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FEB. 24, 1831.]
him in this debate, had reiterated the same objection, and Virginia (Mr. TAZEWELL) was to be received as a very had read extracts from thic speeches of some of the mem- Aattering compliment to the President, when he expressed bers of the present cabinet, to show that their course, on his perfect confidence in the honesty of his intentions, but that occasion, when members of the Senate, was wholly believed that he had been deceived by his ministers, who irreconcilable with the course which the Executive had were supposed to have advised him to this course. It was pursued, in appointing commissioners to treat with the a compliment to the heart at the expense of the head; and Turkish Government. Mr. B. said, without commenting he would add, that the course of the President since he on the essential distinction, in many respects, between the had filled the station which he then occupied, had not only characters of the ministers which President Adams had been honest, but, in his opinion, marked by an enlightened asserted his power to commission to attend the Congress policy, deserving the approbation of the American peo. of Panama, and the commissioners appointed to treat with ple. Mr. B. said that he did not stand there as the apolo
Turkey, he would ask permission to read a part of the gist of the President of the United States; and while in the speech delivered in the Senate by the Senator from Vir- exercise of his duties as a member of that body, he should ginia (Mr. TazewELL) on the memorable discussion in re- never shrink from the freest examination and inquiry into lation to the Panama mission. After commenting on the the conduct of public officers, he should at the same time case, in which General Washington had appointed com- feel it equally his duty to give a fair and liberal support to missioners to treat for peace with the Dey of Algiers, he the administration, when their measures were, in his estiproceeded as follows: “ The next remark I shall make mation, conducive to the public interests. He believed upon it is, that, evenaccording to the representation given that a candid review of the course pursued by the Chief of it, it was the case of an age sent to a barbarian people, Magistrate of the Union, since his elevation to that stawho were not then, and have never since been, recognis- tion, would triumphantly acquit him of a disposition to ed as forming any component part of the family of civi- assume powers not delegated to him under the constitulized nations. Let me not be told that the constitutional tion. He had, at the last session of Congress, given a power of the President is the same, whether exerted in decisive proof of his determination to preserve the conreference to a savage or civilized nation. We all know that stitution, so far as it depended on liis authority, by refusing this is not so. No appointment of a minister, who has to sanction large and extravagant appropriations of the ever been employed to negotiate for peace, or for any public money to objects unauthorized by the powers thing else, with any Indian tribe, whether dwelling within granted to the General Government, and more recently or without our territory, whether Osage or Seminole, has in the course which had been pursued towards the State ever been laid before the Senate for their consent. They authorities in relation to the Indian tribes; and the princiare all considered as agents of the President, and not ples avowed in the President's message on that subject public ministers of the people; and all our intercourse were gratifying proofs that the reserved rights of the States with barbarians must, of necessity, present anomalies, of this confederacy would be respected under this adminfrom which no principles can be inferred. I will not go istration, and the action of the General Government reinto reasoning to show why this must and ought to be so, strained within its appropriate sphere. Mr. B. concluded although it would be easy to show it. I merely state the his remarks by expressing his thanks for the indulgence fact, which is conclusive, to prove that the case of a mis- which had been extended to him. sion to Algiers, or to the Choctaws, can never be a pre Mr. TAZEWELL again rose in reply to Mr. Livingscedent to justify a mission to Panama.” Mr. B. said, that tox. The honorable Senator from Louisiana, said Mr. T., in the remarks which he had read from the speech of the has again undertaken to chide me for the unmeasured Senator from Viriginia, he thought the distinction which language in which I have described the act of the Execuhe had taken between the case of the Panama mission and tive, concerning wbich I spoke when I last addressed the the one in question was fully sustained, and that it was Senate. I can readily conceive that the strong terms I clearly conceded that the President could, constitutionally, employed to characterize this transaction may not be very appoint agents to negotiate with a barbarian nation, with- familiar to the fastidiousness of courts or palaces, where out the previous consent of the Senate. He would ask, the dulcet sounds of approbation and admiration only are where was the distinction as to the power to send a mission commonly heard. But as my words denote precisely the to the then existing Government of Algiers, and that sent, opinions i desired to communicate to those I addressed, under the present administration, to the Turkish Govern- and were merely the abbreviation of the conclusions to ment? If the principle holds good in the one case, it ap- which I thought I had entitled myself, by the arguments peared to do so equally in the other. If the President can I had used, I was not aware that I had violated any rule of exercise the power in reference to any one nation of peo- ctiquette here, in thus summing up the reasoning upon ple, whether savage or otherwise, it appeared to him to the subject; I had proved, at least to my own satisfaction, follow plainly that he could do so in reference to all, as that the constitution furnished no authority to the Presi. the constitution did not vary the power of the President dent for what he had done; therefore, I felt myself justito appoint commissioners to treat with foreign nations, ac- fied in speaking of this act as unconstitutional, and as lawcording to their degrees of barbarism or civilization, but less. If such is its true character, all must concede that a afforded a fixed rule as to the power of the President, power exerted by a President without warrant or constituapplicable to nations of every condition.
tional grant is a surpation on his part; and as such a Mr. B. said he had heard with a degree of surprise usurpation in this case was a direct and plain infringement which he could not conceal, in the course of this debate, of the privileges of the Senate, it must be a gross violaan attempt to discriminate between the Chief Magistrate tion of the constitution, in flagrant derogation of the rights and his cabinet advisers, attributing all responsibility to of this body. To the Senate I certainly owe no apology them in relation to the Turkish treaty. This was, in- for the earnest appeal I made to them, to induce them deed, a novel doctrine in this country, and one which he to vindicate their violated rights, to prove themselves would venture to say was not in accordance with the faithful depositaries of the trusts confided to them by the theory of our Government. The doctrine of Executive constitution, and never, by a refusal to‘assert their privi. infallibility was unknown to our form of Government; the leges, to countenance the idea that they could be guilty of President was alone responsible for his official acts to the a base surrender of the rights conferred upon them by the people of the United States, and, he believed, would States they represent, which rights so conferred are in never seek to escape responsibility in the discharge of his truth but duties imposed by our constitutents for their own public duties: he must, therefore, be permitted to say wise purposes. This would be a dereliction of duty on that he did not think the remark of the gentleman from our part, which, however much it may be desired by any
(FEB. 24, 1831.
other department of the Government, could scarcely find between the power of the President to make treaties, justification or apology here or elsewhere.
and his power to make appointments to office. This disIn expressing these strong opinions, I certainly neither tinction he seeks to support by a reference to the premeasured nor weighed the force of the language neces-cedents he has cited. This distinction is certainly new. sary to convey them. But if this or any other lionorable If to be sustained at all, it must be by the force of the Senator would have been pleased to furnish me with the precedents only, for the words of the constitution as es; proper courtly phrases in which I might have communi. plicitly restrain the one power as they do the other, and cated my thoughts, I would willingly have adopted them, in precisely the same modle. Each of these powers is provided they would have expressed my opinions with given to the President; but, in the very grant itself
, they equal precision. I doubt much, however, whether I should are both required to be exercised by him, “by and with have escaped the censure of the honorable Senator from the advice and consent of the Senate” only; and the only Louisiana, if I had borrowed my terms even from his own difference between them is, that, in making treaties, the works, or from the precedents furnished by the speeches concurrence of two-thirds of the Senators present, and, in of some of those by whom the President is now surrounded, making appointments, the concurrence of a majority only which speeches were delivered by them during the Panama is required. Then, is it not strange, that, in the very debate. President Jefferson, now so much eulogized by case where the constitution imposes the strongest rethis honorable Senator, was not always regarded by him, straint, it should be contended that none exists; and yet I believe, as entitled to such encomia. One at least of the should be admitted that, in the other case, the restraint acts of this President was characterized by this Senator is effectual, although this restraint is imposed by the in language as unqualified as any I have used; and a re- same words repeated in the very next member of the ference to the speeches to which I have alluded will same sentence? furnish many examples of much stronger phrases than any But, sir, how are treaties to be negotiated? Certainly I have employed, and this too in relation to the same sub- by some officer of the Government; and this, whether ject. These terms were then applied, however, to the they are negotiated at home or abroad. For it is asking assertions of President Adams; and I have spoken of the of us too much, when we are required to admit that he acts of President Jackson, et tempora mutantur, although who has the commission of the Government, which com; the constitution remains the same.
mission is signed by its Chief Magistrate, authenticated But, sir, let no one think that I mean to justify or even by its great seal, and wherein is expressed, that, in conto excuse what I have said, by the examples of others, sideration of the high confidence reposed in him, authority or even of the President himself
. My justification is, that is thereby given by him to pledge our faith and honor, is whatever I have said, I thought; and that which I think not an officer of the United States. So that the question of the public acts of public men, I feel myself at perfect still recurs, can the President alone, without the advice liberty to speak here, whenever a proper occasion arises and consent of the Senate, create such an office? I say so to do. In this case, I neither sought nor made the occa- create such an office; for when the commission is granted sion. I would have avoided it if I could. But the Presi- to negotiate a treaty abroad, with a nation at whose court dent has chosen to present his application to his body, we have never had any representative, the office is creasking us to appropriate the money of our constituents ated: for, as I have shown, there is no pretext for saying to redeem his pledge of the public faith, plighted with that such an office is then vacant, or that the President, out our sanction or any constitutional warrant, and I am in making the appointment to it, is merely filling lip & so called upon to approve the act. Forced thus to in- vacancy, and a vacancy which has happened, too, during quire into the character of that which has been done, I the recess of the Senate. Now the Senator from Louam constrained to speak of it as I think it merits. I have isiana admits that the President alone cannot make an done so, and, in so doing, have done but what my duty original appointment to any office. What, then, becomes required.
of his distinction between the power of the President to Mr. President, this debate has taken the precise course make treaties, and his power to make appointments, in which I foresaw it would take. The advocates of this all cases where, to make a treaty, it is necessary to make appropriation, instead of meeting or controverting any an original appointment? position I have maintained in reference to the proper con Sir, the precedents may be scarched from the birth of struction of the constitution, have endeavored to justify this Government to the day of the date of the Turkish what has been done by the precedents they cite, and the treaty, and but few cases will be found of a treaty nego practice they wish to show to have been settled. The tiated by any other than a diplomatic officer of the United Senator from Louisiana alone has expressed any doubt as States, whose appointment, if an original appointment, to the correctness of the interpretation which I have given had not been made by and with the advice and consent of the constitution. At first, this doubt was rested upon of the Senate. The few cases existing, in which this an inversion and transposition of the terms used in the does not appear, are either cases occurring, " flagrante instrument. This attempt, however, seems to be aban- bello," with the Power treated with, or cases of compacts doned by him; and he now seeks to attain the same ob- entered into with piratical hordes or savage tribes, the ject, inserting a stop where there is none. To this dependents or tributaries of your own, or of some other new process for changing the meaning of its provisions, 1 sovereignty. All the precedents referred to by the Senahave no other answer to give than this-blot out all the tor from Louisiana are of this description. These prece. stops, and both the learned and unlearned will replace dents, therefore, do not touch or apply to the question them as they now are, because they will still concur in I have discussed, and which is presented in this case, reading the instrument as I have read it, and in constru- unless we are prepared to say that the principles of war ing its language as I have construed it. According to this justify the practice of peace, or that the usages which neconstruction, I repeat, the President alone may nominate, "cessity requires to be adopted in our intercourse with but, by and with the advice and consent of the Senate, barbarian Powers and dependent States, constitute the only, can appoint to any office; and when vacancies hap- rule which ought to regulate our intercourse with the pen during the recess of the Senate, the President alone oldest, and most solemnly and most universally recogmay fill up such vacancies, by temporary commissions only: nized sovereignties on earth. Here I will leave this suggested doubt, confident that it Even this the Senator from Louisiana would have us will never ripen into certainty any where, but in some hot- to do, for he ridicules my ideas that the existence of war bed prepared to force its growth unnaturally.
gives to the President power that he may not rightfully The Sepator from Louisiana next draws a distinction claim in peace; or that there is any difference between
FEB. 24, 1831.]
the piratical Barbary hordes and the Ottoman empire. United States, whose appointment and whose instructions Now, suppose I should even admit that the distinction had previously received the confirmation of the Senate. which I drew between the cases of war and peace was As to the mere internuncii employed by Mr. Humphreys without any just foundation, is it fair to infer the general himself in his intercourse with the Barbary Powers, and rule of peace from the exception of war? Or is it wise who acted under appointments from him, and not from or safe to contend, that what is acquiesced in without the President, I presume it cannot be necessary for me murmur, during the storm of war, is therefore right, and to say a single word. Doubtless, the minister might emmay be properly repeated in the calm and "piping time ploy what messengers, interpreters, or subagents, he of peace.” I pray the Senate to think well of the conse- thought necessary, and the obligation of the instrument, quences which may and must result if they sanction such put into form by them before it received his assent, could doctrine as this.
neither be strengthened nor weakened by their signature, Peace gives the rule, and war the exception to it. Nor whether it was vanity or necessity that subscribed it. is it of little consequence to the present argument, The same answer will equally apply to the cases of the whether the exception be de jure or de facto only. It is treaties afterwards coneluded with some of these same but an exception in either case; and we reason erroneous-Powers during the administration of President Madison. ly when we seek to find the rule in the exception to it. War again existed between the United States and these But if it be conceded that the exception exists de jure, Powers, when these treaties, too, were concluded. Nay, and is established by the constitution itself as an excep- such is the capricious and rapacious character of these tion, then this exception proves the general rule to be corsairs, and such their ignorance or contempt of the different. Now, I contend that the exception does exist provisions of the public law, and the usages of civilized de jure; and that in war the President may lawfully ne-nations, that it is difficult to determine when war does gotiate a treaty of peace with the enemy, when, where, not exist with them. It is this very circumstance which and how he pleases, and by the intervention of whomso-constitutes one of the great causes why your intercourse ever he thinks proper to employ for that purpose. I with them always has, and always must produce many prove it thus:
anomalies, from which no principle or rule can properly The legitimate object of all war is peace. To attain be deduced. But if I wanted an apt illustration of the this desirable end whenever war exists, the constitution truth of my position, that the power of conducting a war gives to the Executive every lawful means for its accom- necessarily includes the power of concluding it by negoplishment. Hence, he may lawfully order, and by his tiating for peace, I should find it in the circumstances atsubordinates effect, the burning of towns, the sacking of tending one of these very treaties. The gallant Decatur cities, the devastation of the enemy's country, and the had just captured the Algerine squadron. Hastening slaughter of its inhabitants; for, alas! sad experience has from the scene of his conquest, he presented his victoaught mankind, that such are the necessary means by rious fleet before the port of Algiers, ready to fire upon which alone most commonly war can be terminated, and the city, and to lay it in ashes, if necessary.
To save the desirable end of peace attained. Now, supely, if the themselves from the imminent danger, and to gain time Executive may lawfully do all this for such an object, he for preparation, the enemy wished to parley, professing a may attain the same required end by other means less wish to negotiate a peace. His answer to their proposidestructive, and more consonant to the dictates of human- tion was, “Here are the only terms of peace I can accept. ity; if he may lawfully negotiate for peace by blood sign and ratify this treaty, and our nations are friends and
Carnage, may he not negotiate for the same object again; reject it, and I must do my duty. I give you two by argument and persuasion? It is true you call the one hours to decide.” Within the time prescribed, the battle and bloodshed, and the other negotiation, yet each treaty was returned, duly executed on their part; and of them is but a means for the accomplishment of peace, hence was concluded, on board of his own flag ship, the great and only justifiable end of all war; which end the United States' ip Guerriere. Now, sir, will any one it is the bounden duty of the Executive to effect by all say that, in thus acting, this hero violated any precept of proper means, whenever war exists. And what at last the constitution of his country? And, if not, it surely is this treaty of peace, until it is ratified by the proper cannot be pretended that the President could so offend, authority, that is to say, until, in this country, its ratifica- by authorizing that to be done, which, when donc in tion has received the advice and consent of the Senate? pursuance of his orders, was rightfully done,
Yet, if It is little else than a mere armistice. Now, none can rightfully done, war must give power to the Executive doubt that the Executive may lawfully conclude an ar- that in peace is forbidden. mistice when, where, and how he pleases, and this under Again: Is it correct to say that there is no difference bis general power to conduct the existing war in that between the piratical hordes of Algiers, and Tunis, and mode which, in his discretion, peace, its only justifiable Tripoli, the professed tributaries and acknowledged deend, seems to require.
pendents of the Sublime Porte, and the Ottoman empire Here, then, is one answer to all the precedents cited by itself? This is an assertion which I confess I did not exthe Senator from Louisiana, of treaties made with the pect to have heard made in the Senate of the United Barbary Powers during the administration of our two first States. My historical recollections do not deceive me, Presidents.
At the time all these treaties were nego- I think, when they lead me to say that the Ottoman Gotiater, war existed between these Powers and the United vernment is now the oldest in the world. While every States. Moreover, two of these treaties (being all of this other known Government has been oftentimes changed, description that were concluded during the administra- destroyed, and reconstrueted, that simple despotism, sustion of Washington) were concluded by Mr. Jumpiireys, tained as it is, alike by religion and by force, has ever an acknowledged diplomatic officer of the United States, remained unaltered from its creation, now nearly twelve who had been previously and regularly appointed our centuries ago, until this hour. Before the discovery of minister to Portugal, by and with the acivice and consent America by Columbus, the seat of the Turkish empire of the Senate.
In concluding these treaties, too, Mr. was fixed where it now is, at Constantinople; and never Humphreys acted in pursuance of the instructions he had since has that capital been profaned by the presence of received, the substance of which instructions had been any foreign fue. Almost two hundred and fifty years ago, previously submitted by the President to the Senate, and all Europe trembled at its onward march; and the most bar received their approbation so far back as the 8th of powerful of European sovereigns fled from the smoking play, 1792, as our journals show. These cases, then, are ruins of his capital, Vienna, to escape this enemy. Much but cases of treaties made by a proper officer of the more than a century since, Bender, one of its distant pro
[Feb. 24, 1831.
But as this
vincial towns, offered a safe asylum to the unfortunate case of these commissioners; and sich never was the case Swedish monarch, when Aying from the disastrous field of any Secretary of State. of Pultowa; and Turkish faith and Turkish power would I have to notice but a single other argument of the Se. never permit that asylum to be violated. Deprived since nator from Louisiana. le telis us that this was not a liew of some of its domain by the Russian arms, it neverthe mission, for it had been previously established by the last Jess still ranks as one among the principal Powers of the President in the appointments of Messrs. Crane and world, having been always recognised and always re- Offey, made by him in like manner, and for the same spected as an independent and great nation by every purposes with the present. Sir, from this day forward, state in christendom. It does not seem very becoming let is not repeat the phrase and promise of " reforming in is, almost the youngest of the great family' of nations, the abuses which had crept into this Government.” It is to wish to degrade this ancient and powerful sovereignty, high time we should drop it, when honorable Senators not less remarkable for the proud simplicity, than for the think they justify a violation of the constitution by the strict honor and fidelity of its character, (and this, too, present Executive, by regarding it as a mere continuation at the moment when we have just concluded our first of the usurped authority of his predecessor. The questreaty with it,) by comparing it with its own tributary tion we have to decide is, whether the constitution audependents, whose piratical pursuits, and open contempt thorizes the President to create a new office, without the of all the tisages of civilized States, have ever prevented advice and consent of the Senate, by instituting a mission every Power from recognising any of them as an equal to a nation with which we never before had established sovereignty, or trusting among them any other repre- any political connexion or diplomatic relation. sentative than an humble consul.
As well might we com- swering this question, it is gravely said that the present pare the Russian Government with some wretched band President has not done so, because such a mission was se. of Esquimaux, or horde of fierce Tartars, dwelling within cretly and ineffectually attempted to be established by his its limits; or the Government of the United States with predecessor; and this secret and vain effort to strip the the Cherokee nation, or the tribe of Winnebagoes, Senate of their highest privilege at that time, sanctifies dwelling within ours.
and justifies the actual deed afterwards done. Much betIt is strange, too, that this assertion should be hazardled ter would it be to say at once, that because President now, when it is proposed by the very amendment before Adams publicly proclaimed in the Panama message that us to appropriate a sum of money for the new mission to such a power was “ within the constitutional competency the Sublime Porte, which sum far exceeds in amount the of the Executive,” therefore it must be so. aggregate of all the sums proposed to be appropriated argument would scarcely find favor any where now, it is for our missions to Russia, to i'rance, and to Great Bri- deemed better to rely upon the secret and ineflectual at: tain. To justify this appropriation, a list of the forcign tempt, rather than upon the open and avowed opinion of ministers of the different nations of Europe, now accre- this President. When President Adams publicly an. dited at the Turkish court, is sent to us, which list pre- nounced this opinion, its correctness was as publicly desents a diplomatic corps that, in rank, in the number of nied and controverted here; and surely his hidden acts, States represented, and in the compensation granted to which could not be censured, because they were not these ministers, far exceeds any such corps assembled at known, are even of less weight as authority ihan his deany other court in the world! Yet, sir, that nation, at clared opinions. What may be the weight and authority whose court princes or noblemen of high rank have not of his opinions upon this subject now, I know not, but ! felt degraded to appear as ministers
, and whose sovereigns well know how they were regarded by some formerly; intend to honor them by such appointments, is in the and at the very time, too, when this act of his was secretly Senate of the United States to be sunk to the level of done. My opinions upon this subject then coincided with its own tributaries, to whose castles none other than a those entertained by others to whom I have alluded, and consul has ever been sent, and this for the most obvious mine certainly have undergone no change since.
Mr. LIVINGSTON again rose. Both the Senators from The case of treaties concluded here by a Secretary of Virginia, said Mr. L., have thought it extraordinary that State, the Senate must at once perceive, touches not the any observations should have been made on the terms in question I have presented. an officer of the United States, who being charged by the the President of the United States, and by anticipation
No one can doubt that he is wáich it was deemed proper to stigmatize the conduct of law of his creation with the superintendence of all the that of those who should support him-terins which they foreign relations of the country, may very properly be in- say the occasion justified, and which the frank, indepen. structed by the President to negotiate a treaty here. In dent discharge of duty required. They are inspired, they his case, the power given to him has no other effect than say, by the genial warmth of their Southern sun, and acto charge the old office with a new and very proper duty. customed by the habits of their country to call things by It creates no new office in him, as we all know; for their names; and when they see usurpation, they must call although we have heard of pay for constructive journeys it by that name. And the gentleman who last addressed never performed, yet even the persons who thought them you (Mr. TazeweLL) has requested me to furnish him selves entitled to such compensation, have never presumed with a courtly phrase (so I think he called it) that should to ask for constructive "outfit and salary" for the per- express his idea without offence. For be it from me! formance of this new duty merely. It would be absurd, Far from me the presumption of endeavoring to restrain too, to say that the full power given to the Secretary of the noble spirit of independent zeal that animates those State to negotiate a treaty here, could entitle him to any who make the accusation, fostered as it is by the influence of the privileges and immunities accorded by the public of climate, and strengthened by habits of freedom of speechi
. law to such as are sent abroad with such a power. It is Far from me the vanity of thinking that any phrase that I this, at last, that constitutes the true test whereby to as- could offer would be so acceptable as those which the certain whether the agent appointed to negotiate a treaty Senator's duty required, and his sense of propriety has is an officer of the United States, in virtue of such an ap- sanctioned. I am as little conversant with courts as either pointment. For as the immunities conceded by the pub- of the Senators. I, too, am a republican; 1, too, though lic law are official privileges merely, he who acquires none not born under a Southern sun, am in the habit of boldly such in virtue of his appointment to negotiate a treaty, is expressing my thoughts; and when I hear charges of the not thereby made an officer. But wheresoever the ap: most serious nature that can be made, expressed in the pointment is designed to draw after it pay at home, and most unqualified language, and I think those charges un immunity abroad, then it creates office. Now such is the founded, I must take the liberty to say so. Yes, sir, and
the more unacceptable liberty of proving it, as trust I perform that duty, would not they, notwithstanding the have done. Though words are things, they are not the law, have a right to reject him? The law cannot control words of the accusation that I blame; it is the groundless the constitution. The office of Secretary is created by accusation itself. It is the intolerant denunciation of all the law of Congress that of minister, by the law of nawho cannot see unconstitutionality or usurpation in the tions. The appointment of one is regulated by law—that acts complained of. I said, sir, that the objections now of the other, by the constitution: therefore, no law can raised were new; that for the first time this charge had control the powers of the President or the Senate; and been made against a practice and a construction that was the Secretary cannot be a minister, but by virtue of a as old as the Government itself. This is denied; and the special appointment. That special appointment has been debates on the Panama mission are referred to. Sir, I an- uniformly given by the President, without, in a single inticipated this objection, and have shown that the objec-stance, submitting it to the Senate; and the unquestioned tions then were two, to the nature of the mission to take practice proves that temporary appointments of commispart in the debates of a deliberative assembly; and to an sioners may rightfully be made without nominating them appointment of a public minister on a new mission without to the Senate. It has been uniformly done in negotiations consulting the Senate: and I am warranted in repeating at home, and, if I understand both gentlemen, rightfully that the present accusation proceeds from a new light, done; but, without the slightest reason for the distinction, that never before shore on the mind of any of our prede- they say it cannot be done abroad. But when I take the cessors; but, admit the Panama debate to be an exception, laboring oar, and show the same uniform practice in misit is but as of yesterday, compared with the sanctions of the sions abroad, how is it repelled? contrary practice.
First, in case of plenipotentiaries to treat of peace. My construction of the constitution, as to the power of This is ushered in by an encomium from the Senator who appointing in the recess, is discarded with the single obser- last addressed you on the diplomatic law of nations, and vation, that it is bottomed on an assumed transposition he lauds it particularly for a character which I never beof words in the clause. Not so. It stands on stronger forc heard attributed to it--its great certainty and precigrounds. The evident intent of the framers of the sion. I had thought that, on the contrary, there was constitution—the cotemporaneous exposition; the unin- much contrariety of opinions as to many of its provisions; terrupted and unquestioned practice. The force of that that, as it was made up of usages, treaties, and the changpractice, in its several divisions, has been attempted to be ing opinions of writers, it was not only uncertain from weakened: 1. As to the treaties made by the Secretary its nature, but that the principles most generally acknowof State, by saying, as is most undoubtedly true, but ledged were undergoing a daily change, with the advanceis most fatal to their argument, that they were made ment of civilization, and the new political arrangements under the powers which the President has to make trea- of the world. I thought so--but this was owing to my ties. Sir, that is the very power to which we refer to ignorance, for the Senator tells you that although it may justify the appointment of the commissioners. Ay, but appear to be the case to superficial observers, the order say the gentlemen, he may appoint the Secretary of State, and beauty, and, above all, the certainty of the system, but not commissioners. Why? Because he is Secretary open themselves to those who are proficients in the sciof State; and they are commissioners. This may be a ence. I am not advanced to this degree of perfection; satisfactory argument to those who use it; but I must be the Senator is; and to what truths in the system is this enpermitted to think and to say, that it appears rather incon- comium the prologue? What are the certain maxims he clusive. The Secretary of State has the management, has found applicable to the present case, in the precise ex officio, of our foreign negotiations, under the direction pages of this law? First, a confirmation of his former of the President; but without that direction, in the form assertion, that plenipotentiaries to treat of peace were but of a plenipotentiary commission, he has no right to make officers sent to regulate the terms of an armistice; and that a treaty. Such a commission is always delivered to him when the President sends such ministers, he does it as comwhen he is directed to enter into or negotiate any com- mander-in-chief of the army; that the treaty-making power pact with a foreign minister. It is made out in form—and has nothing to do with it. Now, sir, I must say, that if from it he derives his sole authority-just as in the case of this be the best proof that can be furnished of the cerMr. Humphreys, which I quoted in the beginning of this tainty of the code of nations, it will fare ill with its repiidebate. He was a minister plenipotentiary to Portugal; tation in this respect, for not a single treaty of peace, but a negotiation with Algiers was desired, and he was since wars first began, ever contained a stipulation authorized, by a new commission, as formal in all respects for an armistice. They are contradictory terms: an aras that by which he was appointed to Portugal-yet he mistice is a cessation of hostilities for a limited term; a Was nominated to the Senate as minister to Portugal-but peace is a stipulation that they shall cease forever; an ar'not to Algiers. Why? Because the first was a perma- mistice contemplates a continuance of the war; a peace pent, the last only a temporary appointment. Because, puts an end to it forever. Sometimes an armistice prein the first, he was a public minister in the last, only a cedes a treaty of peace, and provides for a renewal of secret agent with full powers. Because the President hostilities, if the negotiation should fail; more frequently had a right to give what character he chose to his agents, the plenipotentiaries meet, according to the Senator's apand chose to call him in one a public minister, and nomi- posite phrase, flagrante bello, in some neutral territory, nate him as such; and, for satisfactory reasons made him and without any armistice the war is ended if they agree in the other, his mission to Algiers, a commissioner, with on the conditions of peace, or continues if the conference full powers, and did not nominate him. But, to put an is broken off. Look into all our treaties of peace; exend to all cavil, on the ground that the appointment of the amine those between other nations, and what do you find? Secretary of State as a plenipotentiary was not to be go. Settlements of boundary, provision for mutual claims, all verned by the same rules that apply to the appointment of the endless variety of arrangement to settle the disputes other persons, let us suppose the strong case of a law between natious. Who ever heard of these in an armis. declaring that, in all treaties with foreign Powers made in tice? Who ever thought the power to make them should the United States, the Secretary of State should be the be arranged under the military rather than the civil head? person employed to make them; would the President's If the President had the power to conduct our war's only, constitutional right to make treaties and name agents to and another department, the Senate, for example, that of make them be affected by such a law? Could the Secre-making treaties, could any treaty of peace, such as we fary of State under it, without a special commission, make have made, bave been concluded but by them? How any treaty? And if he were nominated to the Senate to comes it, too, if this doctrine be true, that all these trea