SENATE.] Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1831. Mr. TAZEWELL in reply to Mr. LIVINGSTON: The honorable Senator from Louisiana, said Mr. T., has again undertaken to chide me for the unmeasured language in which I have described the act of the Executive, concerning which I spoke when I last addressed the Senate. I can readily conceive that the strong terms I em the case, in which General Washington had appointed commissioners to treat for peace with the Dey of Algiers, he proceeded as follows: "The next remark I shall make upon it is, that, even according to the representation given of it, it was the case of an agent sent to a barbarian people, who were not then, and have never since been, recognized as forming any component part of the family of civilized nations. Let me not be told that the constitutional power of the President is the same, whether exerted in reference to a savage or civilized nation. We all know that this is not so. No appointment of a Minister, who has ever been employed to negotiate for peace, or for any thing else, with any Indian tribe, whether dwelling within or without our territory, whether Osage or Seminole, has ever been laid before the Senate for their consent. They are all considered as agents of the President, and not public Ministers of the people;ployed to characterize this transaction may not and all our intercourse with barbarians must, of necessity, present anomalies, from which no principles can be inferred. I will not go into reasoning to show why this must and ought to be so, although it would be easy to show it. I merely state the fact, which is conclusive, to prove that the case of a mission to Algiers, or to the Choctaws, can never be a precedent to justify a mission to Panama." Mr. B. said that, in the remarks which he had read from the speech of the Senator from Virginia, he thought the distinction which he had taken between the case of the Panama mission and the one in question was fully sustained, and that it was clearly conceded that the President could, constitutionally, appoint agents to negotiate with a barbarian nation, without the previous consent of the Senate. He would ask, where was the distinction as to the power to send a mission to the then existing Government of Algiers, and that sent, under the present administration, to the Turkish Government? If the principle holds good in the one case, it appeared to do so equally in the other. If the President can exercise the power in reference to any one nation of people, whether savage, or otherwise, it appeared to him to follow plainly that he could do so in reference to all, as the constitution did not vary the power of the President to appoint commissioners to treat with foreign nations, according to their degrees of barbarism or civilization, but afforded a fixed rule as to the power of the President, applicable to nations of every condition. Mr. B. said he had heard with a degree of surprise which he could not conceal, in the course of this debate, an attempt to discriminate between the Chief Magistrate and his cabinet advisers, attributing all responsibility to them in relation to the Turkish treaty. This was, indeed, a novel doctrine in this country, and one which he would venture to say was not in accordance with the theory of our Government. The doctrine of Executive infallibility was unknown to our form of Government; the Presi be very familiar to the fastidiousness of courts or palaces, where the dulcet sounds of approbation and admiration only are commonly heard. But as my words denote precisely the opinions I desired to communicate to those I addressed, and were merely the abbreviation of the conclusions to which I thought I had entitled myself, by the arguments I had used, I was not aware that I had violated any rule of etiquette here, in thus summing up the reasoning upon the subject; I had proved, at least to my own satisfaction, that the constitution furnished no authority to the President for what he had done; therefore, I felt myself justified in speaking of this act as unconstitutional, and as lawless. If such is its true character, all must concede that a power exerted by a President without warrant or constitutional grant is a usurpation on his part; and as such a usurpation in this case was a direct and plain infringement of the privileges of the Senate, it must be a gross violation of the constitution, in flagrant derogation of the rights of this body. To the Senate I certainly owe no apology for the earnest appeal I made to them, to induce them to vindicate their violated rights, to prove themselves faithful depositaries of the trusts confided to them by the constitution, and never, by a refusal to assert their privileges, to countenance the idea that they could be guilty of a base surrender of the rights conferred upon them by the States they represent, which rights so conferred are in truth but duties imposed by our constituents for their own wise purposes. This would be a dereliction of duty on our part, which, however much it may be desired by any other department of the Government, could scarcely find justification or apology here or elsewhere. In expressing these strong opinions, I certainly neither measured nor weighed the force of the language necessary to convey them. But if this or any other honorable Senator would have been pleased to furnish me with the proper courtly phrases in which I might FEBRUARY, 1831.] Turkish Commission-Power of the President to Originate Missions. have communicated my thoughts, I would willingly have adopted them, provided they would have expressed my opinions with equal precision. I doubt much, however, whether I should have escaped the censure of the honorable Senator from Louisiana, if I had borrowed my terms even from his own works, or from the precedents furnished by the speeches of some of those by whom the President is now surrounded, which speeches were delivered by them during the Panama debate. President Jefferson, now so much eulogized by this honorable Senator, was not always regarded by him, I believe, as entitled to such encomia. One at least of the acts of this President was characterized by this Senator in language as unqualified as any I have used; and a reference to the speeches to which I have alluded will furnish many examples of much stronger phrases than any I have employed, and this too in relation to the same subject. These terms were then applied, however, to the assertions of President Adams; and I have spoken of the acts of President Jackson, et tempora mutantur, although the constitution remains the same. But, sir, let no one think that I mean to justify or even to excuse what I have said, by the examples of others, or even of the President himself. My justification is, that whatever I have said, I thought; and that which I think of the public acts of public men, I feel myself at perfect liberty to speak here, whenever a proper occasion arises so to do. In this case, I neither sought nor made the occasion. I would have avoided it if I could. But the President has chosen to present his application to this body, asking us to appropriate the money of our constituents to redeem his pledge of the public faith, plighted without our sanction or any constitutional warrant, and I am so called upon to approve the act. Forced thus to inquire into the character of that which has been done, I am constrained to speak of it as I think it merits. I have done so, and in so doing, have done but what my duty required. Mr. President, this debate has taken the precise course which I foresaw it would take. The advocates of this appropriation, instead of meeting or controverting any position I have maintained in reference to the proper construction of the constitution, have endeavored to justify what has been done by the precedents they cite, and the practice they wish to show to have been settled. The Senator from Louisiana alone has expressed any doubt as to the correctness of the interpretation which I have given of the constitution. At first, this doubt was rested upon an inversion and transposition of the terms used in the instrument. This attempt, however, seems to be abandoned by him; and he now seeks to attain the same objeet, by inserting a stop where there is none. To this new process for changing the meaning of its provisions, I have no other answer to give than this-blot out all the stops, and both the learned and unlearned will replace them as [SENATE. they now are, because they will still concur in reading the instrument as I have read it, and in construing its language as I have construed it. According to this construction, I repeat, the President alone may nominate, but, by and with the advice and consent of the Senate, only can appoint to any office; and when vacancies happen during the recess of the Senate, the President alone may fill up such vacancies, by temporary commissions only. Here I will leave this suggested doubt, confident that it will never ripen into certainty anywhere, but in some hot-bed prepared to force its growth unnaturally. The Senator from Louisiana next draws a distinction between the power of the President to make treaties and his power to make appointments to office. This distinction he seeks to support by a reference to the precedents he has cited. This distinction is certainly new. If to be sustained at all, it must be by the force of the precedents only, for the words of the constitution as explicitly restrain the one power as they do the other, and in precisely the same mode. Each of these powers is given to the President; but in the very grant itself they are both required to be exercised by him, "by and with the advice and consent of the Senate " only; and the only difference between them is, that, in making treaties, the concurrence of two-thirds of the Senators present, and, in making appointments, the concurrence of a majority only, is required. Then, is it not strange, that, in the very case where the constitution imposes the strongest restraint, it should be contended that none exists; and yet should be admitted that, in the other case, the restraint is effectual, although this restraint is imposed by the same words repeated in the very next member of the same sentence? But, sir, how are treaties to be negotiated? Certainly by some officer of the Government; and this, whether they are negotiated at home or abroad. For it is asking of us too much, when we are required to admit that he who has the commission of the Government, which commission is signed by its Chief Magistrate, authenticated by its great seal, and wherein is expressed, that, in consideration of the high confidence reposed in him, authority is thereby given by him to pledge our faith and honor, is not an officer of the United States. So that the question still recurs, can the President alone, without the advice and consent of the Senate, create such an office? I say create such an office; for when the commission is granted to negotiate a treaty abroad, with a nation at whose court we have never had any representative, the office is created: for, as I have shown, there is no pretext for saying that such an office is then vacant, or that the President, in making the appointment to it, is merely filling up a vacancy, and a vacancy which has happened, too, during the recess of the Senate. Now the Senator from Louisiana admits that. the President alone cannot make an original SENATE.] Turkish Commission-Power of the President to Originate Missions. [FEBRUARY, 1831. The legitimate object of all war is peace. To attain this desirable end whenever war exists, the constitution gives to the Executive every lawful means for its accomplishment. Hence, he may lawfully order, and by his subordinates effect, the burning of towns, the sacking of cities, the devastation of the enemy's country, and the slaughter of its inhabitants; for, alas! sad experience has taught mankind, that such are the necessary means by which alone most commonly war can be terminated, and the desirable end of peace attained. Now, surely, if the Executive may lawfully do all this for such an object, he may attain the same required end by other means less destructive, and more consonant to the dictates of humanity. If he may lawfully negotiate for peace by blood and carnage, may he not negotiate for the same object by argument and persuasion? It is true you call the one battle and bloodshed, and the other negotiation, yet each of them is but a means for the accomplishment of peace, the great and only justifiable end of all war; which end it is the bounden duty of the Executive to effect by all proper means, whenever war exists. And what at last is this treaty of peace, until it is ratified by the proper authority, that is to say, Sir, the precedents may be searched from the birth of this Government to the day of the date of the Turkish treaty, and but few cases will be found of a treaty negotiated by any other than a diplomatic officer of the United States, whose appointment, if an original appointment, had not been made by and with the advice and consent of the Senate. The few cases existing, in which this does not appear, are either cases occurring, "flagrante bello," with the power treated with, or cases of compacts entered into with piratical hordes or savage tribes, the dependents or tributaries of your own, or of some other sovereignty. All the precedents referred to by the Senator from Louisiana are of this description. These precedents, therefore, do not touch or apply to the question I have discussed, and which is presented in this case, unless we are prepared to say that the principles of war justify the practice of peace, or that the usages which necessity requires to be adopted in our intercourse with barbarian powers and depend-until, in this country, its ratification has receivent States, constitute the rule which ought to regulate our intercourse with the oldest, and most solemnly and most universally recognized sovereignties on earth. Even this the Senator from Louisiana would have us to do, for he ridicules my ideas that the existence of war gives to the President power that he may not rightfully claim in peace; or that there is any difference between the piratical Barbary hordes and the Ottoman empire. Now, suppose I should even admit that the distinction which I drew between the cases of war and peace was without any just foundation, is it fair to infer the general rule of peace from the exception of war? Or is it wise or safe to contend, that what is acquiesced in without murmur, during the storm of war, is therefore right, and may be properly repeated in the calm and "piping time of peace.' I pray the Senate to think well of the consequences which may and must result if they sanction such doctrine as this. Peace gives the rule, and war the exception to it. Nor is it of little consequence to the present argument, whether the exception be de jure or de facto only. It is but an exception in either case; and we reason erroneously when we seek to find the rule in the exception to it. But if it be conceded that the exception exists de jure, and is established by the constitution itself as an exception, then this exception proves the general rule to be different. Now, I contend that the exception does exist de jure; and that in war the President may lawfully negotiate a treaty of peace with the enemy, when, where, and how he pleases, and by the intervention of whomsoever he thinks proper to employ for that purpose. I prove it thus: ed the advice and consent of the Senate? It is little else than a mere armistice. Now, none can doubt that the Executive may lawfully conclude an armistice when, where, and how he pleases, and this under his general power to conduct the existing war in that mode which, in his discretion, peace, its only justifiable end, seems to require. Here, then, is one answer to all the prece dents cited by the Senator from Louisiana, of treaties made with the Barbary Powers during the administration of our two first Presidents. At the time all these treaties were negotiated, war existed between these powers and the United States. Moreover, two of these treaties (being all of this description that were concluded during the administration of Washington) were concluded by Mr. Humphreys, an acknowledged diplomatic officer of the United States, who had been previously and regularly appointed our Minister to Portugal, by and with the advice and consent of the Senate. In concluding these treaties, too, Mr. Humphreys acted in pursuance of the instructions he had received, the substance of which instructions had been previously submitted by the President to the Senate, and had received their approbation so far back as the 8th of May, 1792, as our journals show. These cases, then, are but cases of treaties made by a proper officer of the United States, whose appointment and whose instructions had previously received the confirmation of the Senate. As to the mere internuncii employed by Mr. Humphreys himself in his intercourse with the Barbary Powers, and who acted under appointments from him, and not from the President, I presume it cannot be necessary for me to say a single word. FEBRUARY, 1831.] Turkish Commission-Power of the President to Originate Missions. [SENATE. Doubtless, the Minister might employ what mes- | stroyed, and reconstructed, that simple despotsengers, interpreters, or subagents, he thought necessary, and the obligation of the instrument, put into form by them before it received his assent, could neither be strengthened nor weakened by their signature, whether it was vanity or necessity that subscribed it. The same answer will equally apply to the cases of the treaties afterwards concluded with some of these same powers during the administration of President Madison. War again existed between the United States and these powers, when these treaties, too, were concluded. Nay, such is the capricious and rapacious character of these corsairs, and such their ignorance or contempt of the provisions of the public law, and the usages of civilized nations, that it is difficult to determine when war does not exist with them. It is this very circumstance which constitutes one of the great causes why your intercourse with them always has, and always must produce many anomalies, from which no principle or rule can properly be deduced. But if I wanted an apt illustration of the truth of my position, that the power of conducting a war necessarily includes the power of conducting it by negotiating for peace, I should find it in the circumstances attending one of these very treaties. The gallant Decatur had just captured the Algerine squadron. Hastening from the scene of his conquest, he presented his victorious fleet before the port of Algiers, ready to fire upon the city, and to lay it in ashes, if necessary. To save themselves from the imminent danger, and to gain time for preparation, the enemy wished to parley, professing a wish to negotiate a peace. His answer to their proposition was, "Here are the only terms of peace I can accept. Sign and ratify this treaty, and our nations are friends again; reject it, and I must do my duty. I give you two hours to decide." Within the time prescribed, the treaty was returned, duly executed on their part; and hence was concluded, on board of his own flag ship, the United States ship Guerriere. Now, sir, will any one say that, in thus acting, this hero violated any precept of the constitution of his country? And, if not, it surely cannot be pretended that the President could so offend, by authorizing that to be done, which, when done in pursuance of his orders, was rightfully done. Yet, if rightfully done, war must give power to the Executive that in peace is forbidden. ism, sustained as it is, alike by religion and by force, has ever remained unaltered from its creation, now nearly twelve centuries ago, until this hour. Before the discovery of America by Columbus, the seat of the Turkish empire was fixed where it now is, at Constantinople; and never since has that capital been profaned by the presence of any foreign foe. Almost two hundred and fifty years ago, all Europe trembled at its onward march; and the most powerful of European sovereigns fled from the smoking ruins of his capital, Vienna, to escape this enemy. Much more than a century since, Bender, one of its distant provincial towns, offered a safe asylum to the unfortunate Swedish monarch, when flying from the disastrous field of Pultowa; and Turkish faith and Turkish power would never permit that asylum to be violated. Deprived since of some of its domain by the Russian arms, it nevertheless still ranks as one among the principal powers of the world, having been always recognized and always respected as an independent and great nation by every State in Christendom. It does not seem very becoming in us, almost the youngest of the great family of nations, to wish to degrade this ancient and powerful sovereignty, not less remarkable for the proud simplicity, than for the strict honor and fidelity of its character, (and this, too, at the moment when we have just concluded our first treaty with it,) by comparing it with its own tributary dependents, whose piratical pursuits, and open contempt of all the usages of civilized States, have ever prevented every power from recognizing any of them as an equal sovereignty, or trusting among them any other representative than an humble consul. As well might we compare the Russian Government with some wretched band of Esquimaux, or horde of fierce Tartars, dwelling within its limits; or the Government of the United States with the Cherokee nation, or the tribe of Winnebagoes, dwelling within ours. It is strange, too, that this assertion should be hazarded now, when it is proposed by the very amendment before us to appropriate a sum of money for the new mission to the Sublime Porte, which sum far exceeds in amount the aggregate of all the sums proposed to be appropriated for our missions to Russia, to France, and to Great Britain. To justify this appropriation, a list of the foreign Ministers of the different nations of Europe, now accredited at Again: Is it correct to say that there is no the Turkish court, is sent to us, which list predifference between the piratical hordes of Al- sents a diplomatic corps that, in rank, in the giers, and Tunis, and Tripoli, the professed trib- number of States represented, and in the comutaries and acknowledged dependents of the pensation granted to these Ministers, far exceeds Sublime Porte, and the Ottoman empire itself? any such corps assembled at any other court This is an assertion which I confess I did not in the world! Yet, sir, that nation, at whose expect to have heard made in the Senate of the court princes or noblemen of high rank have United States. My historical recollections do not felt degraded to appear as Ministers, and not deceive me, I think, when they lead me to whose sovereigns intend to honor them by such say that the Ottoman Government is now the appointments, is in the Senate of the United oldest in the world. While every other known States to be sunk to the level of its own tributaGovernment has been oftentimes changed, de-ries, to whose castles none other than a consul SENATE.] Powers of Congress to lay and collect Duties. [FEBRUARY, 1831. has ever been sent, and this for the most obvious | justifies the actual deed afterwards done. Much reasons. The case of treaties concluded here by a Secretary of State, the Senate must at once perceive, touches not the question I have presented. No one can doubt that he is an officer of the United States, who being charged by the law of his creation with the superintendence of all the foreign relations of the country, may very properly be instructed by the President to negotiate a treaty here. In his case, the power given to him has no other effect than to charge the old office with a new and very proper duty. It creates no new office in him, as we all know; for although we have heard of pay for constructive journeys never performed, yet even the persons who thought themselves entitled to such compensation, have never presumed to ask for constructive "outfit and salary" for the performance of this new duty merely. It would be absurd, too, to say that the full power given to the Secretary of State to negotiate a treaty here, could entitle him to any of the privileges and immunities accorded by the public law to such as are sent abroad with such power. It is this, at last, that constitutes the true test whereby to ascertain whether the agent appointed to negotiate a treaty is an officer of the United States, in virtue of such an appointment. For as the immunities conceded by the public law are official privileges merely, he who acquires none such in virtue of his appointment to negotiate a treaty, is not thereby made an officer. But wheresoever the appointment is designed to draw after it pay at home, and immunity abroad, then it creates office. Now such is the case of these commissioners; and such never was the case of any Secretary of State. better would it be to say at once, that because President Adams publicly proclaimed in the Panama message that such a power was "within the constitutional competency of the Execu tive," therefore it must be so. But as this argument would scarcely find favor anywhere now, it is deemed better to rely upon the secret and ineffectual attempt, rather than upon the open and avowed opinion of this President. When President Adams publicly announced this opinion, its correctness was as publicly denied and controverted here; and surely his hidden acts, which could not be censured, because they were not known, are even of less weight as authority than his declared opinions. What may be the weight and authority of his opinions upon this subject now, I know not, but I well know how they were regarded by some formerly; and at the very time, too, when this act of his was secretly done. My opinions upon this subject then coincided with those entertained by others to whom I have alluded, and mine certainly have undergone no change since. FRIDAY, February 25. The Powers of Congress to lay and collect Duties, and the Power to regulate Commerce, distinct and inconvertible Powers. Mr. BENTON laid on the table the following resolution: directed to exports, and solely intended to procure favorable terms for the admission of the ships and products of the States. Resolved, That the powers conferred on Congress by the States to lay and collect duties, and to regulate commerce, are distinct and inconvertible powers, aiming at different objects, and requiring different forms of legislative action; the levying power being confined to imports, and chiefly intendI have to notice but a single other argumented to raise revenue; the regulating power being of the Senator from Louisiana. He tells us that this was not a new mission, for it had been previously established by the last President in the appointments of Messrs. Crane and Offley, made by him in like manner, and for the same purposes with the present. Sir, from this day forward, let us not repeat the phrase and promise of "reforming the abuses which had crept into this Government." It is high time we should drop it, when honorable Senators think they justify a violation of the constitution by the present Executive, by regarding it as a mere continuation of the usurped authority of his predecessor. The question we have to decide is, whether the constitution authorizes the President to create a new office, without the advice and consent of the Senate, by instituting a mission to a nation with which we never before had established any political connection or diplomatic relation. In answering this question, it is gravely said that the present President has not done so, because such a mission was secretly and ineffectually attempted to be established by his predecessors; and this secret and vain effort to strip the Senate of their highest privilege at that time, sanctifies and 2. That the power to lay and collect duties on imports was solicited by the founders of the present the express purpose of paying the public debt, and Federal Government, and granted by the States, for with the solemn and reiterated assurance that the duties levied for that purpose should cease the moment the debt was paid-which assurance was given in answer to objections from the States, and to quiet the apprehensions expressed by some of them, that the grant of power to Congress to raise revenue from the commerce of the States, without limitation of time or quantity, and without accountability to them for its expenditure, might render Congress independent of the States, and endanger their liberties and prosperity. 3. That the public debt will (probably) be paid off in the year 1834, and the amount of about twelve millions of dollars of revenue will then be subject to abolition, and ought to be abolished, according to the agreement of the parties at the establishment of the present Federal Government, and in conformity to the present actual condition and interest of the States. 4. That an abolition of twelve millions of duties will be a relief to the people of from about sixteen |