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[APRIL 20, 1826.
any purpose he thought proper: and this, without con- of the Senate, as a preliminary to the appointment of Minis sulting the Senate, even as to the expediency of the mea-ters to Panama, does not intend to inform the foreign Minsure. Such a power, the Senator from Maryland de-isters to whom he was writing, what was the nature and clares to be destitute of any the slightest warrant deriv- extent of the power which the President claimed to be ed from the Constitution-to be a power never before as- his, but merely to state to them as a fact, the mode in serted by any other President-and a power so enormous which that power would be employed, in this particular and dangerous in itself, that the People of this Union case. ought to revolt at its use. that Senator, and am happy to add my entire concur- deemed to be within his "constitutional competency," I use the very language of to the power he meant to employ, but to that which he Whereas, in this message, the President refers, not rence in the opinions it expresses. The President claims a right, avowing in his claim itself, although he did not mean to exert it upon that occasion. that he did not intend to exert it at that time, although it was his; while the Secretary refers to the manner in which a supposed existing power would be then employed.
I cannot concur, however, with this gentleman in the inference he deduced from these premises. He argues, that because such a power is destitute of warrant or authority in the Constitution, that therefore we ought not to believe the President meant to assert it. And resting upon this assumption, he proceeds to tax his ingenuity to find out some other meaning for the President's words, been as great an assumption on the part of the Secretary, Every one must see immediately, that it would have than that which their obvious signification, their clear if he had undertaken to communicate to any foreign Mincontext, and their cotemporaneous explanation by the au- ister, the extent of what he deemed to be the rights, of thor himself, communicate. Do they who argue thus, the mere abstract authority of the President, which it was perceive the unkind effect of their argument? Do they not intended to exert, as it is admitted to be on the part see, that to save the President from the charge of asserting of the President, to assert such an authority without li an authority, not given to him by the Constitution, they mitation or restriction. It is inconceivable by me, then, seek to convict him of the grossest ignorance of his ver- in what way the statement of Mr. Clay, made to a foreign nacular tongue? To fix upon him, as an author, such a Minister, as to the manner in which the power of the Prewant of acquaintance with the structure and signification sident would be employed by him, in a particular case, of the language in which he writes, as ought not to be can assist us in discovering what is the true nature and imputed lightly to the vericst dunce of a pedagogue who precise extent of a general and unlimited authority, claimever pretended to teach the rules of rhetoric in the mosted by the President, but which is expressly declared by obscure country village? For my part, sir, I will much him not to be intended to be used on that occasion. And sooner believe that a well educated man, enjoying much yet, this is the sole source from whence the Senator from power already, would assert an unsanctioned claim for Maryland has derived his opinion, that the President, by more, in terms purposely made broad and general, than the broad and unqualified terms he has employed in this that he was so miserably ignorant of the force and signi- message, meant to assert nothing more than the right of fication of the words he employed to assert this claim. I appointing Ministers to Panama, during the recess of the can much sooner believe that any President would claim Senate. power not belonging to him of right, than that this President had less of knowledge of his mother tongue, than of inclination to keep the commandments of the Constitution.
the unkindness to the President, of those who wish to inAnd here, Mr. President, I cannot avoid again noticing terpolate in his message these words, "during the recess But, sir, some meaning must be annexed to the Presi- documents accompanying it. To defend him from the of the Senate," which are not to be found even in the dent's words, and what is the rule of interpretation by charge of claiming an authority, which it is conceded on which the Senator from Maryland contends we ought to all sides that the Constitution never conferred upon him, try them, for the purpose of ascertaining their true signi- they would not only convict him of the grossest ignorance fication? He admits that the power is asserted in terms of his mother tongue, but now seek to fix upon him the general and unqualified; but tells us, that an intended limi- imputation of the miserable, puerile, childish vanity, of tation and restriction of the terms used may be found elsc-asserting unnecessarily, and "ex cathedra," to the Sewhere, if we will but search for it. And where, sir, does nate in session, what would have been his power if they he search for this intended limitation? In the context? had not been in session! If, sir, I could once bring myNo. In the cotemporaneous exposition given by the Pre-self to the belief that such was his real purpose, I would sident himself? No. But he says, we must take these general and unqualified terms, in connection with other language, to be found in other documents, which came to us covered by the same envelope that enclosed this message, and to which other documents we are referred by the message itself. That is to say, sir, to learn the true meaning of plain words used by the President upon one occasion, in a confidential message to this body, and inquiries, or to adjust with the President the terms which relation to one subject, we must resort to other words, used by the Secretary of State upon another occasion, in letters to foreign Ministers, relating to a different subject! If this rule of interpretation be correct, the Senator from Maryland, so far as I know, is certainly entitled to all the merit of an invention so novel, and, as it seems to me, so singular also.
advise my friend from North Carolina (Mr. BRANCH,) to withdraw his resolution, and in its stead propose to the Senate, to return as an answer to this message, the only proper reply it would I think merit, by sending him the contemptuous Spartan IF, engrossed in capital letters, upon the largest skin of parchment which could be found. But, sir, I stand not here to prosecute philological incourtesy and good manners prescribe as proper to be attended to, in his intercourse with the co-ordinate departments of this Government. I have risen to defend the privileges of the Senate, and the rights of the Sovereign State whose representative I am, both of which I deem to have been assailed, by the covert assertion of a dangerous I do not think, however, that even this newly invented very claim wherein the authority is declared to exist. power, the exertion of which is insidiously waived, in the rule of construction will stand the Senator from Maryland And, therefore, as it has been distinctly conceded on all in much stead, at least upon this occasion. For, if you hands, that the power which I have contended to be as refer to these letters of the Secretary of State, which it serted, and which I still believe to have been intentionalis proposed to connect with this message, in order to un-ly asserted, by the President, in this message of Decem derstand the true meaning of the words used in the latter, you will discover that Mr. Clay, in referring to the consent
ber 26th, does not belong to him, I will now proceed to
from Massachusetts, (Mr. MILLS,) admit to be claimed by the President, and which they both strenuously contend, does of right belong to him.
the error of which is stamped so strongly and plainly upon its very face, that I would not trespass upon the time of the Senate in answering it, was it not for the awfully important consequences to which it unavoidably leads. As these consequences, however, involve the very existence of this Government, and the liberties of the People, Ł hope I shall be excused, if I detain you longer than perhaps I ought, while I examine in detail the various cases to which we have been referred, and upon which alone this argument is made to rest.
Before I do this, Mr. President, I must be permitted to premise some general remarks, in which (if they be correct) the Senate will find a satisfactory answer to all these precedents, were they even more numerous, and more strictly applicable, than those to which we have been
What is that power? It is the very same in kind, although not in degree, with that which they have admitted not to be within the Constitutional competency of the Executive. Limiting its exercise to the recess of the Senate, they contend, that, during such a recess, the President has the uncontrolled power to send any Ministers, to any nation, or to any People under the sun, at his mere will and pleasure. Yes, sir, that he has authority, the moment we adjourn, to send a Minister to Greece, or to Hayti, if he shall choose so to do. Not only may he do this, but that, during the recess of the Senate, he may şend any Minister he thinks proper, to any Congress of any nations or of any People, (whether assembled at Pa-referred. nama, or at Verona, or Vienna,) with which he in his un- And first, sir, I utterly deny the correctness of this docrestrained discretion may see fit to connect us; and that trine, which seeks to create a new, substantive, and fruithe may clothe these his Ministers, when so sent, with any ful source of power, in existing or future Presidents, from powers, functions, or authorities, he may choose, even to the past practices of their predecessors. And I deny more contract alliances offensive and defensive, or to pledge strongly, if I may do so, the authority to enlarge the volthe faith of the United States, for any other purpose what-ume of power, issuing from this newly discovered foun tain, by the process of induction and reasoning by analoSuch, sir, is the position these Senators take. And how gy. Let it be once granted, that the practice of one Prehave they supported the assertion of this enormous president gives a legitimate authority to his successor, and rogative, which they claim to appertain to the President that this authority may be enlarged by analogies, and it as of right? Have they sought support for it in the written must be obvious to all, that the power granted by the precepts of the Constitution? No. Do they deduce it People to the Executive, although made by the Constitufrom any principle derived from the general theory of our tion but a schoolboy's snow-ball, in a few turns would beGovernment, or the genius and spirit of our Institutions? come a monstrous avalanche, that must one day crush No. But they support this extravagant pretension, horri- themselves. Under a Government founded upon a writbly portentous as it is to the best interests and dearest ten Constitution, by which none other than limited power rights of this People, by a few PRECEDENTS, which their is granted, and in which all powers not granted are exindustry has enabled them to pick up, in the obscurity pressly reserved; in the nature of things, there can be where they lay hid, sparsely scattered here and there in no other legitimate source of authority, than the written the secret history of our diplomatic intercourse, "ab urbe Constitution itself. Any department of such a governcondita." Yes, sir, they find in our archives examples ment, therefore, which exerts a power that cannot be desuch as our sacred history records of angel visits, "but duced directly from this Constitution, is guilty of usurpafew and far between," and because they have discovered | tion. a few cases, in which a power supposed to be somewhat It is true, that, where the language of the Constitution analogous to that for which they contend, has been exer-in its grants of power is doubtful, the constant practice cised by some Presidents, under circumstances altogether under it, regularly and invariably pursued, whenever a new and very peculiar, they think they argue fairly and case has arisen within the scope of the doubtful grant, logically from such premises, when they conclude, that, and in which practice all have acquiesced, and for a long because some former Presidents have exerted some such time, is entitled to very high respect; and perhaps I might power, under some special circumstances, that therefore even go further, and say, ought to be considered as conthe present and all future Presidents may exert, as of clusive, to show that such a practice was of right. And right, a similar power, in all cases whatsoever They why is this? It is because, in a doubtful case, such concontend, that, because, during the recess of the Senate, a stant and regular practices, so uniformly and invariably Consul has been appointed by one President, to super-acquiesced in, amount to the highest evidence, to prove vise the interests of our sailors, in the port of some nation the correctness of the original construction of the grant, with which we had long carried on commerce, ergo, dur- from which grant the power is directly deduced. But ing a like recess, all Presidents may of right appoint Min where the Constitution is not doubtful, or where cases isters to any other nation, with which we have never had are found of mere occasional departure from the principles connexion of any kind, even China, Japan, or the Grand on which the Constitution itself is founded, although the Turk. They contend, that because, during the recess of parchment rolls should reach high as Pelion piled on Osthe Senate, one President, in time of flagrant war, has ap-sa, and Olympus upon Pelion, the precedents they may pointed a Minister to negotiate a peace with a Barbarian furnish ought not to weigh even as "the dust in the batribe, ergo, during the like recess, all Presidents, in time lance." of peace, may of right appoint Envoys Extraordinary, to recognize the independence of any People, struggling to free themselves from the domination of their former Sovereign, our approved friend. And they contend, that because, during the recess of the Senate, one President, in a time of universal peace, has appointed a Minister to an ancient and acknowledged Sovereign, merely to main-as a rule regularly and invariably observed in all other tain with him the customary relations of courtesy, amity, and commerce, ergo, during the like recess, all Presidents may appoint so many Deputies as they think proper, to a Congress, to be composed of they know not whom, or for what purpose assembled.
Such, sir, is the nature and effect of the sole argument which has been urged upon this subject. An argument,
If this be so, it follows, necessarily, that before any case furnished by our archives can be considered as entitled to the slightest respect as a precedent of rightful power, it must be clearly shown to be in accordance with the principles of our institutions, not contrarient to the expressed precepts of the Constitution, and to have been adopted
cases of the same kind, which preceded or followed it. I say regularly and invariably observed for liberty can have none but negative precedents in its favor. It exists only in the exemption from the oppression and usurpation of power. And as even the successful resistance of attempted usurpation merely dams up the stream, leaving no trace of its intended course, but in the dry and vacant
[APRIL 20, 1826.
channel, which, if unobstructed, it might perhaps have oc-est argument to show that there was no power to make cupied so the want of precedent, in cases where prece- them; and if such a case has never before existed, then dents of power might be found, if it had been supposed no precedent can of course directly apply. to exist, is the highest authority to show, that it has never been granted, even where the words of the grant are doubtful, and the power claimed is in accordance with the principles of our institutions.
Again, sir, let it not be forgotten, that it is not the practice of the Government, but the long and quiet acquiescence of the People, under that practice, which gives a tacit assent to the power exerted, in a doubtful case. It is their tacit assent, to be inferred from such acquiescence, that sanctifies the claims, and approves the construction of the doubtful grant, from which the power asserted is directly deduced. Therefore, before any case furnished can be considered as entitled to the slightest respect as a precedent of rightful power, it must be shown to be one of sufficient importance to have attracted general observation, and of sufficient publicity to have been generally known and understood: for none can be supposed to approve that which they never observed, or observing,
did not understand.
Having thus shown, Mr. President, that no precedents ought to receive the slightest respect, which are opposed by the principles of our Government, or the precepts of its Constitution; and that, even in cases of a doubtful grant of power, none are entitled to consideration, but such as are directly in point; before I proceed to examine the various examples to which we have been referred, let me first show, what are the principles of our Government, and the positive precepts of its Constitution, which I regard as being opposed to the doctrine now advanced. This, sir, is a Republican Government, the form of which was dictated by suspicion, and guarded by jealousy, especially of Executive power. To such a Government, it is obvious, no more power would be granted, than what was believed to be necessary to attain the objects which its authors, the People, had in view; and that the powers necessary to this end would be checked and balanced, by distributing them between the different departments, each independent of the other, and placed as a sentinel over its acts. That concurrence of opinion between different departments would be requisite in all matters involving great interests; and that the high destinies of the People would never be committed to the unrestrained discretion of any single man. These principles are dictated by the spirit of all our institutions, and exhibited in every part of our Constitution itself. Such principles, however, cannot be reconciled with this enormous prerolimited only to the period of the recess of the Senate. For it must not escape notice, that, according to this new doctrine, the President is not compelled to act while the Senate is in session, but may forbear to do so until the recess, without the least disparagement of his asserted power. The office of a foreign Minister, according to this argument, is one created by the public law; is recognized merely, by the Constitution, as an office of potential existence, to be filled only when an exigency arises.requiring it to be called into action, and of the occurrence of such an exigency the President is supposed to be the sole judge. So that, if the Executive will but suspend the declaration of its judgment until Congress adjourns, immediately thereupon he may pronounce a vacancy to have happened in any office appertaining to our foreign intercourse, and proceed to fill up the vacancy so produced, as one occurring during the recess of the Senate. All original appointments belonging to our foreign relations are thus placed within the absolute power of the President, by this argument; and as no one has or can deny to him the right of filling up vacancies, actually happening in such offices, during the recess of the Senate, after they have been once filled, the whole power over the foreign relations of the United States is thus virtually transferred to the Executive, without check or limitation. A prerogative so vast and magnificent, which would en. dow the Chief Magistrate of a free People with plenary regal power, is not in accordance with the jealous spirit of our Republican Institutions.
And this, sir, cuts up the argument of analogy at once, by the roots; for, as nothing can be approved, but that which is observed and understood, to contend that, because the fact of power exerted, has been understood, and acquiesced in, that therefore all the inductions which even fair analogy may deduce from this fact, are also approved, would be as absurd as to contend that all had approved of the Newtonian theory, who had ever seen a pear fall. All men were capable of noticing and under-gative claimed for the President, although its exercise be standing this fact, and most men would see the first and obvious consequences resulting from it; yet, none but a Newton could have traced their analogies, and by the aid of induction have inferred from thence the law of the Universe. So, too, when a fact of power exerted is shown to have occurred, under circumstances inviting general observation, and permitting general knowledge of its existence, if it has been acquiesced in quietly, it may be fair to argue that the power exerted in that particular case, has been tacitly approved; and so to conclude that the same power may be properly again exerted in the same mode, and under the same circumstances. But the inference must go no further; because nothing beyond this can be then known, is then generally understood, or can be fairly supposed to be approved.
Whosoever, then, seeks to derive power from, or to sustain it by, precedent merely, must show a precedent agreeing not in some, but in all essentials, with the case before him. There must be no abstractions in the argument. Principles must not be inferred from one case, by the process of induction, and enlarged and extended by the process of analogy to other cases of a like kind, from whence again new principles are to be deduced, and these again enlarged by new analogies. This may be permitted in physics, because there experiment may be perpetually resorted to, in order to test the truth of the reasoning. But it must not be endured in the politics of a free country, where a written Constitution exists, the sole object of which is to prevent such experiments from being made.
It is, moreover, sir, directly contrary to the written and I deny, then, the fairness of that reasoning, which seeks expressed precepts of the Constitution. To secure the to derive from the fact of the appointment of a consul the liberties of the People, the Constitution created three coright to appoint a Minister; from the fact of appointing a ordinate departments of Government-the Legislative, Minister to an ancient nation, the right of appointing one Executive, and Judiciary, each independent of the other; to a new and unrecognized Sovereignty, or more than and it distributed between them all the powers it meant one to a Congress of unknown powers; and from the fact to convey. Beginning with the Legislative department, of appointing a Minister in time of flagrant war, to nego-it provides, in the first section of the first article, that all tiate a peace, the right to appoint Envoys in peace to ne- the Legislative power therein granted should be vested in gotiate about any thing. If we must be governed by pre-a Congress, to consist of two bodies, the House of Reprecedents, let the precedents be directly in point, and if sentatives and Senate. Pursuing this division, it proceeds, such cannot be produced, the want of precedents, in in the three first paragraphs of the second section of this cases which must frequently have occurred, is the strong- article, to prescribe the manner in which the House of
Representatives shall be chosen. And, having thus provided a full and complete House, it then proceeds, in the fourth paragraph, to declare the mode in which vacancies happening therein shall be filled, viz: "when vacancies happen in the representation from any State, the Executive authority there shall issue writs of election to fill such vacancies."
by and with the advice and consent of the Senate, shall appoint, Ambassadors, other public Ministers, and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."
Had the Constitution stopped here, none could doubt Here the term "vacancy" first occurs in the Constitu- that the power of appointment, even of the lowest officer tion; and here it is most manifest that it must refer to an under the Government, could not have been rightfully office once filled, but afterwards becoming vacant, by exercised by the President alone, at any time whatever, some occurrence "happening" to the incumbent, during unless in pursuance of some law providing that this might the term for which he had been chosen. And that the be done. In all other cases, this power is expressly only authority here given to the State Executive is, to granted to him in conjunction with the Senate, without employ the prescribed means "to fill" this appointment, whose advice and consent it could not be rightfully exerwhich, having been once supplied, had so become empty. cised. But the Constitution does not stop here. Having, This construction, called for by the plain signification of as in the former cases, prescribed the general mode in the words of the Constitution, has received the sanction which all original appointments were to be made, it proof this whole People, from the beginning of the Govern- ceeds, in the next paragraph of the same section, to proment to this hour; and no example exists, in which the vide for "vacancies." Its language is, "the President Executive of a State has ever ventured to issue a writ of shall have power to fill up all vacancies that may happen. election, except to supply vacancies in the House of Re- during the recess of the Senate, by granting commissions, presentatives, produced by some event, "happening" af- which shall expire at the end of their next session."ter an original election had been made, and during the And it is under this clause, that gentlemen derive the term for which such election was made. The meaning of prerogative, which they claim for the President, of calling the words, as used in this part of the instrument, is there-into existence, during the recess of the Senate, new offore fixed and determined. fices, never before filled, and of filling them at his pleasure. The same signification is again given to the same words According to their theory, the office, like original sin, where they are next found. Having directed the manner has existed throughout all time. Aware, however, of of creating the House of Representatives, and preserving the difficulties to which this proposition would lead, it complete, throughout its Constitutional term of two when it should be replied, that, if the office did so exist, years, in the second section of the first article; the Consti- it must always have been vacant; and of course that the tution, in the third section of the same article, takes up the vacancy did not " happen during the recess of the Senother branch of the Legislature, the Senate. In the first ate," they have resorted to the distinction between paragraph of the third section, it provides how, and by potential and actual existence, making vacancy apply whom, the members of this body shall be at first chosen; only to the latter state-of the occurrence of which the and having so provided a full and complete Senate, it President is, in their opinion, the sole judge. To this proceeds, in the second paragraph, to declare the mode in subtle argument I answer, first, that the same words here which future "vacancies" in that body also shall be filled. used have been shown to be employed in two preceding Its language is, "if vacancies happen, by resignation or clauses of the Constitution, in reference to the same subotherwise, during the recess of the Legislature of any ject of vacancies. That their signification has been there State, the Executive thereof may make temporary ap-fixed beyond all doubt; and has been shown to refer not pointments until the next meeting of the Legislature, to potential but to actual office, in which, being once filwhich shall then fill such vacancies." led, a vacancy has happened, by reason of some occur.
Now here it is more clear, if possible, than in the form-rence to the former incumbent. And that the same interer case, that the "vacancy" which the State Executive pretation must therefore be given to the same words, is authorized to supply, by a temporary appointment, is when they occur here for the third time in the same innot an original vacancy, (if I may so speak,) but a va- strument. cancy" occurring in the Senate, after the appointment of Again, if there be any thing in this distinction between a Senator has been once made by the Legislature; and potential and actual offices, it applies, "a fortiori," to the which vacancy has "happened" by resignation or other-case of a Judge of the Supreme Court, which is an office wise, not only during the term for which the first Senator was appointed, but during the recess of the Legislature of any State. And if any confirmation of the correctness of this construction could be required, it would readily be found in the decision of this Senate itself, in the case of Mr. Lanman, the Senator from Connecticut, made in March, 1825. The circumstances of that case are of so recent date, and the decision itself being made by the members now here present, it cannot be necessary to state it more particularly. The meaning of the terms used in the Constitution being thus fixed and determined, in the two instances where they first occur, we ought not to doubt that they were employed in the same sense where we shall next find them.
Having disposed of the Legislative department in its first article, the Constitution proceeds, in the second, to provide for the Executive, to prescribe the mode of its appointment, and to endow it with its appropriate powers. In describing these powers, the subject of appointment to offices constitutes the matter of the second paragraph of the second section of this article ; and this power is therein delineated by these words: "He shall nominate, and,
created potentially by the Constitution itself; and which office, therefore, if the argument be right, the President might have filled up at any time he thought proper, even before the Judiciary law was passed. But the idea that the President had the power of appointing Judges of the Supreme Court when he pleased, because the Constitution had said there shall be such a court, is one that never entered into the brain of any rational being, at any time whatever. Every one has conceded, that, until a law was enacted, fixing the number of these Judges, their compensation, jurisdiction, and mode of proceeding, the power of the President to appoint, was, like the office itself, "in posse," and not in esse; and as the law which would call this potential office into actual existence must be passed during the session of the Senate, that the original vacancy in the office could not happen during the recess of this body, and could not, therefore, be filled up by the President, without their advice and consent. The Judges of the Supreme Court, however, are placed by the Constitution upon precisely the same footing, in this respect, with Ambassadors and other Public Ministers. Whoever concedes, then, that the President has no legitimate au
[APRIL 20, 1826.
existing President asserts to be within his "constitutional competency," and which the cases referred to are supposed to sanction.
The first of these cases is that of John Paul Jones, who, according to the document read by the Senator from Massachusetts, was appointed by President Washington, in May, 1792, during the recess of the Senate, as a Minister to Algiers, to negotiate a treaty of peace and of commerce with that Power.
thority to make an original appointment of the one, must not contend that he has such authority as to the other. The same remark will apply, with equal force, to all other officers of the United States, whose appointments are not otherwise provided for by law. If the President alone cannot appoint any one of these, whose office is created by statute, until this office has once been filled by and with the advice and consent of the Senate, no more an he alone make an original appointment of any public Minister for they are placed by the Constitution upon This is the first case which industry has been enabled the same footing. In relation to statutory offices of every to discover, of any supposed original appointment, made kind, however, it has never been pretended by any one, at by the President, without the advice of the Senate. And any time, that the President might make an original ap- as it seems in some of its features to bear resemblance to pointment to them. They have always been filled, for the other cases which afterwards appear, I shall examine it first time, by and with the advice and consent of the Sen- with more minuteness than I think it is entitled to, in orate; and the only power of appointment which any Presi-der to relieve myself from the necessity of again touching dent has ever claimed, as to such offices, was, the right the same topic. to fill them up, when vacancies happened in them during The first remark I shall make upon it is, that it occurred the recess of the Senate, after they had been once filled. in May, 1792, more than three years after this Constitution My opinion has ever been, Mr. President, that, as the had been in full operation. Now, if the ideas which SenConstitution has expressly declared "the Executive Pow-ators have announced during this debate be correct, the er shall be vested in a President," this power of appoint- moment this Constitution went into operation, on the 4th ment to office would have necessarily belonged to him, of March, 1789, it called into potential existence every as an incident of the general Executive authority with office which is therein recognized. The very creation of which he was thus clothed, but for the other provision, to this new Government, terminated the official existence of which I have already referred, by which the advice and every foreign diplomatic functionary of the United States, consent of the Senate is made necessary to give effect and so produced the necessity of re-establishing all the to this power. Thinking thus, I have ever regarded this foreign relations which it had been desirable to create. clause, which authorizes the President to nominate, and, The whole field of vacant offices was thus thrown open by and with the advice and consent of the Senate, to ap- to President Washington; and a policy, which, in many point to office, not as a donation, but as a limitation of the instances must have been dictated by almost necessity, power of the Executive. But for this clause, the whole required of him to fill up these potential vacancies. But power would have been his; and this as well during the yet this great and good man, although placed in such cirsession as during the recess of the Senate. That jealou- cumstances, never ventured to make a single original apsy and dread of Executive power, however, which is mani-pointment, of any kind, without the advice and consent fested in so many other parts of this Instrument, induced of the Senate. Here then is not one, but a body of prethe framers of the Constitution to check and limit it, by cedents, occurring continuously throughout more than requiring the concurrence of the Senate in its exercise, in three years of time, during almost every hour of which, all cases. Foreseeing, then, that even after the appoint- occasion not only existed, but invited to exercise the ments had been originally made, in the mode prescribed, power which is now asserted, and in no one instance was that vacancies might nevertheless occur in the offices it claimed or used. This, sir, is not only strong proof that which had been so supplied, and that the vacancies might both Washington and the wise counsellors by whom he happen during the recess of the Senate, the framers of the was then surrounded, believed that the power now claimConstitution made an exception to the general rule they ed had not been granted; but ought to have induced those had so previously declared; and by the clause, before re- who rely upon this case of Commodore Jones to have ferred to, gave to the President the power to fill up all examined it more attentively, before they brought it here such vacancies. In doing this, they merely gave to him a as evidence to show the change in such an opinion. power similar to that which they had before given to the The next remark I shall make upon it is, that even acExecutive of each of the States, in relation to the like va-cording to the representation given of it, it was the case cancies occurring in this body, and no more. The construction now contended for, however, would make the exception even larger than the rule itself; and not only so, but, by the force of the proviso, would render nugatory the rule, to which it is an exception merely, and which rule was intended to limit and restrain a power of the President, that without it would be unqualified.
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 a civilized nation. We all know that this is not so. No appointment of a Minister, who has ever been emIf, sir, I have been successful in the attempts I have ployed to negotiate for peace, or for any thing else, with thus made to show that the power claimed for the Presi- any Indian tribe, whether dwelling within or without dent upon this occasion is opposed to the principles of our territory, whether Osage, or Seminole, has ever been our institutions, and forbidden by the precepts and limi- laid before the Senate for their consent. They are all tations of the Constitution, it would not be necessary, considered as agents of the President, and not public probably, to notice the cases, in which such unauthorized Ministers of the People; and all our intercourse with Bar power is supposed to have been exerted. But, sir, the barians must, of necessity, present anomalies, from which name and fame of the wise and good men, under whose no principles can be inferred. I will not go into reasonadministration these supposed acts of lawless usurpationing to show why this must and ought to be so, although are said to have occurred, is dear to this People. Their well- it would be easy to show it. I merely state the fact, earned reputation is public property of great and inestima- which is conclusive to prove that the case of a mission to ble value, and of no one particle of which am I willing to Algiers or to the Choctaws can never be a precedent to be deprived, until the right to commit the waste is clearly justify a mission to Panama. made out. I ask your indulgence, and that of the Senate, a while longer, therefore, while I shall endeavor to prove, that neither Washington, or Jefferson, or Madison, have ever claimed or used any such power, as that which the
The next remark I shall make upon this case is, that when it occurred, flagrant war existed between Algiers and the United States; and war, all know, justifies, by the very necessities it creates, the exertion of powers that