crew

266 were slaughtered in the combat,

267 and after she was subdued,

268 she was set free

269 with the remainder.

270But it may perhaps be said,

271 that she was the assailant,

272 and that resistance

273 was an act of mere defence

274 and self-preservation.

275Let us then pursue the matter

276 a step further.

277Our ships had blockaded

278 the Tripolitan Admiral

279 in the Bay of Gibraltar;

280 suppose he had attempted

281 to make his way out,

282 without first firing upon them;

283 if permitted to do it,

284 the blockade was a farce;

285 if hindered by force,

286 this would have amounted

287 to more than a mere act of defence:

288 and if a combat had ensued,

289 we should then have seen

290 a perfect illustration

291 of the unintelligible right,

292 to take the life

293 but not to abridge the liberty,

294 or capture the property

295 of an enemy.

296Let us suppose an invasion

297 of our territory,

298 previous to a declaration of war

299 by Congress.

300The principle avowed in the Message,

301 would authorize our troops

302 to kill those of the invader,

303 if they should come

304 within the reach of their bayonets,

305 perhaps to drive them into the sea,

306 and drown them;

307 but not to disable them

308 from doing harm,

309 by the milder process

310 of making them prisoners,

311 and sending them into confinement.

312Perhaps it may be replied,

313 that the same end would be answered

314 by disarming,

315 and leaving them to starve.

316The merit of such an argument

317 would be complete by adding,

318 that should they not be famished,

319 before the arrival of their ships

320 with a fresh supply of arms,

321 we might then, if able,

322 disarm them a second time,

323 and send them on board their fleet,

324 to return safely home.

325The inconvenience of the doctrine

326 in practice,

327 is not less palpable

328 than its folly in theory.

329In every case

330 it presents a most unequal warfare.

331In the instance which has occurred,

332 the vanquished barbarian

333 got off with the loss of his guns.

334Had he been victorious,

335 those Americans,

336 whose lives might have been spared,

337 would have been doomed

338 to wear out a miserable existence

339 in slavery and chains.

340Substantial benefits

341 would have rewarded his success;

342 while on our side,

343 life, liberty, and property,

344 were put in jeopardy

345 for an empty triumph.

346This, however, presents

347 a partial inconvenience—

348 cases may arise

349 in which evils

350 of a more serious

351 and comprehensive nature

352 would be the fruits

353 of this visionary

354 and fantastical principle.

355Suppose that, in the recess of Congress,

356 a foreign maritime power

357 should unexpectedly declare war

358 against the United States,

359 and send a fleet and army

360 to seize Rhode Island,

361 in order from thence

362 to annoy our trade

363 and our sea-port towns.

364Till the Congress should assemble

365 and declare war,

366 which would require time,

367 our ships might,

368 according to the hypothesis

369 of the message,

370 be sent by the President

371 to fight those of the enemy

372 as often as they should be attacked,

373 but not to capture and detain them;

374 if beaten,

375 both vessels and crews

376 would be lost to the United States;

377 if successful,

378 they could only disarm

379 those they had overcome,

380 and must suffer them to return

381 to the place of common rendezvous,

382 there to equip anew,

383 for the purpose of resuming

384 their depredations

385 on our towns and our trade.

386Who could restrain

387 the laugh of derision

388 at positions so preposterous,

389 were it not for the reflection

390 that in the first magistrate

391 of our country,

392 they cast a blemish

393 on our national character?

394What will the world think of the fold

395 when such is the shepherd?

396Lucius Crassus.

397New-York Evening Post, December 17, 1801.