SENATE.] Turkish Commission. [FEB. 22, 1831. acquiesced; and if there can be any thing settled under a One is the case of Mr. Johns, from Delaware; the other written constitution, it is the meaning of these words. that of Mr. Lanman, from Connecticut. In both these It is the purpose of the very first article of the consti- cases, the seats were vacated by the efflux of the time for tution to create a House of Representatives as one of which their former incumbents had been elected. In the branches of the legislative department. Therefore, each case the Legislature of the State had made an inef in the first part of the second section of that article, it fectual effort to appoint a successor, but had failed, not prescribes the rule for ascertaining the number of which being able to agree in a choice. After the adjournment this House shall consist; and by whom, and for what term, of the Legislatures, the seats being still vacant, the Gover this number shall be chosen. Having thus provided a nors undertook to fill them by temporary appointments. full and complete House of Representatives, the authors But in both cases, upon the exhibition of the credentials of the instrument, foreseeing that casualty might vacate granted to these gentlemen, the Senate refused to permit the seats so filled, and this during the term for which their them to qualify, because the Governors of these States incumbents had been elected, proceed in the fourth had no authority to make temporary appointments to such paragraph of the same section to provide for such events, vacancies as these. by these words, "when vacancies happen in the represen- Here, then, is a second example of the occurrence of tation from any State, the Executive authority thereof the same terms, where their meaning is not only obvious shall issue writs of election to fill such vacancies." Here from the context, but has received the solemn and rethen is an office created by the constitution itself, which peated sanctions of this body itself. This meaning, so the Executive of every State is imperiously required to fixed and ascertained, is found to be in exact accordance fill in the mode prescribed, whenever vacancy shall with the signification attached to the same words, in the happen in it. Then, the moment this constitution was former case. Then, who can doubt as to the meaning of adopted, there was not a merely possible office, but one the same terms when they next occur, in the clause to of actual existence, as to the filling of which no discretion which I first adverted? Here, too, the framers of the existed, provided this original vacancy could be consider-constitution, having prescribed a rule for all appointments ed as referred to by the terms I have read. But never did to all offices, and required that they should be made by any Governor of any State conceive that this provision the President, by and with the advice and consent of the gave to him any authority to issue writs of election to Senate, foreseeing that vacancies might afterwards happen supply these original vacancies. No such example exists; in these offices during the recess of the Senate, when and such a procedure would be so obviously absurd, that the public exigencies might nevertheless require such any Governor who should have attempted it, would have vacancies to be filled up, wisely and providently gave to been considered as deserving a straight jacket. Yet the power conferred upon the Executive of any State, by the words here used, is precisely that conferred upon the President, by the same words, in the case to which I have before referred. the President alone the power of filling up all such vacancies. But they had no more idea of giving to the President alone the power of creating offices during the recess of the Senate, than they had to give to the Execu tives of the different States power to issue writs of election to fill original vacancies in the House of Repre sentatives, or to grant temporary appointments to supply such vacancies existing in the Senate. The So, too, the members of the House of Representatives are directed by this constitution to be chosen for two years. Biennially, then, all the seats in that House are made vacant by the constitution itself. Here, then, are Mr. President, let me present the subject to the Senate actual vacancies in established offices, that have been under another aspect. Whatever differences of opinion once filled. But no Governor of any State has ever felt may exist as to the origin of our different offices, I think himself authorized to issue writs of election to fill even we must all agree that the power of the President is the these vacancies. And why? Because all such vacancies same, in regard to appointments, to them all. being caused by the constitution itself, were therefore constitution, in authorizing him to nominate, and, by and foreseen and foreknown, and cannot properly be said to with the advice and consent of the Senate, to appoint to happen. Hence they are referred to the general rule, all offices, draws no distinction in the mode of appointment and not to the exception, which applies to casualties only to any; and his separate power over all vacancies which Again: The constitution having provided a House of happen during the recess of the Senate is the same, no Representatives, next proceeds to provide a Senate, as matter what may be the origin or nature of the vacant the other branch of the Legislature. This is done by office. Then, if his power over all is the same in both the third section of the same article. This section com- cases, let us examine the different subjects to which this mences, as in the other case, by declaring of what number identical power may be applied, and perhaps we may so the Senate shall consist, and by whom, and for what term, discover the nature of the power itself. the members shall be chosen. Having thus provided a According to the opinion of some, there are three full and complete Senate, the authors of the instrument, different species of offices referred to in the constitution: foreseeing that vacancies might occur during the term such as are created by statute--such as are created by the prescribed, in the seats once filled for that term, pro- constitution itself--and such as, being established by the ceed, in the next paragraph of this section, to provide usages of nations, are merely recognised by the constitufor supplying such vacancies, by these words, "if vacan- tion. Most of our domestic executive offices are examples cies happen, by resignation or otherwise, during the of the first kind; the Chief Justice, and his associates of recess of the Legislature of any State, the Executive thereof the Supreme Court, are examples of the second; and may make temporary appointments until the next meet- ambassadors, other public ministers and consuls, are ing of the Legislature, which shall then fill such vacancies." instances of the last. Now with respect to all offices of Here, again, we have original vacancies in offices created the first class, that is to say, offices created by statute, it by the constitution. To these vacancies no Governor of is very obvious, that original vacancies in these can never any State ever presumed to make any temporary appoint- occur during the recess of the Senate. Because, as ment, because they were original vacancies, and therefore these offices derive their existence from a statute, which were not embraced by the words of this exception. statute can only be enacted during the session of the Here also are presented the cases of other vacancies, Senate, and as these offices when thus created must be occurring after the place has been once filled, produced vacant, all original vacancies in statutory offices must not by any casualty, but by the foreseen and foreknown occur during the session, and not during the recess of the efflux of time. Our journals show us two attempts by Senate. Consequently, the President can have no power the Governors of States to supply vacancies of this sort. to fill up such vacancies. FEB. 22, 1831.] Turkish Commission. [SENATE. There never has been but a single instance of an at- Senate, which upon my mind has always had much influtempt by any President to fill up such vacancies during ence. It is not more the object of this constitution to the recess of the Senate. This attempt was promptly create and confer power, than it is to check and restrain the met by the Senate, who, not content with rejecting the authorities which it grants. No important authority is nominations afterwards made of the military officers who thereby granted to any department of this Government, had been so appointed, referred the subject to a committee. Their report, presenting, as it does, a clear and sound exposition of this part of the constitution, and an able vindication of the violated rights of the Senate, received the confirmation of this body, whose views were afterwards assented to by the Executive, as we all know. Then, no doubt exists that the President alone has no authority to make an original appointment to any statutory office. unless it is limited and guarded in its exercise, by some means or other. Speaking generally, the judiciary can establish no rule which the Legislature may not abrogate, can pronounce no decree which the Executive may not refuse to execute. The Executive can do no act, against which the judiciary may not relieve, which the Legislature may not annul, or to which they may not refuse to give effect. The Legislature itself can enact no law without the assent of the Executive, and which is not subject The offices of the judges of the Supreme Court are the to the revision of the judiciary, whenever it comes in cononly description of offices of the second kind. These flict with the constitution. And the States, in virtue of offices are created by the constitution itself, and are there- the rights reserved by them as parties to the original comby required to be filled up. Here then is the case not of pact, may watch over and control the joint or several acpotential, but of actual offices; not of possible offices that tion of all and each of the departments of this Government, may or may not be required to be filled up, but of exist- so as that none may pass beyond its prescribed limits. ing offices ordered by the constitution itself to be supplied Now can any one believe, that in such a system, so intendwith incumbents. Yet, President Washington, during ed and so contrived, it ever was designed to confer the whose term these offices were all so vacant, and thus con- vast power which has been exerted upon this occasion, tinued for a long time, never thought that he possessed (which, as I have shown, touches and influences our best the power to fill them up, until after the enaction of the and dearest interests,) to the uncontrolled discretion of the judiciary law; and did so then only by and with the advice President alone? The plain language of the constitution and consent of the Senate first obtained. (as I think I have now proved) repudiates any such idea; and if this language was even doubtful, the spirit which dictates every line of that instrument, ought to suffice to solve any such doubt. Nor could he have done otherwise. For until the passage of this act of Congress, how could he know what number of judges to appoint-what would be their salaries where they were to convene-what might be the I have heard a single case suggested, to which (as it duties required of them-or what the rule to regulate their seems to present a difficulty to the minds of some) I must process and proceeding-nay, by what other means could beg leave to pay a little attention. I have heard it asked, the court have been supplied with a clerk, a marshal, or if the President may not fill up any vacancy but one that any other ministerial officers, indispensably necessary to happens during the recess of the Senate, what would be the proper performance of their functions? It would have the condition of the country, if an office, which the pubbeen as absurd for the President to have made the ap-lic good requires to be filled immediately, should become pointment of judges before the enaction of this statute, as it would have been for the Governor of a State to have issued writs of election before the Legislature of such State had passed the laws necessary to give effect to that provision of the constitution which required the members of the House of Representatives to be chosen. vacant by death or otherwise, happening during the session of the Senate, and which event could not be made known to the President until after our adjournment? To this question I have several answers to give, either of which, to my mind, is quite satisfactory. The first is, that it is an extreme case, which must be In aftertime, when none of these difficulties existed, of very rare occurrence, and the very necessity of which, and the number of the judges of the Supreme Court was whenever it shall exist, may well excuse the President for increased, although the new judge, when duly appointed, acting upon it, even without any direct authority so to do. like his associates, was in under the constitution, yet it was But we should be very cautious how we give assent to conceded on all hands that the office, although required that species of argument, which would infer the legality by the constitution, was established by the law; and, of authority in ordinary cases, from mere silent acquiestherefore, becoming vacant during the session of the Senate, the President could not fill this vacancy during the recess, but must make the first appointment to it, only by and with the advice and consent of this body. cence in its exercise, when under the pressure of extraor dinary circumstances. I certainly would not censure any President for making a temporary appointment during the recess, in this supposed case, even if I thought he had When we thus see that the President cannot make an no authority so to do, provided he laid such an appointoriginal appointment to any office created either by statute ment before the Senate afterwards. I have no idea, howor by the constitution, because the vacancies in such offices ever, of having even necessary medicine administered to me cannot properly be said to happen during the recess of for my daily bread; or of applying this hard law of State the Senate, is it fair to argue that he has authority to necessity, which will override the constitution itself, to make such appointments to the other class of offices which such ordinary transactions as the case before us, in which are established not by statute but by usage merely, and this plea of immediate necessity cannot have the slightest which are not required, but merely recognised by the application. constitution as of possible use? Does not every argument My second answer is, that, according to a fair construcapplicable to the case of the judges of the Supreme tion of the constitution, the President, in my opinion, has Court, apply a fortiori to these offices? Of how many authority given to him to fill up such a vacancy during the ministers must the new mission consist-who and of what recess. Sir, as in all human transactions we can reason character shall be the attachés to the legation-what shall only from what we know, and know but little of facts exbe the compensation allowed to any of the mission-and cept through evidence, we are generally constrained to for what term may they hold their offices? All these are substitute this evidence for the fact it tends to establish. questions which must be decided before such appoint- It is this imperfection of our nature which often prevents ments can properly be made; and the decision of each of us from regarding as facts what are not shown to us to be these questions by the President alone is forbidden by the such, and obliges us to assert the truth of what is satisfacconstitution in terms. torily proven, although the fact so established may be most false. Hence, I think it fair to say that a vacancy, not And here, Mr. President, I will offer a suggestion to the SENATE.] Turkish Commission. [FEB. 22, 1831. simply declaratory of the true construction of an ambiguous part of the constitution, under which constitution alone power can ever be properly claimed. known to exist, does not exist for any of the purposes of the constitution; and when known, it does exist, and not until then, be that when it may. If any Senator should die during the session of the Legislature of the State he In this case there exists no occasion for these cautions represented, but the fact of his death could not be com- and reservations. During the discussion of the Panama municated to that Legislature while it continued in session, subject, we looked into all the precedents. Every case I take it for granted that the Executive of the State might of any original appointment, made by a President during supply this vacancy by a temporary appointment. I say the recess of the Senate, from the first establishment of this, in the spirit of the constitution, whose obvious pur- this Government to that day, was then laid before us, in a pose it is to keep the seats in this House always filled by document that now remains on our files. Each of these the Legislatures of the States here represented, where cases was then carefully examined; and it is such an exthey have an opportunity to fill them, but by temporary amination which justifies me, I think, in saying that not appointments from the Executive of these States, in all one of them can properly be considered as a precedent for cases where the Legislatures have had no such opportu- that which we are now examining. It is true that a sunity. And the parallel is perfect, I think, between the perficial examination of some of these cases may seem to power of the Executive of a State in one case, and that of justify a different opinion. But, if any one will take the the President in the other. trouble of tracing such cases to their origin, and will inMr. President, I have now presented to the Senate my form himself of the state of things existing at the time of views of the constitution, so far as it applies to the matter their occurrence, I repeat, that not one of them will be before us. If I am right in these views, all must agree found to apply here. I will not fatigue the Senate by a with me, that the power exercised by the President upon reference to these cases now: their true character and histhis occasion was without warrant, and therefore unlaw- tory was given in the debate upon the occasion referred ful; that it is a manifest violation of the rights of the to; and to that debate, now of record in your Register, I Senate; and if the act was done with that view, it is a fla-refer all those who may feel any wish to consult it. Our grant usurpation of their constitutional powers. I feel journals furnish us, however, with four cases, which have very confident that no one here will controvert a single a bearing so direct upon the matter now before us, that I position I have stated. I have advanced nothing new, but will take the liberty to state them. have merely repeated the arguments which I urged here The first of these occurred during the administration of in 1826, during the discussion of the memorable Panama Mr. Jefferson, who, during the recess of the Senate, unsubject, when this identical question arose, and was fully dertook to make an original appointment of a minister to examined. Upon that occasion, I was met by Senators of Russia; to which court we had not before sent any minisgreat ability, who, instead of controverting this construc- ter. The nomination of this minister was afterwards laid tion of the constitution, sought to avoid it, by relying up-before the Senate when they convened, accompanied by a on what they called the precedents. The same course long letter of the President's, setting forth the reasons may possibly be pursued again. It is proper, therefore, which had induced him to make such an appointment. that I should present some suggestions to the Senate upon The Senate considered the subject very maturely, it seems, this subject also. and finally refused to give their consent to the appointSir, from the first moment I was capable of forming an ment. This scheme was then abandoned; nor was it reopinion for myself upon any political question, until this sumed for many years afterwards, until it was revived by hour, I have always raised my voice against that sort of Mr. Madison, acting then by and with the advice and conargument, which, in a Government founded upon a written sent of the Senate. I refer to this case, to show the idea constitution, seeks to infer authority for the governors then entertained by the Senate as to their right to be confrom their own practices. The argument (if indeed it sulted by the President in all cases wherein it was proposdeserves such a name) is not fair; for, while it claims the ed to establish new diplomatic relations with any nation benefit of all affirmative cases, it allows no weight to those with which none such had previously existed; and to show which are negative merely. The omission to exert any the acquiescence of the Executive in this determination. power for a century, although opportunities fit and proper The next case occurred in 1814, when, during the refor its exercise may have hourly occurred during all that cess of the Senate, and "flagrante bello," President Maditime, weighs not as even the dust in the balance against its son sent three additional ministers, to unite in the negoti actual exertion in a single instance. The argument is ations at Ghent, with the two others previously appointed dangerous, too, in the extreme. The smallest fissure un- by him, by and with the advice and consent of the Senate. intentionally made in the constitution, during the darkest These appointments were laid before the Senate at their hour of some drowsy midnight session, to let in some next session, when the exercise of this power by the Presi pigmy case, too insignificant to attract or to merit atten- dent, during the recess of the Senate, called forth that tion, by the force of this argument, is soon widened and able and eloquent protest against it, which was submitted made a horribly yawning crevasse, through which a flood by Mr. Gore, then a Senator from Massachusetts, and must one day rush in to deluge our fair land. Deeds done which I read to the Senate when I first addressed them. in moments of high party excitement, or during the hour It is true, this protest was never acted upon definitively. of danger to the State, when the safety of the people is But we all remember the state of things then existing; the supreme law, by the force of this argument become and the conduct of the Senate, in avoiding any decision of the parents of similar acts, in other and different times. this matter at that time, manifests most distinctly what It was thus the dictatorship was made perpetual in Rome; was the opinion then entertained. If the majority had and the same means cannot fail, in time, to produce some even doubted, this protest would have been rejected at such calamitous event here. It shall never have any force once. But, as its adoption would have been highly inexwith me. Thus far, and no farther, am I willing to allow pedient at that crisis in our affairs, and its rejection would any weight to the argument founded upon precedents have been an abandonment of the constitutional rights of merely. When any of the provisions of the constitution the Senate, they very prudently postponed the consideraare of doubtful import, and questions arising under such tion of the subject. provisions have been fully and openly examined, so that the people have had a fair opportunity to understand their bearing and influence, the decision of all such questions, if afterwards acquiesced in generally, I shall be disposed to respect; not, however, as conferring power, but as Next comes the case of the new republics in South America. Every body knows what was the state of public sentiment upon this subject. Mr. Monroe, the President, was beset on all sides, and most earnestly importuned to comply with the wishes of these States, by sending minis } FEB. 22, 1831.] Turkish Commission. [SENATE. ters to them. But, although desirous to do so, he never-not say that such is his opinion, but satisfies himself with theless steadily refused, until he had previously submitted endeavoring to cast the shadow of his doubts upon mine; the subject to Congress, and had obtained the assent of and then rebukes me for using the strong language I did 1 both Houses. Then, and not until then, did he despatch in expressing it. Sir, if I could feel any of the doubts the ministers which were appointed by and with the ad- which this Senator has sought to generate, like him I vice and consent of the Senate. might regret the use of strong phrases to express an opiLast is the case presented in 1826 by the Panama mes-nion, of the correctness of which I did not feel assured; sage. This is of too recent occurrence to require any but, entertaining no such doubts, I have nothing to recomment. It will suffice to say, that the resolution then gret, nothing to explain, and nothing to take back. proposed, which was declaratory of the rights of the Se- And how, sir, is this supposed doubt produced? The nate, and denied the claim of President Adams to the Senator from Louisiana says that the constitution is sus power he therein asserted to be his, was laid upon our ceptible of two different readings. One, that which I table by the vote of a bare majority of this body. But gave as I found it written, and the other this: "the Presimany of the members of that majority, in whose presence dent, during the recess of the Senate, shall have power to I now speak, declared at the time that they did not doubt fill up all vacancies that may happen." According to the rights of the Senate to be such as was affirmed. As, this latter reading, he thinks it probable that the Presi however, the President, while asserting a contrary power, dent would have the right to do that which he has done. had expressly waived its exercise, and had submitted his Now, sir, from whence does this honorable Senator denominations to the Senate for their advice, the question rive authority thus to dislocate the members of the senwas so reduced (as they thought) to a mere abstraction, tence, and to re-arrange them according to his fancy? which, however proper to be discussed, it was not neces- If he is not bound to read the instrument as it is written, sary then to decide. he has the same power to amend it, by the substitution of After that time, no case has occurred within the know- new words, as by inverting the order in which the old ledge of the Senate until the present. For, although words are found, so to give them a new sense. The genMessrs. Crane and Offley, in 1828, received from Presi- tleman cannot claim the merit even of originality for this dent Adams a commission similar to this, yet that fact was invention. It is certainly as old as the days of Swift, in cautiously concealed from the Senate. These ministers whose amusing “Tale of a Tub” we read that the same never reached Constantinople, and their appointment device was practised upon the testament there mentioned. would not probably ever have been brought to light, un-The three brothers not being able to find the permission less it had been found expedient now to refer to it as a they desired, written therein totidem verbis, sought for it precedent to justify what was afterwards done by the pre- totidem syllabis; not finding it even then, they tried to sent Executive, And here, sir, let me appeal to the can- make it out totidem literis; and it was only when they dor of all those honorable Senators who thought and acted failed in this, too, that they found themselves under the with me during the Panama discussion, to say, if they had necessity of changing the orthography. Had they lived known that President Adams had secretly instituted a mis- in the present day, they might have saved themselves sion to Turkey during the recess of the Senate, would much trouble, by merely altering the name of what they they not have reprobated such an act, in as strong terms wished, and bestowing upon it some new denomination. at least as any used in relation to his mere claim of such a Do not the Senate perceive what would be the effect power in the Panama case, where the exercise of the power of this new reading of the constitution, if, as the Senator asserted was expressly waived by him. For my part, from Louisiana would persuade us, it was permissible to I know I should have done so; and knowing this, I cannot adopt it? Read as it is written, and these words, "during reconcile it to myself to sit silent, when the same act has the recess of the Senate," denote the time within which been done by another President. Whatever changes may the vacancy must happen, which vacancy the President have taken place in the Executive, the constitution re-alone is authorized to fill up: but, according to this new mains the same; the rights and duties of the Senate re-reading, these words denote the time within which the main the same; and I will always strive to preserve the President may exert the power of filling the vacancy, one, and to fulfil the other. happen when it may. Then, the President would need The cases to which I have thus referred, spreading as they but to wait until the Senate adjourns, and he would have do over a period of twenty-five years now last past, ought authority to fill up all vacancies. Nay, should he grato satisfy every one, I think, that the provisions of the ciously please to refer his appointments to the Senate afconstitution and the practice of the Government are in terwards, and they should reject them, instead of watchstrict accordance. At all events, they must suffice to ing a fit occasion to renominate, the President might wait show, that even if other precedents could be found, much for the adjournment, and then reappoint the same indimore apposite than any which exist, they cannot prove vidual; and so on, tolies quoties, to the end of the chapter. any uniform practice, any continuous chain of precedents, A more summary method to divest the Senate of all ausettling this question of power, which, therefore, we must thority, and to invest the President alone with complete consider as res integra, and decide by a reference to the power over all appointments, could not well be deconstitution alone. vised. Instinct informs the very brutes of their common danger, and of the quarter from whence it may be expected; and surely arguments such as this should put us upon our guard Mr. President, the arguments that have been urged in opposition to the opinion I so briefly expressed when I first made this motion, coming, too, from the quarter whence some of them proceed, have excited my surprise An honorable Senator from Maryland [Mr. SMITH] almost as much as the power, the exercise of which in tells us that he has never doubted upon this point-that he this case they seek to justify. I must beg leave, there- has ever been of opinion, the President might, institute fore, to invite some attention to the most prominent of what missions he pleases, without consulting the Senate these arguments, which seem to me most awful signs or any body else--that he so said, and so voted, in the of the times." Panama case, and therefore shall so vote in this, which An honorable Senator from Louisiana, [Mr. LIVING- is precisely similar to that. This is all very true; and I STON, instead of controverting directly any proposition bear my willing testimony to the perfect consistency of which I have advanced, tells us that the construction of the that honorable Senator in these cases. I wish I could preconstitution for which I have contended is not so certain, vail upon him, however, to convince my friend from Illibut that wise and good men may well doubt as to its cor- nois, [Mr. KANT,] that these cases are precisely similar. rectness; nay, even adopt a contrary opinion. He does It would relieve me very much if he would do so; for I feel sensibly the awkwardness of my present position, opposed on the one hand by those who opposed me in the Panama case, because this is the same question there presented; and opposed on the other by those with whom I then agreed, because this is not a similar case. It is not for me to reconcile such contrarient opinions. All I can do, is to oppose to the Senator from Maryland the argument urged in the Panama case, which I agree with him is precisely similar to this; and to endeavor to satisfy my friend from Illinois, that his distinctions constitute no dif ference between the principles involved in each. [FEB. 22, 1831. minister plenipotentiary or other negotiator, to any of the Catholic princes, his beloved children, as it would be quite unseemly for the holy father (whose wishes must be commands to them) to send to them any officer whose very title imports negotiation, his minister upon such occasions is styled a nuncio, a mere messenger, deputed to bear the will of the father to these his dutiful children, which will, to be observed, needs but to be known. Now, as this republic is a mere artificial body; and as around and within it there are many who constantly distinguish the President as their "great father," it would not require much inIn what, sir, is any difference to be found between the genuity to find out some similitude between his office and two cases? It is true, that was the mere assertion of a that of the Pope. Then, as the constitution says not one right to power, the exercise of which was waived at the word about legates or nuncios, all that is necessary to attain very moment it was claimed; and this is the exertion of the desired end, would be to fill the blank in the comthe same power then asserted merely. But surely this mission with such words; when, according to this argubarren claim, waived when preferred, presents not so strong ment of the Senator from Illinois, the President alone a case, as the actual exercise of the very power then would so acquire power to do the very act which he is waived. The two cases, although not similar in their forbidden to do, if this blank was filled by the proper facts, present the same question; and every argument ap-name. plicable to the one, applies a fortiori to the other. The [Here Mr. KANE interrupted Mr. TAZEWELL, observing honorable Senator from Illinois, I am sure, will not say, he had not meant to say that the mere change of a name that because the one set of ministers was to be sent to of any public minister would authorize the President to Panama, and the other to Constantinople, that this differ-appoint one: but that he had said these commissioners ence of their destination can constitute any distinction be- were not public ministers at all. They were secret ministween the principles of the two cases. Nor will he say, ters or private agents, like those formerly sent to South that because one set of ministers were sent to a Congress America, or the persons frequently sent with despatches. of the ministers of several nations, and the other to a single The appointment of none of these had ever been subnation only, that this mere matter of number can vary the mitted to the Senate, but was always made by the Presi question as to the constitutional right of the President to dent alone, because such appointments were not specially appoint either. In what, then, does the difference consist? provided for in the constitution.} The honorable Senator from Illinois says, that, in the I thank the gentleman for this correction. I really had Panama case, the persons proposed to be despatched were no idea that it was his purpose to draw a distinction beto be public ministers; but the persons actually sent in this tween public and secret ministers. My impression was, case were commissioners only. Does he mean to say that his distinction was run between public ministers and that this mere change of appellation alters the thing these commissioners, who were not supposed to be pubnamed? The poet would tell him that "a rose by any lic ministers, because they were not so called; and I was other name would smell as sweet;" and I am sure he would about to show that the officers were the same, although not agree that his hat was not one, because many of his their denomination was different. However, the Senator townsmen call it a chapeau. But see, sir, what a broad from Illinois has relieved me from this trouble. Let me gate is here also hoisted, to let in the flood of Executive then inquire, whether his actual argument is more conpower and patronage. An act is forbidden when called clusive than that which I had supposed him to have used. by its true name; yet change but the name, and the same act at once becomes justifiable and proper. There might be some hope of an end to this, if those who seek to get power in this way, were constrained to tax their own invention for new names to denote old things, for as there must be some limit to human wit, "when the brains were out, the thing might die!" Unfortunately, however, the work is already done for them; and a Secretary of State has but to turn to the mere index of his code diplomatique, and he will there find a long list of the names of public functionaries, who have been employed by different potentates, at various times, which list may serve as a perennial fountain of power. And, first, sir, let me ask my friend from Illinois, if these commissioners were not public but secret ministers, according to his sense of these latter words, whence the President and Senate together, much less the President alone, can derive the right to appoint them? The constitution gives to the President the power to nominate, and, by and with the advice and consent of the Senate, to appoint, public ministers: but it would be as difficult, I believe, to find any authority in it to appoint secret ministers who should not be public ministers, as it would be to conceive the idea of a private agent, appointed to perform the public duty of negotiating a treaty, which, when ratified, is declared to be the supreme law of our land. 1 Let me give an example of the ease with which this pray we may not confound the character of the minister work may be done. The constitution authorizes the Presi- with that of the duty conferred upon him, or with the dent, by and with the advice and consent of the Senate, mode in which he may be directed to perform his duty. to appoint ambassadors and other public ministers. It is Doubtless, under that provision of the constitution which desired, however, to appoint such without consulting the authorizes the appointment of public ministers, the Presi Senate, lest they may not be willing to establish any such dent, by and with the advice and consent of the Senate, offices. Turn to the code, and you may there find that may appoint such ministers secretly. They may be inthe ambassador of the Pope is not distinguished eo nomine, structed to depart secretly. They may be accredited but is termed a legate. For, as an ambassador represents secretly. They may negotiate (as they generally do) the person of his master, and as the sanctity and infalli- secretly. Nay, they may conclude a secret treaty, which bility of his Holiness cannot be represented, he therefore need not be made known until a fit occasion arises to give cannot have what is commonly called an ambassador. Toit the effect of a law by promulgation. In this sense, such show, however, that this legate is in very truth the per- ministers may properly be termed secret ministers; but sonal representative of his sovereign, he is sometimes they are nevertheless public ministers. Because they are styled a legate a latere, that is to say, he is supposed to be the ministers of the public, commissioned by its Governtaken, like our imprudent mother Eve, from the side of his ment, authorized to perform its business, and accountable lord and master, and therefore may very properly be iden- to the public for all their acts and omissions under their tified with him. So, too, if the Pope wishes to send a commission. In one word, sir, they are public ministers |