When, therefore, these extreme cases occur, we will act accordingly; and should they obviously require the breach of a law, the necessity will be universally felt and acknowledged, and we must break it. All that I contend for is, that the present is not an extreme case; and that these appointments being authorized by law, a law must be broken before we can defeat the appointments, according to the avowed object of this amendment. I contend that when we undertake to defeat these appointments, we must consider them as authorized by law, as much as the appointment of a judge, or a secretary of the treasury; and must inquire whether the motives are sufficiently urgent, the case sufficiently extreme, to induce the necessity of breaking a law. This is denied by gentlemen who support the amendment. They contend that these appointments of foreign ministers are not to be considered, as completely authorized by law; and consequently that the House may withhold the appropriation, without breaking any law. This is the very point in dispute; and to this point I shall direct such remaining observations, as seem necessary to be made on the constitutional question.

The question then is, Mr. Chairman, from what source is the office of minister plenipotentiary, or any other foreign minister, derived? The officer, we well know, must be appointed by the President and senate; but the office and the officer are distinct things; and before an officer can be appointed, an office must exist; unless gentlemen are disposed to admit, as I certainly am not, that the President and senate can create offices. The gentleman from Pennsylvania, (Mr, Gallatin,) well aware that if the office of foreign minister could be considered as legally existing, previous to the appointment by the President and senate, and independently of it, the conclusion which we contend for would irresistibly follow, has denied this position; he has denied that the office of foreign minister becomes a

complete and legal office, as soon as the officer is appointed by the President and senate.

[Mr. Gallatin explained. He had asserted, he said, the very contrary; and had admitted, though he considered it as a disputable point, that the office was like that of a judge, and became complete on the appointment by the President. But he had denied that the House was bound to appropriate for the officer. Mr. Harper continued.]

I know, Mr. Chairman, what the gentleman denied, and what he admitted; and it appears by his explanation, that I was right in my first statement. The gentleman contended, and that was the leading point of his argument, that the office of foreign minister was derived from the appointment of the President. And why did he contend for this? Because he knows that the President cannot erect offices; and consequently, if the office of foreign minister had no other origin than the appointment of the President, it could not be considered as a legally existing and complete office, until this House had concurred in it. This was the scope and object of the gentleman's argument, and hence his solicitude to establish the position, that the office of foreign minister originates in the appointment of the President. He said, indeed, that he would admit these offices to be analogous to those of judges; but he immediately denied it again, by denying that the House was bound by any law to appropriate for these offices, as they evidently are for judges; and in denying this, he denied every thing. The gentleman admitted in form, but denied in substance, and contended for principles directly at war with his seeming admission. These are complete offices according to the gentleman, but they are derived from no legal authority, nor is the House bound by any law to appropriate for their support. That is, they are legal and they are not legal; they are offices and they are not offices; and this is the amount of the gentleman's admission, and of his explanation.

Thus he told the House, on a former occasion, that he did not dispute the power of the President and senate to make treaties; he only contended that those treaties, when made, were not binding, till the House had concurred in them by granting appropriations: in other words, that the President and senate could make treaties, which, however, though made were in fact not treaties, till ratified by the House; that is, that there might be treaties which were not treaties. This was the substance and amount of that gentleman's reasoning on a former occasion, and it exceedingly resembles his present argument, as just now explained by himself.

The question, therefore, between the gentleman from Pennsylvania and us, is, whether the office of foreign minister be derived from the appointment of the President and senate, concurred in by this House; or must be traced to a higher origin, and considered as completely existing before the appointment takes place; in the same manner as the office of secretary of the treasury, or of state, which completely existed as soon as the law passed establishing those departments, and before any officer was appointed. We contend for the latter doctrine, and the gentleman from Pennsylvania for the former. If he be right, it follows, that the appointment is incomplete until this House gives its sanction; for we well know that the President and senate cannot of themselves create an office. If we be right, it follows, that as soon as an appointment is made to fill this office, this House is legally bound to supply an adequate salary, in the same manner as for any other office created by law.

There are two modes, Mr. Chairman, by which an office may exist, either by law or by the constitution; and from one or the other of these sources, the office of foreign minister must be derived. It is not derived from the constitution, like the office of President, vicepresident, or speaker of the House; for the constitution speaks of it as already in existence. The con

stitution does not say there shall be foreign ministers, and then go on to direct how they shall be appointed, as in the case of President; but considering the office as already existing, it merely directs how it shall be filled. "The President," it says, "by and with the advice and consent of the senate, shall appoint foreign ministers and consuls." Unless, then, gentlemen are disposed to deny that there were foreign ministers previous to the constitution, they cannot contend that the office of foreign minister is derived from the constitution. It must, therefore, be derived from the law.

But from what law? Not from any act of Congress; for we know that there is no such act. Congress has never done any thing more than to fix salaries for foreign ministers, and vote money to pay them: and besides, the constitution, which is previous to all acts of Congress, recognizes the office of foreign minister as already existing, and directs in what manner the appointments to fill it shall be made. From what law, then, is this office derived? Mr. Chairman, it is derived from the law of nations.

In every civilized state there are two sorts of law, derived from two distinct sources; the municipal law, and the law of nations. The law of nations, deriving its origin and its force from the consent of nations themselves, mutually given to each other, is independent of their municipal laws, which have relation to their own internal affairs, and depend upon the acts of their respective governments. The municipal laws of the United States consist in our acts of Congress, and are derived from the authority given by the constitution. The law of nations, as it respects us, has a higher origin, and became binding on us from the moment when we erected ourselves into an independent state, and entered into the pale of civilized nations. We then gave our consent to that law, when we began to send and receive ambassadors, and to form treaties with other powers. This law then became binding on us, by our own consent and our own acts; and this law

establishes the office, regulates the duties, and defines the privileges of foreign ministers. That office, consequently, was established among us, as soon as we submitted ourselves to the law of nations. Accordingly, we had foreign ministers before we had a President, before we had a Congress, and before we had a constitution. Even before the first articles of confederation were entered into, we considered this office as existing; for those articles do not establish the office, but merely declare how it shall be filled, by whom foreign ministers shall be sent, by whom they shall be appointed.

The gentleman from Pennsylvania, indeed, has told us, that the office of foreign minister originated in the appointment of the President and senate. But where did that gentleman learn, that the President and senate can create or originate offices? He has said, that the office becomes complete, when sanctioned by an appropriation in this House. But all offices, not existing by the constitution, must be created by law: and where did he learn that this House could concur in a law, by any other means than having a bill before them, and passing it with the usual forms? Where did he learn that this House could, in this indirect way, by voting a sum of money, legalize an act not otherwise legal, and give the force of a law to what otherwise would not be a law? The gentleman has neither learned this in the constitution, nor in the proceedings of the House; but though we know not where he learned it, we are well apprized of the purposes for which he introduced it here. That purpose I have already explained.

It being manifest, then, Mr. Chairman, that the office of foreign minister is established by the law of nations, it only remains to inquire whether that law is complete and binding. Can there be a doubt that it is so, within its proper sphere? Do not our courts of justice acknowledge its existence, and yield to its authority on all objects on which it is calculated to act?