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SENATE:

Executive Appointments.

Mr. HORSEY, of Delaware, addressed the Chair as follows:

APRIL, 1814.

regard to the expediency and constitutionality of the nomination, as the Senate undoubtedly have to decide for themselves, when the nomination is submitted for their advice and consent?

Mr. President-It is my misfortune to differ upon this occasion with the honorable mover of the resolutions; at the same time I beg leave to While the Constitution has given to the Presiassure him that I am not insensible to the respect dent and the Senate the general power of appointand deference which I owe to his opinion, and par-ment, it has also given to the President alone a qualticularly to the precedents he has cited. ified and modified power of appointment, during How it may be proper for one department of the recess of the Senate. At the same time, howthe Government to claim the right of interpreting ever, it has placed this power under the strictest the Constitution for another co-ordinate depart-guards or checks. First, it can only be exercised in ment, by way of abstract resolution or otherwise, the recess of the Senate; secondly, the commission is a question which I submit to the consideration of the honorable mover. Is it a claim compatible with the great political maxim which requires that several departments of power ought to be separate, distinct, and independent of each other, so far as it regards the exercise of the powers devolved upon them?

The several departments of the Government derive their powers, not from each other, but from the same source of authority-the Constitution. The one, I apprehend, cannot justly claim an exclusive superior right to settle the power of the other.

creating the appointment shall expire at the end of the next session of the Senate. These are the checks which the Constitution has placed over this power. If it be abused, the President alone is responsible. It is a power complete in itself, and that belongs solely and exclusively to the Executive. To be sure, if the Executive afterwards submit the appointment to the Senate, as he must do, if it is to continue beyond their session, it is in the nature of a new appointment, and the Senate may reject or affirm it. But as it regards the intermediate act of appointment, it is perfect in itself for the limited time, and, in my It is of the utmost importance that the Consti-humble conception, the Senate have no more tutional balance of power should be maintained, in order to preserve the equilibrium of the Government. The way to do this, is by a tenacious adherence to all those salutary checks which the Constitution has wisely put into the hands of the several departments, in order that the one may defend itself against the encroachment of the other. This is the only mode by which the weaker branches can restrain the stronger within their Constitutional limits.

right to interfere with regard to it, than they have to interfere with the House of Representatives in the choice of their Speaker and other officers; no more right than they have to advise and control the Executive in the exercise of his undoubted powers to grant reprieves and pardons, to receive foreign Ministers, or to use his qualified veto.

As it relates to appointments connected with the treaty-making power, the Senate have, it must be admitted, a remote or indirect controlling The main check is the power of the negative. power over the power to make temporary apIf both branches of the Legislature pass a bill vio-pointments, upon the ratification of a treaty. And lating, in his opinion, the rights of the Executive, this may be considered a third, though not perhe may interpose his qualified negative, and, if fect, yet important check over the qualified power this does not shield him, he must yield to the of appointment. Constitutional majority of the Legislature. It would be presumptuous in him to claim the right to judge for them, after he had passed his negative, as it would be idle for him to express his opinion in the form of an empty protest. So, if the House of Representatives pass a bill infringing, in the opinion of the Senate, their rights, the Senate may interpose their absolute negative, and thereby defend themselves and the Constitution. But could they do more? Could they take it upon themselves to censure the House of Representatives, when that branch is co-ordinate and wholly independent of this?

So too as it regards the general power of appointment. The wisdom of the Constitution has placed this in the hands of the President and the Senate. It has given to the President the sole power of nomination-to the Senate simply the power of concurrence and of the negative. If, therefore, the President submits a nomination which in the opinion of the Senate, is improper or unconstitutional, the Senate through their controlling power of the negative, may reject the nomination. But can they do more? Has not the President the right to determine for himself with

Thus, sir, it appears to me, so far as respects the exercise of the qualified power of appointment, lodged by the Constitution with the Executive, that the Senate have no right to meddle with it. It is not subject to their control, but to the control only of the three important checks to which I have adverted, and to that responsibility which the President owes to the power of impeachment and to his country. As to the general power of appointment, the salutary control of the Senate, through their absolute power to negative, is effectual-it is perfect. Not empty and unavailing as are the resolutions in question; which if adopted we have no power to enforce; which in their nature are not susceptible of any beneficial or practical result. Send them to the President-he reads them, and is of the same opinion still. And can these resolutions constrain him to alter his opinion? After the maturest deliberation he adheres to his opinion, and sits down and writes a counter protest in support of it. Then, sir, we shall have protest against protest, and the whole amount of the matter will be, that a question is raised between one department and another co-ordinate department of the

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Government, to decide which no competent tri

bunal exists.

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SENATE.

also a very extraordinary power. The power of the President to issue instructions to all public If there be any force in these preliminary re- Ministers, to direct the time, the place, the manmarks, the propriety of the course taken by the ner, and the temper of the negotiation-to conhonorable mover may, to say the least, be doubted. tinue or break it off-are all constructive powers, If doubtful, ought a measure so extraordinary to involving the relations of peace and war. The be adopted? A measure, acknowledged to be powers of the President to dismiss a foreign Minwithout precedent. To justify one department, ister-to acknowledge the Government and indeif it can be justified at all, to pass a vote imply-pendence of a foreign nation-are powers of the ing censure upon the conduct of another de- greatest magnitude, involving the best interests partment, the case ought to be clear, the conduct of society, and yet more constructive powers. It gross. Not a point about which intelligent men is, therefore, sir, apparent that the Constitution may fairly entertain opposite opinions. Where is an instrument which in practice does not adthe construction, even if wrong, may have been mit of that strict and literal interpretation which nothing worse than an error of judgment; an the honorable mover contends for. You cannot error into which the party may have been led by give it life or effect if you interpret it, like a a practical interpretation of the Constitution for penal statute, according to the dead letter. Inmore than sixteen years, if not from the com- deed there are parts of the Constitution which mencement of the Government. will not bear a literal construction. Take, for The honorable mover, sir, has touched upon instance, article 4, section 1-" Full faith and delicate ground. The relations subsisting becredit shall be given in each State to the public tween the President and the Senate are near and acts, records, and judicial proceedings of every highly important. We ought to do nothing cal-other State. And the Congress may, by genculated to endanger that harmony and dignity eral laws, prescribe the manner in which such which should always characterize this body in acts, records, and proceedings shall be proved and their intercourse with the Executive. 'the effect thereof." Congress has undertaken to prescribe the manner in which such acts, records, and proceedings, shall be proved, but they have not undertaken, and probably never will undertake, to prescribe the effect they are to have. What is the true import of the words "full faith and credit," is a question that has puzzled the bar and the bench, and about which a contrariety of Mr. President, I have said, if the point were opinion exists among the learned in the law. But doubtful, even if the President were in the wrong, the word "effect," take it literally and it conveys it is to my mind very questionable whether we a most extraordinary power to Congress. A powought to pass the resolutions. But I humblyer which would swallow up the State sovereignthink the question is not doubtful. I believe, verily believe, that the President has given the just and true, and at the same time the most fit and practicable construction to the Constitution. This, to my mind, is susceptible of the clearest and most conclusive demonstration.

In this the public as well as ourselves have an interest. The utmost delicacy and deference I should hope would always be observed towards each other, consistently with a fixed and firm purpose to maintain all the rights and powers belonging to great and independent branches of the Government.

An instrument drawn with so much brevity and in such general terms as the Constitution of the United States, could not specify every power which might be necessary and indispensable to a due and practical administration of the Government. Indeed to have made such specifications, would have required attributes with which it has not been the pleasure of the Deity to endow imperfect man. The Government, therefore, and the several departments, in the execution of their powers, of necessity resort in many instances to the doctrine of construction. Hence the powers of the Government are either specified or constructive. The power of the President to displace from office is not a specified, but a constructive power-a power of greater magnitude and much more doubtful construction than the one in question. The power of the Congress to establish a National Bank is not an express but a constructive power. The power of the Executive to recall or supersede at pleasure a public Minister, without consulting the Senate, though but just appointed by their advice and consent, is

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ties. An act of the Legislature of any one State is a public act, and by this section Congress has the power, by a general law, to declare what effect such an act shall have in another State. The Legislature of Virginia, for instance, pass an act limiting the rights of suffrage to freeholders; take this section literally, and Congress may declare that such act shall have the same effect in Pennsylvania or Massachusetts as it has in Virginia, and vice versa. An effect which I am sure would not be very kindly received either in Pennsylvania or Massachusetts.

To give a liberal and beneficial construction to the Constitution has ever been a favorite doctrine with me, especially in relation to the powers of the Executive, which in ordinary times is the feeblest branch of the Government. The common rules of equitable construction applicable to statutes and other instruments, apply with greater force to the Constitution of the United States, because it is more general in its terms and less specific in its provisions. I hold it therefore, sir, that we ought so to construe the Constitution as will best answer the intention which the makers had in view. That whatever is within the intent or equity of the Constitution, is within the Constitution, although it be not within the strict letter. And e contra, whatever may be within the letter, if it be not within the intent and spirit

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is not within the Constitution. These rules are founded upon the imperfection of the human mind, which cannot foresee and set down every case in express terms; upon the laws of nature and reason; upon the experience of man; and apply in all cases, except only where there is a manifest technical positive rule of law to the contrary.

I now, Mr. President, approach the main question. It arises under the second section of the second article of the Constititution.

"The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.".

It is manifest, from the first cited clause of this section, that the President and the Senate possess conjointly the general power of appointment. It is equally manifest, from the second cited clause of the section, that the President alone possesses a modified power of appointment.

The main question then is, had the President an authority, under the modified power, to issue the commissions, during the recess of the Senate, to the Ministers named in the resolutions, to continue in force to the end of the next session of the Senate and no longer.

First. Is the authority within the letter of the Constitution?

Secondly. Is it within the intent and policy of the Constitution?

I beg gentlemen to remember that it has been the wisdom of most Governments to intrust the management of their foreign affairs to the head or chief. That, under this Government, the President, as the supreme executive officer, is charged with this subject. That a Minister is no more than an agent through whom these concerns are managed. That, to manage them with success and advantage, secrecy and immediate despatch are oftentimes necessary, in negotiations particularly.

The office then of a public Minister is the medium through which the Executive is enabled to manage our foreign relations, and particularly to conduct negotiations. It is an office wholly different from the ordinary offices created by the Constitution or by law. It is an office without limitation as to number, or duration of tenure, with regard to which neither the Constitution or laws have prescribed the duties. It is without limitation as to number, because the nature of the office renders it necessary that the number should

APRIL, 1814.

depend upon the emergencies of the Government; upon the particular state of your foreign affairs; upon the number of the foreign nations with whom you have intercourse, either political or commercial. It is an office without limitation of tenure, because no one can tell how long it may be necessary to continue it. A negotiation may last a week, or it may last six months. Your intercourse with any foreign Power may be interrupted in various ways, by a misunderstanding or by a sudden rupture. It is an office to which neither the Constitution or laws have prescribed the duties, because the duties must necessarily depend upon the course of events and the particular state of our foreign relations. The duties are left with the discretion of the Executive. In short, it is an office not created by the Constitution, nor by any municipal law, but emanates from the laws of nations and is common to all civilized Governments. The Minister is subject to these laws, and he is under the protection of these laws. The Constitution barely directs the modes in which the Minister shall be appointed. But when appointed, when he shall depart, how long he shall continue, what duties he is to perform, the nature of his instructions, in short, everything that is vital, depends solely upon the Executive and the laws of nations.

It is an office, if it may be so called, sui generis. The number may be multiplied to any extent, or diminished. It is brought forth with the occasion, and disappears when the occasion ceases. When not filled, if it exists at all, it is only in contemplation. Where is the office which you, Mr. Vice President, and your associates filled, when Envoys Extraordinary and Ministers Plenipotentiary to the French Republic? Can the honorable mover lay his hand upon it, or can the powers of man reproduce it? In short, where are all the offices which our Ministers respectively have filled at the Court of London, anterior to the declaration of war? They have merged and can never again be called into action. When the relations of peace shall be restored, we shall have new appointments and new offices.

The office of a public Minister, therefore, depends upon events, upon the state of foreign affairs, and is authorized by the laws of nations. Any Government may use it, which recognises these laws, and none can which does not. For it is an office which requires the assent of foreign Powers, and depends upon the common laws of nations for protection.

Upon the whole, it is an office not durable and permanent, as are the ordinary offices established by the Constitution and by law-but ephemeral, existing no longer than the occasion which gave birth to it, and dependent upon the transitions of time and events. The office in truth attaches whenever the occasion arises to use it, and the act of appointment is the consummation of the law.

If therefore the occasion arises whilst the Senate are in session, the office must be consummated by the concurrent act of the President and the Senate. If it arises during the recess of the Sen

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ate, it may be consummated by the act of the President alone, subject however to expire at the end of the next session of the Senate.

If this view be correct, and the occasion for the office happens during the recess of the Senate, then the office attaches during the recess, and of consequence the vacancy happens during the recess, which would bring the power of the President to fill it up strictly within the letter of the Constitution.

SENATE.

one and promote the other, ought in my humble judgment to be given, provided it be within the rules of a liberal and equitable construction. Provided it be within the intent and policy of the Constitution.

What, sir, is the intent and policy of the Constitution upon this subject? The general power of appointments is given to the President and the Senate. But from the peculiar constitution of the Senate, a body composed of members coming To apply the argument to the case before us: from every State in the Union however distant, On the 8th of March, 1813, in the recess of the a body not permanently in session, but out of sesSenate, M. Daschkoff, Envoy Extraordinary and sion in common times eight months in the year, Minister Plenipotentiary of His Majesty the Em- the framers of the Constitution at once saw, that peror of Russia, by letter addressed to the Secre- the power, as a general power of appointment, tary of State, communicates to the President, was defective. Hence it became necessary to officially, the disposition of His Majesty the Em- provide a modified power to remedy this defect, peror to offer his mediation to His Majesty the and to represent the general power, when the King of Great Britain and the United States of general power was not in a condition to act. America, and at the same time declares that he, This was indispensable, or else the mischiefs and M. Daschkoff, is charged to propose it to the Pres- embarrassments resulting to the Government and ident of the United States. On the 11th of the the public must have been intolerable. The same month, the Secretary of State writes to M. modified power was therefore intended as a subDaschkoff, informing him that the President wil-stitute for the general power, when the general lingly accepts the offered mediation, to promote power was not in session, and unable to perform peace between the United States and Great Brit-its functions. In constituting this modified powain, and, further, that such arrangements would er, however, the convention was extremely guardbe made, without delay, as would afford His Im-ed by placing over it the important checks to perial Majesty the opportunity he invited, to interpose his good offices for the accomplishment of so important an event. This then is the occasion for instituting the mission to Russia. It happened in the recess of the Senate. The office then attached, and with it the vacancy, which was filled and the office perfected by issuing the commissions which must have expired with this session of the Senate. As the office and the vacancy happened during the recess, necessarily the office could not have been before full, as the first resolution would seem to require, as a pre-requisite to a vacancy happening.

Whether the letter of M. Daschkoff, of the 8th of March, conveyed the first official information to the President of the offered mediation-whether there was any preconcert to delay the official letter till the Senate had closed their session whether it was expedient or inexpedient to accept the proposed mediation-whether it comported with the honor and character of this Government to appoint and despatch the Commissioners, upon the mere presumption that Great Britain would accept the mediation, and also appoint commissioners to meet ours, are questions not involved in this discussion. If they were, they are questions which rather concern the abuses, than the rights of power.

which I have before adverted, namely; first, that it shall be exercised only when the general power is not in session: secondly, that the commissions issued by it shall endure no longer than necessary to give the general power an opportunity to act upon them. All I contend for is, that we ought not so to restrict the modified power as to defeat the remedy or render it short of its object; that the modified power ought to be able so to act, as to supply the defect of the general power, and that whatever authority is necessary fairly to this purpose is within the intent and equity, if not the letter of the Constitution. A case, not within the letter of a statute, is sometimes holden to be within the meaning, because it is within the mischief for which the remedy is provided. It is an established rule of law that such a construction ought to be put upon a remedial statute, as will tend to suppress the mischief intended to be remedied.

Let us now test the construction contended for by the honorable mover, by these rules and principles. Let us see, if, according to his construction, the remedy is calculated to suppress the mischief. Illustrations to show its inadequacy are innumerable.

Take the case of the ordinary offices established by the Constitution and by law. Suppose I am aware, sir, that the ground which I have any one of them to become vacant by death durdiscussed, is not without its difficulties. To bringing the session of the Senate, and that no account the case within the dead letter, is a task of no very easy performance. But, in my view, all difficulties and doubts vanish before the second ground, which I am about to enter upon, and upon which I principally found my opinion.

The primary objects of the Constitution are, the public peace and general welfare. Whatever interpretation may be calculated to insure the

of the death reaches the President before the Senate close their session. Here the vacancy does not happen during the recess, but during the session. Suppose the Collector of the port of New Orleans to die on this day, and that the intelligence of his death does not reach this place before we adjourn. In this case the vacancy surely does not happen in the recess. What is

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to be done? The Collector is an officer whose services are necessary to the daily operations of the Government. Are the Senate to be convened? Well. The Senate are convened from all parts of this extended empire, at great expense to the nation and personal inconvenience to the members. To do what? To appoint a Collector! Well. The Collector is appointed and the Senate are adjourned; but, before many of the members get to their distant homes, it is announced that the Distrct Judge in the State of Vermont is dead, and that he died while the Senate were in session appointing the Collector for New Orleans. Sir, where is this expense and perplexity to end?

Mr. President, if these ordinary occasions illustrate the incompetency of the remedy, as the honorable mover would restrict it, the extraordinary offices of public Ministers still more forcibly and irresistibly illustrate it.

In the management of the foreign affairs of a great commercial nation, having intercourse with all the commercial Powers of the earth, in order to keep up this intercourse to advantage, and to preserve the relations of peace and friendship, many agents, diplomatic and consular, are necessary. In the appointment of these the utmost secrecy and despatch are oftentimes of vital importance.

In seasons of war everything may depend on time. The event of a single battle may present a happy moment for negotiation. Great and sudden changes are perpetually taking place in the affairs of nations. A sudden war may break out between one nation and another, between a foreign Power and the United States; and will the honorable mover have it that there is no power in this Government competent to act with all the secrecy and promptitude which such an emergency might require?

Sometimes it may so happen that the time for instituting a negotiation may not depend on our. selves, but other Powers. Suppose a General Congress, to treat of a general peace, be agreed upon, and the United States are invited to join. The delay incident to the invitation would be long enough, but if the preparatory steps are to be retarded until the Senate could be called, it is more than probable that the other Powers concerned would not have the patience to wait for us. Indeed their views and situation might not admit of it.

Take the doctrine of the honorable mover, and if a decisive battle be fought in Canada, resulting in our favor, and the enemy offer peace on our own terms, there is no power to appoint a commissioner even to conclude the preliminary articles, without a delay of at least two months, if the Senate happen not to be in session! In the mean time the enemy may be reinforced, or other changes happen, and the advantageous moment to end the war be lost, perhaps, forever.

If the late despatch from Lord Castlereagh had arrived in the recess of the Senate, as it well might have done, was the President to wait till the Senate could be convened, without taking

APRIL, 1814.

even a preparatory step? Must the war be waged two months longer, and must the enemy wait our own time?

Suppose England had in good faith accepted the offered mediation of Russia, and that the acceptance had been announced with the offer to us, were we to wait until the Senate could be got together? Were two precious months to be Lost?

If your citizens are in captivity in Algiers-if your seamen are unjustly and cruelly confined in a foreign port, and the intelligence happen to arrive during the recess, the President has not even the power to appoint even a Consul to go to their immediate relief!

Surrounded as we are with Indian tribes, if a war suddenly break out, in the recess of the Senate, there is no power to send a commissioner to make explanations or to treat with the hostile tribe-nor to make friends with the neighboring tribes, but we must wait until the Senate are summoned; and in the mean time those we might have gained over to us are by the delay turned against us.

Sir, the construction contended for by the honorable mover, is fraught with mischievous consequences, with evils and embarrassments incalculable. There is a passage in one of the numbers of the Federalist (by Mr. Hamilton) so applicable to this subject, that I will, with the permission of the Senate, trouble them while I read it

"It seldom happens in the negotiations of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us that there hours are precious. The loss of a battle, the death of frequently are occasions when days, nay, when even a Prince, the removal of a Minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important, in a national view, than as they tend to facilitate the attainment of the objects of the negotiation."

I contend for no more than, that the President, in the absence of the Senate, should possess the power to adopt those preparatory and auxiliary measures, without which, to use the language of the accomplished statesman just quoted, the Constitution would have been inexcusably de

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