SENATE.

Privileges of Foreign Ministers.

MARCH, 1806.

The third section brings me to the consideration of the relation which the bill bears to the Constitution of the United States. It contains a regulation, the object of which is at once to prevent all misunderstanding by the offending Minister's Sovereign of the grounds upon which he should be ordered to depart or sent home, and to mark by a strong line of discrimination the cases when a foreign Minister is dismissed for misconduct, from those when he is expelled on account of national differences. In this latter case, by the general understanding and usage of nations, an order to depart given to a foreign Minister is equivalent to a declaration of war. In the European Govern

the municipal laws of the country where they reside, and the other against the Government or State to which they are accredited; and that they recommended a correspondent modification of the manner in which they are to be treated by the offended Sovereign. The first section of the bill therefore directs the mode of treatment towards foreign Ministers guilty of heinous offences against the municipal laws; for, as to those minor transgressions which are usually left unnoticed by other States, I have thought no provision necessary for them. The section points out the mode by which the insulted State or injured individual may apply to the Chief Magistrate of the Union for redress, and by what process the President may obtain rep-ments, where the power of declaring war and that aration from the offender's Sovereign, or, in case of refusal, dismiss the offender from the territories of the United States.*

The second section provides for the case of offences against the Government of the nation. If the insult is direct upon the President of the United States himself, it authorizes him at once to discard the offender; if the injury be against the nation, by any conspiracy or other act of hostility, it offers the means of removing at once so dangerous a disturber of the public tranquillity. This also will be found exactly conformable to the directions in Vattel.†

transgressed against the person of the Sovereign, or against the State, which is usually called treason or hostility.-Byndershoek. De foro Legatorum, with Barbeyrac's Commentary, chap. 17, sec. 6.

* Should an Ambassador forget the duties of his station; should he render himself disagreeable and dangerous, from cabals and enterprises; pernicious to the tranquillity of the citizens, the State, or Prince, to whom he is sent; there are several ways of correcting him, proportionate to the nature and degree of his fault. If he maltreats the subjects of the State-if he commits any acts of injustice or violence towards them-the subjects injured are not to seek redress from the common magistracy, the Ambassador being independent of their jurisdiction; consequently, those magistrates cannot proceed directly against him. On such occasions, the Sovereign is to be applied to; he demands justice from the Ambassador's master, and, in case of a refusal, may order the insolent Minister to quit his dominions. Vattel, book 4, chap. 7, sec. 94.

of negotiating with foreign States are committed to the same hands, this nice discrimination of the specific reasons for which a Minister may be dismissed is far less important than with us. The power of declaring war is with us exclusively vested in Congress; and as the order to depart, when founded on national disputes, amounts to such a declaration, it appears to me, by fair inference, that for such cause the President of the United States cannot issue such an order without the express request or concurrence of Congress to that effect. It was from this view of the subject that, in the present bill, the power vested in the President to send home a culpable Minister is so precisely limited to the cases when the Minister shall have deserved that treatment by his personal misconduct. This distinction between the causes for which a foreign Minister may be sent home has been solemnly recognised in a remarkable manner by this Government in the treaty with Great Britain of the 19th November, 1794, in the twentysixth article.*

Here, sir, the sending home a Minister for national causes is recognised to be the very test of a rupture, and exactly tantamount to a declaration of war. But the same act, done for the Minister's personal misconduct, is acknowledged to be a right of both parties, which they agree to retain; and it is stipulated that it shall not in that case be deemed equivalent to a rupture. The expressions used imply that the parties did not consider themselves as introducing in this part of the article a new law, but as explaining the old. It is merely declaratory, " "for greater certainty," and the pre

stipulation that both parties shall retain it. This is one of the articles of the treaty which have ex

only as a Minster of Peace.- Vattel, book 4, chap. 7, sec. 95, 96.

Should a foreign Minister offend the Prince him-vious existence of the right is recognised by the self-be wanting in respect to him—and by his intrigues raise disturbances in the State and Court, the injured Prince, from a particular regard to the Minister's master, sometimes requires that he should be recalled; or, if the fault be more heinous, the Prince forbids him the Court till he receives an answer from his master; but in important cases, he proceeds so far as to order him to quit his dominions. Every Sovereign has an unquestionable right to proceed in this manner; for, being master in his own dominions, no foreigner can stay at his Court or in his dominions without his permission. And though Sovereigns are generally obliged to hear the overtures of foreign Powers, and to admit their Ministers, this obligation ceases entirely with regard to a Minister who, being himself wanting in the duties incumbent on him from his character, becomes dangerous, or justly suspected by him to whom he is to come

And for greater certainty it is declared that a rupture shall not be deemed to exist while negotiations for accommodating differences shall be depending, nor until the respective Ambassadors or Ministers (if such there shall be) shall be recalled or sent home on account of such differences, and not on account of personal misconduct, according to the nature and degrees of which both parties retain their rights either to request the recall or immediately to send home the Ambassador or Minister of the other, and that without prejudice to their mutual friendship and good understanding.-Treaty with Great Britain, 19th November, 1794, art. 26.

MARCH, 1806.

Privileges of Foreign Ministers.

pired; but as expressing the sense both of our own nation and of Great Britain upon the subject to which it relates, it is as effectual as it ever could be. Its provisions are still binding upon both parties as part of the law of nations, though they have ceased to be obligatory as positive stipulations.

This view of the subject will also furnish me with an answer to the question which has more than once been put to me, and which may perhaps be repeated here. It has been asked, whether the first and second sections of the bill are not superfluous-whether the cases are not already provided for, and whether the President does not, beyond all question, possess the power which they purpose to vest in him?

That the power is beyond question vested in him is, sir, more than I can take upon me to say. Had I thought it beyond all question, I certainly should not have brought forward the bill in its present shape. And I will in candor add, that if, after a due consideration of the subject, the Sen ate should be of opinion that the power is vested in him beyond all question, they will of course either reject the bill, or reduce it to a mere modification of the manner in which he shall exercise the right, whenever he shall deem it expedient.

SENATE.

him home by constraint, is not in my mind absolutely beyond a doubt. Ceasing to receive him as a public Minister is not ordering him away, much less is it sending him home. It is clear the President should have the power to send home a foreign Minister in some cases: it has not, in express terms, given him the power in any case. Whether he has it by implication, in the case of a Minister's misconduct, seems to me not absolutely beyond a doubt, and I believe the very doubt in a point of this magnitude would operate to prevent its exercise in a case of the utmost need. That doubt it was my purpose by this bill to remove. To remove it (if it exists) is unquestionably within the power of Congress, and the occasion calls loudly for their interposition. The doubt appears the more rational from the fact that the power has never been exercised. The revocation of exequaturs of two foreign Consuls by President WASHINGTON have been mentioned as cases in point, but are not applicable; for in the first place, Consuls are not entitled to the privileges or immunities of foreign Ministers; and in the next, the revocation of an exequatur is barely equivalent by analogy to the cessation to receive a Minister: it neither sends the man away, nor orders him to depart.

it has been published in all our newspapers, and remains uncontradicted. I must however observe, that at the time when this bill was introduced, I had never seen and had no knowledge of this learned Spanish commentary upon the Constitution of the United States.

But it has been the fortune of the bill to be atBy the Constitution of the United States, the tacked from quarters in direct opposition to each Executive power is generally vested in the Presi- other; and while on the one hand it has been cendent, and he is expressly authorized and directed sured as vesting in the President a power which to "receive Ambassadors and other public Minis- beyond all question he possesses already, on the ters." Now, sir, by the general grant of the Ex- other it has been blamed as putting in his hands ecutive power, according to the writers who have a power which beyond all question he has not, scrutinized and discriminated with the nicest ac- and which the Constitution never intended he curacy the powers of Government, the power of should have. This construction of our Constitudeclaring war would of course be included. Such tion has been laid down, sir. for our edification and is the opinion, not only of Montesquieu, but of improvement by a foreign Minister in his correRousseau, the most republican of writers on laws spondence with our Secretary of State, which I and constitutions. The practice of all the Gov-speak of as a matter of public notoriety, because ernments in Europe which ever recognised the division of power is conformable to this theory. But our Constitution has expressly made the declaration of war a Legislative act, and, by fair inference, whatever is by the custom of nations equivalent to a declaration of war, we are bound to consider as a Legislative act also. Thus, then, although the President is invested with the executive power, and although he is to receive foreign Ministers, yet, not having the power to declare war, he cannot possess that of ordering away a foreign Minister for causes of national difference, because that is a virtual declaration of war. He is authorized to receive foreign Ministers, and by this grant of power he must be authorized to determine when, how, whom, he will receive as such. He must be considered as possessing the power to determine upon all those cases when a man, coming as an accredited Minister, may by the laws of nations be denied a reception; and he must also be allowed to determine when he will cease to receive a man in that capacity, after he has been admitted. This includes, as it appears to me, the right to request his recall, and even to intimate the wish to a foreign Minister that he would depart; but whether it also includes the power positively to order his departure, and, still more, to send

I had not imagined that the true intent and meaning of our great national compact was to be settled by a foreign Minister, neither did it enter my heart to conceive that the Government of the United States was to receive lessons from a Spaniard upon the extent of its Constitutional powers. Yet, sir, so it is. The Spanish Minister has first chosen to construe into an order what he was expressly told was not an order, and next to tell the Secretary of State that this order is contrary to the spirit of the Constitution and Government of this country. I find, however, that there are even American citizens who think with this diplomatic expounder of our laws, that the President in no case has the power to order a foreign Minister to depart from our territories. I have myself always inclined to the opinion, that, for these cases of personal misconduct, the power of removal was given by the spirit of the Constitution, though not perhaps by its letter. That he ought to possess it, is not in my mind a subject of doubt at all; for, con

Privileges of Foreign Ministers.

MARCH, 1806.

Privileges of Foreign Ministers.

Constitution has left it in the discretion of Congress to prescribe the manner of carrying its injunctions into effect. The very first law in your statute book is an example of the same description. The Constitution had enjoined that all civil officers of the United States and of the several States should be sworn to its support, but had not particularized the manner of administering the oath; and the first act of the first Congress, under our present Constitution, was to provide the necessary regulation.

SENATE.

It may now perhaps be expected, sir, that I should give some explanation of the more immediate circumstances in which the bill originated. And here I am sensible that I tread upon delicate ground. So highly honorable and respectable is the office of a foreign Minister, that to treat him with disrespect in common discourse, and still more in Legislative deliberation, would be without excuse, were his own conduct altogether unexceptionable. Should the occasion ever happen that a foreign Minister, by his own violation of all the common decencies of social intercourse towards the Government to which he was accredited, should forfeit every right to personal respectereign himself is above all responsibility, and the or esteem, still I hope. sir, I should not forget the consideration due to the credentials of his Sovereign; still I should think myself bound to observe all that moderation of expression which can be consistent with the sentiments of indignation involuntarily excited in my breast by an insult upon the Government of my country.

Within a few days after the Message of the President at the commencement of the present session of Congress was made public, the Spanish Minister addressed to the Secretary of State a letter couched in terms which it cannot be necessary for me to particularize, and containing, not only strictures of the most extraordinary nature upon all the parts of that Message respecting Spain, but complaints no less extraordinary at what it did not contain. Consider this procedure in its real light, sir, and what is it? A foreign Minister takes to task the President of the United States for the manner in which he has executed one of the most important functions enjoined upon him by the Constitution. He not only charges him with misrepresentation in what he did say, but he presumes to dictate to him what he should have said. I forbear all comment upon this conduct as it relates to the present Chief Magistrate. I ask you, sir, and I entreat every member of this Senate to ask himself, What is its tendency as it relates to our country? The Constitution of the United States makes it one of the President's most solemn du ties to communicate to Congress correct information relating to the state of our public affairs. In every possible case of disputes and controversies of right between the United States and any foreign nation, the Minister of that nation must have an interest-and the strongest interest, to give a gloss and coloring to the objects in litigation-opposite to the interest of our country. If, whenever the President of the United States, upon the high and solemn responsibility which weighs upon every act of his official duty, gives to Congress that ac

count of our foreign relations which is necessary to enable them to adapt their measures to the circumstances for the general welfare of the Union, a foreign Minister, under color of his official privileges, is to contradict every part of his statements, to impeach the correctness of his facts, and to chide him even for his omissions, to what an abyss of abasement is the Chief Magistrate of this Union to be degraded! The freedom which a Spanish Minister, unreproved, can take to-day, a French Minister would claim as a right to-morrow, and a British Minister would exercise without ceremony the next day. A diplomatic censorship would be established over the Supreme Executive of this nation, and the President would not dare to exhibit to Congress the statement of our national concerns, without previously submitting his Message for approbation to a Cabinet Council of foreign Ministers. Under the British Constitution, the speeches of the Sovereign to his Parliament are all settled in his Privy Council, and the Royal lips are understood to give utterance only to the words of the Minister. The reason of this is, that by the forms of their Constitution the SovMinister is the person accountable to the nation for the substance of the discourse delivered by his master. In their practice, therefore, the speech is made by him on whom the responsibility rests. But if this new assumption of the Spanish Minister is submitted to, our practice will be an improvement on the British theory of a singular cast indeed; for, while the responsibility will rest upon the President who delivers the Message, its contents will be dictated by persons not only loosed from all responsibility to our country, but bound in allegiance, in zeal, in duty, to the very Princes with whom we have to contend. The same control which by this measure is attempted to be usurped over the acts of the President will at the next step, and by an easy transition, be extended to the Legislature; and, instead of parcelling out the Message among several committees for their consideration, we shall have to appoint committees upon every part of the Message relating to any foreign Power to wait upon the Minister of that Power, and inquire what it is the pleasure of his master that we should do.

That such is the inevitable tendency and the real intention of the proceeding will appear, not only from a due consideration of the act itself, but from a proper estimate of its avowed motive, and from the subsequent conduct of the same Minister. He addressed this letter to the Secretary of State, not for the purpose of asking any explanation-not for the purpose of giving any satisfaction-not for any of the usual and proper purposes of a diplomatic communication-but (as he himself declares) for our Government to publish, with a view to counteract the statements of the President's Message. It was a challenge to the President to enter the lists of a pamphleteering war against him, for the instruction of the American people and the amusement of foreign Courts; and having failed in this laudable project he addresses, after the expiration of forty days, a circular letter

SENATE.

Privileges of Foreign Ministers.

MARCH, 1806.

to the other foreign Ministers residing in the Uni- foreign Ministers to countenance his presumpted States, with copies of his letter to the Secre- tion-and entrenching himself behind the examtary of State, as if these foreign Ministers were ple of another nation, once made the victim of a the regular umpires between him and our Gov-like usurpation! The resemblance is but too strong, ernment. Not content however with this appeal, and will, I hope, not be forgotten by us. If the he authorizes them to give copies of his letters to constitutional powers of a Dutch Stadtholder were insure that publication with which our Govern- prescribed and moulded according to the pleasure ment had not gratified him, and calls at once upon and by the interference of foreign Powers, (as unthe American people, and upon the European doubtedly they were,) let us remember the fact Courts, to decide between the President and him. with a determination never to be so controlled Here too, sir, I beg gentlemen to abstract the par- ourselves. It is held up to us as an example: let ticular instance from the general principle of this us take it as warning. transaction. The same act which under one set of circumstances can only excite contempt, under another becomes formidable in the extreme. Of the newspaper appeal to the people I say nothing. The people of this country are not so dull of understanding or so depraved in vice as to credit the assertions of a foreigner, bound by no tie of duty to them-the creature and agent of their adversary-in contradiction to those of their own officer, answerable to them for his every word, and stationed at the post of their highest confidence. But the circular to the other foreign Ministers is a species of appeal hitherto unprecedented in the United States. And what is its object? The information of their Courts; that the Governments of France and Great Britain may learn from him the justice and generosity of his master.

The subsequent proceedings of the Spanish Minister have been all in the same spirit with that under which he presumed to call upon the President to enter the lists of altercation with him before the people of this country. They manifest pretensions to which we ought not to submitwhich we ought vigorously to resist. In his last letter to the Secretary of State, he tells him that he will receive no orders but from his own master. Now, if this has any meaning, it must be to deny the United States the right of ordering him away: that is one of the most indisputable rights of every Sovereign Power. When pretensions so destitute of all foundation are advanced, it becomes us immediately to show our sense of them: not to resist them might be construed into acquiescence. It is a virtual dereliction of our rights not to defend them when they are assailed.

I am indeed fully sensible that the operation of the bill I have proposed, should it meet the sanction of Congress, will not be retrospective-that to what has passed no remedy which can now be provided will apply-but we may prevent in future

It is probable that both those nations-the ally and the enemy of Spain-have much better materials for estimating the justice and generosity of His Catholic Majesty; but what have they to do in the case? By an anonymous newspaper publication, the idiom of which discovers its origin, a precedent is alleged in justification of this extra-occurrences of a like character, and of much more ordinary step, and the reciprocal communication of diplomatic memorials concerning the affairs of Holland in the years 1786 and 1787, between the Ministers of Great Britain, France, and Prussia, at the Hague, is gravely adduced as warranting this innovation of the Spanish Minister here. The very reference to that time, place, and occasion, would of itself be a sufficient indication of the intent at this time. In the years 1786 and 1787, the three Powers I have just mentioned undertook, between them, not only to interfere in the internal government of Holland, but to regulate and control it according to a plan upon which they were endeavoring to agree. Their Ministers, therefore, very naturally communicated to each other the memorials which they presented to the Dutch Government. And what was the result? Two of those three Powers fixed between themselves the doom of Holland-raised a tyrannical faction upon the ruins of that country's freedom, and marched the Duke of Brunswick at the head of thirty thousand men into Amsterdam, to convince the Hollanders of the King of Prussia's justice and generosity.

This, sir, is the precedent called to our recollection for the purpose of reconciling us to the humiliation of our condition. We are patiently to behold a Spanish Minister insulting the President of the United States-dictating to him his construction of our Constitution-calling upon other

dangerous consequence. We may prevent the spreading of an evil which threatens the dearest interests of the nation; we may prevent even the repetition of insults and injuries, which, but for the want of the regulations now proposed, in all probability never would have been offered. In my own opinion, the necessity for some Legislative provision upon this subject will force itself upon this Government with additional pressure, from year to year, until it can no longer be resisted. If foreign Ministers are to possess in the United States an unbounded independence of all the tribunals of justice, while the United States on their part are to be deprived of the ordinary means of selfdefence, enjoyed and exercised by all other Sovereigns, to check the abuse of those formidable privileges, the course of events will, in my belief, at no very distant day, bring us into that unhappy dilemma which will leave no other alternative than to infringe the laws of nations or to sacrifice our Constitution-to commit violent outrage upon the rights of others, or to make a dastardly surrender of our own.

Mr. President, I ask your forgiveness, and that of the Senate, for having trespassed so long on your and their indulgence. They have now before them the principles and the motives on which the bill was first introduced: it is for them to determine on their justice and propriety. Should they think that my feelings or prejudices have