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assailing their integrity, by the promise of security even in case of defeat ; of impunity even after detection. The experience of all ages and of every nation has therefore pointed to the necessity of erecting some barrier against the abuse of of those immunities and privileges, with which foreign ministers have at all times, and every where, been indulged. In some aggravated instances the rulers of the state, where the crime was committed, have boldly broken down the wall of privilege under which the guilty stranger would fain have sheltered himself, and in defiance of the laws of nations have delivered up the criminal to the tribunals of the country, for trial, sentence and execution. At other times the popular indignation, by a process still more irregular, has without the forms of law, wreaked its vengeance upon the perpetrators of

those crimes, which otherwise

must have remained unwhipp'd of justice. Cases have sometimes occurred, when the principles of self preservation and defence have justified the injured government, endangered in its vital parts, in arresting the person of such a minister during the crisis of danger, and confining him under guard until he could with safety be

removed : but the practice which

the reason of the case and the usage of nations has prescribed and recognized, is, according to the aggravation of the offence, to order the criminal to depart from the territories, whose laws he has violated, or to send him home, sometimes under custody, to his sovereign, demanding of him that justice, reparation and punishment, which the nature of the case requires, and which he alone is entitled to dispense. This power is

admitted by the concurrent testimony of all the writers on the laws of nations, and has the sanction of practice equally universal. It results indeed as a consequence absolutely necessary from the independence of foreign ministers on the judicial authority, and is perfectly reconcileable with it. As respects the offended nation, it is a measure of self-defence, justified by the acknowledged destitution of every other remedy. As respects the offending minister, it is the only means of remitting him for trial and punishment to the tribunals whose jurisdiction he cannot recuse ; and as respects his sovereign, it preserves inviolate his rights, and at the same time manifests that confidence in his justice, which civilized nations, living in amity, are bound to place in each other.”

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On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the constitution of the Unites States congress are authorized to define and punish offences against the law of nations, yet this did not im” ply a power to innovate upon those laws. I could not be ignorant that the legislature of one individual, in the great community of nations has no right to prescribe rules of conduct which can be binding upon all, and therefore in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path ; not to vary one jot or one tittle from the prescriptions of immemorial usage, and unquestioned authority.

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

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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 ap§ to the chief magistrate of the nion 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.f

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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 negociating with foreign states, are committed to the same hands, this nice discrimination of the specifick 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 ap- . pears 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 G.

Britain of 19 Nov. 1794, in the 26th article.t 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 ef#. as it ever could be. Its provisions are still binding upon both parties, as part of the law of nations, tho’ 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

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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 2 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 2 That the power is beyond all 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 candour add, that if, after a due consideration of the subject, the senate 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. By the constitution of the United States, the executive power generally is vested in the president, and he is expressly authorized and directed to “receive ambassadors and other publick ministers.” Now Sir, by the general grant of the executive power, according to the writers who have scrutinized and discriminated with the nicest ..ccuracy the powers of government, the power of declaring war would of course be included. Such is the opinion not only of Montesquieu, but of stousseau, the most republican of writers on laws and constitutions. The practice of all the governments in Europe which ever recognized the division of powers 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, ar.l by this grant of power he must be authorized to determine when,

how, and 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 lias been admitted. This includes, as it appears to me, the right to request his recal, 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 him home by constraint, is not in my mind absolutely beyond a doubt. Ceasing to receive him as a publick minister, is not ordering him away; much less is it sending him home. It is clear the constitution did not intend the president sheuld have the power to 'send home a foreign minister in some cases ; it has uot, in express terms, given him the power in any ease. 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 revocations of exeguaturs 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 exeguasur is barely equivalent by analogy to the cessation to receive a minister. It neither sends the man away, nor even orders him to depart. But it has been the fortune of this bill to be attacked from quarters in direct opposition to each other; and while, on the one hand, it has been censured as vesting in the president a power which beyond all question he possesses already ; on the other it has been blamed as putting in his hands a power which beyond all question he has not, and which the constitution never intended he should have. This construction of our constitution has been laid down, Sir, for our edification and improvement, by a foreign minister, in his correspondence. with our secretary of state, which I speak of as a matter of publick notoriety, because it has been published in all our newspapers, and remains uncontradicted. I must however observer 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. I had not imagined that the true intent and meaning of our

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