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FEB. 23, 1831.] Turkish Commission. issary.

the reverse of secret; but, in another, it means what ap::::::::: in the capacity of secret agents, with full powers. pertains to the nation; and, in this acceptation, there is! Franklin, Adams, Lee, were only commissioners; and in no confounding of terms, by saying that a secret agent negotiating a treaty with the Emperor of Morocco, the may be appointed to transact public business. The com-selection of the secret agent was left to the ministers apmissioners to the Porte were such secret agents; their pointed to make the treaty: and, accordingly, in the year commission, though it gave them plenipotentiary powers 1785, Mr. Adams and Mr. Jefferson appointed Thomas for a national purpose, was a secret agency, and the Pre- Barclay, who went to Morocco and made a treaty, which sident was under no necessity to nominate them to the was ratified by the ministers at Paris. Senate; it would have been an act of imprudence if he These instances show that, even prior to the establishhad done so, and the treaty would, most probably, have ment of the Federal Government, secret plenipotentiaries failed. were known, as well in the practice of our own country as Sir, I should be the last man who would impute to any in the general law of nations; and that these secret agents honorable member of this body the indiscretion of divulg- were not on a level with messengers, letter carriers, or ing any thing confidentially committed to us. But I put spies, to whom it has been found necessary in argument it to the Senator who told us how safely all negotiations to assimilate them. On the 30th March, 1795, in the remight be entrusted to its management, whether he ever cess of the Senate, by letters patent under the great broad knew any important subject of our confidential debates|seal of the United States, and the signature of their Presithat was not first whispered about in the taverns of the dent, (that President being George Washington,) councity, and soon afterwards alluded to in the public papers. |tersigned by the Secretary of State, David Humphreys The very subject before us is an instance of what I say; was appointed commissioner plenipotentiary for negothe injunction of secrecy is not removed, and yet provi-'tiating a treaty of peace with Algiers. By instructions sions, which it is supposed that treaty contains, are as from the President, he was afterwards authorized to emcommon a topic of discussion as if it had been published;|ploy Joseph Donaldson as agent in that business. In nay, in the warmth of debate, here, with open doors— May, of the same year, he did appoint Donaldson, who but, sir, I will pursue that subject no further, lest I might, went to Algiers, and in September of the same year conin my own conduct, afford a proof of what I assert. Suffer|cluded a treaty with the Dey and Divan, which was conme to repeat, that if ever there was a justification for the filmed by Humphreys, at Lisbon, on the 28th November employment of a secret agency, the circumstances of this in the same year, and afterwards ratified by the Senate case afford it. If ever there was a case in which the diffi- on the – day of —, 1796, and an act passed both culty of confining to these walls what passes within thcm Houses on 6th May, 1796, appropriating a large sum, when our doors are shut, this is that case. twenty-five thousand dollars annually, for carrying it into Grant that these were secret agents, and not public effect. ministers: it is said, with a triumphant tone, show the I call the attention of the Senate to all the facts of this power of the President to appoint them. Sir, I will do|case, with the previous remark, that the construction this, so that every unbelieving political apostle who which it gives to the constitution was made in the earliest doubts, may not only hear and see, but shall lay his finger years of the Federal Government, by the man who preon the clause. It is found in the express, unequivocal sided in the convention which made that constitution, actauthority given to the President to make treaties. If, ing with the advice and assistance of the leading members under this power, he himself should make a treaty with of that body, all fresh from its discussion; men who had a foreign minister, and submit it to the Senate, could it taken prominent parts in every question that arose. That be objected to as being unconstitutionally negotiated? in the Senate which ratified it, and in the House of ReSurely not by those who contend for literal constructions.presentatives which carried it into execution, were several But no one has denied that he may do it also by others; members, not only of the convention when it was formed, must such others be ambassadors or public ministers?|but of the State assemblies where it was discussed, anowhere is the clause that restricts him to such agents’ lyzed, every hidden defect brought to light; every possiWe have seen that, by the law of nations, other grades ble inconvenience predicted; every construction given are known and cmployed under the title of secret agents. that ingenuity, sharpened by opposition and party feeling, What tittle in the constitution, what forced construction could conceive: where amendments were proposed, to of any word it contains, can be made to show that he may remedy apprehended evil; where it was examined, article not make choice of them when he deems it expedient? by article, phrase by phrase, not a word, not a syllable, There is none. The power to make treaties is given, and escaping their inquisitorial scrutiny. Yet, by those men, with it the power to employ all proper means to effect it; with this perfect and recent knowledge of the constitusecret agents are at times proper means, and therefore stion, acting under the solemn obligation to preserve it he may employ them; therefore, he must employ them inviolate, and without any possible motive to make them whenever he thinks publicity would endanger the failure forget their duty, was this first precedent set; without a of his object. Now, sir, let us see whether a practical single doubt on the mind that it was correct; without proconstruction, in every thing conformable to the princi. test, without even remark. A precedent going the full ples I have laid down, has not been pursued, and from length of that which is now unhesitatingly called a lawless, what period. A uniform practice in conformity with any unconstitutional usurpation; bearing the present act out particular construction is always strong evidence that its in all its parts, and in some points going much beyond it. first construction is correct; as applied to our constitu- Like the present case, it was an oppointment in the retion, it is particularly persuasive, if it arose under the cess of a commissioner, with full powers to make a treaty; management of those who framed the instrument, and those powers were authenticated as these were, by the best knew its intent; and it becomes almost conclusive, if signature of the President and the great seal of the nathe practice has been uninterrupted and unquestioned. |tion. But it differs in this, that the commission to Col. All these characteristics, unless I greatly deceive myself, Humphreys was an original appointment, and, therefore, will be found in the succession of acts to which I now in-according to the new doctrine, more objectionable, no vite the attention of the Senate. minister having before been appointed to treat with AlThe practice of appointing secret agents is coeval with goers. Whereas, in this case, a previous commission had our existence as a nation, and goes beyond out acknow- been given by Mr. Adams, which was vacated by the recall ledgment as such by other Powers. All those great men of the first powers, and the appointment of Rhind, Offiey, who have figured in the history of our diplomacy, began and Biddle. It went infinitely ful ther than this, in giving their career, and performed some of their most important lio the minister the authority to appoint a substitute, and

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SENATE.]

Turkish Commission.

[FER. 23, 1831.

in the fact that the substitute negotiated and made the treaty—the minister remaining in Lisbon, and Donaldson going alone to Algiers, where the treaty was concluded. Mark, too, that the commission to Humphreys is dated only three weeks after the adjournment of the Senate in March; that Donaldson was employed in May; and that neither Humphreys nor Donaldson were ever nominated to the Senate, although they of course met in the December following. Look, sir, into the executive journal before you. No nomination of Humphreys, under this commission——not a syllable said of Donaldson. Yet, when the treaty came, it was ratified; yet both Houses passed a law for carrying, eo nomine, this very treaty into effect; no squeamishness about the phrase under which the appropriation should be made; nothing hidden; the whole transaction—the mode of its execution—the agents by whom it was effected, broad seal and all-–the appellation of the agent, commissioner plenipotentiary, which is now so offensive, all spread before the Senate, composed of men, four-fifths of whom I may, I think, say, had either aided in making the constitution, or deliberated on the propriety of its adoption, and this treaty sent to them by George Washington. Yet, with all these badges of lawless, unconstitutional usurpation on its back, the treaty is ratified—the law passes. No grave Senator, no independent representative rises to oppose this gross assumption of power. Did patriotism sleep on its post? Where were the watchful, the sworn guardians of the constitution, thus palpably violated? Where were the Senators, jealous of their rights? Where the representatives of the people, sent to guard the palladium of their liberties? All silent; not a word of opposition; not a whisper of doubt. And yet the violation, “gross, open, palpable”--more gross, more open, more palpable than the one we are now warned against, because in more points it contradicts the construction that is affirmed as the only true and orthodox faith by which we may be politically saved. Ought not this practical and contemporaneous construction, even if it stood alone, to create some doubt of the doctrines we are so vehemently urged to adopt’ Ought not the example of Washington, even if, in our superior wisdom, we now, for the first time, guided by new lights, find it wrong, ought it not to command some little indulgence for those who follow it? Will it be said that this example does not apply? Let the difference be pointed out; and where they differ, the example set by Washington will be found more at war with the principles laid down by the Senator from Virginia, than the acts which he now denounces as unconstitutional. Will he refer again to the war-conducting power, and call the treaty with Algiers an armistice? The treaty itself replies to this answer—it is a treaty of commerce, as well as of peace. But this is not an isolated case. In the very same year, on the same day of the year, the 30th March, 1795, David Humphreys received another commission, by letters patent from President Washington, authenticated in the same manner, constituting him commissioner plenipotentiary for negotiating a treaty of peace with “the most illustrious the Bashaw, Lords, and Governors of the city and kingdom of Tripoli,” with like power of substitution. On the 10th February, 1796, he transferred his powers to Joel Barlow; and, on the 3d January, 1797, Mr. Barlow made a treaty with the Bashaw and his Divan, which was, in like manner with the former, approved by Col. Humphreys, at Lisbon, on the 10th February, 1797, and was ratified by the Senate the following session. Here we find three sessions, after the commission, pass, before the treaty is presented to the Senate for its confirmation, during all which, no nomination of either Humphreys or Barlow whis made. Surely, if a doubt had crossed the mind of the President, that mind of which the eminent

characteristics were deliberation and prudence, if the shadow of a doubt had passed over it, would not the same regard for the constitution, for which he was equally remarkable, have induced him to consult his cabinet, to consult, as he frequently did, on other and less important occasions, the Senate? Sir, he had no doubts; the greatest and best, and most prudent man in the country had no doubts. His advisers had none-–the Senate had none. The House of Representatives did not hesitate; and the nation, filled with men whose minds were enlightened by continued discussions of the constitution, approved. Yet we doubt. Nay more, we decide; and, admitting no contrariety of opinion, stigmatize that very conduct thus pursued by Washington, as lawless usurpation. That great man, very soon after this, retired from office, carrying with him the benedictions of his fellow-citizens, and little suspecting that this wise and upright act of his administration would draw down on those who copied it the reproaches we have heard. John Adams, who, besides the great share he had in forming the constitution, was preeminently qualified to judge on every question relating to foreign intercourse; who might be styled the founder of American diplomacy—John Adams succeeded him. And he, too, straige as it may appear—he, too, fell into the same fatal error, or (if the case is as clear as is supposed) was guilty of the same unpardonable fault. He, too, on the 18th of December, 1798, put his signature and the great broad seal of the nation to a paper, vesting Richard O’Brien, William Eaton, and James Leander Cathcart, with full powers to negotiate with the Dey and Regency of Tunis, alterations in a certain treaty made in the year 1797, by Joseph Famin, who calls himself a “French merchant residing at Tunis, and chargé d'affaires of the United States.” These gentlemen made the new treaty on the 6th March, 1799; yet neither the nomination of the French merchant, who made the first treaty, (which must have been in the time of General Washington,) nor of the three other commissioners, was ever submitted to the Senate. And it is remarkable that this last appointment was made on the 18th December, when the Senate was in session. During the administration of the next President, Thomas Jefferson, only one treaty with the Barbary Powers (that with Tripoli) was made; but as the negotiation was carricq on by Mr. Lear, the public minister of the United States at that place, nothing can be inferred from this transaction that bears on the question; but Jefferson's cooperation in the two appointments which I have quoted, by General Washington, leaves no doubt of his construction of the constitution. Here we have the practice of Washington, Adams, and Jefferson, uniformly the same, sanctioning every part of the conduct pursued by the present Chief Magistrate; and, in some instances, as I have shown, pushing the construction further than he has found it necessary to go. But this is not all: Mr. Madison comes next. If any voice can be called the oracle of the constitution, it is his: if any practice under it can be deemed void of error, or intentional wrong, it is that of the wise, the venerated Madison. What did he do? IIe followed precisely the route in which his predecessors trod. In the year 1815, hostilities having been commenced by Algiers, he commissioned William Shaler, and the gallant and lamented Decatur, to negotiate with them. They concluded a treaty on board of the United States’ ship Guerriere. But he never nominated them to the Senate; yet the treaty, like the others, was ratified by the Senate in the succeeding session, without a question as to their right to co-operate in the appointment. He it was, too, who, in the recess of the Senate, sent the commission which made the treaty of peace with Great Britain. Again: Difficulties having arisen as to the execution of the treaty with Algiers, another commission was issued on Feb. 23, 1831.]

the 24th of August, 1816, to William Shaler and Isaac Chauncey, who renewed the former treaty, with alterations, on the 23d of December of the same year. And again the Senate were kept in ignorance of the appointment, until the treaty was sent to them for ratification. This is the last treaty with any of the Powers professing the Mahometan faith, prior to the one that has given rise to this discussion. And, in forming this, the President, with stronger reasons for secrecy than any of his predecessors had, has only, as far as he has gone, followed their example—followed his own and their construction of the constitution—and exercised no power that had not for forty years been universally acknowledged to be legitimate. I bring the acquiescence down to this moment, because the questions raised on the Panama mission are not those to which this transaction gives rise. Then the objection was to an appointment of a peculiar nature—a mission, not to a particular Power, but to a Congress of Powers; it was not supposed to be strictly diplomatic; our agents, it was feared, were to act as deputies to a confederative Government, rather than as ministers. And to this was added the difficulty, at that time first raised, to the power of creating a new mission in the recess; here, however, the first objection cannot apply, and the previous appointment by Mr. Adams takes away the second. The objection, then, to the making a treaty by secret agents, whose nomination is not sent to the Senate, is, I repeat, a new objection made to an established, and, as I believe, a perfectly constitutional practice. The objection is new, but it may yet be well founded, although I cannot perceive its force; and, not perceiving it, must be permitted to think it passing strange that it never before occurred to one single individual, who has ever expressed his opinion on the subject, as far as my limited information goes. There are two other Presidents whose acts and opinions on this subject we have to examine, in order to complete the series. On Mr. Monroe's accession to the Presidency, he found our peace secured with the Barbary Powers; he had, therefore, no commissioners to appoint to them; but he had participated, as the head of the Department of State, in those which had been sent by Mr. Madison; and we may, therefore, fairly suppose, that, if the occasion had offered, he would have followed the same course. But, during his administration, and that of his successor, it was found convenient, in the exercise of the same constitutional right of making treaties, to employ other agents than “ambassadors or public ministers,” to form treaties with European and christian Powers, as had been formerly done with the Mahometan States of Africa. Differences had existed ever since the treaty of 1892 with Spain, not only of boundary, but on account of claims, to a vast amount. The settlement of the dividing line between the United States and Mexico would take from or add to our territory an extent sufficient for the establishment of several States. And the acquisition of Florida had always been considered as a matter of primary importance. If, then, the magnitude and importance of the objects; if the rank and dignity of the party, required that the negotiation should be conducted by public ministers, and that their appointment should be confirmed by the Senate, here was the case. Here was not even the plea of the recess. For during the session of Congress, in 1818–19, Mr. Monroe gave to Mr. Adams plenipotentiary powers to treat with the minister of Spain, and make a settlement of all these important matters. He gave these powers by commission under the great seal. He never communicated the appointment to the Senate, although they were in session. The negotiation was carried on in the very place where they sat, and was concluded before they adjourned, by a treaty which purchased the two Floridas; settled our boun:

dary, by abandoning our claims to the immense extent of Pears

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country between the Rio del Norte and the Sabine; and made a charge on our treasury of five millions of dollars. Yet, sir, this treaty was ratified by the Senate, and not one word of reprobation, not an accent of doubt uttered as to the irregularity of the commission by which it was negotiated; and both Houses concurred in passing laws #. carrying it into execution. Again: When Mr. Adams came to the Presidency, he in like manner, in the year 1826, commissioned Mr. Clay to treat of and conclude a treaty of commerce and navigation with the minister of Denmark; which treaty was signed on the 26th of April, in the same year, during the sitting of the Senate, and in like manner ratified by them, although the appointment of Mr. Clay was never made known to the Senate, and of course was not confirmed by them. And we, sir, we ourselves, every one of us, who now hear or make these denunciations—we have ratified a treaty made with one of the greatest Powers of christendom, by a plenipotentiary commissioned under the great seal, whose appointment was never sanctioned or sent to the Senate for its advice; and that, too, a Power with which before we had no diplomatic intercourse—with Austria– made by the present Secretary of State, under a special appointment by the President. Should it be said that this practice of employing a special minister at home to make treaties with a foreign Power, is of modern date; that it does not, like the case of the Mediterranean commissions, run back to the early part of our diplomatic history, I would answer that this, too, is an error, and that my construction is sanctioned in this also by the practice of Washington. As early as the year 1796, some doubts having arisen as to the operation of the third article of Mr. Jay's treaty, Mr. Pickering was commissioned to negotiate an explanatory article, which was agreed to, submitted to the Senate, and ratified without any nomination of the negotiator to the Senate. Now, sir, does not this uniform, this unquestioned practice, carried through every Presidency, from that of the father of his country to that of the present incumbent; is it not strongly persuasive of the correctness of that construction which gives to the President the power to make treaties whenever he may deem it expedient, by a special agent, instead of a public minister—to give full powers, under the great seal, to such special agent, and to omit nominating him to the Senate when he thinks proper? Will it be said that the instances I have last mentioned do not apply, because the Secretary of State was the agent? But he was the agent only by the special commission, given to him by the President—a commission, without which he could not have acted, which as his full power, he was obliged to interchange with the minister with whom he treated, before the negotiation could begin. If, as Secretary of State, the duty could have been done, mere instructions would have sufficed—no commission would have been necessary. But in every instance commissions were delivered, in the same form, as to powers, that are used for ministers going abroad. The President might have selected any other individual, and the case is as strongiy in point as if he had. Will the gentleman point out the difference between these cases which he, jointly with all of us, has approved, and that which he now so violently reprobates? If the President may appoint a special agent to make a treaty with a nation with whom we had none before, without submitting the nomination to the Senate; if he may make such an appointment for a negotiation here, can he not make a similar appointment for a negotiation to be carried on in Constantinople? If the latter is forbidden, where is the clause that authorizes the former? If the former is legal, where is the clause that excludes the latter? Are not both exercised under the same constitutional authority? Why,

then, sanction the one and denounce the other? It apto me that a satisfactory answer to these queries

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SENATE.]

would be difficult, even to the ingenuity of the mover of the amendment; and that it would be somewhat difficult for him to show that there is any one of the inconveniences and dangers which he apprehends, from the appointment of commissioners, with full powers, going to a foreign country, that does not attach to negotiations by special agents at home. But these dangers are imaginary in both cases. Nothing either of them can do has any force until we sanction it. And in requiring the assent of two-thirds of the Senate to every treaty, those who made our form of Government thought they might safely trust the discretion of the President in selecting the agents for making it. But to remove all ground for the distinction, take an instance from the same collection of treaties which I have before quoted. In the year 1818, Mr. Gallatin, then our minister in France, was commissioned jointly with Mr. Rush, our minister at St. James’, to negotiate a treaty with England, in the same manner that the Secretaries of State were commissioned to negotiate at Washington. This nomination was never submitted to the Senate, yet a most important convention, made under that appointment, was ratified by the Senate; so that here we have commissioners appointed at home, abroad, to christians as well as infidels, in every form, in ever character in which the power can be exercised, and in every form acknowledged by the coordinate branches of Government to be constitutional and right; and yet, sir, it is now undertaken to arraign and denounce it as a usurpation. The second ground of accusation, that the nomination, though made in the recess, was not submitted to the Senate when they met, has been anticipated. It may be justified on several grounds; which were those which actuated the President, as I am not in his counsels, I do not know. It may be justified on the necessity of keeping the mission a secret until the result was known; on his constitutional power of originating a secret mission without the co-operation of the Senate; and on the inutility of naming persons to be confirmed in offices which were temporary in their nature, and which must expire before the confirmation by the Senate could be made, or at any rate before it could reach them. Thus the treaty with the Porte having been completed before the adjournment of Congress at the last session, it would have been useless to confirm the powers of the negotiators. I pass over the argument to show that, although the letter of Mr. Offley particularly states that he signed the treaty on Sunday, yet he must have been mistaken, because no christian in a country of infidels would be guilty of a breach of the christian sabbath. I pass that over with asking how often we ourselves, when duty required it, have not sat and deliberated within these very walls on the same sacred day; and whether disobedience to any of our legal acts, done at such a time, would be excused on the allegation of an impossibility of our having been guilty of the breach. Sir, I have now finished a task which I wish had fallen into abler hands. I have endeavored to show, that if the evil which is denounced as a lawless usurpation, be tried by a fair construction of the federal compact, by its cotemporaneous exposition, by the example of the best, and wisest, and most prudent men who have directed the affairs of the country, or by the uniform practice of every

Crimes in the District of Columbia.-Turkish Commission.

President, sanctioned by the acts or acquiescence of every

Senate and every House of Representatives since the institution of our Government; if these are to weigh against

the denunciation of the Senator from Virginia, then the accusation falls. He has urged it with vehemence and zeal—he has enforced it with his accustomed eloquence; but, according to the best judgment that God has given me, I must say he has not supported it by a single proof.

[FEB. 24, 1831.

would be disposed to indulge him with this evening, he

moved an adjournment. The motion prevailed, and The Senate adjourned.

Thunso Ay, FEBRUARY 24. CRIMES IN THE DISTRICT OF COLUMBIA.

On motion of Mr. CHAMBERS, the Senate resumed the consideration of the bill for the punishment of crimes within the District of Columbia. Mr. C. said that, when the bill was last before the Senate, debate arose on a motion by the gentleman from South Carolina [Mr. HAYNE] to recommit the bill to the District Committee, with a view to striking out the clause relative to punishment for duelling, or being concerned in a duel. The amount and importance of the business before the Senate, and the expediency of early acting upon it, induced him to waive any remarks at this time on the motion, that the sense of the Senate might at once be taken upon it. If the bill was recommitted, the committee would of course report the bill with the clause stricken out; and he could see no necessity for its recommitment, because the question might as well be taken now. Mr. HAYNE explained the reasons why it had not been in his power to make the motion at an earlier day. He was desirous of testing the sense of the Senate on this particular clause of the bill. If the recommitment took place, the committee would either strike out the clause, or so modify it as to meet the views of the Senate. A speedy decision on the bill was desirable, and he took the occasion to say, that, if this recommitment took place, there would be no further opposition on his part. Under the present provisions of the bill, not only the parties convicted of fighting a duel, but the bearer of the challenge, the surgeon, &c.—every accessary—was to be punished by five years’ hard labor in the penitentiary. With due deference to those who introduced this clause into the bill, he was of opinion that so severe a mode of punishment would destroy the whole object of the provision. The punishment was so severe, that no jury would be found to enforce the provisions of the law. The punishment for crime should be adapted to the prejudices, the passions, and opinions of the people, and a milder cause would be found to answer a more practical purpose. Perhaps the better course would be to strike out the clause altogether from the present bill, and then, by special statute, prescribe the punishment for duelling. This bill went further than the laws of any State of the Union on the subject; and he thought that if the Congress of the United States, under the auspices of the Senator from Louisiana, should pass a law determining what the punishment in such cases should be, the several States would adopt the regullations of such a law. The bill was then ordered to be recommitted; but, at the suggestion of Mr. CHAMBERS, the vote was reconsidered, and the Senate struck out the clause referred to altogether. Thus amended, the bill was passed.

THE TURKISH MISSION.

The Senate having resumed the consideration of the appropriation to pay the negotiators of the Turkish treaty,

Mr. TYLER said, the Senator from Louisiana [Mr. Livi Ngston] had commenced the speech which he yesterday delivered, by repeating, with much emphasis, the words “a lawless act, and in derogation of the rights of the Senate.” These words had fallen from my colleague, said, Mr. T., and seemed to have excited the feelings of the honorable Senator, and, in some degree, his displeasure. My colleague requires, no aid from me, or any other individual, to justify either his language or his conduct. The motives of the last will at all times be above

Mr. TYLER rose when Mr. Livingston concluded, reproach; and the language which he may at any time and stated his wish to address the Senate; but, as what he use will never fail to convey most strongly the idea which

had to say, would consume more time than the Senators

it is intended to represent. I will, however, say to the Turkish Commission.

Feb. 24, 1831.] honorable Senator, that if either my colleague or myself use expressions not familiar to the ears of courtiers, he must excuse our rusticity, and ascribe our fault to our course of education, and the land from which we come. The inhabitants of that republic are somewhat a bold and fearless race, and practise upon a principle which has been, for all time, prevalent amongst them, of calling things by their right names. If an act be done without law, they call it lawless; if in derogation of the right of others, they say so, whomsoever it may offend. The same gentleman has more than intimated that this was not the proper place for this discussion; that it would have been better to have carried it on in secret session. 1 differ with him in this, as in much else. By and by I shall show that the opportunity was not afforded until the bill upon your table came up for consideration; but if it had been, our secret chamber is no place for the discussion of a great constitutional question. It was proper, in every point of view, that the debate should be in this place. Here, before the public, the attack should be made. In the face of the world our reasons should be given for our course of conduct, and for the attitude we assume upon this important subject. This discussion has been forced upon us, from what motives, and for what ends, I leave to others to determine. Every Senator here can testify that my colleague, in a day or two after taking his seat this session, announced his opposition to the course which had been pursued in regard to the late mission to Constantinople. The Secretary of State knew his opinions at an early day, and yet the plain, the obvious, the palpable course by which all controversy might have been avoided, has been made to yield to this. The torch of discord has been thrown among us, and the unity of the party, with which we have, with but one exception, acted, is for the time broken up. This claim of individuals, resting merely on a contract with the Presi. dent, is diverted from the ordinary course of private and individual legislation, and attempted to be thrust into the general appropriation bill. I am aware of the effect of this, whatever the design. A hue and cry is to be raised at our heels. An anecdote will serve to illustrate its character. The night succeeding the day on which my colleague delivered his powerful argument on this question, the ice in the Potomac was put in motion, and, pressed on by the mountain torrent produced by the thaw, carried off a part of the bridge connecting this with the Virginia shore. A gentleman gave me the information, and said, with archness, the connexion between Virginia and the President’s mansion is now severed. My colleague's speech doubtless produced the thaw; and to him, also, will be ascribed whatever evil shall arise from this discussion. All are esteemed schismatics who oppose themselves, no matter upon what ground, to an error committed; and we shall be pronounced heretics by the political Catholic church. In other words, an act is done which in our consciences we cannot approve—which those who have the management of this affair are told in advance we cannot approve; and then we all arc to be denounced as schismatics, and all the vials of wrath are to be emptied on our heads. This, sir, is a perversion of all justice, of all moral rule. Those who perpetrate the error, must surely be responsible for consequences resulting from it. It is our duty, Mr. President, under all circumstances, and however situated, to be faithful to the constitution. Esto perpetua should be the motto of all in regard to that instrument, and more cmphatically those into whose hands it is committed by the parties to the compact of union. Sir, parties may succeed, and will ... each other; stars that shine with brilliancy to-day, may be struck from their spheres to-morrow; convulsion may follow convulsion; the battlements may rock about us, and the storm rage in its wildest fury; but while the con

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stitution is preserved inviolate, the liberties of the country will be secure. When we are asked to lay down the constitution upon the shrine of party, our answer is, the price demanded is too great. If required to pass over its violation in silence, we reply, that to do so would be infidelity to our trust, and treason to those who sent us here. The constant effort of Virginia has been directed to its preservation; the political conflict of the hour has never led her to yield it for an instant. No matter with what solemnity the violation has been attended; although sanctioned by the two Houses of Congress and the President of the United States, and confirmed by judicial decision, she has not halted in her duty. How little, then, should we be entitled to represent her, if we could so far forget ourselves as to hobble in our course. Let me, sir, be distinctly understood. I lay down no rule for others. Senators here will prescribe rules for themselves. No doubt all will be governed by motives equally pure and honorable; but, holding the opinions which I do upon this subject, I should esteem myself the veriest recreant to my most solemn obligations, if I could bring myself to support this appropriation. - The Senator from Louisiana has pronounced it a new discovery which we have made—a new discovery, sir? Was it not proved to the Senate the other day, that the power had always been denied to the President of send: ing ministers to foreign courts of his own mere motion? Sir, neither the discovery is new, nor the doctrine; both are as old as the constitution itself, as I shall presently demonstrate, from the very letter of that instrument. What was that question which but a few years since, divided this Senate? What was the Panama question, but the bone, flesh, and sinew of this? [Mr. LIVINGSTON explained. . He had spoke of secret agencies: no one had ever objected to them as unconstitutional.] Sir, said Mr. Trien, this is no secret agency, in the diplomatic sense, but a secret embassy, or mission. But let us return to the Panama question. What was that? Nothing more than a mere abstract declaration made by Mr. Adams, that the right to depute ministers without the interposition of the Senate fell within the competency of the Executive power. He did not appoint, however, but, as the constitution required, nominated persons to the Senate for its advice and consent; and yet what was the course pursued? There then stood on this floor, arm to arm, and shoulder to shoulder, nineteen Senators, who, with their shields interlocked, moved with the irresistible force of the Spartan phalanx upon that enemy-principle which threatened to overthrow the constitution. The present Secretary of the Navy moved the resolution in the following words, viz. “Resolved, as the opinion of the Senate, inasmuch as the claim of powers thus set up by the Executive might, if suffered to pass unnoticed by the Senate, be hereafter relied upon to justify the exercise of a similar power, they owe it to themselves and the States they represent, to protest, and they do hereby solemnly, but respectfully, protest, against the same.” Mark you, sir—a mere claim set up. The apprehension, that that might be called into precedent, to justify the exercise of a similar power by some future Executive, was sufficient to produce so solemn a resolution as that which I have read. Let us look to what was uttered in debate on that question. The state of the vote has already been mentioned. I will read to the Senate some of the remarks which fell from the present Secretary of the Navy. Before I do so, however, let me speak my honest convictions. I do not believe that he has had any agency in advising this mission to Constantinople. I do not believe that he could be guilty of an inconsistency so gross and palpable. No man has more confidence in the firmness of his adhesion to the principles of the constitu

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