The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 102
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102
APPENDIX TO THE CONGRESSIONAL GLOBE.
Jan. 1844.
28th Cong 1st Sess.
Debate on the Oregon Territory.
Senate.
tory—that of both Houses of Congress—is replete
with such calls—calls for the state of pending ne-
gotiations; some of which were complied with, some
not.
Mr. ALLEN said: Mr. President, the senator
from Virginia [Mr. Archer] has expressed his
amazement—his horror at what he is pleased to con-
sider the new and monstrous doctrine laid down by
me, in claiming for the Senate the right to be con-
sulted by, and to advise, the President previously to
his concluding a negotiation, by his signature to a
treaty. That senator rose, he said, to mark this
doctrine as a novelty, fraught with danger—to stamp
upon it the brand of his reprobation. Well, sir,
what next5 Why, no sooner had the senator con-
cluded and resumed his seat, than did my friend, the
senator from Missouri, [Mr. Benton,] rise, as is his
custom, book in hand, with page doubled down.
Me, it appears, so far from partaking of the sur-
prise and terror excited in the senator from Virgi-
nia, employed himself, whilst I was attempting to
enforce my theory, in looking through the execu-
tive journals of the Senate during the early period of
the government, to see how the practice, at that time,
squared with my theory now. And how, sir, stands
the fact, as my friend has shown? Why, sir, it now
• appears, (and I confess I never before knew it; I
only knew, from reflection upon the constitutiona
■structure of the government, that it ought, in prin-
ciple, to be so,)—it now appears, I say,that, during
President Washington's administration, he, the
most illustrious of men, was in the constant habit of
consulting'the Senate, in writing, not only before he
signed a treaty, but of asking and receiving, and act-
ing on, the advice of the Senate upon all important
propositions to negotiate, even before such propositions
were made to foreign governments, or this govern-
ment, in any degree, committed upon questions of
international interests.
This, then, was the practice when the executive
power was administered bv the man who had pre-
sided at the creation of the government, when its
councils were filled by those were his companions
in that great work, as they had been in arms, and
will ever be in glory and renown. Such, sir, was
the practice, when the constitution was young and
fresh; when its outline was distinct, its proportions
accurate; when its features were regular, and radi-
ant with innocence and hope, unhaggard, as now,
by time and passion. And now, sir, when thus
faced by the fact, what next do we hear from that
senator? Does he deny the fact to exist, as read from
the journal? He could not; he admits its existence.
Does he say these men understood not the correla-
tive rights and powers of the several departments,
and that, theretore, they blundered blindly over the
limits of the constitution? No, sir: this he did not—
will not say. What, then, is the answer? It is, that,
in the eases read from the journal, the President
asked the advice of the Senate, and that the Senate
acted upon the. matter, became asked to do so by the
President; that is to say, that the President, bi/[ask-
ing the Senate to do an act, conferred upon it' the
power to do Lhat which, before, it had not the power to
do: this is the answer. And now, sir, I must re-
tort the expression of amazement and horror at
the announcement, by that s«nator, of a doctrine
so appalling—a doctrine which so evidently
puts to the extrcmest peril the whole fabric of our
limited and balanced government. What! Can it
be true that the powers of the Senate depend upon
the pleasure of the President? Is the constitution an
elastic substance, to be stretched by the pressure of
his will, and, by his will, at pleasure contracted?
When, till now, was it ever heard that, by sending
a message to this body, the President could give it
power over a subject over which it had no power
before? When, till now, was jt ever heard that, by
withholding the communication of his wishes, he
could deprive the Senate of power over a matter over
which the Senate would have had power had he but
expressed his wishes? By the constitution, he is
made "commander-in-chief of the army and navy."
Could he divide that command with the Senate, by
asking its advice, whether the right or the left wing
of the army should move upon this or that frontier?
•No, unquestionably not. Should he send here a
message, asking your advice upon such a question,
what would bo. your answer? The constitution
would compel you to remind him that, over that
subject, it had given you no control. So, likewise,
dees the constitution declare that "he shall, from
time to time, give to Congress information of the
state of the Union, and recommend to their consid-
eration such measures he shall judge necessary
and expedient." But should he omit to give such
information, or to recommend action on a particular
subject of national interest, would his omission ren-
der Congress powerless to act in the matter? No
man will say so. Yet such are the consequences
resulting from the doctrine contained in the reply of
the senator from Virginia—a doctrine most manifest-
ly destructive of everything like a government of
divided, correlative, and limited powers.
But, sir, having determined to bring this subject
before the Senate in executive session, should the ,
resolution now fail, or pass and the documents be
withheld, I shall suspend, for the present, that full
expression of my sentiments, which, in that event,
I then propose to give.
Mr. WOODBURY asked for the reading of the
resolution.
After it was read—
Mr. W. observed, the Senate would see that these
was nothing unusual in its form. He apprehended
that we were rather over-sensitive in relation to it,
on account of its subject-matter. It was well known
that the Territory of Oregon had been a topic of
some feeling, and* some division of opinion, in this
chamber, as well as in the country at large. We
differed as to its limits, and had contradictory views
as to the policy of taking full possession of it. But,
divested of these circumstances, the resolution seem-
ed to him proper in form, and had in contemplation
a legitimate legislative object. If so, then it ought
to pass, whatever speculations might be entertained
as to further and other objects, of an executive
character. True, it did not order or direct the Pres-
ident to send us certain information, as had been
objected by the gentleman from Georgia; but the
calls on the President for information, with which
their records were crowded, were always in the
form of requests, and never mandatory.
Mr. BERRIEN made some explanation.
Mr. WOODBURY remarked, further, that it was
no objection to the propriety of asking for this in-
formation that the Senate did not order, because it
had no right to order it; for, if such an objection
prevailed, it would prove a valid objection to all
such calls or requests—'though they had been made
and answered from the foundation of the govern-
ment.
So the resolution had a proper object, as well as
form. That object was, in the first place, additional
light, to aid us in the passage of an important bill,
now on our table, for organizing a territorial govern-
ment over Oregon. Suppose the instructions given
disclosed new and important facts as to the juris-
diction now exercised there under British authority;
suppose they flung new light on its proper bound-
aries, and various other matters, which might in-
fluence some of the provisions of the Oregon bill:
it was right to ask for such information, and to
profit by it legislatively. Let us obtain every useful
assistance within reach, before final action.
But it is objected, that the publicity of the instruc-
tions or correspondence might injure some pending
negotiation, or throw obstacles in the way of a new
one anticipated. Then the President, looking to the
piMie interest, which the resolution requests him to
do, will not make the instructions public. He is,
by its terms, allowed entire latitude as to this.
Again: it is intimated that this matter had better be
considered in executive session. He agreed such
would be the case, if there was no proper legislative
matter pending, which would make the information,
if obtained, useful. But he had shown there was
such legislation pending; and the other uses of it for
executive advice and consent would be taken up in
executive session, and acted on there, if at all. But
he did not vote for the resolution on account of any
executive or confidential use of the papers. Suffi-
cient for that would be our views and action after
we procured those papers; and whether, then, we
could employ them, except in the final ratification of
a treaty, or on request of the President before, for
counsel, was debatable.
No case existed of the Senate forcing, unasked,
their views on the President as to the making of
treaties; though he would by no means admit
that the Senate, as a legislative body, could not,
with propriety, at times pass'resolutions expressing
its decided opinions on certain public matters which
might be topics of existing negotiation. It might be
so as an executive body. He would not strip the
Senate of any just right. But there had been no
usage that way.
Mr. ARCHER rose again to inform the Senator
from Ohio that he was under a misapprehension, in
supposing there was any correspondence in relation
to the Oregon territory to be obtained by this reso-
lution- The only effect the resolution would have,
if acceded to by the President, would be to get the
instructions of this government to its own minister,
prepared in the view that the British ministry should
enter upon the negotiation in London. The effect
of publishing these instructions would be, to show
the British negotiator our hand, (to use a homely
but significant phrase aptly used by the gentleman
from Georgia,) without any possibility of our know-
ing what he had in his hand. But the progress of
this debate had disclosed a question of far greater
importance than anything this resolution could
bring out; it related to the character and tendency of
the doctrine laid down by the Senators from Ohio
and Missouri. What was that doctrine? That the
Senate not only had the power of ratifying or re-
jecting a treaty made by the executive, but the right
of interfering and acting in the progress of the ne-
gotiation for settling the basis of the treaty. Be-
cause General Washington had thought proper to
ask counsel of the Senate in relation to the exercise
of his executive power, did it follow that, unasked,
this Senate was to obtrude its advice on the execu-
tive? And for what purpose? For the avowed pur-
pose of controlling his action—the action of a
branch of the government exercising a right exclu-
sively belonging to itself. Was it not apparent that
the gentlemen from Ohio and Missouri [Mr. Allen
and Mr. Benton] might—nay, must—contemplate,
from the nature of the answer to the resolution, an
opportunity for introducing some resolution, imply-
ing censure or distrust, or some form of inhibition
with regard to the secret action of the executive; or
to make some appeal to the people of the United
States in relation to the terms of the negotiation be-
tween the two governments? If it is made a precedent
to call for the information required by this resolution,
it may be urged upon the Senate, as soon as the con-
templated negotiation is on foot, that it is necessary,
day by day, to call for the notes and protocols of the
proceeding, that the senators from Ohio and Missouri
may interpose their advice, and thereby control the
action of the executive. This doctrine was per-
fectly congenial with the political system of the
gentlemen from Ohio and Missouri. It is the object of
this system and its adherents to democratize this gov-
ernment; not by appeals to the people, as the source
of sovereignty, but to reform it by their modes of
administrmg the government, whenever they could
get the administration into their hands. They mean
that it shall no longer be a republican government,
but a democratized government, obeying every
breath of popular impulse which may spring up or
be excited, without regard to the checks which
constitute and guard it as a republic. The gentle-
man would, he believed, take this as a compliment
to their principles; he, therefore, felt under no ne-
cessity to apologize for alluding to their motives.
But he would recur to the proposition which it was
his single purpose to announce to the Senate and the
country; and that was, that the question was not
whether the papers called for could be got from the ex-
ecutive, or on their importance if obtained; the ques-
tion was, whether the Senate was to entertain the first
step in the progress of encroachment on another
branch of the government, in relation to a matter solely
confided to it by the constitution? Was it to be deci-
ded that the Senate was, in its legislative character,
to be a portion of the executive? If it was to assert
its participation in executive power, it ought, at
least, to wait till it was sitting in its character of a
part of the executive. It was, he conceived, their
duty to lay a condemning hand upon this doctrine, in
whatever character they sat. He, for one, was
very glad to have an opportunity of being the first
to invoke attention to the monstrous character of
that doctrine. He would repeat, in conclusion, that
there was nothing to call for—nothing to get, by this
resolution, except the confidential instructions and
communications of the government to its own minis-
ter in England.
Mr. ALLEN observed that the senator had not
answered his question, which was this: Why were
they not willing to let President Tyler decide on the
right or propriety of making known that instruction,
or publishing the correspondence? That was the
question; and could it not be answered?
Mr. AR.CHER said he would not have any con-
currence in such a resolution; he conceived it to be
derogatory to the character of the Senate to make a
call on the executive, well knowing at the time
what the answer must be, and that it could serve no
purpose.
Mr. ALLEN remarked, that the resolution re-
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United States. Congress. The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2368/m1/112/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.