In consulting for this purpose the writers, characterized by one of our own statesmen in a pamphlet recently laid on our tables, as “the luminaries and oracles to whom the appeal is generally made by nations who prefer an appeal to law rather than to power,” I found that they distinguished the offences which may be committed by foreign Ministers into two kinds—the one against 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 reparation 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.
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 Governments, where the power of declaring war and that 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 recognized in a remarkable manner by this Government in the treaty with Great Britain of the 19th November, 1794, in the twenty-sixth article.
Here, sir, the sending home a Minister for national causes is recognized 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 previous existence of the right is recognized by the stipulation that both parties shall retain it. This is one of the articles of the treaty which have expired; 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.
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 respect 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[30] 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 duties 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 account 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 Counsel 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 Sovereign himself is above all responsibility, and the Minister 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 to the other foreign Ministers residing in the United States, with copies of his letter to the Secretary of State, as if these foreign Ministers were the regular umpires between him and our Government. Not content however with this appeal, he authorizes them to give copies of his letters to ensure that publication with which our Government had not gratified him, and calls at once upon the American people, and upon the European Courts, to decide between the President and him. Here, too, sir, I beg gentlemen to abstract the particular instance from the general principle of this 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.
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 extraordinary step, and the reciprocal communication of diplomatic memorials concerning the affair 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 foreign Ministers to countenance his presumption—and intrenching himself behind the example of another nation, once made the victim of a like usurpation! The resemblance is but too strong, and will, I hope, not be forgotten by us. If the constitutional powers of a Dutch Stadtholder were prescribed and moulded according to the pleasure and by the interference of foreign Powers, (as undoubtedly they were,) let us remember the fact with a determination never to be so controlled ourselves. It is held up to us as an example: let us take it as warning.
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 submit—which 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.