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Turkish Commission-Power of the President to Originate Missions.

KANE,) which avoids the objectionable terms, leave it in doubt whether I did not assent to the doctrine of the Senator from Virginia. But, sir, I am not disposed to avail myself of such a subterfuge. Whenever I have formed an opinion, and am properly called on by my duty to express it, I will do it fearlessly, independently, as becomes a member of this august body, frankly to my fellow-Senators, explicitly to the nation; but, at the same time, with a proper deference and respect for the opinions of those with whom I have the misfortune to differ. In this spirit, sir, I will proceed to discuss the serious questions that have been raised by the Senator from Virginia, and to repel, as best I may, the charge of violating the constitution, and surrendering the rights of the body to which I have the honor to belong.

[FEBRUARY, 1831.

bated act? How if it should be proved to have been the uniform course of the Government from its institution, pursued by the practice of Washington, Jefferson, Adams, Monroe, by every President of every party; sanctioned by every Senate, unimpeached by any House of Representatives-called in question by no vigilant guardian of the constitution until the present day? How then? What then will this nation, the intelligent nation to whom this charge is made, what will they think-what will be their verdict? To them, sir, I appeal; to their sentence I am willing to submit. Sir, I do not arrogate to myself to be one of the chosen few to whose charge the defence of the constitution is committed; or that my construction of that instrument is the only orthodox faith. All those who surround me, have I do not, myself, deal in professions of at- an equal duty to perform in this respect; all tachment to the constitution-when made by of them are, no doubt, equally willing, and others, I believe them, unless their conduct or most of them more able, to perform it than my. character, has given me reason to doubt their self; but, while I yield to their equal right and sincerity. In the case of the Senator from Vir- superior ability, I must resist the claim any one ginia, no one who knows him can have such a may set up, either directly or by implication, doubt; but whilst the fullest confidence is felt to the title of exclusive defender of the constithat he is persuaded of the truth of all he ut- tution. I have said that I do not deal in proters, and while he is convinced, that the con- fessions; but when the measures my sense of struction he puts on the constitution is the true duty obliges me to support, are stigmatized by one; while he believes that those who think the terms we have just heard, I must be perdifferently are in the wrong, might not a slight mitted to say that I yield to no man in attachsuspicion that he himself is deceived; that his ment to the charter of our fundamental laws, judgment, strong as it naturally is, and invig- to the Union of which it is the bond, and to orated as it has been by study and reflection, those rights of its separate members, which are that even such a judgment might sometimes not surrendered by it to the National Governerr? and would not this reflection, had it oc- ment. I am old enough to have watched the curred, have led him to think that this might progress of its formation, to have witnessed the be one of those rare occasions, and have in- first moments of its existence, and was one of duced him to qualify by some expression of a those who hailed its first appearance as the possibility that his reasoning might be ill- harbinger of that prosperity which it has so founded, the sweeping charges of usurpation, gloriously realized. I saw it, sir, in its cradle, and lawless and unconstitutional acts by the marked its progress with no inattentive eye; President, of dereliction of duty in those who and the first period of my political life was emsupport them? and would not that reflection ployed in resisting inroads which false conalso have inclined him to avoid asserting that structions, in high party times, made on its these violations were gross, open, palpable, such provisions. I belonged, and faithfully adhered, as the plainest understanding must perceive to the party which opposed (for a period unthus leaving to those who cannot read the con- successfully) acts which we thought infractions stitution as he does, not even the excuse of error of that instrument. My profession of faith has and ignorance to cover their aberrations? Sir, not heretofore, and is not now, altered-it this charge goes out to the nation, to the world, never will be. But that faith does not oblige under the authority of the Senator's name-it me to array myself with any one, whatever has already gone forth; party spirit has already may be my opinion of his patriotism and zeal, seized it; detraction has repeated it; simple cre- in opposition to the exercise of a power that Í dulity may believe it; and the nation is given to think is fairly conferred by the constitution to understand that its first magistrate has deliber-one branch of the Government, or contend for ately committed an open violation of the constitution and his duty, or, as was insinuated, has been ignorantly made the instrument of others in its performance; and that this body, the Senate of the United States, is ready, unless they listen to the warning voice of the Senator from Virginia, to aid in the parricidal act. Now, sir, how if this charge should be unsupported? How if it should be void of the slighest foundation? How if the letter of the constitution, as well as its spirit, should sanction the repro

it in favor of another not entitled to it, though I should myself be a member of that latter branch.

What are the facts which have created this sudden explosion? The rapid growth of the Russian establishments on the Black Sea, and the consequent increase of commerce in that quarter, had for some years past made an arrangement desirable with the Sultan, who held the keys of the narrow inlet, through which alone an entrance into this sea could be had

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Turkish Commission-Power of the President to Originate Missions.

[SENATE.

which would prevent a settlement of disputed boundaries: or any other arrangement which mutual accommodation, for the acknowledgment of deeds, the arrest of fugitives, or similar objects, might require. Let us examine the position by these rules.

The immediate predecessor of the present Chief | the circumstances under which it was made, and Magistrate had appointed successively the two the contemporaneous construction and uniform commanders of our squadron in the Mediter- practice under it. To adhere to its letter, withranean, together with Mr. Offley, our consul at out these aids, would sometimes defeat the. Smyrna, commissioners to effect this object. powers evidently intended to be vested by it— They were furnished with full powers, commis- sometimes give it greater than were contemsioned under the great seal, and instructed to plated. For instance, the President is directed make a treaty to secure this object. This was to "take care that the laws be faithfully exedesigned to be a secret mission; it was never cuted." Take this literally, without any aid communicated to the Senate, nor was the ap- from the rules of construction I have laid down, pointment of the commissioners submitted to and you give him all power but that of legislathem for confirmation: however, from some tion. In the article next preceding, it is said cause, not perfectly understood, but, as many that "no State shall enter into any compact or believe, from too great publicity given to the agreement with another State, without the conmission, it totally failed; and this failure be-sent of Congress." A literal construction of came known soon after Mr. Adams went out of office. The object increasing every day in importance, it very early attracted the attention of the present administration; and to avoid the interference of other nations, and better to secure the secrecy of the operation, Mr. Rhind was appointed consul to Odessa, but was furnished with full powers, directed jointly and severally to him, Commodore Biddle, and Mr. Offley; he was directed, under the cover of his consular appointment, to proceed to Constantinople, and there negotiate for the free entrance into the Black Sea; he went there, his object was not suspected, and on the 7th May last he concluded a treaty, which was signed by Messrs. Offley and Biddle, they having arrived in the interval, on the day before the adjournment of the Senate at its last session. This last commission, like the preceding appointments, by Mr. Adams, was made in the recess of the Senate; and, as had been the case in these instances, the names of the commissioners were not submitted to the Senate for confirmation. These are the facts, and on them is founded the accusation we have heard.

The constitution directs that "the President shall nominate, and, by and with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointment is not herein otherwise provided for, and which shall be established by law." It then gives power to Congress to vest the appointment of such inferior officers as they think proper, in the President alone. Here the appointing power is complete. But as this power was to be exercised by the President, subject to the approbation of the Senate, and as the sessions of that body were not permanent, it was foreseen that great inconvenience would result if all vacancies were to remain open during the recess. What was the natural remedy? To give the temporary appointment to the President, subLet us remember that this is not a question|ject in the usual manner to the confirmation of which concerns the infringement of any State right, that it is not one of reserved or conceded powers, but merely regards the mode of exercising one confessedly given to the General Government that of treating in the name of all the States with a foreign nation.

I will examine, in order, the positions on which these serious charges are founded. The first of them (although I do not think it applicable to the present case) is, that the President has no power to appoint a public Minister during the recess of the Senate, to any power where no such Minister had previously existed; or even if such mission had previously existed, unless the vacancy occurred after the adjourn ment of the Senate. To this position I accede in none of its parts. But if I should err on this subject, I hope to show that the establishment of this construction will not justify the charge that is founded upon it.

I construe the constitution as I would any other written instrument, by its words, where they are explicit where there is doubt, by the context-by the plain object of its framers, by a view of the evils it was intended to remedy,

the 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 adjournment; or of a Minister dying in a distant country at a time during the session when it would be impossible to know the event before the adjournment. If, in these two last cases, the office were to remain vacant until the meeting of Congress, the remedy in the proviso would not be commensurate to the evil it was intended to avoid. There would be vacancies when it was the evident intention of the instrument there should be none. must not be understood as saying that an inconvenience attending any construction is sufficient to show it to be false, or that to be the true reading which avoids it. Where the words are express-where the intention is evident, however inconvenient, they must be

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[FEBRUARY, 1831.

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.

obeyed. But, where the words will admit of an interpretation which avoids such an evil as must have been foreseen, and cannot be supposed to be left unprovided for, there the rules of construction to which I advert will apply. Before we consider the words of the constitution, let us see the consequences that would result from an adherence to what is perhaps their literal meaning. The collector of the port of New York dies on the day before the adjournment. The vacancy cannot be filled until the December following. The collection of onethird of the revenue of the United States must be left in irresponsible hands. The commander of a military district in time of war dies-his loss cannot be supplied-the most important operations on which the safety of the country depends must be stopped. In the distant oper- It was said on this subject, that no President ations of your navy, the same or a greater risk had ever dared to fill up an original vacancy in and inconvenience occurs. At the moment of an office after the end of the session in which concluding a commercial arrangement, by the law which created the office had passed. which immense advantages are to be secured, Whether it was the want of courage, or of inor a treaty of peace, which is to save the coun- clination, that prevented the performance of an try perhaps from devastation, your plenipoten- improper act, I cannot say. But as it is admittiary dies during the session of Congress, but ted that the act was not done, perhaps it might before the President is apprised of it. He can- be quite proper to attribute it to the latter not supply his place: the commercial advan- cause. But the fact, if it be one, strongly extages are lost-the war must rage-the country emplifies my construction. Any office, first must be devastated: because, according to the created by law, must be vacant at the moment literal construction of the clause, the vacancy the law is approved by the President. That happened during the session, not in the recess. must necessarily be during the session of the The President who should presume to remedy Senate. He is, therefore, bound to fill it; bethese evils, would be guilty of a "lawless usurp- cause the vacancy not only happens during the ation of unconstitutional power." And the session, but it also comes to his knowledge at zealous guardians of our rights on this floor that period. But suppose a law to be passed, would denounce all those who might presume requiring the appointment of certain officers,' to think differently, as men ready to lay the which is not to take effect until a distant perights of the body to which they belong at the riod, or that is dependent on an uncertain event, feet of Executive power. These, sir, and a and at that time the Senate should not be in hundred other inconveniences which might be session, can it be doubted that the President stated, and not only possible, but probable, but would be authorized to make a temporary apcertain and inevitable, and must occur during pointment to fill such original vacancy? If he the long series of ages in which it is our unan- could, by what authority? Not the law surely; imous prayer that our constitution may live. for that cannot alter a constitutional right of Are they not great? Must they not have been the Senate, unless the office be an inferior one, foreseen? Could they have escaped the wis- and the right to fill it without the concurrence dom and deep foresight of the sages who framed of the Senate be expressly given by the law: it the constitution? Have they not provided for must be then by the liberal construction of the them? My belief is that they have, by the section, which I contend is the true construcsection in question. The President by it is tion. On which subject, sir, permit me to state authorized to "fill up all vacancies that may hapa manifest difference in the rules for interpretpen during the recess of the Senate." Now ing the constitution. When the question is, take this literally, and he may fill up vacancies whether a certain power is granted by it to the in the Senate itself and it appears, from the General Government, or reserved to the States Federalist, that this was once seriously con--in that case, whenever there is reasonable tended for. But this cannot be the true construction, though no one can deny that it is the literal one. Why? Because it was evidently the intention of this section to limit it to the case of officers. There are, then, reasons which justify a departure from the literalment, and the only question is, by what branch, meaning of the section in this instance. Are there none in the case before us? I think they have been already sufficiently pointed out. Another, perhaps, of some, though I do not think of conclusive weight is, that the omission

doubt, the power ought not to be exercised. But where the States have confessedly parted with, and do not claim the power-where it is plainly their object and their interest that it should be exercised by the Federal Govern

and in what manner-then the true rule of interpretation is that which will give effect to the power, rather than that which would destroy it. In the case of interfering claims between the States individually and their federal

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[SENATE

mutual wants, and the comity which exists between them, render the frequent, and generally the permanent, intervention of agents from one to the other necessary. Every civilized nation must necessarily have the power of appointing and receiving such agents vested in some one or more of its departments. In the Constitution of the United States this power is divided: the President alone has the right to receive foreign Ministers, and by the power to make treaties, subject to the assent of the Senate, that of making these treaties himself, or, as a necessary consequence, that of appointing the persons by whom they are to be made. No law, therefore, was necessary to give effect to the exercise of this function. The moment the first President entered into office, he had the right to perform it, either by himself, or by others.

head, the mind must be convinced that the power in question was intended to be granted, before it can come to the conclusion that it belongs to the General Government. Where there is doubt, there can be no such conclusion. Therefore, the power must rest as it was-that is, with the State Government. But in the question, how a power confessedly granted is to be exercised-then such absolute certainty is not required. The first duty of the expositor is to adopt some conclusion that will give effect to the declared and confessed grant of power. And although there may be doubts as to the agency by which the intent is to be exeeated, yet they must be weighed, and the decision made according to the preponderance of the reasons in favor of either of the departments claiming it. Thus, in the present instance, it is the undenied and express intent of the constitution that offices should be filled by The laws of nations, however, to which I the President, with the advice and consent of have referred, make a distinction, as I hope the Senate when they were in session, and by abundantly to prove, between two classes of a temporary appointment in the recess. The agents by whom the diplomatic intercourse evident intent, then, is that there shall be no may be carried on; it distinguishes between vacancy. The words, however, give rise to public Ministers and private agents. In the two constructions. By the one, this evident first are included ambassadors, envoys, ordiintent will be carried into effect. By adopting nary and extraordinary, Ministers resident, it, there will be no vacancy for a longer period chargés d'affaires, consuls, &c. In the second than elapses before it comes to the knowledge class there can be no gradation of rank, but of the President. By the other, in many most the powers may be as extensive as those given important cases this intent will be defeated; to any of the others. The power to make treathe office must remain vacant for the incon- ties, then, includes that of appointing agents, as venient, and sometimes exceedingly injurious well of the one as of the other class. But the period of eight or nine months. Which of these constitution has placed a limitation on the constructions are we to adopt? I should in- power of appointing those of the first class; cline to think the former would not only be the and having given none to that of the second, best but the safest: for not a single incon- the President has it without restriction. In venience, that I have been able to discover, or this branch of the argument, however, our inthat has been suggested, will attend the ap-quiry relates to the public Ministers only; and pointment to fill a vacancy which occurs during the session, but which is unknown to the President until the recess-not a single inconvenience that will not occur if the vacancy happens in the recess: while the necessity for filling it is equally evident in both cases. Gentlemen, for whose judgment I have the highest respect, I know, differ from me on this point; and it is probable they may be right. I express my opinion merely because the occasion calls for it, and my constituents and the public have a right, in the station I occupy, to understand it. But although it lies at the bottom of the argument which has been used by the Senator from Virginia, I do not think, as I hope to show, that it is the point on which the present question is to be decided.

The reasoning I have hitherto used, is applicable to the appointment of al officers, as well Ministers to foreign powers as others; but there are reasons peculiar to the former, which place the authority to commission them during the recess on a different ground. The office of Minister to a foreign power derives its authority from the law of nations. The intercourse which the political relation of different States towards each other in modern times requires, their

the question is, whether the President has a right to appoint such Ministers during the recess of the Senate, either to a power to whom we before had sent no such Minister, or to fill a vacancy in the mission to a country where we before had a Minister, if that vacancy should have occurred during the session of the Senate. This is here the sole question, for I admit, that, in all cases of appointment to public foreign missions, made in the recess, the President is bound to submit the nomination to the Senate at its next meeting. This is my reasoning on that subject. Having the power to make treaties, afterwards to be submitted to the Senate, the President has the right to select the nation with whom such treaties are to be made, and the time most favorable for making them. That time may occur during the recess of the Senate, and he therefore has the power to fill the original vacancy by the appointment of a public Minister; but, in that case, if the negotiation is carried on by such Minister, he must send in the nomination to the Senate at some time during their session, if he wishes the appointment to continue beyond that period. If, on the contrary, he finds no occasion for extending the powers of the Minister beyond the

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Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1881. their incidental expenses; and its only limitation is that of their compensation for the dif ferent grades, which has remained unchanged to the present day.

time at which his commission would expire by the constitutional limitation; if he knows, for example, that the treaty will be made at that time, or the negotiation will be broken off, he may, at his discretion, omit sending in the name for confirmation. He must do this, as he does all other discretionary acts, under his responsibility to the nation; but, in my opinion, he clearly has the power.

The prominent and striking case of Ministers appointed to make peace during the recess of the Senate, stood so directly in the way of the position which denies the power to create a new mission in the recess, that the absolute necessity of removing or getting round it was apparent. But it could not be removed. There it stands-its existence evident-its constitutionality not doubted-its absolute necessity unquestioned. What was to be done? The ingenuity of the Senator from Virginia (Mr. TAZEWELL) has provided a remedy. The whole is referred to the war-making powers. The President is commander-in-chief of the army. He may find it necessary to make an armistice. He may effect this by such agents as he thinks proper. The plenipotentiaries to treat of peace are not Ministers; they are agents to negotiate an armistice. As well, says he, may you call the officer sent to negotiate an exchange of prisoners, or settle the terms of capitulation for a fortress; as well might you call him a Minister, as the persons sent to settle the armistice.

The error, as it appears to me, lies in considering the mission to each court as a separate and distinct office: whereas the office of ambassador or Minister plenipotentiary is a general one, subject to the President's direction where he is to be sent. He is a Minister to reside at such a place; an ambassador to go to such a sovereign. Suppose the constitution had, in express terms, said, the President shall have the power to appoint messengers to carry despatches to different courts-would the messenger to London, the one to Paris, or St. Petersburg, be several and distinct officers, or would the office be the substance, and the destination an accident, liable to be varied, without altering the character of the appointment? Again: if the President had been authorized to appoint justices of the peace for the District of Columbia, surely he might apportion them to the different cities; and their particular destination would not make the justice for one town an officer different in kind from the justice of another. The constitution puts the offices of public Ministers precisely on the same footing it does not limit the number, nor has any law made such limitation: as it now stands, and ever has stood, and must remain, until the Legislature shall declare how many officers of this description there shall be, it is necessarily a matter of sound discretion with the President to what courts the exigencies of the country require that a public resident Minister should be sent. In case of a new mission, as his nomination may be rejected, either because the Senate think the mission inexpedient, or because they disapprove of the man, he will generally avoid making such appointments, without consulting the Senate by submitting the nomination, unless the exigency of the case requires it. And as to the existence of such necessity, he must stand upon his responsibility to the people; to be enforced, in case of an unwise exercise of the power, by their voice of disapprobation-a sufficient sanction to a man of character; and, in case of a corrupt exercise, by impeachment. And it must further be observed, that the two Houses have each a check on any extravagance of this kind, by the appropria-liken it to the capitulation of a fortress, or an tion.

But that no limitation as to the particular destination of the Ministers was intended to be made by law, is proved by the first appropriation bill passed in 1790, where $40,000 is appropriated, not for the support of particular missions, but "for the support of such persons as he (the President) shall commission to serve the United States in foreign parts," and for

It is somewhat unfortunate for this argument that negotiators for peace are invariably plenipotentiaries; that their authority is authenticated by the same broad seal that is supposed to have added so much dignity to the diplomatic character of Messrs. Offley, Biddle, and Rhind; that they are civil, not military officers; that they exchange their full powers with those with whom they treat; that the agreements they make are not armistices-intervals between acts of hostility-but treaties of peace, which put an end to them; and that ninety-nine times in a hundred, the putting an end to hostilities is only one out of many of the stipulations contained in a treaty of peace. The power of making it, therefore, is not a branch of the war power, but of that which is its very antagonist, the power to make treaties. A stipulation that the nations between whom it is contracted shall remain at peace with each other, even should it contain no other agreement, would be as much a treaty as any other that ever was made. It is called by that name; it is negotiated by the same means; requires the same ceremonies in its inception, and the same ratification for its validity as other treaties are. Why, then, call it an armistice, which is never ratified by the treaty-making power of the nation? Why

exchange of prisoners? Because the argument showed that here, at least, was a case in which the constitution could not bear the strict verbal construction that was contended for; and the precedent proved that it had been departed from in practice, and that the departure had never been questioned, much less stigmatized, by the epithets so liberally bestowed on the Turkish mission. All this made it necessary either to