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ought not to be endured in peace. He who would infer the principles of peace from the precedents of war, reasons falsely. He might as well deduce precepts of morality from the practices of vice, or seek to learn from the atheist the doctrines of Christianity.
terregnum, Charles the First was beheaded in his own reign, or in that of his successor. When this question was once discussed, a gentleman present remarked that, as this event must have occurred either during the one epoch or the other,'if it ever did occur, and as great doubts And here, Mr. President, let me develop more fully an seemed to exist whether either proposition was true, a idea I suggested upon a former occasion, and upon which preliminary question ought to be settled, viz. was King the Senator from Maryland has made some remarks. ICharles the First ever beheaded? So too, here, before then said, and I repeat it, that, war existing, the President we inquire as to the functions with which the Minister of the United States is authorized by the Constitution to might properly be charged, we had better previously setsend a Minister to negotiate for peace, not under his ge-tle the right of the President to send him for, in decidneral power of appointment, but under his special au- ing the one question, we must necessarily determine the thority to direct the operations of the existing war. I other. prove it thus: Peace is the sole legitimate object of all war. To attain this desirable end, the moment war exists, every man, woman, and child, of the one belligerent, is made the enemy of every man, woman, and child, of the other; each at liberty to do the other all the harm in its power, in order to constrain it to sue for peace. The President of the United States is, by the Constitution, made the Commander in Chief of their army and navy; and in that character is authorized, nay bound, to direct the military force of the country in time of war, so as to accomplish the great object of war, which is peace, the most speedy and effectual manner his discretion may suggest. And that which he may do in person, if not forbidden by law, he may do by his Minister or agent. Now, sir, can I be wrong when I conclude from such premises, that he who may negotiate for peace by the roar of artillery, by the conflagration of cities, by the desolation of a country, by the wailings of widows, the shrieks of orphans, and the groans of dying men-that he who may negotiate for a peace by blood and carnage, may do so with pen, ink, and paper, also?
If the Senator from Massachusetts will concede (and his inquiries seem to do so) that the existence of war justifies the President, during the recess of the Senate, to despatch a Minister to treat of peace; then, as peace must be concluded before any negotiation concerning commerce could commence-and as, before peace could be concluded, a treaty must have been ratified, by and with the advice and consent of the Senate, which advice and consent necessarily presupposes their approbation of the appointment of the Minister who negotiated the trea inty-the conclusion cannot be avoided, that the appointment of the Minister, as a Minister to treat of commerce, was not made without, but must have been made with, the approbation of the Senate. If gentlemen will deal in absiractions, and seek to puzzle us by such subtleties of distinction, I beg of them to recollect, that, although the authority to treat of commerce may have been inscribed on the same parchment whereon was written the authority to treat of peace; yet, in the nature of things, the former appointment must have been (to use their own phrase) a mere potential appointment, having neither salary nor The Senator from Maryland tells us, however, and re-duty attached to it, until it was approved by the Senate, fers to Vattel as his authority, that the commander of an in their consent to the latter, given by their approbation army cannot conclude a peace; that the power of con- of a treaty of peace; that, until this assent was had, and cluding peace is a high attribute of sovereignty, which peace actually concluded, the authority to treat of comcan be exercised by none other than those to whom this merce was a mere contingent instruction, and created no sovereign right belongs. No one doubts this. I have office; and that, before it could become an office, the nomnever contended that the commander of an army could, ination which would make it such, must have received the as such, even negotiate for a peace. But I have contend- advice and consent of the Senate; without which, no oried that the Chief Executive Magistrate of the United ginal appointment, except to treat of peace, ever has been States, created by the Constitution the commander and made, or ever can constitutionally be made. director of all their military and naval force, may depute If I be right, Mr. President, in the view which I have either his commanding General, or Admiral, or any body thus taken of this case, it results, that President Washelse, to negotiate for a peace. Mark, sir, I say to nego-ington would have had the clear right to make the aptiate for a peace, and do not say to conclude a peace.pointment of John Paul Jones, at the time, and under Should the President depute his General to do this, the the circumstances existing, when he is supposed to have negotiation will be conducted by such commander, not done so; and that case therefore constitutes no precedent in virtue of the powers incident to him as a commander, to support the high prerogative claimed by President but in pursuance of the authority delegated to him as a Adams now. But, sir, understanding the character of Minister or agent. Should such negotiation eventuate in President Washington, as I think I do, foreseeing the a treaty, the treaty will not be obligatory until it has re- probable consequences (which must have been seen by ceived the consent of those to whom this portion of the him also) that may result from ever sending a Minister to Sovereign authority belongs. Nor will the peace be con- any barbarian people, who scorn to acknowledge themcluded by it until the ratifications of the treaty, so approv-selves bound by the wise provisions of the public law; ed, have been interchanged by the high contracting sovereignties who are parties to it.
and finding the strongest evidence of his opinion, as to his constitutional authority in relation to original appointThen, as the United States and Algiers were at war, ments, in his absolute abstinence from making any such, when this appointment of John Paul Jones as Minister to during the recess of the Senate, throughout the whole of the latter, to treat of peace, took place, President Wash- his administration, except in this single instance-when ington had the clear right, under the Constitution, to this case of John Paul Jones was first exhibited, I was make such appointment. But the Senator from Massa-induced by these considerations, to suspect very strongly, chusetts here remarks that this appointment constituted that there was some mistake about it; and therefore have Commodore Jones a Minister to treat not only of peace looked into its facts with more solicitude than I should but of commerce also. And, as commerce has nothing otherwise have felt. The result of this research has conto do with war, he asks how this can be justified; except firmed my suspicions. Joh. Paul Jones never was appointby referring it to the power of appointment, to be exer- ed a Minister to Algiers for any purpose. Nor did Presi cised by the President, during the recess of the Senate dent Washington take a single step, in reference to the This reminds me of a question which used to be mooted new relation which he wished to establish with that Powin the schools, whether, according to the theory of the er, that was not previously advised and approved by the British law, which does not acknowledge a moment of in- ¦ Senate.
[APRIL 20, 1826.
The history of the transaction, [the appointment of let it be remarked by the Senate, that no other case of John Paul Jones,] as it stands recorded on the secret jour- any original appointment of a Minister to any foreign nals of the Senate, since made public, and now to be State, made during the recess of the Senate, except that found in the 10th Volume of Wait's State Papers, pages of John Paul Jones, has been referred to as occurring 254, et seq. is this: It was the custom of President throughout the whole administration of President WashWashington, (would to God, sir, it was the custom of the ington; that no case of any such appointment, made present President also !) whenever any new case of im- throughout the whole administration of his successor, portance arose, in which it was necessary for him to act, President Adams, has been produced; and that no such to consult with the Senate, as his sworn constitutional ad- case has been supposed to exist during the first five years visers, and to ask their advice as to the course which he of the administration of his successor, President Jefferson : ought to adopt. In pursuance of this custom, when he seventeen successive years from the creation of this Gosaw that war existed with Algiers; that many of our citi-vernment had then passed by, during each of which, frezens had been made captives, and were then held in bond-quent occasions must have existed for the exercise of the age by that Power; and that our then defenceless commerce was daily exposed to injury while this war continued, President Washington sent a message to the Senate, stating to them these facts, informing them that a prospect then appeared of making a peace, and communicating the terms upon which he believed this desirable object might be accomplished. In this message he asked the advice of the Senate, whether he should enter into negotiation with Algiers for this object or not; and, if so, what ought to be the terme upon which the peace ought to be made. In reply to this message, the Senate, on the 8th of May, 1792, advised him to enter into the proposed negotiation, and to conclude the peace if he could, upon the terms proposed. And, to enable the accomplishment of this object, an act was passed by Congress on the same day, appropriating fifty thousand dollars; and the celebrated Paul Jones (who was then in Europe,) was selected by the President, as the agent most proper to carry these views into effect, and commissioned in June of the same year.
power now asserted by the President; and yet no single
The Senator from Maryland produces extracts from two Commissions bearing even date in May, 1806, during the recess of the Senate; and states that he has been informed at the State Department, that these appointments were then made. One of these Commissions constituted Mr. Pinkney our Minister resident at the Court of St. James; and the other appoints that gentleman and Mr. Monroe Envoys Extraordinary, to negotiate a treaty with that Court. Now, sir, as to the first of these Commissions, it shows upon its face that it constituted Mr. Pinkney the successor of Mr. Monroe. This Minister having asked his recall, and his wish being granted by the President, a ex-vacancy so happened in this office then actually pre-existing, and once supplied with an incumbent. And this vacancy occurring during the recess of the Senate, no one can doubt that the President had then the clear right, under the Constitution, to fill up such a vacancy as he did.
At the time this transaction occurred, some reasons isted to apprehend, that, if the plan of the United States was known, some European Power would endeavor to embarrass its execution, and defeat its object. It was therefore kept a profound secret. Mr. Jefferson, the then Secretary of State, in the instructions intended for Commodore Jones, uses this remarkable language :- As to the other Commission, the Senator from Mary"Supposing that there exists a disposition to thwart our land has been misinformed at the Departinent of State; negotiations with the Algerines, and that this would be very and the mistake in that Department has most probably practicable, we have thought it advisable that the know-been produced, in this and in many other cases, by conledge of this appointment should rest with the President, founding the date of the appointment with the date of Mr. Pinckney, and myself; for which reason you will the Commission. A reference to the Journals of the Seperceive that the commissions are all in my own hand.nate will show, that the nomination of Messrs. Monroe writing for the same reason, entire secrecy is recommend-and Pinkney, as Envoys Extraordinary, to negotiate a ed to you; and that you so cover from the public your de-treaty with Great Britain, was regularly made by Presi parture and destination, as that they may not be conjec-dent Jefferson to the Senate, on the 19th day of April, tured or noticed." Now the idea of a secret Minister was 1806, and their appointment regularly advised and conone much too absurd ever to have entered such a head sented to by that body on the 21st day of the same month. as that of either Washington or Jefferson. Jones was So that this case, too, is nothing more than an example of never, therefore, appointed a "Public Minister," but a the regular exercise by the President, of a clear right, mere secret agent of the President; and is expressly styl-placed within his competency by the Constitution itself. ed in the instructions intended for him a "Commissioner." The next case to which we have been referred is that He never acted under this appointment, however, but died of Mr. Short, who was appointed by President Jefferson, soon after it was made. Upon his death, Mr. Barclay was Minister to St. Petersburg, during the recess of the Seappointed to the same situation, and with the same in-nate, in 1808, nineteen years after this Government had structions. He too died "re infecta ;" and then Mr. Hum- been in operation, during all which time no such power phreys, our Minister Plenipotentiary resident at Madrid, had ever been before claimed or exercised. was directed to perform this duty, which he accordingly accomplished.
Such, sir, is the history of the case of John Paul Jones, who was secretly deputed by the President to execute a measure previously advised by the Senate, and who never accepted or acted under this appointment, as a secret Agent to a Barbarian tribe, the object of which was to terminate a dreadful war, then raging. If such a case can be made to support the enormous prerogative now asserted by, and claimed for the Executive, my faculties are much too obtuse to enable me to discern the mode in which
this can be done.
The next case to which we have been referred is that of Messrs. Monroe and Pinkney, in 1806. And here
The facts of this case are as follow: Under the old Confederation, Mr. Dana had been appointed by the old Congress a Minister to this Court, in 1780, but was never received or accredited there. In 1808, "the Emperor of Russia having on several occasions indicated sentiments particularly friendly to the United States, and having expressed a wish, through different channels, that a diplomatic intercourse should be established between the two countries," President Jefferson believing, "in the then extraordinary state of the world, and under the constant possibility of sudden negotiations for peace, that the friendly dispositions of such a Power might be advantageously cherished by a mission which should manifest our willingness to meet his good will," appointed
APRIL 20, 1826.]
Mr. Short, during the recess of the Senate, as Minister to then for the first time occurred, and has never since apRussia. Such is the account given of this appointment peared. It cannot, properly, therefore, be a sufficient by the President himself, in his message of the 24th Feb- foundation for the vast prerogative asserted by the Presi ruary, 1809, to the Senate. Notwithstanding the extra-dent upon this occasion. And here, Mr. President, it must ordinary emergency which was then said to exist, howe- not escape observation, that when this case was subsever, and which alone, as has been stated, was relied upon quently submitted to the Senate for its approbation, alby President Jefferson, to excuse for the exertion of this though it was such as I have represented it to be, yet the then unprecedented exercise of power, the Senate, on immediate predecessor of the Senator from Massachusetts, 'the 27th of February, rejected the nomination by an unani- who has now relied upon it as a precedent, submitted a string of resolutions to the Senate, the expressed objects of which were to deny the power of the President to make such an appointment, and to protest against the exercise of such a power, even in such a case. These resolutions, it is true, were postponed from time to time, and do not ap pear ever to have been acted upon definitively by the Senate; but they remain upon our Journals as a perpetual memorial to disprove the opinion of general acquiescence in a practice well known and long pursued; to support which opinion and its supposed consequences, this case has been referred to.
The Senator from Massachusetts was aware of this, and seeks to obviate the conclusion to which it necessarily and directly leads, by the suggestion, that the rejection proceeded from the opinion entertained by the Senate, as to the mere inexpediency of the mission. The facts, however, do not support such a suggestion: for, although a resolution had been previously offered by one of the Senators, expressive of such an opinion, this resolution was withdrawn by the mover, and the vote of the Senate was upon the naked nomination contained in the message to which I have just referred. While, therefore, the case may show the opinion of Mr. Jefferson, that, in an extraordinary emergency, the President may make an appointment of a Minister, during the recess of the Senate, to an ancient Sovereign, to whom the United States had previously sent one Minister, it shows nothing more. And in showing this as the opinion of President Jefferson, it also shows the positive and unanimous decision of the Senate, that no such power was within the constitutional competency of the Executive, even in the case supposed. What bearing, then, this case can have upon the present question, I own I cannot conceive.
I have now gone through all the cases of Ministers said to have been appointed by any President during the recess of the Senate, to which we have been referred. In some of these cases I have shown, that the facts had been misconceived; in others, that the power exerted, although, under circumstances very different from what now exist, was met by a decided negation of its constitutional exercise, even in such cases, and that from none can any principle be extracted to justify the assumption of authority now contended to be within the "constitutional competency" of the Executive. The remaining cases I shall speedily despatch.
This decision of the Senate seems to have settled the The first of these presents a group, said to consist of question, for a long time at least : for to no other case of eighteen Consuls, who are supposed to have been apMinisters appointed during the recess of the Senate have pointed, during the recess of the Senate, by different we been referred, until that of Messieurs Adams, Galla- Presidents, at different periods. No names have been tin, and Bayard, in 1813, twenty-four years after the stated, and, therefore, I have not been supplied with the commencement of this Government. These Ministers necessary information to enable me to trace these cases were then appointed by President Madison, to negotiate to their proper sources. I am strongly inclined to think, treaties of peace and of commerce with Great Britain, however, that a similar mistake has very probably been and a treaty of commerce with Russia also. Now, sir, so committed as to the appointments of these Consuls, which far as this appointment relates to Great Britain, I believe I have shown to have occurred in the case of Messrs. I have already shown, while examining the case of John Monroe and Pinkney. The time of the appointment has Paul Jones, that the President was authorized to make it; been erroneously taken from the date of the Commission because flagrant war then existed between that Power merely, and not from that of the Senate's act. But, be and the United States, the object of which war it was the this as it may, they are all cases of mere Consuls-officers duty of the President to attain as speedily and effectually who draw no single cent from the Treasury, nor are auas possible, by negotiating for a peace, to be subject, thorized to pledge or commit the United States in any when made, to the consent and approbation of the Senate. way whatsoever-officers of so little importance, that And so far as this appointment related to Russia, it must few, except the special friends of the incumbents, ever be recollected by the Senate, that Mr. Adams, one of know of their actual existence even; and, therefore, too the three Ministers then appointed, had been previously insignificant ever to have attracted general observation. and regularly commissioned, by and with the advice and The same remark will also apply to the last case to consent of the Senate, as Minister Plenipotentiary to that which we have been referred, that of Mr. Sumter, who Power; and it was, therefore, within the clear constitu- was appointed Secretary of Legation by President Jeffertional competency of the President, to have instructed son, in 1801. To this I will also add, that, from the bethis Minister to negotiate a treaty of commerce with Rus- ginning of this Government, and even under the old Consia, if he had thought proper so to do, without consulting federation, this place of Secretary to a mission had always any other department of this Government upon that sub-existed, and been annexed to every mission ever institutject; so that the whole case resolves itself at last into ed, as an incident as necessary to the legation as its cithis question: Was it within the power of the President pher or paper. The officer was not called at first a Secreto appoint two Ministers, whom he had the authority to tary of Legation, but merely a Secretary of the Minister, send to Russia for one purpose, to co-operate, while they and was usually appointed by the Minister himself, alwere at St. Petersburg, with a third, already previously though I know well in one case he was appointed immeand properly there, for the attainment of another object, diately by President Washington. When President Jef the attainment of which object was within the clear con- ferson came into power, regarding this appointment as stitutional competency of the President? Gentlemen one of more consequence than it had ever before been must be more astute than I believe man can be, if they considered, he took the power of making it into his own can make more of this case than what I have stated; and, hands, and appointed Mr. Sumter as the private Secreif not, they will find it difficult to bend it to suit their tary of the Minister to France, "to act as Secretary of purpose upon this occasion. Legation." Having thus made the appointment during the recess of the Senate, he, at the next session of that body, submitted it of course to them for their advice and
But suppose it was a case even stronger than I have shown it to be: it is a solitary case, the like of which had
[APRIL 20, 1826.
consent. And thus it occurs that this mere appendage afterwards consummated. The evidence of such previous of the mission, came to be considered as an office at all.pacts will be found in most of the cases referred to, in These, sir, are all the cases which are supposed to ex-solemn treaties, previously and formally concluded, in the ist, that have been even said to bear any affinity to that customary mode; and, in others, in the previous engagewhich is now under consideration. In examining them I ments entered into by the different sovereigns there reprehave already shown that not one justifies the assertion sented; which engagements, although not reduced to a made, that the President, in time of peace, during the re- formal treaty, were yet as obligatory upon their good cess of the Senate, can of right make any original appoint- faith, as if they had been so authenticated: for it was ment whatsoever, even of a Minister to an ancient nation, within the constitutional competency of these sovereigns to which no Minister had before been sent. But even if to conclude such engagements, without consulting any this were so, it surely does not follow, that he might there- other body. fore appoint Ministers to a Congress of Nations, such as that assembled at Panama. And here, sir, I differ "toto cœlo," from the Senator from Massachusetts, who has affirmed that there is no difference between sending a Min-nor he from Massachusetts, have, I think, given any satisister to a sovereign, and to a Congress of sovereigntics assembled by their Ministers.
And here, Mr. President, let me recall the attention of the Senate to an argument which I used upon another occasion, and to which neither the Senator from Maryland,
factory reply. I then stated, that before the United States could be authorized to intrude any thing appertaining to them within the territory of a foreign State, whether at Panama or elsewhere, and whether that thing was a bale of cotton or a Minister, the authority to do so must be derived from the previous assent of the foreign Power to which such place belonged. That their municipal authority could not commnunicate any such right to the United States, because all municipal authority must, of necessity, be territorial; its exercise was limited to the boundaries of the sovereignty from whence it proceeded, and it could not run within the territories of a foreign State, without the consent of such foreign State, previously had. That, although this assent might be infertions, in their usual intercourse with each other, under the international law, which derived its obligation from the comity and customs of States; yet, that such assent could not be inferred as to any unusual act, unknown to that law; but must be sought for only in special compacts or conventions existing between the parties. That, therefore, the sending a Minister to a Congress of States, which was an assemblage unknown to the general, customary law of nations, was an act that could not be justified or sanctioned by this law; and, if permissible at all, the right could only be claimed, under some previous pact, authorizing it to be done for, that, if the United States had the right to send Ministers to this Congress, and could derive it from the general customary law of nations, as the provisions of that law were not peculiar to the United States, but extended equally to every other civilized nation under the sun, the right of every other such nation was equal to our own; and, therefore, every European sovereign might do the same act. As this, however, was an absurdity, for which, as I then supposed, none would contend, it must be conceded, that our right to send Ministers to this Congress, could only be traced to some previous pact, under which, alone, it might properly be exercised.
Although I have no respect for the authority (Martens) to which that Senator has referred in support of this affirmation; yet, even this author disproves the position taken, and that, too, in the very passage which has been referred to for its support. It is the purpose of Martens, in this passage, to show, not that there is no difference between the case of a Minister to a sovereign and to a Congress of Nations, but to show in what that difference consists. The former he represents as bearing not only credentials, but powers also; while the latter is furnished with powers only. Now, although this difference the Scnator from Massachusetts regards as one of form merely, and of no importance, yet it constitutes in truth the strong-red, as to all acts customarily practised and done by naest possible distinction, and is decisive of the question. The letter of credence is that document alone which gives character to a "public Minister," nay, which constitutes him such; and when received and accredited by the sovereign to whom it is addressed, clothes the party bearing it, with all the rights, privileges, and immunities, which the international law attaches to his station. One who is not furnished with such a testimonial, can never be con-assembled for special purposes, such as this at Panama, sidered as a "public Minister" at all, but as a mere special agent, without privilege or authority, except in the cases particularly specified in his powers, to which no incident attaches. In one word, sir, he must be either a secret missionary of his sovereign, the existence of whose appointment and powers it is not intended to make public; or a special agent, whose office is called into existence by some particular treaty stipulation, in which his rights and duties are specially prescribed and provided for. And, in the latter case, the previous treaty, which such an agent is sent to carry into execution, constitutes his credentials, and supercedes the necessity of bearing any other. So that the very illustration given by Martens, so far from proving that there exists no difference between the two cases, establishes directly the reverse: and in effect asserts, that Ministers can only be sent to a Congress, under and in pursuance of previous pacts concluded, authorizing and requiring them to be there; while a public Minister, properly so called, derives his charac-was a pact existing in this case, which, when properly ter from the public law, acting upon his letter of credence. Did I wish any other proof of this, I too would refer to the very examples stated by the Senator from Massachusetts to support his position. He tells us that a Congress of nations assembled by their Ministers is no rare occurrence; and refers us to that assembled at Munster, from which proceeded the celebrated treaty of Westphalia, to that assembled at Utrecht, and to that assembled at Antwerp. To these he might have added many others, if he had pleased, even those recently convened at Vienna and Verona. Now, sir, the Senator from Massachusetts must surely recollect that all and each of these assemblies were called for, and required, by previous pacts, entered into by the several sovereignties there represented, and which specially required such a Congress to be then and there beld, and this for the special purposes which were there
Arrived at this conclusion, I then contended, that there
ratified and concluded, would give to the United States the right, and impose upon them the duty, of sending Ministers to this Congress; and which, at the same time, would give and impose correlative duties and rights to and upon the States there to be assembled, authorizing them to expect, and binding them to receive, such Ministers. That this pact existed in the written invitations given and accepted upon this occasion, which if duly sanctioned, would be as obligatory upon the faith of the parties giving and accepting, as though this pact was sculptured on marble, engraved on brass, or evidenced by all the wax and engrossed parchment rolls in the world. But, that before this pact could be duly sanctioned, it must, according to the requirements of our Constitution, have been advised and consented to by two-thirds of the Senate; without which assent it could impose no obliga
tion upon, and, therefore, give no right to us. As illustrative of this, I then referred to the treaties and conventions already concluded between the several Southern American Nations, creating and providing for this Congress at Panama; and I might have referred to all the cases now produced by the Senator from Massachusetts, and to the history of every other assemblage of States, by ther Ministers, which ever yet convened, either in the ancient or modern world.
subject, the right to give "just" cause of war, is little else than the right to do wrong. A right of which the Senator from Maryland is at this moment the strenuous advocate, according to my poor judgment, when he claims for the President a right, the exercise of which is forbidden by the Constitution. It is quite an adage, however, that in quest of power we alway's forget right, or at least confound the two.
The Senator from Massachusetts saw very distinctly the If this be so; if a previous solemn pact be necessary, consequences to which the argument of his friend from to authorize any State to send a Minister to meet those of Maryland necessarily led; and, in avoiding this Scylla, has other States, assembled at a Congress, (by which other unhappily fallen upon Charybdis. He argues that, alMinisters, of course, so sent cannot be accredited,) and if though the right of sending a Minister to Panama, cannot sich pact cannot be concluded without the advice and be derived from the public law, but must be claimed consent of two-thirds of the Senate, whence is it, I beg from expressed consent alone, yet that this consent may to be informed, that the President can derive the right of be given in any mode whatever, and needs not the solemsending Ministers to Panama during the recess of this Se-nity of a pact to give it obligation. Between this Senator nate? Gentlemen, surely, must perceive, that, in assert- and myself, then, sir, there seems to be no other differing such a power for the President, they are contending ence than in words merely. We both agree that the right in effect, if not in words, that, during the recess of the depends upon expressed consent, and the only question Senate, the President may, of right, not only negotiate between us is, whether this expressed consent makes a for, but conclude and execute a treaty, whereby new pact or not. Now, according to my humble judgment, rights and obligations are created; a power much great- every assent which must be expressed to give it obligaer than even that vast prerogative with which they are gation, and which when expressed creates rights and cordisposed to clothe the Executive, in the matter of ap- relative duties upon the parties giving and accepting it, pointment to office; a power which at once authorizes makes a pact; provided assent proceeds from those authe President to create and to consummate whatever po- thorized to give or to accept it. And I leave it to the Selitical relations he may think proper to establish-nay, to nator from Massachusetts to decide, whether any such make a supreme law by his mere “fiut.” pact, creating rights and obligations, can be finally concluded without the aid and consent of the Senate at least.
And here, Mr. President, is the force of this argument, that has not been answered-been eluded. It is curious I will not detain the Senate by any comments upon to notice the replies which have been made to it, and the case of Don Onis, the former Minister sent to this how diametrically opposed they are to each other. The country from Spain, but not received here, which case Senator from Maryland insists that the right to send Min- has been referred to. It is enough to say that, in recogisters to this Congress at Panama, is not derived from any nizing the right of Spain to send a Minister to the United pact or convention to that effect; but is derived from the States, they did not thereby recognize any particular general, customary international law. While he from sovereign of Spain at that time. There was then a civil Massachusetts abandons this pretension, and strenuously war raging in this ancient kingdom, which left it doubtcontends that it is not derived from the public law, but ful with whom the sovereignty of Spain abided, either from expressed consent. It is not for one like me, sir," de jure" or "de facto," and, pending this contest, the "tantas componere tites," but I sincerely regret that such discrepances, existing between Senators who agree so well in all other respects, impose upon me the troublesome duty of replying to each.
And first, sir, as to the argument of the Senator from Maryland. He argues that, under the provisions of the general, customary law of nations, any State, even Spain, has the right to send a Minister to this Congress at Panama, whether invited so to do or not. But, foreseeing what a state of things must necessarily arise under his construction of this public law, he very wisely has provided a Rowland for this Oliver, and has given to the Congress of Panama a right to reject any Minister who might there appear without a card of invitation. This argument will answer by stating that I can conceive the possibility that human cunning may at one time or other acquire so high a degree of perfection, as to discover some process of reasoning by which the quadrature of a circle may be demonstrated; and that mankind will not always rest upon the mere approximating process of the Greek pelicoid. I can imagine "that human ingenuity may possibly at some time or other invent some means by which the now apparently absurd problem of perpetual motion may be shown not to be imaginary. But my mind cannot compass the truth of that moral lesson which asserts even for the Most High, (I mean no irreverence, sir,) the pow. er of creating two opposing and contradicting rights. And if I wished any proof to satisfy me that this must be a paradox, I think I should readily find it in that point of the argument of the Senator from Maryland himself, in which he concedes that for one nation not to receive the Minister whom another has a right to send to it, is just cause of war. Now, according to my notions upon the
United States acknowledging the right to send a Minister, as appertaining to that sovereign, were not bound to decide, and would not decide, who that sovereign was. But, until that question was settled, Don Onis had no right as a Minister from the sovereign of Spain, simply because it was not known who Spain was.
I have here done, sir, with the merits of this question. In discussing it, I have endeavored to establish these three great propositions. First, that the power claimed by the President, according to the natural signification of the terms he has employed to communicate his claim, and according to the explanation given of these terms by himself, not only in their context, but in other cotempora1neous communications made to the Senate, was a broad, strong, and unqualified assertion of power, acknowledged, even by his advocates here, to have been never before made, and against the use of which this People ought to revolt. Secondly, that this claim of power, even if limited and circumscribed, as these advocates would qualify it, still asserts a power denied to the Executive by the prin ciples of all our Republican institutions, by the positive commandments of the Constitution itself, and of the exer tion of which no fair example has ever existed throughout the whole history of this Government, from its very creation. And, lastly, that, even if any precedent of the claim or exertion of a similar power could be produced, such precedent could not justify it in this case of Ministers to the Congress of Panama; inasmuch as the agreement to send such Ministers, (without which agreement they could not rightfully be sent,) was a compact, creating rights and obligations; which compact, under the Constitution of the United States, could not be concluded without the previous advice and consent of two-thirds of