Now, sir, if the President and his friends can accomplish this, even at the expense of reviving those party feelings which were so strongly excited in relation to the Panama mission, they are certainly at liberty to do so. But, if they propose to do it with our assistance, we must at least require that the means, to which we are called upon to give our sanction, must be wholly unexceptionable. If we are to relinquish the victory and fight the battle over again, we must at least stipulate for the use only of lawful weapons. The object is to prove that the Panama mission, as projected by Mr. Adams at the commencement of his administration, and which we then denounced as dangerous to the peace and safety of this country, was a wise and prudent measure. And how is it proposed to prove this? By the message and documents submitted to the Senate at the time when we were called upon to give our advice and consent to the mission? No, sir, but by the instructions subsequently given to his ministers by the President, after he had probably been driven, by the discussions here, and the force of public opinion, to abandon his original plan entirely. In other words, it is proposed to show the true objects. of the mission, at its inception, not from the express declarations of the Executive, made to us at that time, but from the secret instructions prepared at a subsequent period, neither submitted to us nor to the world, and doubtless so modified as to remove most of the objections urged here against the measure. We are to be brought up for trial before the public under an ex post facto law, prepared expressly for the case, and this when all the circumstances are almost forgotten.

The instructions to the ministers at the Congress of Panama not only can afford no standard by which to determine the true character of the mission originally, but must necessarily mislead all who look to them for information on that subject. When the President first submitted the project of that mission to the Senate, it was expressly stated that one of its objects was to instruct the people of South America in the principles of religious freedom; another object, very distinctly indicated, was the formation, this side of the Atlantic, of "an alliance of free States," as a counterpoise to "the Holy Alliance" of Europe; and another was, the redemption of Mr. Monroe's celebrated pledge on that subject. A new code of national law was to be introduced, and, in short, matters deeply involving the neutral relations and future policy of this country were to be discussed and settled. But, sir, when the impolicy and danger of such a mission had been demonstrated by those with whom I had the honor to act on that memorable occasion, the President changed his ground entirely. Instead of introducing the principles of religious freedom, "the right of burial" was merely to be secured to American citizens, and, in short, the whole character of the mission was so completely changed, that, in its new dress, it could hardly be recognized by friends or foes. Three different metamorphoses did the Panama mission undergo, before it was suffered to appear before the public; dangerous, as it assuredly was, in its original design, it was finally reduced to a mere empty pageant before it received the sanction of Congress, and no one has ever doubted, that the instructions subsequently given must have been made to conform with the new character it had assumed These documents, it is naturally to be presumed, afford very sufficient evidence that the President, in preparing instructions for his plenipotentiaries, was not unmindful of those he had himself received from the Representatives of the people in this and the other branch of the National Legislature. It is hardly indeed to be supposed, that the American plenipotentiaries were authorized to enter into any arrangements that could compromit our neutrality after the House of Representatives had, by an express resolution, positively declared it was not their

[MARCH 3, 1829.

intention to sanction any such proceeding. If, sir, the object of the President be, as has been avowed, to give to the American people full and correct information as to the true character of the Panama mission, that object has already been fully accomplished.

The three sets of documents communicated to the Senate and House of Representatives have all been published, accompanied by the explanatory messages of the President, and the arguments of all those who took the different sides of the question. The public mind has been made up with all the lights that the facts of the case and the most elaborate arguments could afford. The instructions, if intended to bear at all on the question of the true character of the mission, as originally projected, can have none but a delusive effect, and therefore, the President has no claim that we should lend our aid to their publication. I think it proper, however, to add, that, if it shall appear on examination, that these documents contain nothing which the interests of the country require to be kept secret, I shall have no objection to their publication. The most that I should, in that event, require, would be, that these papers should be printed in connection with the others, so as to present, in one view, the original plan of the Panama mission, and the modifications it has subsequently undergone. Such a publication, in bringing the whole case before the public, would enable them to award the meed of praise or of censure to those who have taken part in this great controversy. But, until we shall have the report of the Committee of Foreign Relations upon these papers, we ought not to take another step in the business. This proceeding on the part of the President, in throwing these papers into the Senate, at the very close of his political life, appears to me so extraordinary, that I do not feel disposed to act without the utmost caution and deliberation; and, under all the circumstances of the case, I must acknowledge that I do not feel the force of the appeals made on this occasion to our justice and liberality.

Mr. CHAMBERS said he was unable to discover the force of the objection urged by the Senator from South Carolina. A pervading error ran through his whole argument. The Senator assumes the contents of the papers to be such as to render their publication improper. The obvious answer to this was, that the constitution had made the President the judge of that matter; it gave to him the power to divulge to Congress, and to the public, what, on his responsibility, he might think it safe and proper to communicate. It did not give to the Senate an appellate power over his judgment. The Senate was no more the constitutional guardian of the President than of the House of Representatives. But this doctrine, practically carried out, would make it the guardian of both. When the President sends a message to the House, we are first to examine whether it is discreet in him to send it; and this kindly office being performed to him, we are then to ascertain whether it is discreet to allow the House to receive his message. Sir, if such powers be assumed by the Senate, who is to assign limit to them? What becomes of the co-ordinate branches of your Government? What becomes of the constitution? The Senate will be your Government, and all other departments its dependents.

These documents do not belong to you alone. They are equally the property of the other House; and they are now made public; and, therefore, their contents are the property of the public. Has not any member, at this instant, the right to go to your file, transcribe any part, or the whole of their contents, and publish them in the newspaper, without violating any rule of the Senate, any rule of law, or any rule of propriety? Certainly he has. It was altogether unimportant what were the contents of the papers. They were already public, and on the responsibility of the President. The instrumentality

of the Senate was not asked or required, and it was only the exercise of some power by the Senate which could now withhold their contents from the House of Representatives and the nation. He denied the existence of such a power in the Senate. Whence did they derive it? Or why should they possess it? The Senate is not responsible, if the President has acted indiscreetly, as the argument assumes, although the Senator admits he does not know the contents of the papers, and, of course, cannot know that their publication will do mischief.

Unless the Senate be prepared to assume the functions and responsibility which the constitution has vested in the Executive, and, indeed, those which belong to the House of Representatives also, it cannot arrest what is sent by the one to the other in the course of official duty. It is not only a direct violation of the right of the Executive to send, and of the House to receive, those papers, but it is a palpable infraction of the right of the people to know what occurs in the progress of Congressional proceedings. Was it ever heard of before, that, in relation to facts disclosed with all the forms of a public proceeding in an open session of Congress, either this or any other branch of the Government had interposed to lay its hands on the materials by which those facts were to be acquired, and shut them up in a committee room? and, this too, for the avowed purpose of concealing their existence ?

How, he asked, does this course compare with that of the Senate when the Panama mission was advised? The majority of that day did not hesitate to give to the people all the facts before them. No one resisted it. The mission had been determined on, and whether the documents were published or no, the ministers would be sent out. But the question had excited public interest, and the nation had a just claim to all the information which would enable them to judge whether the policy was wise. Did we meet the demand to publish, by asking if gentlemen intended to perpetuate acrimonious feeings? By adverting to the danger of exposing our notions of the course of policy to be pursued to these nations? By suggesting the necessity of employing the agency of a committee to send out an "antidote with the bane?" As if we feared to trust the honesty or the intelligence of the American public. No, sir, all the documents we had were published, and thousands of copies dispersed over the whole surface of this Union; and all the labored arguments of our opponents accompanied them. Now we ask the same justice, and our case is a much stronger one. What we have published is a part only, and we ask to publish the remaining part, which is necessary to a right understanding of the whole. What is published was the ground work against which was levelled all the predictions of excited apprehension. Now we ask you not to conceal from the public eye the finished and completed superstructure.

The people have not only a right to know, but a deep interest to know. They are the sovereign power of the nation, and we their servants. To their judgment of our political conduct we are amenable; and it is our duty to enlighten that judgment by giving them facts. They are competent, when the whole case is before them, to take a correct view; and it is an insult to their intelligence to withhold the facts from them, until you can issue your glossary, your commentary, from a Committee, to tell them how to estimate the facts. Your Committee can but givé opinions, and thus prejudge the case by the weight of their authority. Are gentlemen afraid the decision will be against them on the naked fact, and can they not confide in public opinion unless it be directed by a commentary from a Committee? Sir, this sort of doctrine does not seem to be of the genuine republican stamp, which is so much the prevailing fashion of the times.

Mr. C. yielded no credit to the notion that the tenor and spirit of the instructions were modified in conse

[SENATE.

quence of arguments is opposition to the measure on this floor. Unless the Senator from South Carolina possessed information which had not been confided to him, he must be permitted to express his total dissent to that opinion. It was certainly not the usual practice in politics, nor in war, to adopt the advice of opponents; and he could not but smile, when it was intimated that the present Chief Magistrate had abandoned his own concerted views, and the advice of his friends, to adopt the suggestions of his political adversaries in this body. But allow all this to be so. Whence do gentlemen derive the evidence of mutation in the Executive will? They do not profess to have other knowledge than that the documents furnish. They insist that the "tone was lowered," between the period of the message to the Senate and the one subsequently made to the House, and have no doubt "the tone is still lower" in these instructions. If this be so, let it avail to the advantage of the gentlemen and their friends. Let the nation have the papers, and see this fact, and form a corresponding judgment. We do not ask shelter under the kind feelings of the gentleman to protect us against the consequent censure. No, we are willing to bear, as we ought to bear, the whole weight of our errors on our own shoulders. Certainly we do not expect this weight to be diminished by a report from the Committee.

If gentlemen can see in these papers the continued mutation of purpose which is a concession of original error, why not allow the public to examine them and deduce for themselves the same results? Will gentlemen assert that the people are ignorant, and unfit to know and understand? Why, they are our constitutional judges, and they will retain us in their service or dismiss us, according to their estimate of our political fidelity and correctness. And we cannot question their capacity to understand. Being on trial before them, we call for the evidence-the evidence of facts, not of the opinions of a Committee, who, however intelligent, (and their distinguished talents and intelligence is conceded) have no more claims to prejudge the case than any other three or four men in society, nor indeed so much, because, having been long since committed by opinions avowed to the world, they have ceased to be impartial.

Gentlemen on the other side have made allusions to the Panama mission in terms to cultivate their own opinions in regard to it. "Non est inventus" is returned— "it is dead." "Protestant missionaries," "counter Holy Alliance," and such like phrases, have been used. To what end are these hard names applied? This is neither the time, place, nor occasion, for a discussion of the merits of that measure. This discussion has been had, and we are content to abide the issue when presented to the sober judgment of the people upon the facts. What was speculation then is history now, and time, which discloses all things, has furnished, in these documents, a test by which to ascertain if the dangers then so feelingly predicted ever had existence. But gentlemen seem to shrink from this test, and to observe the prudent caution of taking off its influence by applying to it ugly names and harsh epithets. Sir, this will not prevent an intelligent community from a sober investigation of the truth, even through the mist of prejudice now

thrown around it.

The idea suggested on a former occasion, and then repelled, is again introduced, that these papers are to be published to prop a falling administration. The Senator from Georgia (Mr. BERRIEN) has kindly admonished us of the delicacy of our situation, of the inferences it will occasion, of the maxim post hoc ergo propter hoc. Sir, said Mr. C., when I make an assertion on this floor in relation to facts necessarily within my personal knowledge, I call no collateral testimony to verify it. I would disdain to go in search of collateral evidence; a

FEB. 12, 2, 1829.]

Resolved, That it is not expedient to act upon the nomination of John J. Crittenden, as a Justice of the Supreme Court of the United States, during the present session of Congress.

"Resolved, That it is not expedient to act upon the nomination of John C. Crittenden, as a Justice of the Supreme Court of the United States, until the Senate shall have finally acted on the report of the Judicial Committee, relative to the amendment of the Judicial system of the United States."

On Thursday, the 29th of January, the Senate took up these resolutions for consideration; when

Mr. CHAMBERS moved to strike out all of the first resolution, after " Resolved," and to insert the following:

"As the sense of the Senate, that the Constitution of the United States, by directing that the President shall take care that the laws be faithfully executed, and by vesting in him the authority to nominate, and, by and with the consent of the Senate, to appoint, all officers created by act of Congress, for whose appointment provision is not otherwise made, and the authority during the recess, to appoint all such officers, to hold their commissions until the end of the next session, intended to guard against the evils arising from vacancies in office: That such offices, having been created by act of Congress, must be deemed necessary for the public interest: That the power of the President to nominate and appoint, was intended to be exercised by him during the whole period for which he should be elected, for all such vacancies as should occur during that period; and that a neglect to exercise the power would be an omission of duty, on the part of the President: That the duty of the Senate to confirm or reject the nomination of the President, is as imperative as his duty to nominate: That the practice of the Executive, and of the Senate, heretofore, has accorded with the views above expressed, and that it is not now expedient or proper to alter the settled practice: And that, therefore, the Senate will, at the present session, act upon, and reject or confirm, all nominations which have been, or may be, received from the President, for offices established by acts of Congress, and which have become vacant by the death, resignation, or removal, of the late incumbents, or by the expiration of the term for which they were appointed, or which shall so become vacant, on or before the third day of March next."

On Friday, the 30th of January, the subject having been resumed,

Mr. BELL moved to amend the amendment, by striking out all after the words "United States," and in lieu thereof inserting, "has directed that the President shall take care that the laws be faithfully executed, and that he shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers created by an act of Congress, for whose appointment provision is not otherwise made; and that the constitution requires that the President shall exercise this power during the term for which he should be elected, for all such vacancies as should occur during that term; and that a neglect to exercise the power would be an omission of duty on the part of the President: That the duty of the Senate to confirm or reject the nomination of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the Government; and that it is not now expedient or proper to alter it."

The question being put, this amendment was rejected; and it then recurred on the amendment moved by Mr. CHAMBERS.

Mr. BERRIEN called for a division of the question. On motion of Mr. WEBSTER, it was agreed, that, when the question be taken, it be by yeas and nays. The debate on the amendment moved by Mr. CHAMVOL. V.-11

SENATE.

BERS occupied the Senate on the 2d, 3d, 4th, 5th, 9th, and 12th days of February.

On the 12th the question was finally disposed of, as will be seen by the following extract from the Journal:

THURSDAY, FEBRUARY 12, 1829.

The Senate resumed the consideration of the resolutions reported by the Committee on the Judiciary, relative to the nomination of John J. Crittenden, together with the amendment proposed thereto.

A division of the question having been called for, it was taken on striking out the first resolution, and determined in the negative-yeas 17, nays 24.

The yeas and nays being desired by one-fifth of the Senators present, those who voted in the affirmative, are—

Messrs. Bell, Bouligny, Burnet, Chambers, Chase, Foot, Holmes, Johnston, of Louisiana, Knight, Marks, Noble, Robbins, Ruggles, Seymour, Silsbee, Webster, Willey.

Those who voted in the negative, are

Messrs. Barnard, Benton, Berrien, Chandler, Dickerson, Dudley, Eaton, Hayne, Iredell, Johnson, of Kentucky, Kane, McKinley, McLane, Prince, Ridgely, Rowan, Sanford, Smith, of South Carolina, Tazewell, Thomas White, Williams, Woodbury.

On the question to agree to the first resolution eported, it was determined in the affirmative-yeas 23, na's 17. On motion of Mr. CHAMBERS, the yeas and nays being desired by one-fifth of the Senators present, those who voted in the affirmative, are

Messrs. Barnard, Berrien, Benton, Branch, Chandler, Dickerson, Dudley, Eaton, Hayne, Iredell, Kane McKinley, McLane, Prince, Ridgely, Rowan, Sanfor, Smith, of South Carolina, Tazewell, Thomas, White, Williams, Woodbury.

Those who voted in the negative, are

Messrs. Bell, Bouligny, Burnet, Chambrs, Chase, Foot, Holmes, Johnston, of Louisiana, Knight, Marks, Noble, Robbins, Ruggles, Seymour, Silsbe, Webster, Willey.

So it was

Resolved, That it is not expedient to act upon the nomination of John J. Crittenden, as a Jusnce of the Supreme Court of the United States, during the present session of Congress.

On motion of Mr. BERRIEN, the second resolution was ordered to lie on the table.

FEBRUARY 2, 1829.

The two resolutions above stated to have been reported by Mr. BERRIEN being under consideration, together with the amendment proposed by Mr. CHAMBERS, Mr. C. addressed the Senate to the following effect:

The question now before the Senate presents to my mind the most alarming prospect which has ever been exhibited by any one of the departments of this Government. In any view which I have been able to give the subject, it resolves itself into the question, whether this body can control the constitutional powers and duties of the other branches of the Government, and defeat the avowed objects of its laws. When the suggestion was first made some days past, by the Chairman of one of the Committees to whom nominations had been referred, that a distinction was made by the Committee, growing out of the particular period at which the office became vacant, my first impression was, that it might be a contest between rival claimants to the power of nomination, and a matter more to be determined by a spirit of courtesy, to usage and precedent, and a fair, generous, and magnanimous deportment on the part of a successful political party, than by reference to the principles of constitutional law, or the in