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sweeping charges of usurpation, and lawless and unconstitutional acts by the President, of dereliction of duty in those who support them? and would not that reflection also have inclined him to avoid asserting that these violations were gross, open, palpable, such as the plainest understanding must perceive—thus leaving to those who cannot read the constitution as he does, not even the excuse of error and ignorance to cover their aberrations? Sir, this charge goes out to the nation, to the world, under the authority of the Senator's name—it has already gone forth; party spirit has already seized it; detraction has repeated it; simple credulity may believe it; and the nation is given to understand that its first magistrate has deliberately committed an open violation of the constitution and his duty, or, as was insinuated, has been ignorantly made the instrument of others in its performance; and that this body, the Senate of the United States, is ready, unless they listen to the warning voice of the Senator from Virginia, to aid in the parricidal act. Now, sir, how if this charge should be unsupported? How if it should be void of the slightest foundation? How if the letter of the constitution, as well as its spirit, should sanction the reprobated act? How if it should be proved to have been the uniform course of the Government from its institution, pursued by the practice of Washington, Jefferson, Adams, Monroe, by every President of every party; sanctioned by every Senate, unimpeached by any House of Representatives—called in question by no vigilant guardian of the constitution until the present day? How then! What then will this nation, the intelligent nation to whom this charge is made, what will they think— what will be their verdict? To them, sir, I appeal; to their sentence I am willing to submit. Sir, I do not arrogate to myself to be one of the chosen few to whose charge the defence of the constitution is committed; or that my construction of that instrument is the only orthodox faith. All those who surround me, have an equal duty to perform in this respect; all of them are, no doubt, equally willing, and most of them more able, to perform it than myself; but, while I yield to their equal right and superior ability, I must resist the claim any one may set up, either directly or by implication, to the title of exclusive defender of the constitution. I have said that I do not deal in professions; but when the measures my sense of duty obliges me to support, are stigmatized by the terms we have just heard, I must be permitted to say that I yield to no man in attachment to the charter of our fundamental laws, to the Union of which it is the bond, and to those rights of its separate members, which are not surrendered by it to the National Government. I am old enough to have watched the progress of its formation, to have witnessed the first moments of its existence, and was one of those who hailed its first appearance as the harbinger of that prosperity, which it has so gloriously realized. I saw it, sir, in its cradle, marked its progress with no inattentive eye; and the first period of my political life was employed in resisting inroads which false constructions, in high party times, made on its provisions. I belonged, and faithfully adhered, to the party which opposed (for P. unsuccessfully) acts which we thought infractious of that instrument. My profession of faith has not heretofore, and is not now, altered—it never will be. But that faith does not oblige me to array myself with any one, whatever may be my opinion of his patriotism and zeal, in opposition to the exercise of a power that I think is fairly conferred by the constitution to one branch of the Government, or contend for it in favor of another not entitled to it, though I should myself be a member of that latter branch. What are the facts which have created this sudden explosion? The rapid growth of the Russian establishments on the Black Sea, and the consequent increase of commerce in that quarter, had for some years past made an

Turkish Commission.

[FEB. 23, 1831. arrangement desirable with the Sultan, who held the keys of the narrow inlet, through which alone an entrance into this sea could be had. The immediate predecessor of the present Chief Magistrate had appointed successively the two commanders of our squadron in the Mediterranean, together with Mr. Offley, our consul at Smyrna, commissioners to effect this object. They were furnished with full powers, commissioned under the great seal, and instructed to make a treaty to secure this object. This was designed to be a secret mission; it was never communicated to the Senate, nor was the appointment of the commissioners submitted to them for confirmation: however, from some cause, not perfectly understood, but, as many believe, from too great publicity given to the mission, it totally failed; and this failure became known soon after Mr. Adams went out of office. The object increasing every day in importance, it very early attracted the attention of the present administration; and to avoid the interference of other nations, and better to secure the secrecy of the operation, Mr. Rhind was appointed consul to Odessa, but was furnished with full powers, directed jointly and severally to him, Commodore Biddle, and Mr. Ofiley; he was directed, under the cover of his consular appointment, to proceed to Constantinople, and there negotiate for the free entrance into the Black Sea; he went there, his object was not suspected, and on the 7th May last he concluded a treaty, which was signed by Messrs. Offley and Biddle, they having arrived in the interval, on the day before the adjournment of the Senate at its last session. This last commission, like the preceding appointments, by Mr. Adams, was made in the recess of the Senate; and, as had been the case in these instances, the names of the commissioners were not submitted to the Senate for confilmation. These are the facts, and on them is founded the accusation we have heard. Let us remember that this is not a question which concerns the infringement of any State right, that it is not one of reserved or conceded powers, but merely regards the mode of exercising one confessedly given to the General Government—that of treating in the name of all the States with a foreign nation. I will examine, in order, the positions on which these serious charges are founded. The first of them (although I do not think it applicable to the present case) is, that the President has no power to appoint a public minister during the recess of the Senate, to any Power where no such minister he'd previously existed; or even is such mission had previously cristed, unless the vacancy occurred after the adjournment of the Senate. To this position I accede in none of its paits. Iłut if I should err on this subject, I hope to show that the cstablishment of this construction will not justify the charge that is founded upon it. I construe the constitution as I would any other written instrument, by its words, where they are explicit—where there is doubt, by the context—by the plain object of its framers, by a view of the evils it was intended to remedy, the circumstances under which it was made, and the contemporaneous construction and uniform practice under it. To adhere to its letter, without these aids, would sometimes defeat the powers evidently intended to be vested by it—sometimes give it greater than were contemplated. For instance, the President is directed to “take care that the laws be faithfully executed.” Take this literally, without any aid from the rules of construction I have laid down, and you give him all power but that of legislation. In the article next preceding, it is said that “no State shall enter into any compact or agreement with another State, without the conseit of Congress.” A literal construction of which would prevent a settlement of disputed boundaries: or any other arrangement which mutual accommodation, for the acknowledgment of deeds, the arrest of fugitives, or similar objects, might require. Let us examine the position by these rules.

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The constitution directs that “the President shall nominate, and, by and with the advice and consent of the Senate, appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointment is not herein otherwise provided for, and which shall be established by law.” It then gives power to Congress to vest the appointinent of such inferior officers as they think proper, in the President alone. Here the appointing power is complete. But as this power was to be exer. cised by the President, subject to the approbation of the Senate, and as the sessions of that body were not permanent, it was forescen that great inconvenience would result if all vacancies were to remain open during the recess. What was the natural remedy? To give the temporary appointment to the President, subject in the usual manner to the confirmation of the Senate, when it should mect. And to afford them time for deliberation, the duration of the temporary appointment was extended to the end of their session. The evil to be remedied by this proviso was the vacancy of an office occurring at a time when it was impossible for the President to submit a nomination to the Senate. Such would be the case of an officer dying during the recess, or resigning on the day of our adjournment; or of a minister dying in a distant country at a time during the session when it would be impossible to know the event before the adjournment. If, in these two last cases, the office were to remain vacant until the meeting of Congress, the remedy in the proviso would not be commensurate to the evil it was intended to avoid. There would be vacancies when it was the evident intention of the instrument there should be none. I must not be understood as saying that an inconvenience attending any construction is sufficient to show it to be falso, or that to be the true reading which avoids it. Where the words are express—where the intention is evident, however inconvenient, they must be obeyed. But, where the words will admit of an interpretation which avoids such an evil as must have been foreseen, and cannot be supposed to be left unprovided for, there the rules of construction to which I advert will apply. Before we consider the words of the constitution, let us see the consequences that would result from an adherence to what is perhaps their literal meaning. The collector of the port of New York dies on the day before the adjournment. The vacancy cannot be filled until the December following. The collection of one-third of the revenue of the United States must be left in irresponsible hands. The commander of a military district in time of war dies—his loss cannot be supplied— the most important operations on which the safety of the country depends must be stopped. In the distant operations of your navy, the same or a greater risk and inconvenience occurs. At the moment of concluding a commercial arrangement, by which immense advantages are to be secured, or a treaty of peace, which is to save the country perhaps from devastation, your plenipotentiary dies during the session of Congress, but beforé the Président is apprised of it. He cannot supply his place: the commercial advantages are lost—the war must rage—the country must be devastated: because, according to the Iteral construction of the clause, the vacancy happened during the session, not in the recess. The President who should presume to remedy these evils, would be guilty of a “lawless usurpation of unconstitutional power.” And the zealous guardians of our rights on this floor would denounce all those who might presume to think differently, as men ready to lay the rights of the body to which they belong at the feet of Executive power. These, sir, and a hundred other inconveniences which might be stated, are not only possible, but probable, but certain and inevitable, and must occur during the long series of ages in which it is our unanimous prayer that our constitution may

live. Are they not great? Must they not have been fore

seen? Could they have escaped the wisdom and deep foresight of the sages who framed the constitution? Have they not provided for them? My belief is that they have, by the section in question. The President by it is authorized to “fill up all vacancies that may happen during the recess of the Senate.” Now take this #. and he may fill up vacancies in the Senate itself—and it appears, from the Federalist, that this was once seriously contended for. But this cannot be the true construction, though no one can deny that it is the literal one. Why? Because it was evidently the intention of this section to limit it to the case of officers. There are, then, reasons which

justify a departure from the literal meaning of the section

in this instance. Are there none in the case before us? I think they have been already sufficiently pointed out. Another, perhaps, of some, though I do not think of conclusive weight, is, that the omission of a comma, which was probably inserted in the draught after the word happen, may have given rise to all the ambiguity in the phrase. In that case, the period described, that is, the recess of the Senate, would relate to the antecedent power of filling the vacancy, not to the occurrence of the event by which it was created. My exposition of this clause, therefore, is, that it permits the President to fill all vacancies in any of the enumerated offices, whether they occur during the recess, or even during the session of the Senate, if the vacancy was not known to him, or could not be supplied during the session; but that he would be guilty of a breach of duty if he appointed them during the session, and did not send in the nomination to the Senate. It was said on this subject, that no President had ever dared to fill up an original vacancy in an office after the end of the session in which the law which created the of. fice had passed. Whether it was the want of courage, or of inclination, that prevented the performance of an improper act, I cannot say. But as it is admitted that the act was not done, perhaps it might be quite proper to attribute it to the latter cause. But j. if it be one, strongly exemplifies my construction. Any office, first created by law, must be vacant at the moment the law is approved by the President. That must necessarily be during the session of the Senate. He is, therefore, bound to fill it; because the vacancy not only happens during the session, but it also comes to his knowledge at that period. But suppose a law to be passed, requiring the appointment of certain officers, which is not to take effect until a distant period, or that is dependent on an uncertain event, and at that time the Senate should not be in session, can it be doubted that the President would be authorized to make a temporary appointment to fill such original vacancy? If he could, by what authority? Not the law surely; for that cannot alter a constitutional right of the Senate, unless the office be an inferior one, and the right to fill it without the concurrence of the Senate be expressly given by the law: it must be then by the liberal construction of the section, which I contend is the true construction. On which subject, sir, permit me to state a manifest differ. ence in the rules for interpreting the constitution. When the question is, whether a certain power is granted by it to the General Government, or reserved to the States—in that case, whenever there is reasonable doubt, the power ought not to be exercised. But where the States have confessedly parted with, and do not claim the power— where it is plainly their object and their interest that it should be exercised by the Federal Government, and the only question is, by what branch, and in what manner— then the true rule of interpretation is that which will give effect to the power, rather than that which would destroy it. In the case of interfering claims between the States individually and their federal head, the mind must be convinced that the power in question was intended to be granted, before it can come to the conclusion that it be. longs to the General Government. Where there is doubt,

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there can be no such conclusion. Therefore, the power must rest as it was—that is, with the State Government. But in the question, how a power confessedly granted is to be exercised—then such absolute certainty is not required. The first duty of the expositor is to adopt some conclusion that will give effect to the declared and confessed grant of power. And although there may be doubts as to the agency by which the intent is to be executed, et they must be weighed, and the decision made according to the preponderance of the reasons in favor of either of the departments claiming it. Thus, in the present in. stance, it is the undenied and express intent of the constitution that offices should be filled by the President, with the advice and consent of the Senate when they were in session, and by a temporary appointment in the recess. The evidentintent, then, is that there shall be no vacancy. The words, however, give rise to two constructions. By the one, this evident intent will be carried into effect. By adopting it, there will be no vacancy for a longer period than elapses before it comes to the knowledge of the Pre. sident. By the other, in many most important cases this intent will be defeated; the office must remain vacant for the inconvenient, and sometimes exceedingly injurious period of eight or nine months. Which of these constructions are we to adopt? I should incline to think the former would not only be the best but the safest: for not a single inconvenience, that I have been able to discover, or that has been suggested, will attend the appointment to fill a vacancy which occurs during the session, but which is unknown to the President until the recess—not a single inconvenience that will not occur if the vacancy happens in the recess: while the necessity for filling it is equally evident in both cases. Gentlemen, for whose judgment I have the highest respect, I know, differ from me on this point; and it is probable they may be right. I express my opinion merely because the occasion calls for it, and my constituents and the public have a right, in the station I occupy, to understand it. But although it lays at the bottom of the argument which has been used by the Senator from Virginia, I do not think, as I hope to show, that it is the point on which the present question is to be decided, The reasoning I have hitherto used, is applicable to the appointment of all officers, as well ministers to foreign Powers as others; but there are reasons peculiar to the former, which place the authority to commission them during the recess on a different ground. The office of minister to a foreign Power derives its authority from the law of nations. The intercourse which the political relation of different States towards each in modern times requires, their mutual wants, and the comity which exists between them, render the frequent, and generally the permanent, intervention of agents from one to the other necessary. Every civilized nation must necessarily have the power of appointing and receiving such agents wested in some one or more of its departments. In the constitution of the United States this power is divided: the President alone has the right to receive foreign ministers, and, by the power to make treaties, subject to the assent of the Senate, that of making these treaties himself, or, as a necessary consequence, that of appointing the per. sons by whom they are to be made. No law, therefore, was necessary to give effect to the exercise of this func

power to make treaties, then, includes that of appointing agents, as well of the one as of the other class. But the constitution has placed a limitation on the power of appointing those of the first class; and having given none to that of the second, the President has it without restriction. In this branch of the argument, however, our inquiry relates to the public ministers only; and the question is, whether the President has :: right to appoint such ministers during the recess of the Senate, either to a Power with whom we before had sent no such minister, or to fill a vacancy in the mission to a country where we before had a minister, if that vacancy should have occurred during the session of the Senate. This is here the sole question; for I admit, that, in all cases of appointment to public foreign missions, made in the recess, the President is bound to submit the nomination to the Scnate at its next meeting. This is my reasoning on that subject. Having the power to make treaties, afterwards to be submitted to the Senate, the President has the right to select the nation with whom such treatics are to be made, and the time most favorable for making them. That time may occur during the recess of the Senate, and he therefore has the power to fill the original vacancy by the appointment of a public minister; but, in that case, if the negotiation is carried on by such minister, he must send in the nomination to the Senate at some time during their session, if he wishes the appointment to continue beyond that period. If, on the contrary, he finds no occasion for extending the powers of the minister beyond the time at which his commission would expire by the constitutional limitation; if he knows, for example, that the treaty will be made at that time, or the negotiation will be broken off, he may, at his discretion, omit sending in the name for confirmation. He must do this, as he does all other discretionary acts, under his responsibility to the nation; but, in my opinion, he clearly has the power. The error, as it appears to me, lies in considering the mission to each court as a separate and distinct office: whereas the office of ambassador or minister plenipotentiary is a general one, subject to the President's direction where he is to be sent. He is a minister to reside at such a place; an ambassador to go to such a sovereign. Suppose the constitution had, in express terms, said, the President shall have the power to appoint messengers to carry despatches to different courts—would the messenger to London, the one to Paris, or St. Petersburg, be several and distinct officers, or would the office be the substance, and the destination an accident, liable to be varied, without altering the character of the appointment? Again: if the President had been authorized to appoint justices of the peace for the District of Columbia, surely he might apportion them to the different cities; and their particular destination would not make the justice for one town an officer different in kind from the justice of another. The constitution puts the offices of public ministers precisely on the same footing: it does not limit the number, nor has any law made such limitation: as it now stands, and ever has stood, and must remain, until the Legislature shall declare how many officers of this description there shall be, it is necessarily a matter of sound discretion with the President to what courts the exigencies of the country require that a public resident minister should be sent. In case of Feb. 23, 1831.]

tion. The moment the first President entered into office, a new mission, as his nomination may be rejected, either he had the right to perform it, either by himself, or by others, because the Senate think the mission inexpedient, or be

The laws of nations, however, to which I have referred, cause they diapprove of the man, he will generally avoid make a distinction, as I hope abundantly to prove, between making such appointments, without consulting the Senate two classes of agents by whom the diplomatic intercourse by submitting the nomination, unless the exigency of the may be carried on; it distinguishes between public minis-case requires it. And as to the existence of such necesters and private agents. In the first are included ambas- sity, he must stand upon his responsibility to the people; sadors, envoys, ordinary and extraordinary, ministers res:- to be enforced, in case of an unwise exercise of the power, dent, chargés d'affaires, consuls, &c. In the second class by their voice of disapprobation--a sufficient sanction to a there can be no gradation of rank, but the powers may be man of characters and, in case of a corrupt exercise, by as extensive as those given to any of the others. The impeachment. And it must further be observed, that the

Turkish Commission.


two Houses have each a check on any extravagance of this kind, by the appropriation. But that no limitation as to the particular destination of the ministers was intended to be made by law, is proved by the first appropriation bill passed in 1790, where $40,000 is appropriated, not for the support of particular missions, but “for the support of such persons as he [the President] shall commission to serve the United States in foreign parts,” and for their incidental expenses; and its only limitation is that of their compensation for the differ. grades, which has remained unchanged to the present aw". The prominent and striking case of ministers appointed to make peace during the recess of the Senate, stood so directly in the way of the position which denies the power to create a new mission in the recess, that the absolute necessity of removing or getting round it was apparent. But it could not be removed. There it stands—its existence evident--its constitutionality not doubted—its absosolute necessity unquestioned. What was to be done? The ingenuity of the Senator from Virginia [Mr. Tazewell.] has provided a remedy. The whole is referred to the war-making powers. The President is commander-inchief of the army. He may find it necessary to make an armistice. He may effect this by such agents as he thinks proper. The plenipotentiaries to treat of peace are not ministers; they are agents to negotiate an armistice. As well, says he, may you call the officer sent to negotiate an exchange of prisoners, or settle the terms of capitulation for a fortress; as well might you call him a minister, as the persons sent to settle the armistice. It is somewhat unfortunate for this argument that negotiators for peace are invariably plenipotentiaries; that their authority is authenticated by the same broad seal that is supposed to have added so much dignity to the diplomatic character of Messrs. Offley, Biddle, and Rhind; that they are civil, not military officers; that they exchange their full powers with those with whom they treat; that the agreements they make are not armistices-—intervals between acts of hostility--but treaties of peace, which put an end to them; and that ninety-nine times in a hundred, the putting an end to hostilities is only one out of many of the stipulations contained in a treaty of peace. The power of making it, therefore, is not a branch of the war power, but of that which is its very antagonist, the power to make treaties. A stipulation that the nations between whom it is contracted shall remain at peace with each other, even should it contain no other agreement, would be as much a treaty as any other that ever was made. It is called by that name; it is negotiated by the same means; requires the same ceremonies in its inception, and the same ratification for its validity as other treaties are. Why, then, call it an armistice, which is never ratified by the treaty. making power of the nation? Why liken it to the capitulation of a fortress, or an exchange of prisoners? Because the argument showed that here, at least, was a case in which the constitution could not bear the strict verbal construction that was contended for; and the precedent proved that it had been departed from in practice, and that the departure had never been questioned, much less stigmatized, by the epithets so liberally bestowed on the Turkish mission. All this made it necessary either to abandon the argument, or give another character to the power of appointing ministers in the recess to stop the ravages of war, when perhaps its continuance might endanger the existence of the nation. A treaty of peace is, for this reason, called an armistice, and the minister plenipotentiary who concludes it, is, by the argument, placed on the same footing with the subaltern who is led blindfolded into the postern of a besieged fort, to summon it to surrender. But the Senator shall have it which way he pleases. The power to put an end to a destructive war, by the

appointment of ministers in the recess of the Senate, is acknowledged. Is it the rightful exercise of a power under the constitution? Then it can only be by giving to the clause the construction which I have put upon it. Is it a power over the constitution? Then the same end which I contend for, by a legitimate construction, is to be allowed by the dangerous plea of necessity-–the tyrant’s plea—which may not exist when used even to justify a peace. It may be humane, and convenient, and proper, to put an end to the devastations of war; but until the existence of the nation is at stake, until peace alone can save it from destruction, there is, properly speaking, no necessity. What shall be the case of necessity, then, must be determined by the party who is to avail himself of the plea; and, if admitted, will be found to embrace all cases that are found convenient. And if the plea of necessity be admitted to justify a treaty of peace, made by ministers appointed in the recess, why may it not cover a like appointment for making a treaty of commerce, or boundary, or cession, which could only be made at that time? But is it possible the sages and practical statesmen who framed our form of Government should not have foreseen such ordinary and indeed inevitable occurrences; or that, foreseeing, they should not have provided for them? Is it possible that they could have left the power of making peace—-seizing an advantageous occurrence to make an important treaty—or filling an important office, during the recess of the Senate, to be justified by necessity? The idea is an imputation on their wisdom or their patriotism, which they do not deserve. They did foresee-they did provide. And when they gave to the President the power to make treaties, subject to the assent of twothirds of the Senate, they gave him the power to appoint the ministers by whose agency they were to be made; otherwise, we should exhibit the strange spectacle of a wise nation, which had so cunningly contrived its Government, as to deprive it, in conjunctures that most frequently happen, of the means of making peace, availing itself of favorable circumstances to secure commercial advantages, or filling some of the most important offices. But the power may be abused! The President may appoint a host of ministers, and drain your treasury by the payment of their salaries. These ministers may make bad treaties! He may compromit our neutrality by acknowledging one of those new Powers which are daily springing into existence! Alas! yes, sir, it is most true; unfortunately there is no power you can give, that is not liable to abuse. It cannot be denied; and the observation makes up for its want of novelty by its acknowledged truth. In every Government, check and balance it as you will, somewhere there must be confidence; and, until we can find men of unerring wisdom and incorruptible integrity, blind to the allurements of popularity—deaf to the voice of interest, favor, or affection—that is to say, until we can find men who are not men, that confidence will at times be abused. But it must be given. And it so happens that there is no power confessedly given to the President, that is not liable to greater and more fatal abuse than this. You fear war from his sending a minister to one of those new Powers which are yet unacknowledged by the rest of the world; and yet you cannot deny that he has the right to receive a minister from one of those Powers, without consulting the Senate or House of Representatives. , You will not trust him with sending a minister, lest he should involve you in a war; and yet you confess that he has the uncontrolled command of your army and your navy— instruments, if he wishes war, infinitely better fitted to produce it. - You apprehend that he may lavish your treasures in the salaries of a few ministers, at the same moment that SENATE.]

Turkish Commission.

[Feb. 23, 1831.

you give him the control of all the officers employed in the collection of your revenue. You dread that he may reward his favorites by appointments to embassies in the recess; and yet no man can obtain an office of any description, from the highest to the lowest of those which are submitted to the Senate, but by his previous nomination. You are obliged to swallow the camel—why strain at the gnat? We now approach nearer to the very case which has excited this holy indignation against Executive encroachment and usurpation: excited it—if I may be permitted to use a phrase which did not seem to find favor with the Senator from Virginia, when it was uttered by another, [Mr. KANE, l—excited it too late—too late, indeed, says he, to save this mortal stab at the constitution; but not too late to preserve the Senate from participating in the parricidal act. Here I must take leave to differ. The stroke, if it be one, was given in the earliest day of our national existence. It has been repeated by every President who has sat in the Executive chair; every Senate, and every House of Representatives, have been accessories to the crime; and we ourselves have not yet washed our hands from the blood of the victim. I must be permitted therefore to repeat, that, in my poor opinion, it is now too late even to prevent the participation of the Senator himself; not too late, however, for him to show his zeal, energy, and eloquence in defence of the constitution, all which I greatly admire and respect, although I cannot participate in the feelings that have excited them. In another point of view, I cannot but regret that the discussion had not taken place at an earlier time, and under other circumstances. The full development of the subject would require a reference to matters which all may speak of but ourselves; and although I cannot but feel much embarrassment in the endeavor to avoid disclosing the “secrets of our prison-house,” I shall, in the little I have further to say on the subject, carefully avoid any improper disclosure, by confining my remarks in the defence to those circumstances which have been animadverted on in making the charge. The immediate causes of complaint, then, are, first, that Messrs. Offley, Rhind, and Biddle were appointed by the President, in the recess of the Senate, to negotiate a treaty with the Porte-–that being a new mission; and, secondly, that if it had been even the filling of a vacancy, the President ought to have submitted the nomination to the Senate at its then next meeting. The first error here is one of fact. This was not a new mission. Commodore Crane and Mr. Offley were sent by Mr. Adams, for the same purpose, to the same court. They had effected nothing, and a new commission was instituted, consisting of Mr. Rhind, Commodore Biddle, and Mr. Offley. Here was then a vacancy, if that should be required—a vacancy created by revoking the powers of one set of agents, and giving them to others; and if a vacancy, then, according to the most scrupulous, a right in the President to fill it. The next error is one partly of fact--partly of construction. It consists in giving to those commissioners the appellation of public ministers, and thus bringing them within the proviso of the constitution, which directs that such officers shall be appointed with the advice and consent of the Senate. The distinction that was made by the Senator from Illinois, and supported by a reference to high authority on the law of nations," did not make upon the gentleman

" of Secret Missions.—“As it happens frequently that Governments do not wish to treat ostensibly on certain matters which they have an interest to conceal from the knowledge of other Powers, it is customary to send and to accredit “cietly to a foreign Government, or even only to its Department of Foreign Affairs, only persons of coinside: ct; but without giving them the so inni Character of joiblic ministers, or authorizing i. oni) to assume it when the no gotiation shall have been carried to the desired point.” Maricus's Manuel Dup'omatique, p. 15; and in a note, he says: “We have froquent cxamps: s of secret

from Virginia the impression it seemed to do upon the rest of the Senate. It is a well founded distinction, that which he thus urged, between a public minister and a secret agent. It seems to be thought that the nature and style of the mission is to be determined by the manner in which the powers are authenticated—not by the character given in those powers. Sir, there are grades in diplomacy which give different rank and privileges—from an ambassador to a secret agent. The lowest of these may have, for the purpose of binding the party he represents, the same powers that are usually vested in the highest. A chargé d'affaires may be ordered to make a treaty, or to compliment a sovereign on his accession; but he is neither more nor less than a chargé d'affaires—so the same acts may be done by a secret agent, having no public diplomatic character. Ambassadors and other public ministers are directed to be appointed by the President, by and with the advice and consent of the Senate; because public missions required no secrecy, although their instructions might. But the framers of the constitution knew the necessity of missions, of which not only the object but the existence should be kept secret. They therefore wisely made the co-operation of the Senate ultimately necessary in the first instance, but left the appointment solely to the President in the last. In the very instance before us, if the preceding efforts to form a treaty should have failed from too great a publicity being given to a mission intended to be kept secret; if it should have been defeated by the interference of other Powers; and if whatever, success the present attempt has had, might be attributed to the secrecy with which the principal agent left the United States, and the ignorance of his object which prevailed among the ministers of other Powers at Constantinople; if it should turn out that these things were so, would they not form strong proofs of theu tility of the distinction between those different kinds of agencies; the public, by means of public acknowledged ministers; the private, by agents specially authorized to perform a certain act, unknown to all but those with whom they treat. But fault is found with the manner in which these agents were constituted. Their powers, it is said, were under the broad seal of the United States, certified by the signature of the President. This broad seal, or great seal, as it is alternately called, makes a great figure in the argument. Let the President, says the Senator, send his agents, his messengers, his spies, where he pleases—let them be kicked and cuffed by the authorities to which they go, he cares not. But the broad seal, the great seal, should never be profaned to such vile uses. Now, sir, I am not quite so indifferent about the usage our agents may receive, whether they are commissioned under the great or the little seal, or by no seal at all. But I should be glad to know in what manner a President is to signify to a foreign State his confidence in the agent he employs, or the powers with which he chooses to invest him, in any other manner than by his signature to those powers, and the addition of the seal of the United States, which authenticates it. To deny the use of these proofs of the commission given to such agents, is to say that they shall not be employed, because they can transact no business with a foreign Power without the usual proofs of their mission. But the right to employ them is abundantly proved by the laws of nations, and, as I shall show, by the constitution, and a uniform practice under it; therefore, the use of the seal makes no difference in the nature of the mission. They are private agents for the transaction of the business of the nation: public is, in one sense,

diplomatic agents sent to foreign countries in the reigns of Louis X ov and XV. A number of missions of this nature took place during the American war, and during the first years of the French republic.”

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