SENATE.] Turkish Commission. [FEB. 23, 1831. sweeping charges of usurpation, and lawless and uncon-arrangement desirable with the Sultan, who held the keys stitutional acts by the President, of dereliction of duty in of the narrow inlet, through which alone an entrance into those who support them? and would not that reflection this sea could be had. The immediate predecessor of the also have inclined him to avoid asserting that these viola- present Chief Magistrate had appointed successively the tions were gross, open, palpable, such as the plainest un-two commanders of our squadron in the Mediterranean, derstanding must perceive-thus leaving to those who together with Mr. Offley, our consul at Smyrna, commiscannot read the constitution as he does, not even the ex- sioners to effect this object. They were furnished with cuse of error and ignorance to cover their aberrations? full powers, commissioned under the great seal, and inSir, this charge goes out to the nation, to the world, un-structed to make a treaty to secure this object. This was der the authority of the Senator's name-it has already designed to be a secret mission; it was never communigone forth; party spirit has already seized it; detraction cated to the Senate, nor was the appointment of the comhas repeated it; simple credulity may believe it; and the missioners submitted to them for confirmation: however, nation is given to understand that its first magistrate has from some cause, not perfectly understood, but, as many deliberately committed an open violation of the constitu- believe, from too great publicity given to the mission, it tion and his duty, or, as was insinuated, has been igno- totally failed; and this failure became known soon after rantly made the instrument of others in its performance; Mr. Adams went out of office. The object increasing and that this body, the Senate of the United States, is every day in importance, it very early attracted the attenready, unless they listen to the warning voice of the Sena-tion of the present administration; and to avoid the intertor from Virginia, to aid in the parricidal act. Now, sir, ference of other nations, and better to secure the secrecy how if this charge should be unsupported? How if it of the operation, Mr. Rhind was appointed consul to Odesshould be void of the slightest foundation? How if the sa, but was furnished with full powers, directed jointly letter of the constitution, as well as its spirit, should sanc-and severally to him, Commodore Biddle, and Mr. Offley; tion the reprobated act? How if it should be proved to he was directed, under the cover of his consular appointhave been the uniform course of the Government from ment, to proceed to Constantinople, and there negotiate its institution, pursued by the practice of Washington, for the free entrance into the Black Sea; he went there, Jefferson, Adams, Monroe, by every President of every his object was not suspected, and on the 7th May last he party; sanctioned by every Senate, unimpeached by any concluded a treaty, which was signed by Messrs. Offley House of Representatives-called in question by no vigi- and Biddle, they having arrived in the interval, on the day lant guardian of the constitution until the present day? before the adjournment of the Senate at its last session. How then! What then will this nation, the intelligent na- This last commission, like the preceding appointments, tion to whom this charge is made, what will they think-by Mr. Adams, was made in the recess of the Senate; and, what will be their verdict? To them, sir, I appeal; to as had been the case in these instances, the names of the their sentence I am willing to submit. Sir, I do not arro-commissioners were not submitted to the Senate for congate to myself to be one of the chosen few to whose firmation. These are the facts, and on them is founded charge the defence of the constitution is committed; or the accusation we have heard. 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 exclu- I will examine, in order, the positions on which these sive defender of the constitution. I have said that I do serious charges are founded. The first of them (although not deal in professions; but when the measures my sense I do not think it applicable to the present case) is, that of duty obliges me to support, are stigmatized by the the President has no power to appoint a public minister terms we have just heard, I must be permitted to say that during the recess of the Senate, to any Power where no I yield to no man in attachment to the charter of our fun-such minister had previously existed; or even if such misdamental laws, to the Union of which it is the bond, and sion had previously existed, unless the vacancy occurred to those rights of its separate members, which are not after the adjournment of the Senate. To this position I surrendered by it to the National Government. I am old accede in none of its parts. But if I should err on this subenough to have watched the progress of its formation, to ject, I hope to show that the establishment of this construchave witnessed the first moments of its existence, and was tion will not justify the charge that is founded upon it. one of those who hailed its first appearance as the har- I construe the constitution as I would any other written binger of that prosperity which it has so gloriously re-instrument, by its words, where they are explicit-where alized. I saw it, sir, in its cradle, marked its progress there is doubt, by the context-by the plain object of its with no inattentive eye; and the first period of my politi-framers, by a view of the evils it was intended to remedy, cal life was employed in resisting inroads which false con- the circumstances under which it was made, and the constructions, in high party times, made on its provisions. I temporaneous construction and uniform practice under it. belonged, and faithfully adhered, to the party which op- To adhere to its letter, without these aids, would someposed (for a period unsuccessfully) acts which we thought times defeat the powers evidently intended to be vested infractious of that instrument. My profession of faith has by it-sometimes give it greater than were contemplated. not heretofore, and is not now, altered-it never will be. For instance, the President is directed to "take care that But that faith does not oblige me to array myself with any the laws be faithfully executed." Take this literally, one, whatever may be my opinion of his patriotism and without any aid from the rules of construction I have laid zeal, in opposition to the exercise of a power that I think down, and you give him all power but that of legislation. is fairly conferred by the constitution to one branch of the In the article next preceding, it is said that "no State Government, or contend for it in favor of another not en-shall enter into any compact or agreement with another titled to it, though I should myself be a member of that State, without the consent of Congress." A literal conlatter branch. struction of which would prevent a settlement of disputed 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. What are the facts which have created this sudden ex-boundaries: or any other arrangement which mutual acplosion? The rapid growth of the Russian establishments commodation, for the acknowledgment of deeds, the arrest on the Black Sea, and the consequent increase of com- of fugitives, or similar objects, might require. Let us merce in that quarter, had for some years past made an examine the position by these rules. FEB. 23, 1831.] Turkish Commission. [SENATE. clusive 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. The constitution directs that "the President shall nomi- seen? Could they have escaped the wisdom and deep nate, and, by and with the advice and consent of the Se- foresight of the sages who framed the constitution? Have nate, appoint, ambassadors, other public ministers and they not provided for them? My belief is that they have, consuls, judges of the Supreme Court, and all other off-by the section in question. The President by it is authocers of the United States, whose appointment is not here- rized to "fill up all vacancies that may happen during the in otherwise provided for, and which shall be established recess of the Senate." Now take this literally, and he by law." It then gives power to Congress to vest the may fill up vacancies in the Senate itself--and it appears, appointment of such inferior officers as they think from the Federalist, that this was once seriously contendproper, in the President alone. Here the appointing ed for. But this cannot be the true construction, though power is complete. But as this power was to be exer- no one can deny that it is the literal one. Why? Be cised by the President, subject to the approbation of the cause it was evidently the intention of this section to limit Senate, and as the sessions of that body were not perma-it to the case of officers. There are, then, reasons which nent, it was foreseen that great inconvenience would re-justify a departure from the literal meaning of the section sult if all vacancies were to remain open during the recess. in this instance. Are there none in the case before us? What was the natural remedy? To give the temporary I think they have been already sufficiently pointed out. appointment to the President, subject in the usual manner Another, perhaps, of some, though I do not think of conto the confirmation of the Senate, when it should meet. 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 adjourn ment; 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 It was said on this subject, that no President had ever the instrument there should be none. I must not be un- dared to fill up an original vacancy in an office after the derstood as saying that an inconvenience attending any end of the session in which the law which created the of construction is sufficient to show it to be false, or that to fice had passed. Whether it was the want of courage, be the true reading which avoids it. Where the words or of inclination, that prevented the performance of an are express-where the intention is evident, however in-improper act, I cannot say. But as it is admitted that the convenient, they must be obeyed. But, where the words act was not done, perhaps it might be quite proper to atwill admit of an interpretation which avoids such an evil tribute it to the latter cause. But the fact, if it be one, as must have been foreseen, and cannot be supposed to strongly exemplifies my construction. Any office, first be left unprovided for, there the rules of construction to created by law, must be vacant at the moment the law is which I advert will apply. Before we consider the words approved by the President. That must necessarily be of the constitution, let us see the consequences that would during the session of the Senate. He is, therefore, bound result from an adherence to what is perhaps their literal to fill it; because the vacancy not only happens during the meaning. The collector of the port of New York dies session, but it also comes to his knowledge at that period. on the day before the adjournment. The vacancy cannot But suppose a law to be passed, requiring the appointbe filled until the December following. The collection ment of certain officers, which is not to take effect until a of one-third of the revenue of the United States must be distant period, or that is dependent on an uncertain event, left in irresponsible hands. The commander of a military and at that time the Senate should not be in session, can district in time of war dies--his loss cannot be supplied-it be doubted that the President would be authorized to the most important operations on which the safety of the make a temporary appointment to fill such original vacancountry depends must be stopped. In the distant opera-cy? If he could, by what authority? Not the law surely; tions of your navy, the same or a greater risk and incon- for that cannot alter a constitutional right of the Senate, venience occurs. At the moment of concluding a com-unless the office be an inferior one, and the right to fill it mercial arrangement, by which immense advantages are without the concurrence of the Senate be expressly given to be secured, or a treaty of peace, which is to save the by the law: it must be then by the liberal construction of country perhaps from devastation, your plenipotentiary the section, which I contend is the true construction. On dies during the session of Congress, but before the Pre- which subject, sir, permit me to state a manifest differ sident is apprised of it. He cannot supply his place: the ence in the rules for interpreting the constitution. When commercial advantages are lost--the war must rage--the the question is, whether a certain power is granted by it to country must be devastated: because, according to the the General Government, or reserved to the States--in that Literal construction of the clause, the vacancy happened case, whenever there is reasonable doubt, the power during the session, not in the recess. The President who ought not to be exercised. But where the States have should presume to remedy these evils, would be guilty of confessedly parted with, and do not claim the powera "lawless usurpation of unconstitutional power.' And where it is plainly their object and their interest that it the zealous guardians of our rights on this floor would de- should be exercised by the Federal Government, and the nounce all those who might presume to think differently, only question is, by what branch, and in what manneras men ready to lay the rights of the body to which they then the true rule of interpretation is that which will give belong at the feet of Executive power. These, sir, and effect to the power, rather than that which would destroy a hundred other inconveniences which might be stated, it. In the case of interfering claims between the States are not only possible, but probable, but certain and inevi- individually and their federal head, the mind must be contable, and must occur during the long series of ages in vinced that the power in question was intended to be which it is our unanimous prayer that our constitution may granted, before it can come to the conclusion that it belive. Are they not great? Must they not have been fore-longs to the General Government. Where there is doubt, SENATE.] Turkish Commission. [Fвв. 23, 1831. there can be no such conclusion. Therefore, the power power to make treaties, then, includes that of appointing must rest as it was-that is, with the State Government. agents, as well of the one as of the other class. But the But in the question, how a power confessedly granted is constitution has placed a limitation on the power of apto be exercised-then such absolute certainty is not re- pointing those of the first class; and having given none to quired. The first duty of the expositor is to adopt some that of the second, the President has it without restriction. conclusion that will give effect to the declared and con- In this branch of the argument, however, our inquiry fessed grant of power. And although there may be doubts relates to the public ministers only; and the question is, as to the agency by which the intent is to be executed, whether the President has right to appoint such minisyet they must be weighed, and the decision made accord-ters during the recess of the Senate, either to a Power ing to the preponderance of the reasons in favor of either with whom we before had sent no such minister, or to fill of the departments claiming it. Thus, in the present in a vacancy in the mission to a country where we before had stance, it is the undenied and express intent of the con- a minister, if that vacancy should have occurred during stitution that offices should be filled by the President, with the session of the Senate. This is here the sole question; the advice and consent of the Senate when they were in for I admit, that, in all cases of appointment to public session, and by a temporary appointment in the recess. foreign missions, made in the recess, the President is The evident intent, then, is that there shall be no vacancy. bound to submit the nomination to the Senate at its next The words, however, give rise to two constructions. By meeting. This is my reasoning on that subject. Having the one, this evident intent will be carried into effect. By the power to make treaties, afterwards to be submitted to adopting it, there will be no vacancy for a longer period the Senate, the President has the right to select the nation than elapses before it comes to the knowledge of the Pre-with whom such treaties are to be made, and the time most sident. By the other, in many most important cases this favorable for making them. That time may occur during intent will be defeated; the office must remain vacant for the the recess of the Senate, and he therefore has the power inconvenient, and sometimes exceedingly injurious period to fill the original vacancy by the appointment of a public of eight or nine months. Which of these constructions minister; but, in that case, if the negotiation is carried on are we to adopt? I should incline to think the former by such minister, he must send in the nomination to the would not only be the best but the safest: for not a single Senate at some time during their session, if he wishes the inconvenience, that I have been able to discover, or that appointment to continue beyond that period. If, on the has been suggested, will attend the appointment to fill a contrary, he finds no occasion for extending the powers vacancy which occurs during the session, but which is of the minister beyond the time at which his commission unknown to the President until the recess—not a single would expire by the constitutional limitation; if he knows, inconvenience that will not occur if the vacancy happens for example, that the treaty will be made at that time, or in the recess: while the necessity for filling it is equally the negotiation will be broken off, he may, at his discreevident in both cases. Gentlemen, for whose judgment tion, omit sending in the name for confirmation. He must I have the highest respect, I know, differ from me on this do this, as he does all other discretionary acts, under his point; and it is probable they may be right. I express responsibility to the nation; but, in my opinion, he clearly my opinion merely because the occasion calls for it, and has the power. my constituents and the public have a right, in the station The error, as it appears to me, lies in considering the I occupy, to understand it. But although it lays at the mission to each court as a separate and distinct office: bottom of the argument which has been used by the Sena- whereas the office of ambassador or minister plenipotentor from Virginia, I do not think, as I hope to show, that it is tiary is a general one, subject to the President's direction the point on which the present question is to be decided. where he is to be sent. He is a minister to reside at such The reasoning I have hitherto used, is applicable to the a place; an ambassador to go to such a sovereign. Supappointment of all officers, as well ministers to foreign pose the constitution had, in express terms, said, the PrePowers as others; but there are reasons peculiar to the sident shall have the power to appoint messengers to carry former, which place the authority to commission them despatches to different courts-would the messenger to during the recess on a different ground. The office of London, the one to Paris, or St. Petersburg, be several minister to a foreign Power derives its authority from the and distinct officers, or would the office be the substance, law of nations. The intercourse which the political rela- and the destination an accident, liable to be varied, withtion of different States towards each in modern times out altering the character of the appointment? Again: if requires, their mutual wants, and the comity which exists the President had been authorized to appoint justices of between them, render the frequent, and generally the the peace for the District of Columbia, surely he might permanent, intervention of agents from one to the other apportion them to the different cities; and their particular necessary. Every civilized nation must necessarily have destination would not make the justice for one town an the power of appointing and receiving such agents vest-officer different in kind from the justice of another. The ed in some one or more of its departments. In the con- constitution puts the offices of public ministers precisely stitution of the United States this power is divided: the on the same footing: it does not limit the number, nor has President alone has the right to receive foreign ministers, any law made such limitation: as it now stands, and ever and, by the power to make treaties, subject to the assent has stood, and must remain, until the Legislature shall deof the Senate, that of making these treaties himself, or, clare how many officers of this description there shall be, as a necessary consequence, that of appointing the per- it is necessarily a matter of sound discretion with the Presons by whom they are to be made. No law, therefore, sident to what courts the exigencies of the country require was necessary to give effect to the exercise of this func- that a public resident minister should be sent. In case of 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 beThe 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 resi- 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 character; 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 FEB. 23, 1831.] Turkish Commission. [SENATE. two Houses have each a check on any extravagance of this appointment of ministers in the recess of the Senate, is kind, by the appropriation. acknowledged. Is it the rightful exercise of a power But that no limitation as to the particular destination of under the constitution? Then it can only be by giving the ministers was intended to be made by law, is proved to the clause the construction which I have put upon it. by the first appropriation bill passed in 1790, where Is it a power over the constitution? Then the same end $40,000 is appropriated, not for the support of particular which I contend for, by a legitimate construction, is to be missions, but "for the support of such persons as he [the allowed by the dangerous plea of necessity--the tyrant's President] shall commission to serve the United States in plea--which may not exist when used even to justify a foreign parts," and for their incidental expenses; and its peace. It may be humane, and convenient, and proper, only limitation is that of their compensation for the differ- to put an end to the devastations of war; but until the ent grades, which has remained unchanged to the present existence of the nation is at stake, until peace alone can day. save it from destruction, there is, properly speaking, no The prominent and striking case of ministers appointed necessity. What shall be the case of necessity, then, to make peace during the recess of the Senate, stood so must be determined by the party who is to avail himself directly in the way of the position which denies the power of the plea; and, if admitted, will be found to embrace to create a new mission in the recess, that the absolute all cases that are found convenient. And if the plea of necessity of removing or getting round it was apparent. necessity be admitted to justify a treaty of peace, made But it could not be removed. There it stands-its exist- by ministers appointed in the recess, why may it not cover ence evident--its constitutionality not doubted-its abso- a like appointment for making a treaty of commerce, or solute necessity unquestioned. What was to be done? boundary, or cession, which could only be made at that The ingenuity of the Senator from Virginia [Mr. TAZE- time? WELL] has provided a remedy. The whole is referred to But is it possible the sages and practical statesmen who the war-making powers. The President is commander-in-framed our form of Government should not have foreseen chief of the army. He may find it necessary to make an such ordinary and indeed inevitable occurrences; or that, armistice. He may effect this by such agents as he thinks foreseeing, they should not have provided for them? Is proper. The plenipotenfiaries to treat of peace are not it possible that they could have left the power of making ministers; they are agents to negotiate an armistice. As peace--seizing an advantageous occurrence to make an well, says he, may you call the officer sent to negotiate an important treaty--or filling an important office, during exchange of prisoners, or settle the terms of capitulation the recess of the Senate, to be justified by necessity? for a fortress; as well might you call him a minister, as the persons sent to settle the armistice. The idea is an imputation on their wisdom or their patriotism, which they do not deserve. They did foresee-It is somewhat unfortunate for this argument that nego- they did provide. And when they gave to the President tiators for peace are invariably plenipotentiaries; that their the power to make treaties, subject to the assent of twoauthority is authenticated by the same broad seal that is thirds of the Senate, they gave him the power to appoint supposed to have added so much dignity to the diplomatic the ministers by whose agency they were to be made; character of Messrs. Offley, Biddle, and Rhind; that they otherwise, we should exhibit the strange spectacle of a are civil, not military officers; that they exchange their wise nation, which had so cunningly contrived its Gofull powers with those with whom they treat; that the vernment, as to deprive it, in conjunctures that most agreements they make are not armistices--intervals be- frequently happen, of the means of making peace, tween acts of hostility--but treaties of peace, which put availing itself of favorable circumstances to secure coman end to them; and that ninety-nine times in a hundred, mercial advantages, or filling some of the most important the putting an end to hostilities is only one out of many of offices. the stipulations contained in a treaty of peace. The power But the power may be abused! The President may of making it, therefore, is not a branch of the war power, appoint a host of ministers, and drain your treasury by but of that which is its very antagonist, the power to make the payment of their salaries. These ministers may make treaties. A stipulation that the nations between whom it bad treaties! He may compromit our neutrality by acis contracted shall remain at peace with each other, even knowledging one of those new Powers which are daily should it contain no other agreement, would be as much springing into existence! a treaty as any other that ever was made. It is called by Alas! yes, sir, it is most true; unfortunately there is no that name; it is negotiated by the same means; requires power you can give, that is not liable to abuse. It cannot the same ceremonies in its inception, and the same ratifi- be denied; and the observation makes up for its want of cation for its validity as other treaties are. Why, then, novelty by its acknowledged truth. In every Government, call it an armistice, which is never ratified by the treaty- check and balance it as you will, somewhere there must making power of the nation? Why liken it to the capitu- be confidence; and, until we can find men of unerring lation of a fortress, or an exchange of prisoners? Because wisdom and incorruptible integrity, blind to the allurethe argument showed that here, at least, was a case in ments of popularity-deaf to the voice of interest, favor, which the constitution could not bear the strict verbal or affection--that is to say, until we can find men who are construction that was contended for; and the precedent not men, that confidence will at times be abused. But proved that it had been departed from in practice, and it must be given. And it so happens that there is no that the departure had never been questioned, much less power confessedly given to the President, that is not stigmatized, by the epithets so liberally bestowed on the liable to greater and more fatal abuse than this. Turkish mission. All this made it necessary either to fear war from his sending a minister to one of those new abandon the argument, or give another character to the Powers which are yet unacknowledged by the rest of the power of appointing ministers in the recess to stop the world; and yet you cannot deny that he has the right to ravages of war, when perhaps its continuance might en- receive a minister from one of those Powers, without danger the existence of the nation. A treaty of peace is, consulting the Senate or House of Representatives. You for this reason, called an armistice, and the minister pleni- will not trust him with sending a minister, lest he should potentiary who concludes it, is, by the argument, placed involve you in a war; and yet you confess that he has the on the same footing with the subaltern who is led blind- uncontrolled command of your army and your navyfolded into the postern of a besieged fort, to summon it instruments, if he wishes war, infinitely better fitted to to surrender. produce it. You But the Senator shall have it which way he pleases. You apprehend that he may lavish your treasures in The power to put an end to a destructive war, by the the salaries of a few ministers, at the same moment that SENATE.] at the gnat? you give him the control of all the officers employed in from Virginia the impression it seemed to do upon the the collection of your revenue. You dread that he may rest of the Senate. It is a well founded distinction, that reward his favorites by appointments to embassies in the which he thus urged, between a public minister and a recess; and yet no man can obtain an office of any de- secret agent. It seems to be thought that the nature and scription, from the highest to the lowest of those which style of the mission is to be determined by the manner in are submitted to the Senate, but by his previous nomina- which the powers are authenticated--not by the character tion. You are obliged to swallow the camel-why strain given in those powers. Sir, there are grades in diplomacy which give different rank and privileges--from an ambasWe now approach nearer to the very case which has sador to a secret agent. The lowest of these may have, excited this holy indignation against Executive encroach- for the purpose of binding the party he represents, the ment and usurpation: excited it-if I may be permitted same powers that are usually vested in the highest. A to use a phrase which did not seem to find favor with the chargé d'affaires may be ordered to make a treaty, or to Senator from Virginia, when it was uttered by another, compliment a sovereign on his accession; but he is neither [Mr. KANE,]--excited it too late-too late, indeed, says more nor less than a chargé d'affaires--so the same acts he, to save this mortal stab at the constitution; but not too may be done by a secret agent, having no public diplolate to preserve the Senate from participating in the matic character. parricidal act. Here I must take leave to differ. The Ambassadors and other public ministers are directed to stroke, if it be one, was given in the earliest day of our be appointed by the President, by and with the advice national existence. It has been repeated by every Pre- and consent of the Senate; because public missions resident who has sat in the Executive chair; every Senate, quired no secrecy, although their instructions might. But and every House of Representatives, have been accesso- the framers of the constitution knew the necessity of ries to the crime; and we ourselves have not yet washed missions, of which not only the object but the existence our hands from the blood of the victim. I must be per- should be kept secret. They therefore wisely made the mitted therefore to repeat, that, in my poor opinion, it is co-operation of the Senate ultimately necessary in the now too late even to prevent the participation of the first instance, but left the appointment solely to the Senator himself; not too late, however, for him to show President in the last. his zeal, energy, and eloquence in defence of the consti- In the very instance before us, if the preceding efforts tution, all which I greatly admire and respect, although I to form a treaty should have failed from too great a pubcannot participate in the feelings that have excited them. licity being given to a mission intended to be kept secret; In another point of view, I cannot but regret that the if it should have been defeated by the interference of discussion had not taken place at an earlier time, and other Powers; and if whatever, success the present atunder other circumstances. The full development of the tempt has had, might be attributed to the secrecy with subject would require a reference to matters which all which the principal agent left the United States, and the may speak of but ourselves; and although I cannot but ignorance of his object which prevailed among the minisfeel much embarrassment in the endeavor to avoid disclos-ters of other Powers at Constantinople; if it should turn ing 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. 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 The first error here is one of fact. This was not a new agents, his messengers, his spies, where he pleases-let mission. Commodore Crane and Mr. Offley were sent by them be kicked and cuffed by the authorities to which Mr. Adams, for the same purpose, to the same court. they go, he cares not. But the broad seal, the great seal, They had effected nothing, and a new commission was should never be profaned to such vile uses. Now, sir, I instituted, consisting of Mr. Rhind, Commodore Biddle, am not quite so indifferent about the usage our agents may and Mr. Offley. Here was then a vacancy, if that should receive, whether they are commissioned under the great be required-a vacancy created by revoking the powers or the little seal, or by no seal at all. But I should of one set of agents, and giving them to others; and if a be glad torknow in what manner a President is to signify vacancy, then, according to the most scrupulous, a right to a foreign State his confidence in the agent he employs, in the President to fill it. The next error is one partly or the powers with which he chooses to invest him, in any of fact--partly of construction. It consists in giving to other manner than by his signature to those powers, and those commissioners the appellation of public ministers, the addition of the seal of the United States, which auand thus bringing them within the proviso of the consti-thenticates it. To deny the use of these proofs of the tution, which directs that such officers shall be appointed commission given to such agents, is to say that they shall with the advice and consent of the Senate. not be employed, because they can transact no business The distinction that was made by the Senator from with a foreign Power without the usual proofs of their Illinois, and supported by a reference to high authority mission. But the right to employ them is abundantly on the law of nations, did not make upon the gentleman proved by the laws of nations, and, as I shall show, by the constitution, and a uniform practice under it; there •Of Secret Missions." As it happens frequently that Governments fore, the use of the seal makes no difference in the nature do not wish to treat ostensibly on certain matters which they have an of the mission. interest to conceal from the knowledge of other Powers, it is customa- tion of the business of the nation: public is, in one sense, They are private agents for the transacry to send and to accredit secretly to a foreign Government, or even only to its Department of Foreign Affairs, only persons of confidence; but without giving them the formal character of public ministers, or authorizing them only to assume it when the negotiation shall have diplomatic agents sent to foreign countries in the reigns of Louis XIV been carried to the desired point." Martens's Manuel Diplomatique, and XV. A number of missions of this nature took place during the p. 15; and in a note, he says: “We have frequent examples of secret American war, and during the first years of the French republic.' |
