SENATE.] Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1831. on the subject, as far as my limited information | we, sir, we ourselves, every one of us, who now goes. hear or make these denunciations-we have There are two other Presidents whose acts ratified a treaty made with one of the greatest and opinions on this subject we have to ex-powers of Christendom, by a plenipotentiary amine, in order to complete the series. commissioned under the great seal, whose appointment was never sanctioned or sent to the Senate for its advice; and that, too, a power with which before we had no diplomatic intercourse-with Austria-made by the present Secretary of State, under a special appointment by the President. Should it be said that this home to make treaties with a foreign power, is of modern date; that it does not, like the case of the Mediterranean commissions, run back to the early part of our diplomatic history, I would answer that this, too, is an error, and that my construction is sanctioned in this also by the practice of Washington. As early as the year 1796, some doubts having arisen as to the operation of the third article of Mr. Jay's treaty, Mr. Pickering was commissioned to negotiate an explanatory article, which was agreed to, submitted to the Senate, and ratified without any nomination of the negotiator to the Senate. On Mr. Monroe's accession to the Presidency, he found our peace secured with the Barbary Powers; he had, therefore, no commissioners to appoint to them; but he had participated, as the head of the Department of State, in those which had been sent by Mr. Madison; and we may, therefore, fairly suppose, that, if the occa-practice of employing a special Minister at sion had offered, he would have followed the same course. But, during his administration, and that of his successor, it was found convenient, in the exercise of the same constitutional right of making treaties, to employ other agents than "ambassadors or public ministers," to form treaties with European and Christian powers, as had been formerly done with the Mahometan States of Africa. Differences had existed ever since the treaty of 1802 with Spain, not only of boundary, but on account of claims, to a vast amount. The settlement of the dividing line between the United States and Mexico would take from or add to our territory an extent sufficient for the establishment of several States. And the acquisition of Florida had always been considered as a matter of primary importance. If, then, the magnitude and importance of the objects; if the rank and dignity of the party, required that the negotiation should be conducted by public Ministers, and that their appointment should be confirmed by the Senate, here was the case. Here was not even the plea of the recess. For during the session of Congress, in 1818-'19, Mr. Monroe gave to Mr. Adams plenipotentiary powers to treat with the Minister of Spain, and make a settlement of all these important matters. He gave these powers by commission under the great seal. He never communicated the appointment to the Senate, although they were in session. The negotiation was carried on in the very place where they sat, and was concluded before they adjourned, by a treaty which purchased the two Floridas; settled our boundary, by abandoning our claims to the immense extent of country between the Rio del Norte and the Sabine; and made a charge on our Treasury of five millions of dollars. Yes, sir, this treaty was ratified by the Senate, and not one word of reprobation, not an accent of doubt uttered as to the irregularity of the commission by which it was negotiated; and both Houses concurred in passing laws for carrying it into execution. Again: When Mr. Adams came to the Presidency, he in like manner, in the year 1826, commissioned Mr. Clay to treat of and conclude a treaty of commerce and navigation with the Minister of Denmark; which treaty was signed on the 26th of April, in the same year, during the sitting of the Senate, and in like manner ratified by them, although the appointment of Mr. Clay was never made known to the Senate, and of course was not confirmed by them. And Now, sir, does not this uniform, this unquestioned practice, carried through every Presi dency, from that of the Father of his Country to that of the present incumbent; is it not strongly persuasive of the correctness of that construction which gives to the President the power to make treaties whenever he may deem it expedient, by a special agent, instead of a public Minister-to give full powers, under the great seal, to such special agent, and to omit nominating him to the Senate when he thinks proper? Will it be said that the instances I have last mentioned do not apply, because the Secretary of State was the agent? But he was the agent only by the special commission, given to him by the President-a commission, without which he could not have acted, which as his full power, he was obliged to interchange with the Minister with whom he treated, before the negotiation could begin. If, as Secretary of State, the duty could have been done, mere instructions would have sufficed-no commission would have been necessary. But in every instance commissions were delivered, in the same form, as to powers that are used for Ministers going abroad. The President might have selected any other individual, and the case is as strongly in point as if he had. Will the gentleman point out the difference between these cases which he, jointly with all of us, has approved, and that which he now so violently reprobates? If the President may appoint a special agent to make a treaty with a nation with whom we had none before, without submitting the nomination to the Senate; if he may make such an appointment for a negotiation here, can he not make a similar appointment for a negotiation to be carried on in Constantinople? If the latter is forbidden, where is the clause that authorizes the former? If FEBRUARY, 1831.] Punishment of Crimes in the District of Columbia. [SENATE. 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. the former is legal, where is the clause that ex- | ing how often we ourselves, when duty requircludes the latter? Are not both exercised un-ed it, have not sat and deliberated within these der the same constitutional authority? Why, then, sanction the one and denounce the other? It appears to me that a satisfactory answer to these queries would be difficult, even to the ingenuity of the mover of the amendment; and that it would be somewhat difficult for him to show that there is any one of the inconveniences and dangers which he apprehends, from the apTHURSDAY, February 24. pointment of commissioners, with full powers, Penitentiary Punishment of Duelling, Gambling, going to a foreign country, that does not attach to negotiations by special agents at home. But and Forging in the District of Columbia. these dangers are imaginary in both cases. On motion of Mr. CHAMBERS, the Senate reNothing either of them can do has any force sumed the consideration of the bill for the pununtil we sanction it. And in requiring the as-ishment of crimes within the District of Columsent of two-thirds of the Senate to every treaty, bia. those who made our form of Government thought they might safely trust the discretion of the President in selecting the agents for making it. But to remove all ground for the distinction, take an instance from the same collection of treaties which I have before quoted. In the year 1818, Mr. Gallatin, then our Minister in France, was commissioned jointly with Mr. Rush, our Minister at St. James', to negotiate a treaty with England, in the same manner that the Secretaries of State were commissioned to negotiate at Washington. This nomination was never submitted to the Senate, yet a most important convention, made under that appointment, was ratified by the Senate; so that here we have commissioners appointed at home, abroad, to Christians as well as infidels, in every form, in every character in which the power can be exercised, and in every form acknowledged by the co-ordinate branches of Government to be constitutional and right; and yet, sir, it is now undertaken to arraign and denounce it as a usurpation. The second ground of accusation, that the nomination, though made in the recess, was not submitted to the Senate when they met, has been anticipated. It may be justified on several grounds; which were those which actuated the President, as I am not in his counsels, I do not know. It may be justified on the necessity of keeping the mission a secret, until the result was known; on his constitutional power of originating a secret mission without the co-operation of the Senate; and on the inutility of naming persons to be confirmed in offices which were temporary in their nature, and which must expire before the confirmation by the Senate could be made, or at any rate before it could reach them. Thus the treaty with the Porte having been completed before the adjournment of Congress at the last session, it would have been useless to confirm the powers of the negotiators. I pass over the argument to show that, although the letter of Mr. Offley particularly states that he signed the treaty on Sunday, yet he must have been mistaken, because no Christian in a country of infidels would be guilty of a breach of the Christian sabbath. I pass that over with askVOL. XI.-15 Mr. C. said that, when the bill was last before the Senate, debate arose on a motion by the gentleman from South Carolina (Mr. HAYNE) to recommit the bill to the District Committee, with a view to striking out the clause relative to punishment for duelling, or being concerned in a duel. The amount and importance of the business before the Senate, and the expediency of early acting upon it, induced him to waive any remarks at this time on the motion, that the sense of the Senate might at once be taken upon it. If the bill was recommitted, the committee would of course report the bill with the clause stricken out; and he could see no necessity for its recommitment, because the question might as well be taken now. Mr. HAYNE explained the reasons why it had not been in his power to make the motion at an earlier day. He was desirous of testing the sense of the Senate on this particular clause of the bill. If the recommitment took place, the committee would either strike out the clause, or so modify it as to meet the views of the Senate. A speedy decision on the bill was desirable, and he took the occasion to say, that, if this recommitment took place, there would be no further opposition on his part. Under the present provisions of the bill, not only the parties convicted of fighting a duel, but the bearer of the challenge, the surgeon, &c.,-every accessory-was to be punished by five years' hard labor in the penitentiary. With due deference to those who introduced this clause into the bill, he was of opinion that so severe a mode of punishment would destroy the whole object of the provision. The punishment was so severe, that no jury would be found to enforce the provisions of the law. The punishment for crime should be adapted to the prejudices, the passions, and opinions of the people, and a milder course would be found to answer a more practical purpose. Perhaps the better course would be to strike out the clause altogether from the present bill, and then, by special statute, prescribe the punishment for duelling. This bill went further than the laws of any State of the Union on the subject; and he thought that if the Congress of the United SENATE.] Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1831, States, under the auspices of the Senator from | mission to Constantinople. The Secretary of Louisiana, should pass a law determining what the punishment in such cases should be, the several States would adopt the regulations 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. Turkish Commission-Power of the President to Originate Missions. The Senate having resumed the consideration of the appropriation to pay the negotiators of the Turkish treaty, State knew his opinions at an early day, and yet the plain, the obvious, the palpable course by which all controversy might have been avoided, has been made to yield to this. The torch of discord has been thrown among us, and the unity of the party with which we have, with but one exception, acted, is for the time broken up. This claim of individuals, resting merely on a contract with the President, is diverted from the ordinary course of private and individual legislation, and attempted to be thrust into the general appropriation bill. I am aware of the effect of this, whatever the design. A hue and cry is to be raised at our heels. An anecdote will serve to illustrate Mr. TYLER said, the Senator from Louisiana its character. The night succeeding the day on (Mr. LIVINGSTON) had commenced the speech which my colleague delivered his powerful arwhich he yesterday delivered, by repeating, gument on this question, the ice in the Potowith much emphasis, the words " a lawless act, mac was put in motion, and, pressed on by the and in derogation of the rights of the Senate." mountain torrent produced by the thaw, carThese words had fallen from my colleague, said ried of a part of the bridge connecting this Mr. T., and seemed to have excited the feelings with the Virginia shore. A gentleman gave of the honorable Senator, and, in some degree, me the information, and said, with archness, his displeasure. My colleague requires no aid the connection between Virginia and the Presfrom me, or any other individual, to justify ident's mansion is now severed. My colleague's either his language or his conduct. The mo- speech doubtless produced the thaw; and to tives of the last will at all times be above re- him, also, will be ascribed whatever evil shall proach; and the language which he may at any arise from this discussion. All are esteemed time use will never fail to convey most strongly schismatics who oppose themselves, no matter the idea which it is intended to represent. I upon what ground, to an error committed; and will, however, say to the honorable Senator, we shall be pronounced heretics by the political that if either my colleague or myself use expres- Catholic church. In other words, an act is done sions not familiar to the ears of courtiers, he which in our consciences we cannot approvemust excuse our rusticity, and ascribe our fault which those who have the management of this to our course of education, and the land from affair are told in advance we cannot approve; which we come. The inhabitants of that re- and then we all are to be denounced as schispublic are somewhat a bold and fearless race, matics, and all the vials of wrath are to be and practise upon a principle which has been, emptied on our heads. This, sir, is a perfor all time, prevalent amongst them, of calling version of all justice, of all moral rule. Those things by their right names. If an act be done who perpetrate the error, must surely be rewithout law, they call it lawless; if in deroga-sponsible for consequences resulting from it. tion of the right of others, they say so, whomsoever it may offend. The same gentleman has more than intimated that this was not the proper place for this discussion; that it would have been better to have carried it on in secret session. I differ with him in this, as in much else. By and by I shall show that the opportunity was not afforded until the bill upon your table came up for consideration; but if it had been, our secret chamber is no place for the discussion of a great constitutional question. It was proper in every point of view, that the debate should be in this place. Here before the public, the attack should be made. In the face of the world our reasons should be given for our course of conduct, and for the attitude we assume upon this important subject. This discussion has been forced upon us, from what motives, and for what ends, I leave to others to determine. Every Senator here can testify that my colleague, in a day or two after taking his seat this session, announced his opposition to the course which had been pursued in regard to the late It is our duty, Mr. President, under all circumstances, and however situated, to be faithful to the constitution. Esto perpetua should be the motto of all in regard to that instrument, and more emphatically those into whose hands it is committed by the parties to the compact of union. Sir, parties may succeed, and will succeed each other; stars that shine with brilliancy to-day, may be struck from their spheres to-morrow; convulsion may follow convulsion; the battlements may rock about us, and the storm rage in its wildest fury; but while the constitution is preserved inviolate, the liberties of the country will be secure. When we are asked to lay down the constitution upon the shrine of party, our answer is, the price demanded is too great. If required to pass over its violation in silence, we reply, that to do so would be infidelity to our trust, and treason to those who sent us here. The constant effort of Virginia has been directed to its preservation; the political conflict of the hour has never led her to yield it for an instant. No matter with what solemnity the vi FEBRUARY, 1831.] Turkish Commission-Power of the President to Originate Missions. [SENATE. olation has been attended; although sanctioned | I have read. Let us look to what was uttered by the two Houses of Congress and the President of the United States, and confirmed by judicial decision, she has not halted in her duty. How little, then, should we be entitled to represent her, if we could so far forget ourselves as to hobble in our course. Let me, sir, be distinctly understood. I lay down no rule for qthers. Senators here will prescribe rules for themselves. No doubt all will be governed by motives equally pure and honorable; but, holding the opinions which I do upon this subject, I should esteem myself the veriest recreant to my most solemn obligations, if I could bring myself to support this appropriation. The Senator from Louisiana has pronounced it a new discovery which we have made-a new discovery, sir? Was it not proved to the Senate the other day, that the power had always been denied to the President of sending Ministers to foreign courts of his own mere motion? Sir, neither the discovery is new, nor the doctrine; both are as old as the constitution itself, as I shall presently demonstrate, from the very letter of that instrument. What was that question which but a few years since divided this Senate? What was the Panama question, but the bone, flesh, and sinew of this? [Mr. LIVINGSTON explained. He had spoke of secret agencies: no one had ever objected to them as unconstitutional.] Sir, said Mr. TYLER, this is no secret agency, in the diplomatic sense, but a secret embassy, or mission. But let us return to the Panama question. What was that? Nothing more than a mere abstract declaration made by Mr. Adams, that the right to depute Ministers without the interposition of the Senate, fell within the competency of the Executive power. He did not appoint, however, but, as the constitution required, nominated persons to the Senate for its advice and consent; and yet what was the course pursued? There then stood on this floor, arm to arm, and shoulder to shoulder, nineteen Senators, who, with their shields interlocked, moved with the irresistible force of the Spartan phalanx upon that enemy-principle which threatened to overthrow the constitution. The present Secretary of the Navy moved the resolution in the following words, viz: in debate on that question. The state of the vote has already been mentioned. I will read to the Senate some of the remarks which fell from the present Secretary of the Navy. Before I do so, however, let me speak my honest convictions. I do not believe that he has had any agency in advising this mission to Constantinople. I do not believe that he could be guilty of an inconsistency so gross and palpable. No man has more confidence in the firmness of his adhesion to the principles of the constitution than myself. In his attachment to the great doctrines of the democratic party, he is a fit and proper representative of the State of which he is a native-a State which has been distinguished by nothing more strongly than by her uniform devotion to the constitution. That star in our political galaxy has never shed "disastrous twilight," or undergone eclipse. Sir, I speak not ex cathedra. I have had no syllable of conversation with that gentleman; but, from my knowledge of his character, and other circumstances, I am led to the opinion which I have expressed. "I view," said Mr. Branch, referring to the resolution, "the usurpation which it notices and purports to repel as a link in the chain, threatening the most portentous and calamitous consequences to the liberties of this people." "Isolated, unconnected with any thing else, yet so plainly and palpably conflicting with the letter and spirit of the constitution, it is truly appalling to the friends of liberty." And again: "It is time to re-enact magna charta; it is time to reassert the principles of the declaration of independence." The mere assertion by the President that he possessed the power of appointing Ministers, and of originating a mission, without consulting the Senate, produced these strong expressions. Magna charta was violated, and the principles of the Government required to be re-asserted. I might multiply quotations from the same speech, all equally impressive, but I will pass to that delivered on the same question by a gentleman, then a Senator, now a member from Kentucky in the other House. I deem it necessary to quote but one sentence in order to exhibit his strong convictions on this claim of power set up by Mr. Adams. [Mr. TYLER here read from Mr. JOHNSON's speech.] "I think I might risk the decision of this question upon the hazard of a universal and unanimous opinion as to the plain common sense meaning of the constitution." To cite passages equally strong from the speeches of others, would not be difficult. The opinions then uttered by my colleague are the same that he has enforced in this debate. But I will give you the expressions and opinions of a gentleman who stands more immediately connected with the proceeding now the subject of discussion. I mean the Secretary of State-the person immediately charged with the management of our diplomatic relations-one upon whose advice the President doubtless reposed with confi SENATE.] Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1831. belonged to the President alone to decide on the propriety of the mission; and that all the constitutional agency which the Senate could of right have, was to pass on the fitness of the individuals selected as Ministers. It was pretensions like these, said Mr. Van Buren, aided by unceasing indications, both in the internal and external movements of the Government, that produced a deep and settled couviction in the public mind that a design had been conceived to change the Government from its simple and republican form to one, if not monarchical, at least too energetic for the temper of the dence. I have found no speech of his reported | Associated with them was the bold avowal that it on Mr. Branch's resolution, and imagine that he delivered none; but he spoke on the Panama question, properly so called, and subsequently on the rules of the Senate. Let us see his speech on the first question. [Here Mr. T. read from that speech.] "The measure is deemed to be (that of sending Ministers to Panama without previously consulting the Senate) within the constitutional competency of the Executive; that we are only consulted to obtain our opinion on its expediency, and because it is necessary to come to us for an appropria-American people." tion, without which the measure cannot be carried into effect. Yet, sir, the first blow that Indeed, sir, the avowal that the President was struck in that great contest which subse- alone possessed the power to decide on the proquently convulsed the country, and the first priety of a mission, and that all our agency voice that was raised to arrest the current of consisted in determining on the fitness of the events then setting in, (speaking of the sugges- Minister to be sent, if not monarchical, is at tion which was made by the first Adams rela- least too energetic in its tendency, bold, and tive to the mission to Berlin,) were on points, somewhat reckless; and yet a mission origito all substantial purposes, identical with the nated, and not even the names of the Ministers present. Is it not a startling, if not an omi- sent into the Senate; and that, too, notwithnous circumstance, that so soon under the pres- standing a long session of that body had, in ent administration we should have presented fact, intervened. Why, sir, here is not only a to us, in such bold relief, doctrines and princi- bold avowal, but the actual execution of that ples, which, in the first year of that to which I avowal with a vengeance. Not only no previhave referred, laid the principles of the most ous consultation with, but no nomination even bitter and unrelenting feuds? Does the anal-ever submitted. The Secretary also voted for ogy stop here? The men who then opposed the resolution of Mr. Branch in the only form the mission to Berlin were denounced as oppo- in which he could express his opinion. And sitionists as a faction who sought the gratification of their personal views at the expense of the public good. They were lampooned and vilified by all the presses supporting and supported by the Government, and a host of malicious parasites generated by its patronage." Yes, sir, and we shall be lampooned and vilified for the course which we now pursue. My colleague read correctly the handwriting on the wall. What was fact formerly will be fact again. But let the storm rage, if it shall be so willed by those who control the operations of particular presses; I stand here the advocate of the constitution, and, if necessary, I am ready to become the victim in its place. I am not yet done with the Secretary of State. I will read you a paragraph from a speech delivered by him on what was commonly called "the rules of the Senate," a speech delivered since I have had the honor of a seat on this floor: "The same disposition to limit the popular branch was forcibly illustrated in the discussions of the foreign intercourse bill in 1798. It was upon that occasion contended, and successfully, too, that the House of Representatives had no discretion upon the question of appropriation for the expenses of such intercourse with foreign nations as the President saw fit to establish; that they would be justly obnoxious to the imputation of gross delinquency if they hesitated to make provision for the salaries of such foreign Ministers as the President with the assent of the Senate should appoint. What would be the feelings of real and unchanged republicans in relation to such doctrines at this day? yet, "ere those shoes were old," with which he followed (not "like Niobe, all tears," but with a heart full of joy and gladness) the last administration to its grave, the same doctrine is carried into full practice. What, sir, make war upon an abstraction; cause the thunders to roll and the lightnings to flash, in order to annihilate a mere abstraction, and yet call upon us to sanction its practical application! Will gentlemen recant thus their opinions solemnly recorded? Shall it be said that we can give two readings to the constitution, and that that which is unconstitutional in Mr. Adams's time becomes right and proper under General Jackson? Shall we put off our opinions with as much facility as we do our gloves? Have we not good grounds to complain of the Secretary of State, if he advised this mission? and that he did so I cannot bring myself to doubt. Has not the whole Jackson party cause to complain? Was there any question on which that party stood so deeply committed as on this? None, sir; not one. Even if there existed an aptness in the cases referred to by the Senator from Louisiana as furnishing precedents to justify this mission, howsoever they might influence the President, they can furnish no excuse for the Secretary, his constitutional adviser. Those cases were all paraded in the discussion on the Panama question; they were commented on, and their force overthrown. Can an actor in that proceeding now repose for his justification on precedents which had been declared of no force or effect? Let it not be said that the Presi |