here, but has been made for outdoor effect; and the people will be as apt to detect the sinister design, as gentlemen have been to hope, and anticipate, and to insinuate, that something would grow out of this trifling appropriation, which would furnish them with a subject of reproach against the administration. The debate was revived on the 3d, the 8th, and the 9th, of January-the bill again coming under the consideration of the house on those days, when the motion was made to amend the bill by authorising a deduction from the salary of any minister absenting himself from his post for objects not connected with the public service, by virtue of any arrangement similar to the one made by Mr Randolph. This amendment was cut off by the previous question, which was ordered, 112 ayes, 70 nays. The bill then passed to a third reading, 115 ayes, 3 nays, and was sent to the Senate for its concurrence. which will permit no limit to our motion is well understood-it is In that body a new subject of difficulty was started in the appropriations proposed for the expenses of negotiating the treaty with Turkey. After several unimportant amendments were made moved (February 18th,) that the and assented to, Mr Tazewell following appropriations, which of finance, as amendments to the were reported from the committee bill as it passed the House, be stricken out of the bill. Those appropriations were as For compensation to the intended to accomplish nothing Commissioners employed in ne gotiating a treaty with the Sublime Porte. 'To Charles Rhind, an outfit of four thousand five hundred dollars, deducting therefrom whatever sum may have been paid to him for his personal expenses. To Charles Rhind, David Offley, and James Biddle, at the rate of four thousand five hundred dollars per annum for the time that each of them was engaged in the said negotiation. For compensation to the Commissioners employed on a former occasion for a similar purpose. 'To William M. Crane and David Offley, at the rate of four thousand five hundred dollars per annum for the time that each of them was engaged in the said negotiation.' As the motion to strike out these appropriations was regarded as a direct censure upon the administration on account of the manner, in which that treaty was negotiated, a vehement discussion ensued in the Senate, which was continued on the 19th, 22d, 23d, 24th, and 25th of February. In advocating the motion proposed by him, Mr Tazewell said that the appointment of the Commissioners during the recess (in 1829,) and abstaining from submitting their appointments to the Senate for its consent at the next session, was an unauthorised measure, on which he animadverted with much earnestness, characterising it as unconstitutional, a flagrant violation of the rights of the Senate a lawless act and one that ought not to be passed over by the Senate without condem nation. The power belonged to the President and Senate jointly and not to the President alone. Mr Livingston contended that the President had not usurped any power in making those appointments. In all treaties heretofore concluded with the Barbary powers, the agents were not only not nominated to the Senate, but the Senate had no information of the conclusion of the treaties until sent to it for ratification-even farther; in two or three of the cases to which he referred, the commissioners had received their full powers through American Ministers at Foreign Courts. He spoke of the agency Commodores Decatur and Chauncey had in concluding two of these treaties, and asked if the names of those officers had ever been sent to the Senate for confirmation. He farther referred to cases in which treaties had been made with Foreign Powers by American Secretaries of State, and inquired whether, in these cases, the officers concluding the treaties had been nominated to the Senate as Ministers Plenipotentiary for confirmation. He should therefore vote for the appropriation, and denied that, in so doing, he should violate the Constitution which he had many times sworn to support; and with the provisions of which he was acquainted when it was in its cradle. Mr Livingston contended that the practice of appointing secret agents was coeval with our existence as a nation. All those great men, who have figured in the history of our diplomacy began their career in the capacity of secret agents. Franklin, Adams, and Lee were only commissioners, and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agents was left to the minister appointed to make the treaty, and accordingly in the year 1785, Mr Adams and Mr Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty which was ratified by the ministers at Paris. On the 30th March, 1795, in the recess of the Senate by letters patent under the great broad seal of the United States, and the signature of their President (George Washington) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President he was afterwards authorised to employ Joseph Donaldson as agent in that business. In May of the same year he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys at at Lisbon, on the 28th November, in the same year, and afterwards ratified by the Senate in 1796, and an act passed both houses on 6th May, 1796, appropriating a large sum, $25,000 annually, for carrying it into effect. Mr L. called the attention of the Senate to the fact of this case; and observed that the construction which it gave to the Constitution, was made in the earliest years of the federal government, by the man who presided in the convention, which made that Constitution, acting with the advice and assistance of the leading members of that body, all fresh from its discussion, and who had taken prominent parts in every question that arose. A precedent going the full length of that which is now called a lawless usurpation, bearing the present act out in all its parts, and in some points going much beyond it. Like the present case, it was an appointment in the recess, of a commissioner with full power to make a treaty. But it differs in this; that the commission to Col. Humphreys was an original appointment, and therefore, according to the new doctrine, more objectionable, no minister having before been appointed to treat with Algiers. Whereas, in this case, a previous commission had been given by Mr Adams, which was vacated by the recall of the first powers, and the appointment of Rhind, Offley and Biddle. It went infinitely farther than this, in giving to the minister, the authority to appoint a substitute, and in the fact that the substitute negotiated and made the treaty. Besides, the commission to Humphreys was dated only three weeks after the adjournment of the Senate in March ; Donaldson was employed in May; and neither Humphreys nor Donaldson were ever nominated to the Senate; although that body met in the December following. Yet when the treaty came, it was ratified, and both houses passed a law for carrying it into effect. The whole transaction was spread before a Senate, composed of men, four-fifths of whom I may say, had either aided in making the Constitution, or deliberated on the propriety of its adoption, and this treaty sent to them by George Washington. Yet, with all these badges of lawless, unconstitutional usurpation on its back, the treaty was ratified, and the law passed. Nor was this an isolated case. In the very same year, the 30th March, 1795, David Humphreys received another commission, by letters patent from President Washington, authenticated in the same manner, constituting him Commissioner Plenipotentiary for negotiating a treaty of peace with 'the most illustrious, the Bashaw, Lords, and Governors of the city and kingdom of Tripoli,' with like power of substitution. On the 10th February, 1796, he transferred his powers to Joel Barlow. And on the 3d January 1797, Mr Barlow made a treaty with the Bashaw and his Divan; which was, in like manner with the former, approved by Colonel Humphreys, at Lisbon, on the 18th February, 1797, and was ratified by the Senate, the following session. Here we find three sessions pass after the commission is granted, before the treaty is presented to the Senate for its confirmation, during all which, no nomination of either Humphreys or Barlow was made. The next President (John Adams) who besides the great share he had in forming the Constitution, was pre-eminently qualified to judge on every question relating to foreign intercourse, fell into the same fatal error, or (if the case is as clear as is supposed) was guilty of the same unpardonable fault. He, on the 18th of December, 1798, put his signature and the seal of the nation to a paper, vesting Richard O'Brien, William Eaton, and James Leander Cathcart, with full powers to negotiate with the Bey and regency of Tunis, alterations in a certain treaty made in the year 1797, by Joseph Famin, who calls himself a French merchant, residing at Tunis, and Chargé d'Affaires of the United States.' These gentlemen make the new treaty on the 6th March, 1799. Yet neither the nomination of the French merchant, who made the first treaty, (which must have been in the time of General Washington) nor of the three other Commissioners, was ever submitted to the Senate. And it is remarkable that this last appointment was made on the 18th of December, when the Senate was in session. During the administration of Thomas Jefferson, only one treaty with the Barbary Powers (that with Tripoli) was made; but as the negotiation was carried on by Mr Lear, the public minister of the United States, at that place, nothing can be inferred from this transaction that bears on the question; but Jefferson's co-operation in the two appointments made by General Washington, leaves no doubt of his construction of the Constitution. Here, then, is the practice of Washington, Adams, and Jefferson, sanctioning every part of the conduct pursued by the present Chief Magistrate; and in some instances, pushing the construc--but from his participation, as tion further than he has found it head of the Department of State, necessary to go. But this is not in those which had been sent by all: Mr Madison comes next. If Mr Madison, we may fairly supany voice can be called the oracle pose that, if the occasion had ofof the Constitution, it is his: if fered, he would have followed any practice under it can be the same course. deemed void of error, or intentional wrong, it is that of the wise, the venerated Madison. He followed precisely the route in which his predecessors trod. In the year 1815, hostilities having been commenced by Algiers, he commissioned William Shaler, and the gallant and lamented Decatur, to negotiate with them.They concluded a treaty on board of the United States' ship Guerrier, and although he never nominated them to the Senate, yet the treaty was ratified by the Senate, in the succeeding session, without a question as to their right to co-operate in the appointment. He, it was, too, who in the recess of the Senate, sent the commission which made the treaty of peace with Great Britain. Again: difficulties having arisen as to the execution of the treaty with Algiers, another commission was issued on the 24th of August, 1816, to William Shaler and Isaac Chauncey, who renewed the former treaty, with alterations, on the 23d of December, of the same year. And again the Senate were kept in ignorance of the appointment, until the treaty was sent to them for ratification. On Mr Monroe's accession to the Presidency, he found our peace secured with the Barbary Powers. He had, therefore, no Commissioners to appoint to them, But, during his administration, and that of his successor, it was found convenient in the exercise of the same constitutional right of making treaties, to employ other agents than Ambassadors or public Ministers to form treaties with European and Christian Powers.' During the session of Congress in 1818-19, Mr Monroe gave to Mr Adams plenipotentiary powers to treat with the minister of Spain, and make a settlement of the boundary line between the United States and Mexico, which would take from or add to our territory an extent sufficient for the establishment of several States. He gave these powers under the great seal; he never communicated the appointment to the Senate, although they were in session. Yet the treaty was ratified by the Senate, and both Houses concurred in passing laws for carrying it into execution. Again: Mr Adams, in like manner, in the year 1820, commissioned Mr Clay to treat of and conclude a treaty of commerce, and navigation, with the minister of Denmark; which treaty was signed on the 26th April, in the same year, during the sitting of the Senate, and in like manner ratified by them, although the appointment of Mr Clay was never made known to the Senate, and of course was not confirmed by that body. |