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FEB. 23, 1831.]

Turkish Commission.

[SENATE.

the reverse of secret; but, in another, it means what ap- services 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 had done so, and the treaty would, most probably, have #failed.

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These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries 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 C 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. 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 firmed 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 them 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 effect.

There is none.

In

Grant that these were secret agents, and not public 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, anaWhere 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 employed 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, 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 constitu secret agents are at times proper means, and therefore tion, 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 appointment 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 giers. Whereas, in this case, a previous commission had Our existence as a nation, and goes beyond our acknow- been given by Mr. Adams, which was vacated by the recall dgment as such by other Powers. All those great men of the first powers, and the appointment of Rhind, Offley, who have figured in the history of our diplomacy, began and Biddle. It went infinitely further than this, in giving their career, and performed some of their most important to the minister the authority to appoint a substitute, and

SENATE.]

Turkish Commission.

[FEB. 23, 1831.

in the fact that the substitute negotiated and made the characteristics were deliberation and prudence, if the treaty the minister remaining in Lisbon, and Donaldson shadow of a doubt had passed over it, would not the same going alone to Algiers, where the treaty was concluded. regard for the constitution, for which he was equally reMark, too, that the commission to Humphreys is dated markable, have induced him to consult his cabinet, to only three weeks after the adjournment of the Senate in consult, as he frequently did, on other and less important March; that Donaldson was employed in May; and that occasions, the Senate' Sir, he had no doubts; the greatneither Humphreys nor Donaldson were ever nominated est and best, and most prudent man in the country had to the Senate, although they of course met in the Decem- no doubts. His advisers had none--the Senate had none. ber following. Look, sir, into the executive journal be- The House of Representatives did not hesitate; and the fore you. No nomination of Humphreys, under this com-nation, filled with men whose minds were enlightened by mission--not a syllable said of Donaldson. Yet, when continued discussions of the constitution, approved. Yet the treaty came, it was ratified: yet both Houses passed we doubt. Nay more, we decide; and, admitting no cona law for carrying, eo nomine, this very treaty into effect; trariety of opinion, stigmatize that very conduct thus purno squeamishness about the phrase under which the ap- sued by Washington, as lawless usurpation. That great propriation should be made; nothing hidden; the whole man, very soon after this, retired from office, carrying transaction-the mode of its execution-the agents by with him the benedictions of his fellow-citizens, and little whom it was effected, broad seal and all--the appellation suspecting that this wise and upright act of his administraof the agent, commissioner plenipotentiary, which is now tion would draw down on those who copied it the reso offensive, all spread before the Senate, composed of proaches we have heard. John Adams, who, besides the men, four-fifths of whom I may, I think, say, had either great share he had in forming the constitution, was preaided in making the constitution, or deliberated on the eminently qualified to judge on every question relating to propriety of its adoption, and this treaty sent to them by foreign intercourse; who might be styled the founder of George Washington. Yet, with all these badges of law-American diplomacy--John Adams succeeded him. And less, unconstitutional usurpation on its back, the treaty is he, too, strange as it may appear--he, too, fell into the ratified--the law passes. No grave Senator, no inde- same fatal error, or (if the case is as clear as is supposed) pendent representative rises to oppose this gross assump- was guilty of the same unpardonable fault. He, too, on tion of power. Did patriotism sleep on its post? Where the 18th of December, 1798, put his signature and the were the watchful, the sworn guardians of the constitu- great broad seal of the nation to a paper, vesting Richard tion, thus palpably violated? Where were the Senators, O'Brien, William Eaton, and James Leander Cathcart, jealous of their rights? Where the representatives of the with full powers to negotiate with the Dey and Regency people, sent to guard the palladium of their liberties? All of Tunis, alterations in a certain treaty made in the year silent, not a word of opposition; not a whisper of doubt. 1797, by Joseph Famin, who calls himself a “French And yet the violation, " "gross, open, palpable"--more merchant residing at Tunis, and chargé d'affaires of the gross, more open, more palpable than the one we are United States." These gentlemen made the new treaty now warned against, because in more points it contradicts on the 6th March, 1799; yet neither the nomination of the construction that is affirmed as the only true and or- the French merchant, who made the first treaty, (which thodox faith by which we may be politically saved. Ought must have been in the time of General Washington,) nor not this practical and contemporaneous construction, even of the three other commissioners, was ever submitted to if it stood alone, to create some doubt of the doctrines we the Senate. And it is remarkable that this last appointment are so vehemently urged to adopt Ought not the exam- was made on the 18th December, when the Senate was ple of Washington, even if, in our superior wisdom, we in session. 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 uncon

stitutional.

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.

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 carried 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.

But

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 construcBut this is not an isolated case. In the very same year, tion further than he has found it necessary to go. on the same day of the year, the 30th March, 1795, David this is not all: Mr. Madison comes next. If any voice can Humphreys received another commission, by letters patent be called the oracle of the constitution, it is his: if any from President Washington, authenticated in the same practice under it can be deemed void of error or intenmanner, constituting him commissioner plenipotentiary tional wrong, it is that of the wise, the venerated Madison. for negotiating a treaty of peace with "the most illus- What did he do? He followed precisely the route in trious the Bashaw, Lords, and Governors of the city and which his predecessors trod. In the year 1815, hostilities kingdom of Tripoli," with like power of substitution. On having been commenced by Algiers, he commissioned the 10th February, 1796, he transferred his powers to William Shaler, and the gallant and lamented Decatur, to Joel Barlow; and, on the 3d January, 1797, Mr. Barlow negotiate with them. They concluded a treaty on board made a treaty with the Bashaw and his Divan, which was, of the United States' ship Guerriere. But he never

in like manner with the former, approved by Col. Hum-nominated them to the Senate; yet the treaty, like the phreys, at Lisbon, on the 10th February, 1797, and was others, was ratified by the Senate in the succeeding sesratified by the Senate the following session. Here we sion, without a question as to their right to co-operate in find three sessions, after the commission, pass, before the the appointment. He it was, too, who, in the recess of treaty is presented to the Senate for its confirmation, the Senate, sent the commission which made the treaty of during all which, no nomination of either Humphreys or peace with Great Britain. Barlow was made. Surely, if a doubt had crossed the Again: Difficulties having arisen as to the execution of mind of the President, that mind of which the eminent the treaty with Algiers, another commission was issued on

FEB. 23, 1831.]

Turkish Commission.

[SENATE.

the 24th of August, 1816, to William Shaler and Isaac country between the Rio del Norte and the Sabine; and Chauncey, who renewed the former treaty, with altera- made a charge on our treasury of five millions of dollars. tions, on the 23d of December of the same year. And Yet, sir, this treaty was ratified by the Senate, and not one again the Senate were kept in ignorance of the appoint- word of reprobation, not an accent of doubt uttered as to ment, until the treaty was sent to them for ratification. the irregularity of the commission by which it was negoThis is the last treaty with any of the Powers professing tiated; and both Houses concurred in passing laws for the Mahometan faith, prior to the one that has given rise carrying it into execution.

to this discussion. And, in forming this, the President, Again: When Mr. Adams came to the Presidency, he in with stronger reasons for secrecy than any of his prede-like manner, in the year 1826, commissioned Mr. Clay to cessors had, has only, as far as he has gone, followed their treat of and conclude a treaty of commerce and navigaexample-followed his own and their construction of the tion with the minister of Denmark; which treaty was signed constitution and exercised no power that had not for on the 26th of April, in the same year, during the sitting forty years been universally acknowledged to be legiti- of the Senate, and in like manner ratified by them, almate. I bring the acquiescence down to this moment, though the appointment of Mr. Clay was never made because the questions raised on the Panama mission are known to the Senate, and of course was not confirmed by not those to which this transaction gives rise. Then the them. And we, sir, we ourselves, every one of us, who objection was to an appointment of a peculiar nature-a now hear or make these denunciations-we have ratified mission, not to a particular Power, but to a Congress of a treaty made with one of the greatest Powers of christenPowers; it was not supposed to be strictly diplomatic; dom, by a plenipotentiary commissioned under the great our agents, it was feared, were to act as deputies to a seal, whose appointment was never sanctioned or sent to confederative Government, rather than as ministers. And the Senate for its advice; and that, too, a Power with which to this was added the difficulty, at that time first raised, to before we had no diplomatic intercourse-with Austriapower of creating a new mission in the recess; here, made by the present Secretary of State, under a special however, the first objection cannot apply, and the pre-appointment by the President. Should it be said that vious appointment by Mr. Adams takes away the second. this practice of employing a special minister at home to The objection, then, to the making a treaty by secret make treaties with a foreign Power, is of modern date; agents, whose nomination is not sent to the Senate, is, I that it does not, like the case of the Mediterranean comrepeat, a new objection made to an established, and, as I missions, run back to the early part of our diplomatic hisbelieve, a perfectly constitutional practice. The objectory, I would answer that this, too, is an error, and that my tion is new, but it may yet be well founded, although I construction is sanctioned in this also by the practice of cannot perceive its force; and, not perceiving it, must be Washington. As early as the year 1796, some doubts permitted to think it passing strange that it never before having arisen as to the operation of the third article of occurred to one single individual, who has ever expressed Mr. Jay's treaty, Mr. Pickering was commissioned to nehis opinion on the subject, as far as my limited informa- gotiate an explanatory article, which was agreed to, subtion goes. mitted to the Senate, and ratified without any nomination of the negotiator to the Senate.

the

There are two other Presidents whose acts and opinions on this subject we have to examine, in order to complete the series.

Now, sir, does not this uniform, this unquestioned practice, carried through every Presidency, from that of the On Mr. Monroe's accession to the Presidency, he found father of his country to that of the present incumbent; is our peace secured with the Barbary Powers; he had, there- it not strongly persuasive of the correctness of that confore, no commissioners to appoint to them; but he had struction which gives to the President the power to make participated, as the head of the Department of State, in treaties whenever he may deem it expedient, by a special those which had been sent by Mr. Madison; and we may, agent, instead of a public minister-to give full powers, therefore, fairly suppose, that, if the occasion had offered, under the great seal, to such special agent, and to omit he would have followed the same course. But, during nominating him to the Senate when he thinks proper? his administration, and that of his successor, it was found Will it be said that the instances I have last mentioned convenient, in the exercise of the same constitutional right do not apply, because the Secretary of State was the of making treaties, to employ other agents than "ambas- agent? But he was the agent only by the special comsadors or public ministers," to form treaties with Euro- mission, given to him by the President-a commission, pean and christian Powers, as had been formerly done without which he could not have acted, which as his full with the Mahometan States of Africa. Differences had power, he was obliged to interchange with the minister existed ever since the treaty of 1802 with Spain, not only with whom he treated, before the negotiation could beof boundary, but on account of claims, to a vast amount. gin. If, as Secretary of State, the duty could have been The settlement of the dividing line between the United done, mere instructions would have sufficed-no comStates and Mexico would take from or add to our terri-mission would have been necessary. But in every instance tory an extent sufficient for the establishment of several commissions were delivered, in the same form, as to States. And the acquisition of Florida had always been powers, that are used for ministers going abroad. The considered as a matter of primary importance. If, then, President might have selected any other individual, and the magnitude and importance of the objects; if the rank the case is as strongly in point as if he had. Will the and dignity of the party, required that the negotiation gentleman point out the difference between these cases should be conducted by public ministers, and that their which he, jointly with all of us, has approved, and that appointment should be confirmed by the Senate, here was which he now so violently reprobates? If the President the case. Here was not even the plea of the recess. For may appoint a special agent to make a treaty with a nation during the session of Congress, in 1818-'19, Mr. Monroe with whom we had none before, without submitting the gave to Mr. Adams plenipotentiary powers to treat with nomination to the Senate; if he may make such an apthe minister of Spain, and make a settlement of all these pointment for a negotiation here, can he not make a simiimportant matters. He gave these powers by commission lar appointment for a negotiation to be carried on in Conunder the great seal. He never communicated the ap- stantinople? If the latter is forbidden, where is the clause pointment to the Senate, although they were in session. that authorizes the former? If the former is legal, where The negotiation was carried on in the very place where is the clause that excludes the latter? Are not both ex

they sat, and was concluded before they adjourned, by a ercised under the same constitutional authority? Why, treaty which purchased the two Floridas; settled our boun- then, sanction the one and denounce the other? It ap dary, by abandoning our claims to the immense extent of pears to me that a satisfactory answer to these queries

VOL. VII.-17

SENATE.]

Crimes in the District of Columbia. -Turkish Commission.

-

The Senate adjourned.

THURSDAY, FEBRUARY 24.

[FEB. 24, 1831.

CRIMES IN THE DISTRICT OF COLUMBIA.
On motion of Mr. CHAMBERS, the Senate resumed

would be difficult, even to the ingenuity of the mover of would be disposed to indulge him with this evening, he the amendment; and that it would be somewhat difficult moved an adjournment. The motion prevailed, and 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 the consideration of the bill for the punishment of crimes of the Senate to every treaty, those who made our form within the District of Columbia. of Government thought they might safely trust the disMr. C. said that, when the bill was last before the cretion of the President in selecting the agents for Senate, debate arose on a motion by the gentleman from making it. South Carolina [Mr. HAYNE] to recommit the bill to the But to remove all ground for the distinction, take an in- District Committee, with a view to striking out the clause stance from the same collection of treaties which I have relative to punishment for duelling, or being concerned before quoted. In the year 1818, Mr. Gallatin, then our in a duel. The amount and importance of the business minister in France, was commissioned jointly with Mr. before the Senate, and the expediency of early acting upRush, our minister at St. James', to negotiate a treaty with on it, induced him to waive any remarks at this time on England, in the same manner that the Secretaries of State the motion, that the sense of the Senate might at once be were commissioned to negotiate at Washington. This taken upon it. If the bill was recommitted, the comnomination was never submitted to the Senate, yet a most mittee would of course report the bill with the clause important convention, made under that appointment, was stricken out; and he could see no necessity for its recomratified by the Senate; so that here we have commissioners mitment, because the question might as well be taken now. appointed at home, abroad, to christians as well as infidels, in his power to make the motion at an earlier day. He Mr. HAYNE explained the reasons why it had not been

A

in every form, in ever character in which the power can be exercised, and in every form acknowledged by the co- was desirous of testing the sense of the Senate on this ordinate branches of Government to be constitutional and particular clause of the bill. If the recommitment took right; and yet, sir, it is now undertaken to arraign and place, the committee would either strike out the clause, denounce it as a usurpation. The second ground of accuor so modify it as to meet the views of the Senate. sation, that the nomination, though made in the recess, was speedy decision on the bill was desirable, and he took the not submitted to the Senate when they met, has been anoccasion to say, that, if this recommitment took place, ticipated. It may be justified on several grounds; which there would be no further opposition on his part. Under were those which actuated the President, as I am not in the present provisions of the bill, not only the parties conhis counsels, I do not know. It may be justified on the victed of fighting a duel, but the bearer of the challenge, necessity of keeping the mission a secret until the result the surgeon, &c.-every accessary-was to be punished was known; on his constitutional power of originating a by five years' hard labor in the penitentiary. With due secret mission without the co-operation of the Senate; and deference to those who introduced this clause into the bill, on the inutility of naming persons to be confirmed in offices he was of opinion that so severe a mode of punishment which were temporary in their nature, and which must would destroy the whole object of the provision. The expire before the confirmation by the Senate could be punishment was so severe, that no jury would be found to made, or at any rate before it could reach them. Thus enforce the provisions of the law. The punishment for 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.

crime should be adapted to the prejudices, the passions, and opinions of the people, and a milder cause would be better course would be to strike out the clause altogether found to answer a more practical purpose. Perhaps the from the present bill, and then, by special statute, prescribe the punishment for duelling. This bill went further and he thought that if the Congress of the United States, than the laws of any State of the Union on the subject; 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 regu

lations 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.

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 co- The Senate having resumed the consideration of the temporaneous exposition, by the example of the best, and appropriation to pay the negotiators of the Turkish treaty, wisest, and most prudent men who have directed the Mr. TYLER said, the Senator from Louisiana [Mr. affairs of the country, or by the uniform practice of every LIVINGSTON] had commenced the speech which he yesPresident, sanctioned by the acts or acquiescence of every terday delivered, by repeating, with much emphasis, the Senate and every House of Representatives since the in- words "a lawless act, and in derogation of the rights of stitution of our Government; if these are to weigh against the Senate." These words had fallen from my colleague, 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.

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

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FEB. 24, 1831.]

Turkish Commission.

[SENATE.

honorable Senator, that if either my colleague or myself stitution is preserved inviolate, the liberties of the counuse expressions not familiar to the ears of courtiers, he must try will be secure. When we are asked to lay down the excuse our rusticity, and ascribe our fault to our course constitution upon the shrine of party, our answer is, the of education, and the land from which we come. The price demanded is too great. If required to pass over inhabitants of that republic are somewhat a bold and fear- its violation in silence, we reply, that to do so would be less race, and practise upon a principle which has been, infidelity to our trust, and treason to those who sent us for all time, prevalent amongst them, of calling things here. The constant effort of Virginia has been directed by their right names. If an act be done without law, to its preservation; the political conflict of the hour has they call it lawless; if in derogation of the right of others, never led her to yield it for an instant. No matter with they say so, whomsoever it may offend. what solemnity the violation has been attended; although The same gentleman has more than intimated that this sanctioned by the two Houses of Congress and the Presiwas not the proper place for this discussion; that it would dent of the United States, and confirmed by judicial dehave been better to have carried it on in secret session. cision, she has not halted in her duty. How little, then, I differ with him in this, as in much else. By and by I should we be entitled to represent her, if we could so far shall show that the opportunity was not afforded until the forget ourselves as to hobble in our course. Let me, sir, be bill upon your table came up for consideration; but if it distinctly understood. I lay down no rule for others. Senahad been, our secret chamber is no place for the discus- tors here will prescribe rules for themselves. No doubt sion of a great constitutional question. It was proper, all will be governed by motives equally pure and honorain every point of view, that the debate should be in this ble; but, holding the opinions which I do upon this subplace. Here, before the public, the attack should be ject, I should esteem myself the veriest recreant to my made. In the face of the world our reasons should be most solemn obligations, if I could bring myself to supgiven for our course of conduct, and for the attitude we port this appropriation. assume upon this important subject. This discussion has The Senator from Louisiana has pronounced it a new been forced upon us, from what motives, and for what discovery which we have made-a new discovery, sir? ends, I leave to others to determine. Every Senator here Was it not proved to the Senate the other day, that the can testify that my colleague, in a day or two after taking power had always been denied to the President of sendhis seat this session, announced his opposition to the ing ministers to foreign courts of his own mere motion? course which had been pursued in regard to the late mis- Sir, neither the discovery is new, nor the doctrine; both sion to Constantinople. The Secretary of State knew are as old as the constitution itself, as I shall presently his opinions at an early day, and yet the plain, the ob- demonstrate, from the very letter of that instrument. vious, the palpable course by which all controversy might What was that question which but a few years since dihave been avoided, has been made to yield to this. The vided this Senate? What was the Panama question, but torch of discord has been thrown among us, and the unity the bone, flesh, and sinew of this?

of the party with which we have, with but one excep- [Mr. LIVINGSTON explained. He had spoke of setion, acted, is for the time broken up. This claim of cret agencies: no one had ever objected to them as unindividuals, resting merely on a contract with the Presi- constitutional.] dent, is diverted from the ordinary course of private and individual legislation, and attempted to be thrust into the general appropriation bill.

Sir, said Mr. TYLEB, 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? I am aware of the effect of this, whatever the design. Nothing more than a mere abstract declaration made by A hue and cry is to be raised at our heels. An anecdote Mr. Adams, that the right to depute ministers without will serve to illustrate its character. The night succeed- the interposition of the Senate fell within the competency ing the day on which my colleague delivered his power-of the Executive power. He did not appoint, however, ful argument on this question, the ice in the Potomac was but, as the constitution required, nominated persons to put in motion, and, pressed on by the mountain torrent the Senate for its advice and consent; and yet what was produced by the thaw, carried off a part of the bridge the course pursued? There then stood on this floor, arm connecting this with the Virginia shore. A gentleman to arm, and shoulder to shoulder, nineteen Senators, who, gave me the information, and said, with archness, the con- with their shields interlocked, moved with the irresistible nexion between Virginia and the President's mansion is force of the Spartan phalanx upon that enemy-principle now severed. My colleague's speech doubtless produced which threatened to overthrow the constitution. The the thaw; and to him, also, will be ascribed whatever present Secretary of the Navy moved the resolution in evil shall arise from this discussion. All are esteemed the following words, viz. schismatics who oppose themselves, no matter upon what

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Resolved, as the opinion of the Senate, inasmuch as ground, to an error committed; and we shall be pro- the claim of powers thus set up by the Executive might, nounced heret es by the political Catholic church. In if suffered to pass unnoticed by the Senate, be hereafter other words, an act is done which in our consciences we relied upon to justify the exercise of a similar power, cannot approve which those who have the management they owe it to themselves and the States they represent, of this affair are told in advance we cannot approve; and to protest, and they do hereby solemnly, but respectfulthen we all are to be denounced as schismatics, and all ly, protest, against the same. the vials of wrath are to be emptied on our heads. This, Mark you, sir-a mere claim set up. The apprehensir, is a perversion of all justice, of all moral rule. Those sion, that that might be called into precedent, to justify who perpetrate the error, must surely be responsible for the exercise of a similar power by some future Execuconsequences resulting from it. tive, was sufficient to produce so solemn a resolution as It is our duty, Mr. President, under all circumstances, that which I have read." Let us look to what was uttered and however situated, to be faithful to the constitution. in debate on that question. The state of the vote has Esto perpetua should be the motto of all in regard to that already been mentioned. I will read to the Senate some instrument, and more emphatically those into whose of the remarks which fell from the present Secretary of the hands it is committed by the parties to the compact of Navy. Before I do so, however, let me speak my honest union. Sir, parties may succeed, and will succeed each convictions. I do not believe that he has had any agency other; stars that shine with brilliancy to-day, may be in advising this mission to Constantinople. I do not bestruck from their spheres to-morrow; convulsion may lieve that he could be guilty of an inconsistency so follow convulsion; the battlements may rock about us, gross and palpable. No man has more confidence in the and the storm rage in its wildest fury; but while the con- firmness of his adhesion to the principles of the constitu

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