FEB. 25, 1831.] appropriations. National Road in Ohio. 290 [SENATE. The constitution was, the cession of the road to the State of Ohio. He those officers of the State of Ohio. should like, if it could be done, to introduce a provision into provides, that "the judicial power of the United States the bill providing for its cession-it was a matter of import- shall be vested in one Supreme Court, and in such infeance, in his opinion-and it would release the United rior courts as the Congress may, from time to time, ordain States from all future legislation on the subject. Should and establish." this course be pursued, next year Virginia, Maryland, down for us in the constitution, and give an authority to Can we travel out of the course laid Pennsylvania, and other States interested, would make State officers to enforce our laws-give them a jurisdica similar application to Congress, and, their wishes once tion which we have no authority to do by the constitution? granted, the United States would be relieved from an No, said Mr. P.; we have not the power to constitute almost continual drain on their treasury. The construc- these officers, quoad hoc, judicial officers of the United tion and preservation of this road was an unfortunate States. event for the country; the United States had been, and should be pursued, was, to cede that part of the road The course which he should prefer, and which would be, from the necessity of things, subjected to more to the State of Ohio, passing through her boundaries, expense in works of this nature, than either individuals and so on to other States, to the whole length of the or States. Mr. H. spoke of the sums paid for the con-road: for this was the worst Government in the world to struction of the road, and the great expense required to have the management of the roads. keep it in repair. He would ask the chairman of the these views for the consideration of the Senate, and he committee if such a provision as he had suggested could hoped honorable gentlemen would agree with him in the He had thrown out not be introduced into the bill, and thus relieve the Go-expediency of an entire cession. vernment from any further Mr. BURNET, in reply, said, that as many of the mem- sippi, who had just taken his seat, mistook, a little, the Mr. LIVINGSTON said that the gentleman from Missisbers of both Houses were opposed to a cession of the provisions of the bill. road, as would appear by referring to the debate which toll-gates, but simply gave the assent of Congress to the took place on that subject two years ago, he was appre-State of Ohio to do so. It did not grant a power to erect hensive that an attempt to amend the bill, as had been limits of the State, but was constructed by the United suggested by the honorable Senator from South Carolina, States. Many persons were of opinion that, because the The road passed through the might be followed by its loss. He observed that the bill, road was made with the money of the United States, in its present form, presented no obstacle to the accom-therefore it was the property of the United States-others plishment of the object which the honorable Senator had were of opinion that the road was constructed in pursuin view; that, as it now stood, it secured that object in ance of the power possessed by the Government to make part, and in a very important part, and he hoped that post roads; and on these two cases many disputes might gentleman would not persist in putting that part at risk, arise. by an attempt now to obtain the residue, which might as Mr. L. remarked that it was the State of Ohio which gave He was opposed to ceding the road to the States. well be secured at a future day. That, as the proposition the power referred to the justices of the peace, and not now made was one about which there was a great diversity Congress; we, in sanctioning her law, simply assent that of opinion, an attempt to introduce it into the bill would she shall have the power to give the jurisdiction to these certainly induce a protracted debate, which, at this late officers expressed in the bill, and do not appoint them hour of the session, must be fatal to the whole project. ourselves. The Senator from South Carolina did not object because and other laws of the States, which were sanctioned by Mr. L. made a reference to the inspection he was unwilling to permit the State of Ohio to do what the United States' Government, but were not laws of she proposed; on the contrary, as far as the proposition Congress. He wished similar provisions to those conwent, it seemed to meet his approbation; but he desired tained in the present bill could be extended to every to go further he wished to make a complete cession of State through which roads ran, constructed by the United the road; that object would not be defeated by passing States. the bill in its present shape, but the bill would certainly be defeated by an attempt to amend it as proposed, for the purpose of gaining that object at the present time. On these considerations, Mr. B. objected to the proposition which had been made. arguments of the Senator from Louisiana, a distinction Mr. POINDEXTER thought he discovered, in the without a difference. If the assent of Congress was necessary to give effect to a law of the State of Ohio, Mr. POINDEXTER said that there were at least two which she could not do herself. then we certainly transferred to her a power to do that objections to the bill as it now stood, unless the provision exercise the power proposed to be given in this bill, withsuggested by the gentleman from South Carolina should out our consent, then the bill is useless; but if our assent If she had a right to be incorporated into it. The first was, that it undertook is necessary, then our act is the only thing which gives a to transfer to the Legislature of Ohio a right to erect toll-binding effect to the law of the State of Ohio. gates, &c. with a view to the collection of revenue, to was the difference in our acting on subjects of this kind provide for keeping the road in repair-a power which subsequently or anteriorly? In the present case the LeWhere the Congress of the United States did not itself possess.gislature had acted beforehand, and sent their law to us The matter had been more than once discussed in Con- for our assent to its provisions. If we were to pass a law gress, and bills providing for raising a revenue from tolls, beforehand, giving them the power now sought to be for the repair of the road, had been rejected. If, then, obtained, and they saw proper to act upon the subject, Congress did not possess the power, could the right be would it not amount to the same thing? The justices of the transferred, by Congress, to the Legislature of the State peace in Ohio, he maintained, would, in this instance, act of Ohio? In his opinion, it could only be done by ceding entirely dependent on our will; and, in granting them the that part of the road lying within the State of Ohio to power sought to be obtained, we were going beyond the that State altogether, and thus give its Legislature a right provisions of the constitution. to exercise the power now sought to be obtained. If the power were not given in this way, he could not see in in the two cases, and it was the same difference which Mr. LIVINGSTON said he would state the difference what other way it could be done, when Congress did not existed between a compromise and a suit at law. Might possess the power itself. The second objection was, that, not, two parties being at variance, one offer a comproby the provisions of the bill, the justices of the peace in mise for the settlement of their differences, and the other the State of Ohio were to exercise jurisdiction over refuse, because, he would say, if I do agree to a comprooffenders against the law, and to enforce its provisions. mise, you will say, that I admit you have the right on your Certainly, said Mr. P., we cannot give this jurisdiction to side? As to the justices of the peace, when they came VOL. VII.-19 SENATE.] Punishment for Duelling.-Turkish Commission. [FEB. 25, 1831. PUNISHMENT FOR DUELLING. to act, it would not be by virtue of any law of Congress, officers, Congress, by expressing its approbation of the but under the provisions of the law of Ohio. measure, will not become the grantor of that jurisdiction; Mr. FORSYTH said he could not vote for the bill in its it would still be an authority derived exclusively from the present shape. He agreed with the gentleman from Mis-State. sissippi in his views of the matter, and would cheerfully The question was then put on ordering the bill to be vote for a cession of the road, if the State of Ohio, or engrossed for a third reading, and determined in the affirany other State concerned, was willing to take it. He mative. was among those who believed that the United States could claim no jurisdiction over the property. The State of Ohio asked of us a jurisdiction which we could not give, said Mr. F., because we had not the power. Cede the property to her, and she might exercise such legislation in relation to the road as she might see proper. He regretted that he could not vote for the bill; he had assigned his reasons why he could not. He was willing to surrender every section of the road to the States interested, if they would keep it in repair. Mr. LIVINGSTON submitted the following resolution: amine and report whether any legislative provision is the bill from the other House, for the punishment of In offering this resolution, Mr. L. remarked, that when Mr. RUGGLES said, this was the third effort which crimes in the District of Columbia, was under considerahad been made to prevent the road from going to ruin. tion, some exception was made to that clause which reThere was no other method that could be pursued to ac-bill, the clause had been stricken out, with a view to come lated to the punishment for duelling. Not to hazard that complish the end in view. Bills for the preservation of the road had been before Congress on several occasions, at the subject by the appointment of a committee to prebut without success. One did pass the two Houses, but pare and report a special bill relative to duelling. With was rejected by the then President-Mr. Monroe. Other this view he had offered the resolution, and he doubted projects had been tried, but nothing finally done. The not that a bill might be reported in time to be acted on at State did not contemplate deriving a revenue from the the present session. tolls collected; their only object was, to keep the road tion. It was his object, in moving to strike out the clause Mr. HAYNE was in favor of the adoption of the resoluin repair, and to this purpose the funds would be applied. of the bill referred to, that the gentleman from Louisiana It would be to the benefit of the United States to assent to the act; and if, in the present case, the assent of Con-his views on the subject in the shape of a specific bill. [Mr. LIVINGSTON] might have an opportunity to present gress was obtained, the States of Virginia, Pennsylvania, Should a bill be reported, as an individual he would Maryland, &c. would hereafter adopt similar measures. Some measure, to keep the road from dilapidation and bill might be matured, as would have a beneficial effect. cheerfully co-operate with him; and he thought such a ruin, should be speedily resorted to. It was the best road The resolution was then agreed to, and Messrs. Liin the country; but, unless early attended to, must go to decay. He thought the bill prescribed the best course VINGSTON, HAYNE, and CLAYTON were appointed the committee. that could be adopted, and hoped it would pass. Ohio did not ask for or want the road; she simply wished the power to preserve it from destruction. TURKISH MISSION. The Senate then resumed the consideration of the amendments to the appropriation bill, the question being on the motions of Messrs. TAZEWELL and KANE. Mr. BURNET said, there was one point of view, in which the subject might be presented, which he thought would remove the difficulty under which the Senator from Mr. FORSYTH said he was in favor of the amendment Mississippi seemed to labor. The national road, he proposed by the Senator from Illinois, [Mr. KANE.] He said, had given rise to questions of doubtful or disputed was satisfied of its strict propriety, by his recollection of jurisdiction. Many persons of information and legal what occurred in the House of Representatives in the talents were of opinion that the jurisdiction vested in year 1818, when he occupied in the House the position the State through which the road passed; others, equally now occupied in the Senate by the Senator from Virginia, well informed and of equal legal talents, were of a dif- [Mr. TAZEWELL,] who first opened the discussion. Mr. ferent opinion; they thought the jurisdiction was in Con- Monroe had appointed three distinguished citizens comgress, and in this state of things the road was fast going missioners to go to Spanish America, to examine into the to ruin. For the purpose of obviating the effects of this political condition of the States struggling to maintain their collision of opinion, without meeting the contested ques-independence. He had promised them salaries at the rate tion, the Legislature of Ohio, he said, has passed a law, of $6,000 per annum each, and had given them a secretary exercising a jurisdiction in part, with a proviso that it with a salary of 2 or 3,000 dollars. These gentleman had should not be carried into effect without the consent of all been appointed during the recess of the Senate, and Congress. The whole amount of the matter then was, were not nominated at the ensuing session. They had that the contending parties, by this bill, consented that left the United States on their mission before Congress Ohio should take charge of the road, for the purpose of met. Their mission was one of the topics of the Executive preserving it, leaving the question of right as it heretofore message at the opening of Congress. The appropriation stood-unsettled and undecided. The Senator from Mis- bill of that year was reported with a clause making a sissippi had certainly misapprehended the bill; he had specific appropriation for the payment of these commisconsidered the language of the Legislature as being the sioners and their secretary. The Speaker of the House, language of Congress, by supposing that the latter was Mr. Clay, who was just beginning to display symptoms of about to vest jurisdiction by this bill in the officers and hostility to the administration, inquired into the authority courts of the State, when, in fact, it was the enactment for making those appointments--doubted the propriety, of Ohio which gave the jurisdiction, and when Congress and condemned the expediency of them. After a conwere required to do nothing more than express their sultation with that distinguished statesman, the late Mr. approbation of the course pursued by that State--all the Lowndes, the purity of whose character, the soundness power to be exercised by those courts and officers would of whose judgment, whose honorable ambition, with not be derived from the State, by an express enactment, in enough of the alloy of selfishness in it to make it current which the United States were neither named nor referred in the world's traffic, gave to his opinions, while he to as having any agency in the matter. If a State, said lived, the most imposing weight. Mr. F. proposed to he, by statute, gave jurisdiction to her own tribunals and strike from the appropriation bill the specific appropria Turkish Commission. [SENATE. tion, and to add the amount required for the payment of that every negotiation, from its inception to its consumthe commissioners to the sum set apart as the contingent mation, should be made known to, and, to a certain extent. fund for foreign intercourse. The amendment was adopt- be under the control of, the Senate. ed without a division, and proved acceptable to the Senate. the Government such seemed to have been the practice. The object was to throw the expenditure upon that fund General Washington frequently presented to this body In the first years of which was entrusted to the absolute discretion of the Pre- such questions as these: Shall a negotiation be opened sident, to prevent any inferences unfavorable to the con- with such a Power? Shall instructions to this or that effect trolling power of the Senate in confirming appointments, be given? Shall a treaty be formed, if the mutual stipulaand of the House in creating offices. agents appointed to negotiate a treaty with Turkey have General Washington did not persist. An event occurred The confidential tions indicated could be agreed on? been appointed under the same authority that was exer- in 1795, having no doubt some influence in justifying, in In this practice cised in 1818 by Mr. Monroe. If there was any difference the minds of our Presidents, if it did not occasion, this in principle, the difference was in favor of the present change. A subject of vast consequence was submitted to administration. The commissioners to Spanish America the decision of the Senate in secret executive session, unwere public political agents with fixed salaries, protected der the most sacred obligation not to be disclosed by any by the flag of the United States in their voyage, and by Senator. the commissions from the Secretary of State, bearing let- whole matter was spread before the public by a Senator from ters to the Governments they were sent to visit, and en- Virginia, [Mr. Mason.] The whole country was thrown No sooner had the Senate adjourned, than the titled to respect in their known public political character into confusion; warm, animated, angry discussion followfrom all civilized nations. secret agents, without salaries, authorized to make a treaty Washington were insufficient to save him from the cenThe agents to Turkey were ed, and all the services, and virtues, and character of of commerce, if practicable, without letters of credence sure and reproach of a part of the country. to any Power, and entitled to no peculiar protection ex- not censure that disclosure; those to whom the Senator cept from the Turkish Government, with whose officers was responsible applauded the act; he would not question Mr. F. did it was necessary for them to confer, to ascertain the prac- their decision. ticability of effecting the object in view. There certainly was no course of reasoning that would make Messrs. Rhind, a desire was felt that any subject should be bruted about It was soon found, as the Government moved on, that if Offley, and Biddle in the recent, and Messrs. Offley and in every corner of the United States, should become the Crane in the former, effort to negotiate secretly with topic of universal discussion, nothing more was necessary Turkey, officers of Government, whose appointments ought than to close the doors of the Senate chamber, and make to be provided for by law, or subject to the controlling it the object of secret, confidential deliberation. Our own power of the Senate, that would not more strongly apply experience shows that, in this respect, there has been no to the case of the commissioners, Bland, Rodney, and improvement; the art of keeping State secrets is no better Graham, and their secretary, Brackenridge, who were understood now than it formerly was. sent to the South American States by Mr. Monroe. Mr. F. said he had hoped that the proposed amend-ginia, nearest to him, [Mr. TYLER,] asserts that the Senate facts before the public, the honorable Senator from VirYet, with these ment of the Senator from Illinois would have met the ap- is a perfectly safe depository for all the secrets of our foprobation of the Senator from Virginia, [Mr. TAZEWELL,] reign diplomacy. as he professed a perfect readiness to pay liberally for the services rendered, if no inference against the power of had been submitted to without censure or resistance. No This change in the course of the Executive Department the Senate could be drawn from it. ever, that such an inference will be justifiable, if the pay- had ever made an effort to drive the Executive into a full He contends, how- individual Senator, even as far as Mr. F. was informed, ment is not made on the personal application of the per- and frank disclosure of the mysteries of our foreign intersons who rendered the service, by a bill specially report- course, or to sustain a claim to control, by Senatorial aded for their relief, and originating in the House of Repre- vice, the character and extent of the instructions given to sentatives. Mr. F. did not agree with the Senator on this our foreign ministers or agents. Thinking, as Mr. F. did, point. All that could be legitimately inferred from the that the constitution intended the Senate should be preproposed increase of the contingent fund was, that Con-viously consulted on all points of foreign negotiation, he gress decided that the commissioners should be remune- was yet compelled to admit that the usage of the Governrated for services rendered in Turkey. The amendment ment had been uniformly inconsistent with that opinion. proposed by the other Senator from Virginia [Mr. Tr- Upon the question of appointments to new foreign missions LER] appeared to be, therefore, unnecessary to the pro- in the recess of the Senate, on which the gentleman from tection of the Senate, and objectionable; as, with the os- Virginia on his right [Mr. TAZEWELL] had dwelt with so tensible purpose of extracting a conclusion not liable to much zeal and earnestness the right of the President to be drawn, it gave occasion to one, unjustifiable in itself, originate new missions during the recess of the Senate, reflecting upon the present administration, and the pre- although exercised in many cases, and asserted on a recent sent administration only. Mr. F., while he believed the occasion by the late President, had not been resisted by present discussion neither called for, nor in place, was the Senate. Individual Senators had condemned, and had not unwilling to express his opinions on the question sug- asked the Senate to join in the censure of such acts and gested by the Senators from Virginia, or those really in- pretensions; but the Senate had, on every occasion, evaded volved in the appropriation for the payment of the Turk- a decision. ish commissioners. He coincided in opinion with the Senator on his right, [Mr. TAZEWELL,] that, since the esta-posed to be divided, had united in the expediency of avoidBoth the great partics into which the people were supblishment of the Federal Government, the Executive had ing collision with the President on this question of power. gained upon the legislative branches of the Government, The motions of Mr. Gore, censuring the appointment had encroached upon the authority of the Senate; and by Mr. Madison during the recess of the Senate, of Messrs. whenever any Senator presented himself to restore the Gallatin, Bayard, &c., to treat under the Russian mediatrue principles of the constitution-to vindicate the powers tion, were laid on the table by the republican votes of the of the Senate, Mr. F. would afford his hearty support, Senate. without stopping to inquire over whose prostrate fortunes vy, (Mr. Branch,) condemning the pretensions of Mr. AdThe motion of the present Secretary of the Nait was necessary to march, in effecting that great object.ams, that he, as President, was competent to appoint minIn the important business of foreign intercourse, it appear-isters to the Congress of Panama, was laid on the table by ed to him that the framers of the constitution intended the vote of the friends of the late administration. So far SENATE.] Turkish Commission. [FEB. 25, 1831. as a judgment was to be formed of the opinion of the Se-the attack is in the nick of time. Mr. F. thought the exnate, any President had a right to conclude, whatever ecutive session was the true place to vindicate the rights of may be the opinion of his cabinet or of some of his dis- the Senate in its intercourse with the Chief Magistrate-that tinguished friends in either or both Houses of Congress, the judgment of the Senate ought to be distinctly expressed, that his power to make appointments to new missions du- not left to obscure inferences from omissions or expresring the recess of this body was admitted by the Senate sions in appropriation acts-these were proper in the itself. Mr. F. did not impute the failure on the part of the House of Representatives, which could only through apSenate to assert its constitutional rights to party consider-propriations check the irregular or dangerous action of the ations alone; although it had unfortunately happened that Executive, but not in the Senate. Yet he admitted the these questions were always stirred in high party times, propriety of taking any and every opportunity to give warnand pressed with a view to party effect; the subject was ing to the States and to the people. This being the avowed one of difficulty; and whenever it is canvassed as it ought object, no allusion to the handwriting on the wall was neto be, with a single eye to the relative constitutional power cessary. The administration was in the balance, and the of the President and Senate, it would be found that a de-people will decide whether it is or is not wanting in fidelicision either in favor of or against the power of the Presi-ty to its trust. Some remarks had been indulged in, on dent alone to appoint to new missions, would be attended the manner of the Senators from Virginia in their discus with serious danger to the public interest. He was pre- sion of this subject. Mr. F. was too much in the habit of pared, whenever, in executive session, it was proposed un-speaking freely to find fault with it in others—indeed, he connected with party strife, for the expression by the Se-was always like Locksley, the Robinhood of Ivanhoe, reanate of a fixed opinion; and to adhere to that opinion in all dy to add his halo "whenever he saw a good shot or a future intercourse with the Chief Magistrate. gallant blow." If disposed to criticise, he should find the Apart from these questions, the experience of the con- opposite fault with both the Senators-they were far too federation having shown the necessity of secret confidential courtly for the meridian of the United States. They had agencies in foreign countries, very early in the progress adopted and acted upon the maxim of courtly continental of the Federal Government, a fund was set apart, to be Europe, and of the palace of St. James. The Chief Maexpended at the discretion of the President of the United gistrate can do no wrong-the ministers are responsible-States on his responsibility only, called the contingent fund on them let the weight of public indignation fall; and one of foreign intercourse. The gentleman from Virginia on of the gentlemen [Mr. TAZEWELL] had gone so far as to his right [Mr. TAZEWELL] supposed that this fund was for express the sentiment, that he was willing to have the the payment of spies in foreign countries, who might be maxim universally acted upon, if the cabinet ministers could imprisoned or hung, if detected, with his free will, as the be, as in England, brought to the block for giving unconUnited States were not bound to protect them. This would stitutional advice to the President. Until the constitution depend upon their character; if American citizens, they changes, the Chief only is responsible for Executive acts; would be entitled to protection; and that protection should, he may take the advice of his Secretaries if he thinks proat every hazard, be afforded; but this term spy, to which per; but there is no obligation upon him either to take or to the gentleman chooses to confine the use of this contin- follow that advice; and if he does both, he does not escape gent fund, will not answer his purpose. Foreign minis- the consequences-he is morally, constitutionally, and leters are defined to be privileged spies, sent abroad to lie gally answerable for all Executive acts; and Mr. F. thankfor the benefit of their country, (the last part of this defi- ed God that whenever there should be use for the headsnition Mr. F. hoped was not always accurate.) If the Pre- man's axe, there was no officer of this Government too sident can, on the strength of this contingent fund, appoint high nor too low to escape its edge. The present Chief spies, he can appoint the privileged spies. But on what Magistrate asks not the introduction of this slavish docground does the gentleman narrow down the use of this trine--late discoveries show that he is not willing to ascontingent fund? It was given for all purposes to which sume the obligations of others, but he has never shrunk a secret service fund should or could be applied for the from his own. If there is one characteristic above all public benefit. For spies, if the gentlemen pleases; for others peculiarly distinguishing the man, it is the fearlesspersons sent publicly and secretly to search for important ness with which he throws himself upon responsibility; information, political or commercial; for agents to carry not with the reckless indifference of a profligate, but with confidential instructions, written or verbal, to our foreign the generous confidence of an honest mind. Surprised, ministers, in negotiations where secrecy was the element as Mr. F. was, at this unusual effort to strike over the Preof success; for agents to feel the pulse of foreign Govern- sident's shoulders at objects behind him, and sheltered by ments, to ascertain if treaties, commercial or political, his constitutional shield, he was still more struck with the could be formed with them, and with power to form them, distinctions made in selecting points of attack. The Seif practicable. Such uses have been frequently made of nator who led the assault [Mr. TAZEWELL] charged upon this fund; indeed, the propriety of thus using it is now, the four members of the cabinet, who had been formerly for the first time, doubted. Why is it publicly discussed? members of the Senate, upbraided them for the inconsisMr. F. could not probably speak of what the executive tency of the conduct of the Executive with certain opinions journal did, but he was authorized to say what it did not recorded in the journals of the Senate during the Panama contain. The Senate had not censured or doubted the discussions; and with giving to the President advice to viopropriety of the appointment of the agents to make a treaty late the constitution. The Secretaries of State, War, and with Turkey. No committee of that body, no individual Navy, and the Attorney General, were condemned for Senator had proposed to the Senate to express any opinion having advised, or for not having prevented by their adon the subject. But, on this petty appropriation, the grave vice, a violation of that sacred instrument. Why is the constitutional question is stirred here by both Senators Secretary of the Treasury excluded? He, too, is a confrom Virginia--the one [Mr. TAZEWELL] from despair--stitutional adviser of the President, under the like obligathe other, [Mr. TYLER,] because an attack ought to be tions to give good counsel, and, by so doing, preventing vioopenly made. lations of the laws and constitution of the country. On all To the first Senator, Mr. F. would suggest that patri- the important questions arising out of the Panama mission, otism should never despair of the republic; and that the there was little difference of opinion among the then oppeople might possibly remind him that he should not in- position party, of which the Secretary from Pennsylvania voke Hercules until he put his own shoulder to the wheel. was a most active member; and, although not recorded The other Senator discloses the purpose of his movement; here, his opinions stand upon record elsewhere on those it is an attack. Certainly the place is well chosen, and questions. Why is he of Pennsylvania excused by the FEB. 25, 1831.] Turkish Commission. [SENATE. Senator, [Mr. TAZEWELL,] when he of New York, and he ments were in the first days of the Government submitted of Tennessee, and he of North Carolina, and he of Geor- to the Senate, but were soon made at the discretion of the gia, are condemned without scruple or mercy? Even this President or his Secretary of War, without even the cerediscrimination, singular as it is, is surpassed by that of the money of stating to the Senate that they had been made other gentleman from Virginia, [Mr. TYLER.] He, too, We have foreign ministers and chargés d'affaires apseems to have a favorite in the cabinet, the Secretary of pointed, by and with the advice and consent of the Senate; the Navy, (Branch,) whom he has anxiously sought to and agencies committed to the Secretary of State to make draw out of harm's way from the deadly range of the too treaties while the Senate is sitting, and secret agents to hot fire of his colleague. Cannot our navy stand fire? make treaties abroad; and in neither case is the Senate inNow this Secretary (Branch) was the author of the reso- formed of the power given until it is executed, the treaty lutions brought up in judgment against the cabinet-the being signed by the empowered agents. appropriation of the other three Secretaries is inferred If these acts are lawless--if these are violations of the from their vote against the motion to lay them on the table constitution, encroachments on the powers of the Senate, an inference, every Senator knows is not always correct. the remedy should come from Virginia, for Virginia was Yet the author is to be excused, the inferred approvers con- the author of the evil. If the constitution lies suffering demned. It cannot be supposed that the Secretary of under festering wounds, the blows were struck by her the Navy was ignorant of this secret negotiation with Tur- steel, and it is her duty to apply the sovereign balm--the key. By the facts communicated to the Senate, he is the rust of the weapon heals the wounds it has made. The only one, besides the Secretary of State, who certainly was informed of it. The expenses of the agency were advanced by the Navy Department, and repaid out of the contingent fund of foreign intercourse. first stab was given by the parental hand of Washington. Jefferson, and Madison, and Monroe, have each, in turn, struck deep into the vitals of the victim. Ay, sir, if her Senators are right in principle, they can point to as many gashes in the constitution, as Antony bared to the view of the Roman people on the mangled body of their dead Cæsar. The commander of the Mediterranean squadron was one of the commissioners, and had instructions from the Navy Department, about the funds to be used in the negotiation and the movements of his ships, to facilitate its Mr. F. would not fatigue the Senate by bringing again success. Yet, although he did know, and it is uncertain into view all the examples of appointments like those of whether two other members of the cabinet did or did not the commissioners to Turkey. He would touch only two know any thing about it, he is not only carefully moved or three of the most striking; some of the prominent cirout of the way of reproach, but is made the subject of a cumstances of which had escaped the attention of the special eulogium. He from North Carolina is the true gentleman from Louisiana, [Mr. LIVINGSTON.] republican of the old democratic principles. He is a star On the 30th of March, 1795, David Humphreys, miniswho never suffered dim eclipse, nor shed disastrous twi-ter of the United States to Portugal, was appointed by light over half the nations; nor, Mr. F. would add, with General Washington, during the recess of the Senate, a fear of change, perplexed monarchs--and Mr. F. would commissioner to conclude a treaty of amity and commerce say further, if disposed to indulge in a prophetic spirit, with Algiers. He negotiated a treaty, by his deputy, J. that the honorable Secretary never would. No disparage- Donaldson, jun., in September, 1795, but signed it himment to the worthy gentlemen was intended; the poetry self at Lisbon, on the 28th of November, 1795. This and the prophecy might be applied to all, and to any of treaty was negotiated under a full power, bearing the sign his associates. Those who were disposed to speculate manual of the President, and the broad seal of the United curiously into the circumstances of the hour, might inves- States. It was submitted to the Senate in February, 1796, tigate the causes of these strange discriminations. You and ratified on the 2d of-March, 1796, by a vote of twentyand I, Mr. President, said Mr. F., adopting the habit of three to two. No nomination of Mr. Humphreys was made our New England brethren, might make shrewd guesses to the Senate. The tenth session of the Senate, an extra at the true causes; but whether our guesses would fly at random, or directly to the mark, is not at present of much importance-now, it is necessary only to mark the fact that the discrimination is made. Leaving the favored pair to rejoice, the one at his perfect, and the other at his partial immunity, and the unfortunate triumvirate to repine at their fate, and bear, with all the grace in their power, the galling fire of Virginia's wrath, Mr. F. would proceed to consider the attack as if made upon the only responsible officer, the President of the United States. He was charged with lawless acts, with the first violation of an important provision of the constitution of the United States, with a usurpation, into his own hands, of a power confid- A like commission was given to Mr. Humphreys at the ed to him conjointly with the Senate. same time, 30th March, 1795, to make a treaty of amity The Senator from Virginia who first spoke on the sub-and commerce with Tripoli. Joel Barlow was substituted ject, [Mr. TAZEWELL,] denied the correctness of the dis- the 10th of February, 1796; a treaty was negotiated on tinction between agents and officers of the Government. the 4th of January, 1797, and laid before the Senate on The distinction might not be sound; but one thing was cer- the 26th of May, 1797. Two sessions of Congress intertain, that it had always been made, and always had been vened, and three sessions of the Senate, between the apand was now acted upon. Every head of a department pointment of the commissioner and the submission of the occasionally employs and pays agents in the exccution of treaty to the Senate, during all of which General Washingthe duties of his office, on the strength of the contingent ton was President. Mr. Adams submitted the treaty for fund submitted to his disbursement. We have consuls ratification during the third session of Congress succeeding appointed under the constitution, by and with the advice the appointment of the commissioner. No nomination and consent of the Senate: commercial agents selected by was ever made, and the conduct of the Executive in both the President with consular powers, about whose appoint- cases was approved. Mr. F. would not say that what had ment the advice and consent of the Senate is never asked. been done in those days was right, because it was done by We have agents or commissioners to make contracts, trea- the great model for statesmen and citizens; but he would ties they are called, with Indian tribes. These appoint- say that the President could not be justly charged with session called by President Washington, began on the 8th, and closed on the 26th of June, 1795. Here there was a confidential commissioner appointed under a full power, during the recess of the Senate, not nominated to the Sénate at its succeeding session, and about whose movements nothing was known until late in the second session after his appointment; when this power having been successfully executed by the formation of a treaty, that treaty was submitted for approval, and ratified almost unanimously, without a whisper of disapprobation on the course pursued by General Washington, or a doubt as to his right to the exclusive power exercised by him. |