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 Jaw 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 up on 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

and afterwards put into the baftile; whence he was taken, fent to Calais in cuftody, and there embarked. In 1667, the queen regent of Spain ordered the archbishop of Embrun, ambaffador of Spain, to withdraw; and would not fuffer him to wait in Madrid for the letters which he expected to receive by the first courier. All he could obtain was to stop at Alcala until their arrival; and there he received them. Wiquefort.1.5.30. An embassador ought to be independent of every power, except that by which he is fent: and of confequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. If he grofsly affends, or makes an ill ufe of his character, he may be fent home and accufed before his master; who is bound either to do justice upon him, or avow himfelf the accomplice of his crimes. Chrift ian's Blackstone. Vd. 1. p. 253.—Su alfe Montefquicu. Sp. L. 26. 21.

made by nations who prefer an ap peal 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 * 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 sov➡ ereign, or, in case of refusal, dismiss the offender from the territories of the United States.t

crime, deferving punishment in a course Suppofe an ambaffador guilty of of juffice; where then is he to be ac cufed and punished?

between two forts of crimes, of which an In this question we must distinguish ambaffador may have been guilty. Eith injurious to civil fociety and the publick er he has fimply committed an offence tranquillity, fuch as homicide, adultery, or almost any other of the common crimes as they may be termed ; or he has trans greffed against the perfon of the fovereign, or against the ftate, which is ufually called treafon or beftility. Bynkerfhock. De fore Legatorum, with Barbeyras's commentary, chap. 17, §. 6.

↑ Should an ambaffador forget the duties of his station, should he render him felf difagreeable and dangerous, from cabals and enterprizes, pernicious to the

The second section provides for the case of offences against the government or the nation. If the insult is direct upon the president of the United States himself, it authorises 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 publick tranquillity. This also will be found exactly conformable to the directions in Vattel.*

tranquillity of the citizens, the state, or prince, to whom he is fent, there are feveral ways of correcting him, proportionate to the nature and degree of his fault. If he maltreats the fubjects of the ftate, if he commits any acts of injuftice or violence towards them, the fubjects inju red are not to seek redress from the com

mon magiftracy, the ambaffador being independent of their jurifdiction; confequently thofe magiftrates cannot proceed directly against him. On fuch occafions the fovereign is to be applied to he demands juftice from the ambassador's master, and, in cafe of a refufal, may order the infolent minifter to quit his dominions. Vattel. Book 4, ch. 7, §. 94.

Should a foreign minister offend the prince himself, be wanting in respect to him, and by his intrigues raife difturbances in the state and court, the injured prince, from a particular regard to the minifter's mafter, fometimes 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 cafes he proceeds fo far as to order him to quit his dominions. Every fovereign has an unquestionable right to proceed in this manner; for, being malter in his own dominions, no foreigner can stay at his court or in his dominions without his permiffion. And though sovereigns are generally obliged to hear the overtures of foreign powers, and to admit their minifters, this obligation ceafes entirely with regard to a minifter who, being himfelf wanting in the duties incumbent on him from his character, becomes dan gerous or justly fufpected by him to whom he is to come only as a minifter of peace. Vattel. Book 4, ch. 7, §. 95, 96.

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 that of negociating with foreign the power of declaring war, and

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 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 per sonal misconduct. This distinction between the causes for which a foreign minister may be sent home has been solemnly recognize ed, 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 effectual 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

† ... And for greater certainty, it is declared, that a rupture fhall not be deem ed to exift, while negociations for accommodating differences fhall be depending, nor until the refpective ambaffadors or ministers, if fuch there fhall be, fhall be recalled, or fent home on account of

fuch differences, and not on account of perfonal misconduct, according to the nature and degrees of which, both par ties retain their rights either to requeft the recal, or immediately to fend home the ambassador or minister of the other t

and that without prejudice to their thu tual friendship and good understanding, Treaty with G.Britain, 19 Nov. 1794, art.26. Vol. III. No. 5. 2 L

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 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 :.c

curacy the powers of government, the power of declaring war would of course be included. Such is the opinion not only of Montesquieu, but of Rousseau, 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 na

tions 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-1 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 has 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 or der 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 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 absoJutely beyond a doubt, and I be lieve 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 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 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 observe, that at the time when this bilk 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