SENATE.]

Louisville Canal-The Creek Indians.

the Senate, and that in this case such advice and consent never had been granted, but was positively refused.

Before I resume my seat, Mr. President, I would take some notice of the motion with which the Senator from Massachusetts concluded his remarks; and of the reasons urged to induce its adoption. After an elaborate argument, the object of which was to prove that the power asserted by the President was within "the constitutional competency of the Executive," the Senator from Massachusetts concludes with this motion, that the further consideration of this subject may be indefinitely postponed. A singular conclusion from such premises, and plainly indicating what degree of confidence is reposed in the argument itself. But, sir, I have already exhausted so much of your patience, and of my own strength, that I must leave to others the task of examining into the reasons as signed for such a proprosition; and of showing the proba ble consequences of adopting the course proposed, especially after the discussion that has now taken place. When Mr. T. concluded, the Senate adjourned.

FRIDAY, APRIL 21.

LOUISVILLE CANAL.

The Senate then proceeded to consider the bill to authorize a subscription for Stock, on the part of the United States, in the Louisville and Portland Canal Company. [Falls of Ohio.]

[This bill authorizes the purchase of 1000 shares of the Stock in the above company, provided they can be procured for a sum not exceeding one hundred dollars each.] Messrs. JOHNSON, of Ken. RUGGLES, and ROWAN, each spoke in support of the bill; the latter gentleman argued that it was a proposition for the United States to invest their money with benefit to themselves; they were not bound to keep their money in the Treasury unproductive, when they could lay it out to advantage; and urged that this stock was believed to be the best in the United

States.

Mr. CHANDLER was opposed to the bill, on principle, and called for some information, with respect to the charter, and the present state of the canal; which information was given by

Mr. BENTON, who demonstrated, at some length, the advantages which were expected to be derived from this canal, and explained its present situation, &c.

Mr. MACON offered a few remarks in opposition to the bill, being unwilling to increase the power of the General Government, directly or indirectly.

Mr. LLOYD said no doubt this was to be a precedent for other applications; he was willing the United States should go with the other Stockholders, pari passu, but no faster; he therefore proposed to amend the bill, so that it should read "to pay for the same, at such times, and in such proportions, as may be required and paid by other Stockholders;" which amendment was agreed to.

After some further discussion between Messrs. WOODBURY, BENTON, and HOLMES, relative to the manner in which the stock was to be purchased,

[APRIL 21, 22, 1826.

Portland Canal Company, was read a third time, and passed, by yeas and nays, as follows:

YEAS. Messrs. Barton, Benton, Bouligny, Chambers, Chase, Edwards, Findlay, Harrison, Hendricks, Holmes, Kane, King, Marks, Mills, Noble, Reed, Robbins, Rowan, Ruggles, Thomas.-20.

NAYS.-Messrs. Bell, Branch, Chandler, Clayton, Cobb, Dickerson, Hayne, Knight, Macon, Sanford, Tazewell, Van Buren, White, Willey, Woodbury.-15.

THE CREEK INDIANS.

Mr. BERRIEN submitted a resolution to instruct the Committee on Indian Affairs to report a bill to make provision for the further relief of the son and other followers of the late Chieftain William M'Intosh, and to provide for their emigration West of the Mississippi.

[The resolution went much into detail, directing what items should be embraced by the bill, how much money, how much of all the articles requisite for the emigrating party, how it should be ascertained who of them were willing to emigrate, &c.]

Mr. BRANCH moved to lay the resolution on the table, as the hour had arrived for the consideration of the special orders of the day; but withdrew his motion at the request of

Mr. BERRIEN, who said, if it was contemplated to act effectually and definitively on this resolution, delay must be avoided: he believed he was not out of order in saying, as the injunction of secrecy had been taken off of the Creek treaty, that this subject had been before the Senate for a considerable time, [referring to a resolution that Mr. B. had some time before submitted on the same subject, in secret session.] The provisions embraced in this resolution, were those, and none other than those, which had been under the consideration of this House at various periods; they had been laid before every member of the Senate, and they had been resisted, merely on account of the form in which they had been presented to the consideration of the House. Mr. B. said he adopted the sug gestion made from various quarters in this House, and especially by the Chairman of the Committee on Indian Affairs, in giving it this form, giving precise and specific instructions to the Committee to report a bill. Inasmuch, therefore, as every member of this House had been in possession of the resolution for a considerable length of time, and inasmuch as there could be no hope of passing the bill, to be reported on this resolution, unless it was promptly brought in, he trusted the Senate would not acquiesce in the motion to lay the resolution on the table.

Mr. KING, of Alabama, said, he would suggest to the Senate, that, by a single amendment to the resolution submitted by the gentleman from Georgia, all difficulties would be obviated, and the Committee would have the subject before them, unshackled by particular instructions. He should prefer, that, instead of instructing the Committee to report a bill, specifying the form in which the bill should be reported, that the Committee should have the subject altogether open before them, to inquire into the expediency of making any provision they might Mr. VAN BUREN said the aid of this Government think proper. The Committee might be under the incould only be afforded to these objects of improvement, pression that it would not be proper to go so far, or they in three ways: by making a road or canal, and assuming might think it proper to go further, probably. Mr. K. jurisdiction-by making a road or canal, without assuming said, he was in favor of the resolution of the gentleman jurisdiction, leaving it to the States; or by making an ap-from Georgia, and he hoped that gentleman would modify propriation, without doing either. In his opinion, the Government had no right to do either, and at some future time he should offer his reasons in support of this opinion. The bill was then ordered to be engrossed for a third reading, ayes 22, noes 15.

SATURDAY, APRIL 22, 1826.

The engrossed bill to authorize a subscription for stock, on the part of the United States, in the Louisville and

his resolution in the manner suggested, and the Committee, having the whole subject before them, would report such a bill as they should deem necessary.

Mr. BERRIEN replied, that his object was merely to do justice to a portion of the Creek tribe, who, he believed, had claims on the Government of the United States, which ought not to have been thus long resisted, and to do justice to a portion of the People of this Union, whose claims were coincident with the claims of that por

APRIL 22, 1826.

The Creek Indians.

[SENATE.

tion of whom he spoke. The form was perfectly imma- tain, Mr. B. said, surprised him, when those services had terial to him, and he, therefore, adopted the modification been recognized, so far as to the evidence of the fact, by suggested by Mr. KING. He had adopted that which had the empty compensation of military rank, limited as rebeen given to it, by the express suggestion of the Chair-garded the benefit of that Chieftain, but decisive as reman of the Committee on Indian Affairs, who had desired garded the acknowledgment of the Government of the that these specific instructions should be embraced in the Union of the services rendered by him. Mr. B. said, when resolution, referring the subject to the committee of which he was called on to point out the claims of the friends and he was the Chairman; and because they had before been followers of that man, he felt an equal degree of surprise. presented in this specific form to the consideration of the He gave up his life a victim to our policy and wishes. Senate, and had received substantially the assent of the Mr. B. said he should not enter into the question by whom Senate. the death of McIntosh was instigated; it might, if gentlemen pleased, for the purposes of this argument, be placed on the footing that he fell by a law of his nation. Why was that law brought to operate on him? Because he yielded to our wishes, declared by our regular organized Agent; he yielded to the wishes of his Great Father the President of the United States, in entering into the treaty at the Indian Springs. If he had rendered himself obnoxious, he had done it in obedience to the will of the President of the United States, as he was instructed to

Mr. BRANCH said, he was disposed to accord every claim that individuals had against the Government that was founded in justice. He never had resisted, and he never would resist, any claim sustained by the immutable principles of justice. Did the resolution submitted by the honorable member from Georgia propose an inquiry into the just claims of McIntosh and his party? No: it precluded this investigation; it made it imperative on the committee to report in a specific form, regardless of any development which might take place in the investigation.believe that will existed, through the regularly constitutAnd would the Senate, in this stage of the proceedings, ed Agents of the United States; and was this a time to be without looking into the facts, adopt the resolution in its called on to go into evidence of his services, or of the present dress? The treaty with the Creeks, Mr. B. said, claims which he had established, by his death, for his had been ratified by the Senate last evening, after a friends and followers, on the justice of the People of this thorough investigation, and had made what might be country? Mr. B. said this was not the only point of view considered an adequate provision for the McIntosh party, in which he presented the resolution to the consideration and their adherents. Would the Senate, then, run coun- of the Senate. It was not only an act of justice to the ter to what had been done, without understanding what friends and followers of McIntosh, founded on his services, they were about? Did it comport with the respect which but it was for the effectuation of a great principle of poliwas due to the Executive department of the Govern- cy, which was necessary to the welfare of the four States ment-with that respect which was due to themselves contiguous to the country inhabited by this tribe-the to act blindly, when it was in their power to procure all principle of peace, which it was the object of this Governthe information which was requisite on the subject? Mr.inent to advance, and which it was the object of the treaty B. then renewed the motion to lay the resolution on the table.

entered into between the Creek tribe and this Government, to carry into execution,

Mr. BERRIEN again rose, and said he was not pre- Mr. BRANCH said he had declared before that he was pared for opposition on this resolution, after the various not opposed to the investigation of these claims; but he intimations which had been made in the course of the dis- wished the subject referred to the Committee on Indian cussion before the Senate. He had been desirous of intro- Affairs untrammelled, and leave it entirely with that comducing a resolution instructing the Committee on Indian mittee to investigate it. He wished it to be referred to Affairs to inquire generally into the expediency of mak- them without any indication on the part of the Senate as ing certain provisions, and the form which he had given it to their opinion: because it would be premature for the had been adopted at the express suggestion of the Chair-Senate to express an opinion before they were informed. man of the Committee on Indian Affairs. In looking back The claims of McIntosh had been presented, in the most to the discussions which had taken place on the subject; imposing attitude, by the gentleman from Louisiana. Mr. rights, such as he conceived to exist, had been so much B. said he wished to tread lightly on the ashes of the affected by the form in which they were presented to the dead; but when those claims were based on the merits of Senate, that, abandoning all considerations of his particu- the deceased, it became his duty to look to the merits of lar view of the subject, he proposed to adopt the form in those claims. If McIntosh had fallen in consequence of which it was now presented to the Senate; with the modi-yielding to the wishes of the President of the United fication of the gentleman from Alabama, which had now States, the claims set up would be just; but if it should become a part of the resolution, it was impossible that appear that he had fallen in yielding to his mercenary dethere could exist for a moment any objection to its adop- sires; if he had fallen in yielding to any undue influence, tion. The claims of McIntosh, and his services, it had exercised over him by the nominal Agents of the United been said, had not been disclosed to the House. Mr. B. States, but the real Agents of the State of Georgia; if he said he did believe, that those who had taken pains to had fallen by any influence exerted over him by the aubecome conversant with the history and public operations thorities of Georgia, direct or indirect, in violation of the of this country, would have known the claims and services will of the nation, and the wishes of the President of the of McIntosh, without the necessity of their being detailed United States; let him look to the quarter for whom he by him in this discussion. There was no individual, who had made the sacrifice. Mr. B. said he should not conwas conversant with the operations in the Creek Nation, sent that the money of his People should be taken to rein the war between the United States and Great Britain, lieve him from the sacrifices he had made in behalf of any who did not know what his services were. Mr. BERRIEN other State. Mr. B. said he was willing to do him ample said if he felt them more strongly than another, it was justice; to investigate his claims on the broad principle because he came from a State, whose frontier was defend-of substantial justice; but he wished not to prejudge this ed from Indian ravage by that Chief; if he expressed question, by directly or indirectly expressing an opinion them stronger than another, it was because he knew that in regard to it. If the gentleman would qualify his mothere were many mothers and children in the State of Georgia who owed their existence to the protection which his gallantry afforded them. That a call, therefore, should be made in this House, to give evidence to the Government of the Union of the services rendered by that Chief

tion, he would consent to it; if he would not, at least he hoped the Senate would be allowed time for consideration. He pledged himself to present the facts of the case to the House, and sustain what he had here advanced in relation to the conduct and motives of McIntosh.

Mr. LLOYD moved so to modify the resolution, as simply to leave it to the Committee on Indian Affairs to consider of the expediency of making some further provision for the friends and followers of McIntosh. If the resolution should pass in this general form, the Committee would consider themselves as untrammelled, as not being in possession of any indication of the wishes of the Senate regarding it; but if it were referred to the Com-a mittee to inquire into the expediency of doing certain specific acts, it was an indication of the Senate that those acts ought to be done.

[APRIL 22, 1826.

By reference to the language of the acceptance and proposition to appoint, you find it expressly placed upon the condition of the Senate's concurrence. It is true, as the recital to the resolution adds, the nominations to the Senate were not submitted with the "opening message to Congress," and, Mr. C. said, he believed it was equally true, that no instance had occurred in which nomination has been submitted with an opening message. Subsequently the President has sent in the nominations to the Senate, and in his communication on that occasion he has referred to his notice, in the message to Congress, Mr. BERRIEN said, if gentlemen would only agree of the invitation received by this Government to be reamong themselves as to the form which should be adopt-presented at Panama, and adds, "Although this measure ed to give effect to the principle, he should be content; 'was deemed to be within the constitutional competency but he thought that something more than what was pro- "of the Executive, I have not thought proper to take posed by the gentleman from Massachusetts would be any step in it before ascertaining that my opinion of its necessary, not only to provide for the friends and follow-"expediency will concur with that of both branches of ers of McIntosh, but also to facilitate their emigration be-"the Legislature: first, by the decision of the Senate yond the Mississippi. 66 upon the nominations to be laid before them; and, se

The resolution was finally passed, in the following modified form:

66

66

condly, by the sanction of both Houses to the appropri"ations, without which it cannot be carried into effect." It is this paragraph which is said, in the recital of the resolution, to "maintain the right previously announced in his " opening message, that he possesses an authority to make "such appointments, and to commission them, without "the advice and consent of the Senate."

Resolved, That the Committee on Indian Affairs be instructed to inquire into the expediency of reporting a bill authorizing the President of the United States to make such further provision as may be deemed equitable, for the friends and followers of the late General William McIntosh, an Indian Chieftian of the Creek tribe; and also to facilitate their emigration West of the Mississippi.sident has claimed the constitutional right to grant com

EXECUTIVE POWERS.

The Senate then resumed the consideration of the motion submitted by Mr. BRANCH, relative to the power of the Executive to appoint public Ministers.

Mr. CHAMBERS said it might be a matter of surprise that he should trouble the Senate with any remarks on the subject, having so lately taken his seat on the floor, and having been absent during a great portion of the discussion. He had only heard the remarks of the gentleman from Virginia, (Mr. TAZEWELL,) and a part of those of the gentleman from South Carolina, (Mr. HARPER.)

If by this language it is intended to assert that the Premissions, in the recess of Congress, to Ministers deputed to represent the United States at the proposed Congress of Panama, which commissions shall continue in force until the close of the succeeding session of Congress; the assertion is admitted to be strictly according to the fact, and the only question presented is, whether the assertion of such a power is such an act of the President as calls for a protest on the part of the Senate: if, on the contrary, the language used is intended to import that the Presi dent has claimed a right to commission such Ministers, and to clothe them with authority beyond the session of ConOn a former occasion he was called on to act on a ques-gress next succeeding their appointment, without submittion, then before the Senate, which had connexion with this subject, and, according to this view, the vote he then gave could not be sustained, if the Senate affirmed the proposition contained in this resolution. He, therefore, felt imperatively called on to submit the reasons which influenced him to vote against the resolution now before

the Senate.

The first important consideration, said Mr. C. is to ascertain exactly what we are called on by this resolution to affirm.

It was unnecessary, Mr. C. said, for the purpose of his remarks, to go into a philological argument to prove what it is the President has intended to claim as within the constitutional competency of the Executive: a plain statement of the facts will place the the question clearly before the Senate. The letters of the Secretary of State to the Ministers of Mexico, Colombia, and Central America, distinctly refer to the advice and consent of the Senate, as the condition on which alone they could expect this Government to be represented at the Congress of Panama. These letters are the official declaration of the President's views, made through the only organ by which they could be communicated, and are anterior to the date of the message to Congress. The message to Con, gress, alluding to the Congress of Panama, says "the Re. publics of Colombia, Mexico, and Central America, "have invited the United States to be also represented "there. The invitation has been accepted, and Ministers "on the part of the United States will be commissioned, "&c." Is any thing more rational than to ask gentlemen who wish to know how, and by what authority, these invitations are accepted, and the appointment of Ministers proposed, than to direct their attention to the precise words of the acceptance and proposition for appointment?

ting their nomination to the Senate; it is denied that such a right has been "avowed” or “maintained” by the President; and it is believed that a reference to the language of the documents themselves, and to the concluding part of the very paragraph and sentence which is referred to as "maintaining" the right, will fully demonstrate that the President, so far from excluding the Senate from their undeniable right to advise and consent to, or to reject, the appointments, has distinctly affirmed it, and in express words has recognized two contingencies: first, "the decision of the Senate upon the nominations;" and, secondly, the sanction of both Houses to the appropriations," "without which the measure proposed could not be carried into effect.

The gentleman from Virginia (Mr. TAZEWELL) has said the President has claimed the authority to make a compact in virtue of which he could oblige this Government to send Ministers to Panama. The gentleman's argument is, that, by the law of nations, no Power can of right send Ministers to a Congress of Ministers; it can only be effected by previous compact between the several Powers; that there being no right in other Powers to send, there was, ex consequenti, no correlative duty on the part of the Spanish American States to receive such Ministers; that a compact of this kind was accompanied with all the obligation of a treaty; and that the President's power to commission Ministers to the Congress at Panama, necessarily included a power to create and consummate the previous pact, which pact is a treaty, which treaty is the supreme law of the land.

Mr. C. considered this to be the substance of the gentleman's doctrine. He believed it had never before been urged that the various subjects of arrangement between the Secretaries of our own Government and the Ministers

APRIL 22, 1826.]

Executive Powers.

[SENATE.

of other Governments resident here, or those of our Min-ate, to commission Ministers to any foreign nation. With his isters abroad with the Secretaries or Officers of the re-present convictions he should say, on that abstract propospective Governments to which they were accredited, insition, that the Constitution of the United States had given reference to the time, place, or objects, of negotiation, the power, and that the President is responsible for the juconstituted treaties or compacts of so formal a character, dicious exercise of it to the People of the Union, whose ofas to require the confirmation of the Senate before they ficer and servant he is, and to the Congress of the United could be acted on. He contended that the principles of States, before whom he may be impeached in the cases national law authorized any Government, which had ac- enumerated in the fourth section of the second article. knowledged the independence of the Spanish American The Constitution regards the President as an indepenStates, to send Ministers to that country to treat with all dent and co-ordinate branch of the Government; not inor any of them. It required no previous pact. It was a dependent as to the responsibility which every officer of subject very proper for the consideration of the State or the Government assumes, but independent in reference States to which the Minister was sent, whether he should to the necessity of any previous assent of any other branch be indulged with a hearing at the precise time and place of the Government to render certain acts lawful and obliat which the Congress should be assembled. The Min- gatory. There are high and important duties to be perister at the court of a particular sovereign cannot select formed by the President, especially directed by the Conthe time, and place, and company for the discussion of his stitution, for the faithful and judicious performance of measures. Take the case of the Court of St. Petersburgh. which the country has, and can have, no other security The Ministers of several Powers, say France, Spain, and than the responsibility under which he acts, but which Austria, propose to confer with the Russian Government on cannot be controlled by the previous interposition of any a subject of great and common interest, and in the discus- other department of the Government; and, in the exersion of which, they do not desire to have the Ministers of cise of these duties, he is as much an independent branch the United States, Great Britain, and other Powers, to par- of the Government as the Judicial department is in its ticipate; can it be doubted that they have the right to exe- sphere, or the Congress in its sphere. cute such a purpose? Could it ever be made a subject of complaint that the Ministers of the Powers who have united in the Holy Alliance should hold sessions to which they did not invite Ministers of other nations, who look upon it as a most wicked conspiracy against the rights of man-not only did not invite them, but would not receive them if they would wish to be present? While, therefore, he admitted the right of other Powers to be represented at all, or any of the Spanish American Governments, he asserted also the right of these Governments to select such as they pleased to meet at Panama, on a particular occasion, to negotiate on particular subjects, and to decline receiving all others at that particular time and place.

This general proposition, he was assured, would not be disputed; but the immediate matter of inquiry was, whether the case, now the subject of consideration, the "appointment of Ministers in the recess," was amongst the duties, and within the authority, of the President, by the terms of the Constitution.

To ascertain the views of those who formed this Constitution, let us reflect what was the object in organizing this department of the Government, and what peculiar duties it had assigned to it. It is assumed that every Government must have appropriate departments for the necessary duties incident to its well-being, and amongst the most obvious of these must be ranked its exterior and foreign relations These considerations could not, did not, fail to present themselves to the great men who were the agents in preparing and adopting the Constitution.

The gentlemen opposed to us say that he has no such authority, except where the commission is directed to the successor of an individual, who had previously filled the same station, and whose death, resignation, or removal, had occurred since the last session of Congress. For the converse of this opinion, the second article of the Constitution is relied on, and is believed to embrace the case. The President had made no reference to such a pact as It is thereby provided "that the President shall have would impose obligations on the Government; on the power, by and with the advice and consent of the Secontrary, his correspondence (for such he termed the let-nate, to make treaties, provided two-thirds of the Senaters of the Secretary of State) with the Spanish American tors present concur; and he shall nominate, and, by and Ministers, had constantly, distinctly, and emphatically with the advice and consent of the Senate, appoint, Ambaskept in view the controlling powers of the Senate; inso-sadors, other public Ministers, and Consuls, Judges of the much that, if their means of information as to the qualified Supreme Court, and all other officers of the United States, nature and extent of the Presidential power had been li- whose appointments are not otherwise provided for, and mited to their official communications with him, they which shall be established by law." would be at no loss to discover that he alone had not power to consummate the objects proposed by their invitation. A careful examination of the messages and accompanying documents had not enabled him, Mr. C. said, to find any such claim alleged, or the existence of such a right any where assumed; on the contrary, he considered the plain and obvious import of the whole, that the President claimed the right to have commissioned Ministers to Panama in the recess of Congress, whose authority would expire at the termination of the session, unless the Senate should have advised and consented to their appointment; The treaty making power was vested, in part, in the but that he did not think it proper to exercise the right President, because, fron the organization of the several from the novel and peculiar circumstances of the case. branches of the Government, the Executive was the only In the claim of power to the extent thus defined, Mr. C. one, the duties of which would be, at all times, in official thought the President justified as well by the principles being. The Congress, or the Senate, were neither deof the constitution and the law as by uniform precedent, signed, or expected, to be always in session, and the Exand in endeavoring to sustain this position, should consider ecutive alone could, therefore, conduct the necessary relabimself as meeting the resolution which he should receive tions of this country with others. The treaty-making as a proposition to protest against the claim of such a power is not in the class of Executive authorities, and was power. He had narrowed the question to the commis- not so considered by those who were active in advocating sioning of Ministers to Panama, because it was evidently the Constitution, as appeared from one of the numbers of in reference to that measure alone that the President had the Federalist, (75,) he held in his hands. The provision used the language referred to, and because he thought it for its exercise, in the mode prescribed by the Constitution, the only question properly before the Senate; but he necessarily gave the President the supervision and direcshould not be unwilling to meet the abstract proposition tion of the incipient and preliminary stages of foreign newhich should involve the doctrine whether the President gotiations. The Constitution has vested in him the apof the United States had authority, in the recess of the Sen-pointment of Ambassadørs, and other public Ministers, VOL. II-41