FEB. 24, 1831.] Turkish Commission. [SENATE. In conclusion, Mr. TYLER offered the following proviso, by way of amendment to Mr. KANE's proposition: Provided, always, That nothing in this act contained shall be construed as sanctioning, or in any way approv ing, the appointment of these persons, by the President alone, during the recess of the Senate, and without their advice and consent, as commissioners to negotiate a treaty with the Ottoman Porte." for our vindication, and folded our arms in silence. We cations have already been given of a contrary character, thereby gave the most conclusive evidence of our desire and I hail them as a sure augury of success. for the President's success in the administration of the Government. What was our reward? Were we treated with ordinary civility? We were declared to be in opposition to the administration. Hard names were bestowed upon us; abuse copiously poured out on our heads; our motives assailed and misrepresented; our designs represented as dark and evil. This language has been persisted in for the last twelve months. Cui bono? For the good of the President, or of the party to which we Mr. BROWN, of North Carolina, next rose, and obbelong? Is this the way to attach high-minded men to served, that, when he had taken his seat that morning, any cause? Human nature, speaking almost audibly he had entertained but little expectation that he should from the heart of all, answers in the negative. A new have entered into the discussion of the subject then under discovery was made. My colleague was represented as consideration; but, unprepared as he was, the extraordian old federalist, the moment he gave a vote consecrated, nary course which it had taken had induced him to depart as I verily believe it to be, to the purest republicanism. from that determination, and to claim the indulgence of The history of his life, exhibiting him as it did, reared the Senate, succinctly to present his views in opposition in the very arms of democracy, was not sufficient to pro-to the motion which proposed to strike out the appropriatect him. The circumstance of his being an actor in the tion making compensation to the commissioners appointed spirit-stirring crisis of 1798-'9; of the part which he bore by the President of the United States to negotiate a treaty in that session of Congress which witnessed the retirement of commerce with the Turkish Government. He objected of the elder Adams from the Presidency; of the uniform also to the amendment proposed by the Senator from Virconsistency of his life in adhering to the governmental ginia, [Mr. TYLER,] because its adoption would, in effect, doctrines with which he set out; of the distinguished as he conceived, charge the Executive with a violation of part which he bore in the late arduous struggle; nothing the constitution, by the appointment of commissioners to was sufficient to protect him from this charge, or shield treat with the Turkish Government without the sanction him from the bitterness of these hostile attacks. For of the Senate--a censure, which he deemed not only unmyself, I had nothing but a conscious integrity to plead in called for, but wholly unmerited: uncalled for, because my behalf, and that availed me as little as the services of the present was not a fit occasion to express it, if at all demy colleague availed him. Our own constituents urged served; unmerited, because, in his opinion, the exercise no complaint; on the contrary, I seriously declare that I of the power by the Executive was in pursuance of the have scarcely seen the man within the broad limits of constitutional authority, which appropriately belonged to Virginia, who did not approve our course. To use the that department of our Government. language of one of her citizens, that "unterrified" commonwealth can never be operated on by causeless clamor. None of these attacks were made from thence, or from any part of the South. Nor did any come from the West. From whence then did they proceed? They came from the North, and in all their violence from one particular State. "Call you this backing of your friends?" Is this the mode to consolidate a party? It is a modern discovery, and unknown heretofore to the world. We could not justify it to ourselves, then, Mr. President, to remain silent on this new occasion on which we are compelled to differ from the administration. Our opinions and our arguments will go to our constituents, and I fear not the result of the verdict they will return. We had, in substance, been told, if the Senate sanctions this proceeding, by voting for the appropriation, without protesting against the alleged usurpation, that the dignity of this body will be impaired, and that it will be surrendering one of our most important powers to the Executive branch of the Government. He claimed the right to interpret the provisions of the constitution for himself, and could not admit that it had been confided to the exclusive guardianship of any particular members of that body. Nor could he permit himself to doubt that all, when in their opinion the occasion called for it, would unite in repelling any attempt, from any quarter, which was in derogation of the authority and character of that branch of the Go vernment. This has been called a mere question of power between The honorable Senator from Virginia, [Mr. TYLER,] who the Senate and the President. Sir, it is a question whe- has just addressed the Senate, and whose eloquence is ther the constitution is supreme, and binding upon all. always heard with pleasure and attention, had remarked, But if we were now forming the Government, I would that he represented a State whose stern independence add to the power of the President not even so much as could not be brought to pay homage to power, and the would turn the scales by the hundredth part of a hair. frankness of whose citizens would not permit them to chaThere is already enough of the spice of monarchy in the racterize acts but by their proper names; and if his colPresidential office. There lies the true danger to our in- league and himself had called the power which the Prestitutions. It has already become the great magnet of sident of the United States had exerted, by the appointattraction. The struggles to attain it are destined to en-ment of commissioners to negotiate a treaty of commerce list all the worst passions of our nature. It is the true with the Ottoman Porte, a lawless and unconstitutional Pandora's box. Place in the President's hands the key exercise of power, that it was because they had been acto the door of the treasury, by conferring on him the un-customed to speak in the language of frankness and sincontrolled power of appointing to office, and liberty can-cerity. Sir, said Mr. B., I cheerfully subscribe to the not abide among us. In the language of Lord Chatham, honorable mention which the gentleman has made of the this would be to inflict the irremedicabile vulnus. "Not State of Virginia: her past history is rich in the renown of poppy, or mandragora, or all the drowsy sirups of the her distinguished warriors and statesmen: she has, on all world, could medicine" us "to that sweet peace" which occasions, been ready to assist in vindicating the characwe should thereby lose. No, sir; the glittering diadem ter of the nation from foreign insult, and has warned, with is already studded with jewels, and ambition evermore a prophetic voice, her sister States against the dangerous urges its votaries to clutch it. What would it not be if and insidious encroachments of the Federal Government you adorn it with blazing diamonds? If, then, we stand alone, we shall oppose the principle which has now been carried into practice. It would be a proud distinction; but this will not be our fate. Indi on their rights, which were so well calculated to destroy the beauty and harmony of our admirable system of Government; but I must be permitted to remark, said Mr. B., that I cannot discover any thing in this act of the Presi SENATE.] Turkish Commission. [FEB. 24, 1831. dent, calculated to alarm the fears of those most devoted that period? He confessed that he attached but little to a rigid construction of the constitution, of which num-weight to precedents, unless they were sanctioned by long ber he professed to be one. and uninterrupted practice, and were authorized by a fair He would now proceed briefly to examine the transac-construction of the constitution. The practice of appointtion which had been so severely animadverted upon. The ing commissioners of a similar character with those who facts connected with it were briefly these, and had already had been commissioned to negotiate with Turkey, had been ably discussed by the gentleman from Louisiana. commenced with General Washington; he had, in the early When the present administration entered on the discharge part of his administration, appointed commissioners to neof its public duties, it found that the preceding adminis-gotiate a treaty of peace with the Dey of Algiers, without tration had appointed confidential agents to ascertain if a a previous nomination to the Senate. Subsequently, Mr. treaty could not be made with the Turkish Government, Jefferson had appointed commissioners to treat with the and to effect that object if it could be done. This mission Tripolitan Government; and, in 1808, he commissioned Mr. having failed to accomplish its purpose, and one of the Short as minister plenipotentiary to the court of St. Pecommissioners appointed under the late administration tersburg, in the recess of the Senate, which was not to having returned to the United States, the President, anx-fill a vacancy, as the United States had not before been ious to open new and lucrative channels of trade to the represented by a public minister at that court. Much as commercial enterprise of our citizens, appointed Mr. he revered the memory of Mr. Jefferson, whose great and Rhind and Captain Biddle, in conjunction with Mr. Offley, invaluable services to his country, as a statesman, had not, to effect, if practicable, that which the late administrat.on in his opinion, been surpassed by any of his cotemporahad failed to do. To this it was objected, that it was an ries, yet he did not believe that the Executive power was, assumption of power, in violation of that provision of the by a proper construction of the constitution, competent to constitution which declares that the President "shall have commission a public minister, without the advice and conpower, by and with the advice and consent of the Senate, sent of the Senate, unless to fill a vacancy which happens to make treaties, provided two-thirds of the Senators pre- in the recess. This instance has been adduced of the exsent concur; and he shall nominate, and, by and with the ercise of the appointing power by President Jefferson, to advice and consent of the Senate, shall appoint, ambassa- show the great diversity of opinion which had heretofore dors, other public ministers and consuls, judges of the existed among the most eminent patriots and statesmen, Supreme Court, and all other officers of the United States, in relation to its extent, and not that he considered it at all whose appointments are not herein otherwise provided analogous to the present case. It showed that a power for, and which shall be established by law," &c. He rea- much higher and much more questionable had been exdily conceded that the President could not constitution-erted under an administration deservedly eulogized for its ally appoint a "public minister" or "ambassador," with almost uniform adherence to a limited construction of the out first consulting the Senate, and their concurrence had powers of the General Government. in the appointment, unless to fill up a vacancy which had The two first cases to which he had adverted, showing occurred in the recess of the Senate. But in the appoint-the exercise of the same power in the early administration ment then under consideration, in which the Executive of our country, had occurred, it is true, when a state of had appointed mere confidential agents, he thought he war existed between this country and those to whom comcould perceive an obvious distinction. They had been missioners were deputed to treat. The gentleman from appointed for a special, designated purpose, not clothed Virginia [Mr. TAZEWELL] had maintained the proposition with the usual powers of public ministers, unprotected by that the President could rightfully exert this power in a the immunities and privileges which, by the law of nations, state of war, though not in a time of peace, for the reason were extended to that class of ministers contemplated by that the object for which war is carried on is the attainthe constitution. Where, then, was the infringement of ment of peace; and that the President may institute a misthe constitution, which had been so much reprobated? By sion without consulting the Senate to effect that end. Mr. that instrument, the management of our foreign relations B. said he could not yield his assent to this argument; for was peculiarly confided to the Executive Department of if the President was vested with authority to appoint comthe Government. The power of appointing confidential missioners in time of war, it followed as a consequence that agents to confer and treat with foreign Powers in relation he could exert the same power in time of peace. When to commerce, was fairly deducible from this duty imposed public functionaries look to the constitution for a warrant by the constitution on the President. It was unreasonable for the exercise of power, it was an admitted rule of conto suppose that, when a duty was required of an officer of struction, where a provision of that instrument expressly the Government by the constitution, it withheld from him conferred powers, as in that before quoted by him, which the power to employ the necessary means for its accom- gives to the President the power of appointing ambassaplishment. Nor would its exercise be attended with the dors and other public ministers, with the advice and concalamitous consequences which we had heard so much de-sent of the enate, and to fill up all vacancies that may precated. It could not, in any case, unite us, either by happen during the recess of the Senate, by granting coma commercial or political connexion, with foreign nations, missions which shall expire at the end of their next seswithout the previous consent of that body, as the concur- sion," that resort could not be had to any other clause rent authority of the Senate in the ratification of treaties to enlarge that power by implication; and the clause exwould always interpose an effectual barrier against acts of pressly conferring the power could alone be resorted to Executive indiscretion, or schemes of ambition. Nor for the purpose of ascertaining the true extent of the auwould the rejection of a treaty by the Senate, thus nego-thority granted. The constitution did not vary with the tiated, have a tendency to embroil us with foreign nations, circumstances of peace or war; it did not hold different as had been argued; for every Government with whom we language on different occasions. He had been taught to may have diplomatic relations, either is, or is supposed to believe that the principles of that instrument were fixed be, cognizant of the treaty-making power under our Go- and inflexible, and did not bend to any emergency, howvernment; and a refusal by the Senate to ratify a treaty ever pressing, or any necessity, however high. could not afford any just ground of complaint or hostility against us. Passing from the arguments fairly to be derived from a proper construction of the constitution, what, he would ask, had been the usage of almost every administration, as he believed, from the origin of our Government down to Mr. B. said he would now proceed to examine the analogy which the gentleman from Virginia [Mr. TAZEWELL] had endeavored to trace, and, as he thought, unsuccessfully, between the principles avowed in President Adams's message in relation to the Panama mission, and the case then under discussion. The gentleman who had preceded FEB. 24, 1831.] Turkish Commission. [SENATE. It was him in this debate, had reiterated the same objection, and Virginia [Mr. TAZEWELL] was to be received as a very had read extracts from the speeches of some of the mem- flattering compliment to the President, when he expressed bers of the present cabinet, to show that their course, on his perfect confidence in the honesty of his intentions, but that occasion, when members of the Senate, was wholly believed that he had been deceived by his ministers, who irreconcilable with the course which the Executive had were supposed to have advised him to this course. pursued, in appointing commissioners to treat with the a compliment to the heart at the expense of the head; and Turkish Government. Mr. B. said, without commenting he would add, that the course of the President since he on the essential distinction, in many respects, between the had filled the station which he then occupied, had not only characters of the ministers which President Adams had been honest, but, in his opinion, marked by an enlightened asserted his power to commission to attend the Congress policy, deserving the approbation of the American peoof Panama, and the commissioners appointed to treat with ple. Mr. B. said that he did not stand there as the apoloTurkey, he would ask permission to read a part of the gist of the President of the United States; and while in the speech delivered in the Senate by the Senator from Vir- exercise of his duties as a member of that body, he should ginia [Mr. TAZEWELL] on the memorable discussion in re-never shrink from the freest examination and inquiry into lation to the Panama mission. After commenting on the the conduct of public officers, he should at the same time case, in which General Washington had appointed com- feel it equally his duty to give a fair and liberal support to missioners to treat for peace with the Dey of Algiers, he the administration, when their measures were, in his estiproceeded as follows: "The next remark I shall make mation, conducive to the public interests. He believed upon it is, that, even according to the representation given that a candid review of the course pursued by the Chief of it, it was the case of an agent sent to a barbarian people, Magistrate of the Union, since his elevation to that stawho were not then, and have never since been, recognis- tion, would triumphantly acquit him of a disposition to ed as forming any component part of the family of civi- assume powers not delegated to him under the constitulized nations. Let me not be told that the constitutional tion. He had, at the last session of Congress, given a power of the President is the same, whether exerted in decisive proof of his determination to preserve the conreference to a savage or civilized nation. We all know that stitution, so far as it depended on his authority, by refusing this is not so. No appointment of a minister, who has to sanction large and extravagant appropriations of the ever been employed to negotiate for peace, or for any public money to objects unauthorized by the powers thing else, with any Indian tribe, whether dwelling within granted to the General Government, and more recently or without our territory, whether Osage or Seminole, has in the course which had been pursued towards the State ever been laid before the Senate for their consent. They authorities in relation to the Indian tribes; and the princiare all considered as agents of the President, and not ples avowed in the President's message on that subject public ministers of the people; and all our intercourse were gratifying proofs that the reserved rights of the States with barbarians must, of necessity, present anomalies, of this confederacy would be respected under this adminfrom which no principles can be inferred. I will not go istration, and the action of the General Government reinto reasoning to show why this must and ought to be so, strained within its appropriate sphere. Mr. B. concluded although it would be easy to show it. I merely state the his remarks by expressing his thanks for the indulgence fact, which is conclusive, to prove that the case of a mis- which had been extended to him. sion to Algiers, or to the Choctaws, can never be a pre- Mr. TAZEWELL again rose in reply to Mr. LIVINGScedent to justify a mission to Panama." Mr. B. said, that rox. The honorable Senator from Louisiana, said Mr. T., in the remarks which he had read from the speech of the has again undertaken to chide ine for the unmeasured Senator from Viriginia, he thought the distinction which language in which I have described the act of the Execuhe had taken between the case of the Panama mission and tive, concerning which I spoke when I last addressed the the one in question was fully sustained, and that it was Senate. I can readily conceive that the strong terms I clearly conceded that the President could, constitutionally, employed to characterize this transaction may not be very appoint agents to negotiate with a barbarian nation, with- familiar to the fastidiousness of courts or palaces, where out the previous consent of the Senate. He would ask, the dulcet sounds of approbation and admiration only are where was the distinction as to the power to send a mission commonly heard. But as my words denote precisely the to the then existing Government of Algiers, and that sent, opinions I desired to communicate to those I addressed, under the present administration, to the Turkish Govern- and were merely the abbreviation of the conclusions to ment? If the principle holds good in the one case, it ap- which I thought I had entitled myself, by the arguments peared to do so equally in the other. If the President can I had used, I was not aware that I had violated any rule of exercise the power in reference to any one nation of peo- etiquette here, in thus summing up the reasoning upon ple, whether savage or otherwise, it appeared to him to the subject; I had proved, at least to my own satisfaction, follow plainly that he could do so in reference to all, as that the constitution furnished no authority to the Presi the constitution did not vary the power of the President dent for what he had done; therefore, I felt myself justito appoint commissioners to treat with foreign nations, ac-fied in speaking of this act as unconstitutional, and as lawcording to their degrees of barbarism or civilization, but less. If such is its true character, all must concede that a afforded a fixed rule as to the power of the President, applicable to nations of every condition. Mr. B. said he had heard with a degree of surprise which he could not conceal, in the course of this debate, an attempt to discriminate between the Chief Magistrate and his cabinet advisers, attributing all responsibility to them in relation to the Turkish treaty. This was, in deed, a novel doctrine in this country, and one which he would venture to say was not in accordance with the theory of our Government. The doctrine of Executive infallibility was unknown to our form of Government; the President was alone responsible for his official acts to the people of the United States, and, he believed, would never seek to escape responsibility in the discharge of his public duties: he must, therefore, be permitted to say that he did not think the remark of the gentleman from Vol. VII.--18 power exerted by a President without warrant or constitutional grant is a usurpation on his part; and as such a usurpation in this case was a direct and plain infringement of the privileges of the Senate, it must be a gross violation of the constitution, in flagrant derogation of the rights of this body. To the Senate I certainly owe no apology for the earnest appeal I made to them, to induce them to vindicate their violated rights, to prove themselves faithful depositaries of the trusts confided to them by the constitution, and never, by a refusal to assert their privileges, to countenance the idea that they could be guilty of a base surrender of the rights conferred upon them by the States they represent, which rights so conferred are in truth but duties imposed by our constitutents for their own wise purposes. This would be a dereliction of duty on our part, which, however much it may be desired by any other department of the Government, could scarcely find justification or apology here or elsewhere. [FEB. 24, 1831. between the power of the President to make treaties, and his power to make appointments to office. This disIn expressing these strong opinions, I certainly neither tinction he seeks to support by a reference to the premeasured nor weighed the force of the language nece's- cedents he has cited. This distinction is certainly new. sary to convey them. But if this or any other honorable If to be sustained at all, it must be by the force of the Senator would have been pleased to furnish me with the precedents only, for the words of the constitution as exproper courtly phrases in which I might have communi- plicitly restrain the one power as they do the other, and cated my thoughts, I would willingly have adopted them, in precisely the same mode. Each of these powers is provided they would have expressed my opinions with given to the President; but, in the very grant itself, they equal precision. I doubt much, however, whether I should are both required to be exercised by him, "by and with have escaped the censure of the honorable Senator from the advice and consent of the Senate" only; and the only Louisiana, if I had borrowed my terms even from his own difference between them is, that, in making treaties, the works, or from the precedents furnished by the speeches concurrence of two-thirds of the Senators present, and, in of some of those by whom the President is now surrounded, making appointments, the concurrence of a majority only which speeches were delivered by them during the Panama is required. Then, is it not strange, that, in the very debate. President Jefferson, now so much eulogized by case where the constitution imposes the strongest rethis honorable Senator, was not always regarded by him, straint, it should be contended that none exists; and yet I believe, as entitled to such encomia. One at least of the should be admitted that, in the other case, the restraint acts of this President was characterized by this Senator is effectual, although this restraint is imposed by the in language as unqualified as any I have used; and a re- same words repeated in the very next member of the ference to the speeches to which I have alluded will same sentence? furnish many examples of much stronger phrases than any I have employed, and this too in relation to the same subject. These terms were then applied, however, to the assertions of President Adams; and I have spoken of the acts of President Jackson, et tempora mutantur, although the constitution remains the same. by some officer of the Government; and this, whether But, sir, how are treaties to be negotiated? Certainly they are negotiated at home or abroad. For it is asking of us too much, when we are required to admit that he who has the commission of the Government, which commission is signed by its Chief Magistrate, authenticated But, sir, let no one think that I mean to justify or even by its great seal, and wherein is expressed, that, in conto excuse what I have said, by the examples of others, sideration of the high confidence reposed in him, authority or even of the President himself. My justification is, that is thereby given by him to pledge our faith and honor, is whatever I have said, I thought; and that which I think not an officer of the United States. So that the question of the public acts of public men, I feel myself at perfect still recurs, can the President alone, without the advice liberty to speak here, whenever a proper occasion arises and consent of the Senate, create such an office? I say so to do. In this case, I neither sought nor made the occa- create such an office; for when the commission is granted sion. I would have avoided it if I could. But the Presi- to negotiate a treaty abroad, with a nation at whose court dent has chosen to present his application to his body, we have never had any representative, the office is creasking us to appropriate the money of our constituents ated: for, as I have shown, there is no pretext for saying to redeem his pledge of the public faith, plighted with that such an office is then vacant, or that the President, out our sanction or any constitutional warrant, and I am in making the appointment to it, is merely filling up a so called upon to approve the act. Forced thus to in-vacancy, and a vacancy which has happened, too, during quire into the character of that which has been done, I the recess of the Senate. am constrained to speak of it as I think it merits. Now the Senator from LouI have isiana admits that the President alone cannot make an done so, and, in so doing, have done but what my duty original appointment to any office. What, then, becomes required. Mr. President, this debate has taken the precise course make treaties, and his power to make appointments, in of his distinction between the power of the President to which I foresaw it would take. The advocates of this all cases where, to make a treaty, it is necessary to make appropriation, instead of meeting or controverting any an original appointment? position I have maintained in reference to the proper construction of the constitution, have endeavored to justify this Government to the day of the date of the Turkish Sir, the precedents may be searched from the birth of what has been done by the precedents they cite, and the treaty, and but few cases will be found of a treaty negopractice they wish to show to have been settled. Senator from Louisiana alone has expressed any doubt as States, whose appointment, if an original appointment, The tiated by any other than a diplomatic officer of the United to the correctness of the interpretation which I have given had not been made by and with the advice and consent of the constitution. At first, this doubt was rested upon of the Senate.an inversion and transposition of the terms used in the does not appear, are either cases occurring, "flagrante The few cases existing, in which this instrument. This attempt, however, seems to be aban- bello," with the Power treated with, or cases of compacts doned by him; and he now seeks to attain the same ob- entered into with piratical hordes or savage tribes, the ject, by inserting a stop where there is none. To this dependents or tributaries of your own, or of some other new process for changing the meaning of its provisions, I sovereignty. All the precedents referred to by the Senahave no other answer to give than this-blot out all the tor from Louisiana are of this description. stops, and both the learned and unlearned will replace dents, therefore, do not touch or apply to the question These precethem as they now are, because they will still concur in I have discussed, and which is presented in this case, reading the instrument as I have read it, and in constru- unless we are prepared to say that the principles of war ing its language as I have construed it. According to this justify the practice of peace, or that the usages which neconstruction, I repeat, the President alone may nominate, cessity requires to be adopted in our intercourse with but, by and with the advice and consent of the Senate, barbarian Powers and dependent States, constitute the only, can appoint to any office; and when vacancies hap-rule which ought to regulate our intercourse with the pen during the recess of the Senate, the President alone oldest, and most solemnly and most universally recogmay fill up such vacancies, by temporary commissions only. nized sovereignties on earth. Here I will leave this suggested doubt, confident that it Even this the Senator from Louisiana would have us will never ripen into certainty any where, but in some hot-to do, for he ridicules my ideas that the existence of war bed prepared to force its growth unnaturally. gives to the President power that he may not rightfully The Senator from Louisiana next draws a distinction claim in peace; or that there is any difference between FEB. 24, 1831.] Turkish Commission. [SENATE. the piratical Barbary hordes and the Ottoman empire. United States, whose appointment and whose instructions Now, suppose I should even admit that the distinction had previously received the confirmation of the Senate. which I drew between the cases of war and peace was As to the mere internuncii employed by Mr. Humphreys without any just foundation, is it fair to infer the general himself in his intercourse with the Barbary Powers, and rule of peace from the exception of war? Or is it wise who acted under appointments from him, and not from or safe to contend, that what is acquiesced in without the President, I presume it cannot be necessary for me murmur, during the storm of war, is therefore right, and to say a single word. Doubtless, the minister might emmay be properly repeated in the calm and "piping time of peace." I pray the Senate to think well of the consequences which may and must result if they sanction such doctrine as this. ploy what messengers, interpreters, or subagents, he thought necessary, and the obligation of the instrument, put into form by them before it received his assent, could neither be strengthened nor weakened by their signature, whether it was vanity or necessity that subscribed it. Peace gives the rule, and war the exception to it. Nor is it of little consequence to the present argument, The same answer will equally apply to the cases of the whether the exception be de jure or de facto only. It is treaties afterwards concluded with some of these same but an exception in either case; and we reason erroneous- Powers during the administration of President Madison. ly when we seek to find the rule in the exception to it. War again existed between the United States and these But if it be conceded that the exception exists de jure, Powers, when these treaties, too, were concluded. Nay, and is established by the constitution itself as an excep- such is the capricious and rapacious character of these tion, then this exception proves the general rule to be corsairs, and such their ignorance or contempt of the different. Now, I contend that the exception does exist provisions of the public law, and the usages of civilized de jure; and that in war the President may lawfully ne- nations, that it is difficult to determine when war does gotiate a treaty of peace with the enemy, when, where, not exist with them. It is this very circumstance which and how he pleases, and by the intervention of whomso- constitutes one of the great causes why your intercourse ever he thinks proper to employ for that purpose. I with them always has, and always must produce many prove it thus: anomalies, from which no principle or rule can properly The legitimate object of all war is peace.' To attain be deduced. But if I wanted an apt illustration of the this desirable end whenever war exists, the constitution truth of my position, that the power of conducting a war gives to the Executive every lawful means for its accom- necessarily includes the power of concluding it by negoplishment. Hence, he may lawfully order, and by his tiating for peace, I should find it in the circumstances atsubordinates effect, the burning of towns, the sacking of tending one of these very treaties. The gallant Decatur cities, the devastation of the enemy's country, and the had just captured the Algerine squadron. Hastening slaughter of its inhabitants; for, alas! sad experience has from the scene of his conquest, he presented his victotaught mankind, that such are the necessary means by rious fleet before the port of Algiers, ready to fire upon which alone most commonly war can be terminated, and the city, and to lay it in ashes, if necessary. To save the desirable end of peace attained. Now, surely, if the themselves from the imminent danger, and to gain time Executive may lawfully do all this for such an object, he for preparation, the enemy wished to parley, professing a may attain the same required end by other means less wish to negotiate a peace. His answer to their proposidestructive, and more consonant to the dictates of human- tion was, "Here are the only terms of peace I can accept. ity. If he may lawfully negotiate for peace by blood Sign and ratify this treaty, and our nations are friends and carnage, may he not negotiate for the same object again; reject it, and I must do my duty. I give you two by argument and persuasion? It is true you call the one hours to decide." Within the time prescribed, the battle and bloodshed, and the other negotiation, yet each treaty was returned, duly executed on their part; and of them is but a means for the accomplishment of peace, hence was concluded, on board of his own flag ship, the great and only justifiable end of all war; which end the United States' ship Guerriere. Now, sir, will any one it is the bounden duty of the Executive to effect by all say that, in thus acting, this hero violated any precept of proper means, whenever war exists. And what at last the constitution of his country? And, if not, it surely is this treaty of peace, until it is ratified by the proper cannot be pretended that the President could so offend, authority, that is to say, until, in this country, its ratifica- by authorizing that to be done, which, when done in tion has received the advice and consent of the Senate? pursuance of his orders, was rightfully done. Yet, if It is little else than a mere armistice. Now, none can rightfully done, war must give power to the Executive doubt that the Executive may lawfully conclude an ar- that in peace is forbidden. mistice when, where, and how he pleases, and this under Again: Is it correct to say that there is no difference his general power to conduct the existing war in that between the piratical hordes of Algiers, and Tunis, and mode which, in his discretion, peace, its only justifiable Tripoli, the professed tributaries and acknowledged deend, seems to require. pendents of the Sublime Porte, and the Ottoman empire Here, then, is one answer to all the precedents cited by itself? This is an assertion which I confess I did not exthe Senator from Louisiana, of treaties made with the pect to have heard made in the Senate of the United Barbary Powers during the administration of our two first States. My historical recollections do not deceive me, Presidents. At the time all these treaties were nego-I think, when they lead me to say that the Ottoman Gotiated, war existed between these Powers and the United vernment is now the oldest in the world. While every States. Moreover, two of these treaties (being all of this other known Government has been oftentimes changed, description that were concluded during the administra- destroyed, and reconstructed, that simple despotism, sustion of Washington) were concluded by Mr. Humphreys, tained as it is, alike by religion and by force, has ever an acknowledged diplomatic officer of the United States, remained unaltered from its creation, now nearly twelve who had been previously and regularly appointed our centuries ago, until this hour. Before the discovery of minister to Portugal, by and with the advice and consent America by Columbus, the seat of the Turkish empire of the Senate. In concluding these treaties, too, Mr. was fixed where it now is, at Constantinople; and never Humphreys acted in pursuance of the instructions he had since has that capital been profaned by the presence of received, the substance of which instructions had been any foreign foe. Almost two hundred and fifty years ago, previously submitted by the President to the Senate, and all Europe trembled at its onward march; and the most had received their approbation so far back as the 8th of powerful of European sovereigns fled from the smoking May, 1792, as our journals show. These cases, then, are ruins of his capital, Vienna, to escape this enemy. Much but cases of treaties made by a proper officer of the more than a century since, Bender, one of its distant pro |