BRIG GENERAL ARMSTRONG.

against the citizen, and that though it be admitted erroneous, no responsibility attaches because of the act of an irresponsible agent? The question then arises whether the act of the Department of State was, or was not, the act of the Executive-or whether the act of submission by the Secretary of State was his sole individual act, as an officer or agent of the government, separate and distinct from, and wholly unconnected with the executive, and on whom no responsibility can rest for the act of his Secretary? The treaty making power is vested in the Executive and the Senate. Kent fully defines the of the President in 6 ed. vol. 1, p. 284 to 288.

powers

It is clear that the public secretary of the President has no power to submit the claims of our citizens to arbitration, or to negotiate a treaty. But, on the contrary, the President alone is declared to be the constitutional organ of communication with foreign powers, and the "efficient AGENT" in the conclusion of treaties. Agent of whom? Agent of the government, or the agent of the people? That people who created him, and delegated to him, under the Constitution, those subscribed and limited powers, in which can be found no authority or sovereignty over the rights of the people!

Kent declares, in defining the powers of the Executive, that the President is bound to see that the laws are faithfully executed, and that he is generally charged with the POWERS AND RESPONSIBILITY of the EXECUTIVE DEPARTMENT! And, furthermore, that, for exceeding the precise and definite limitations imposed upon the exercise of his power, the Constitution has rendered him responsible by law for mal-administration. Responsible not only, I contend, to be impeached, but responsible through the government, directly to the people, who shall suffer by his mal-administration.

It is incontrovertible and manifest that the Secretary of State can only act by and under the instructions and authorization of the President. The Department of State is only a branch of the Executive. It is a component part of the executive government. The Secretary of State stands in no position as agent, either to the government or the people. His office is simply ministerial, because he is only acting under a superior authority. His position is widely different, and entirely distinct from that of a mere officical agent of the government, such as a marshal or collector. The distinction is this: An official agent of the government is simply entrusted to perform and carry out those duties and functions relating to the internal regulations of the government, being in no manner connected with the executive power, further than the performance of duties imposed on such officer by positive law.

In all the domestic and foreign communications made to the President, the Executive answers through the public secretary of the government. In all these official acts and communications the secretary invariably uses the language, "I am directed by the President to say, &c. Will it be asserted by this Court that Mr. Clayton acted simply as the agent of the government, without the authority and direction of the President? With what truth, then, can it be maintained that Mr. Webster was not the instrument of the Executive, but acted in

H

dependently, as a mere agent, without attaching any responsibility on that Executive?

If the position taken by the Solicitor, and, in the dissenting opinion of this Court, be correct, that the Secretary of State is only the agent of the government, and that the government is not responsible for his act, then it must inevitably follow, as an incontestible conclusion, that the treaty which was made is without force or effect, and the claimants cannot be concluded by it.

It is in vain, sirs, to shift the responsibility of the government in trying to sever its political connexion by such distinctions, admitting of no difference.

Why, sirs, what a chameleon thing-what a miserable shadow becomes this government if such a doctrine is to prevail.

Mr. Secretary Marcy gives an apt illustration of this changing positions, and sleight-of-hand hocus-pocus of governments, in his celebrated Koszta letter, (see p. 37;) he says:

"By the consent and procurement of the Emperor of Austria, Koszta had been sent into perpetual banishment. The Emperor was a party to the expulsion of the Hungarian refugees from Turkey. The sovereign, by such an act, deprives his subjects to whom it is applied of all their rights under his government. He places them where he cannot, if he would, afford them protection. By such an act he releases the subjects thus banished from the bond of allegiance. Any other result would make the political connexion between the subject and the sovereign a state of unmitigated vassalage, in which all the duties and no rights would be on one side, and all the rights and no duties would be on the other."

This is the precise position now assumed by the Solicitor in this case. He claims for the government all the power and no duties or obligations, on the one hand, while he denies the citizen all his rights, and claims from him all the duties on the other. This would indeed be unmitigated vassalage!

Are we, then, to be stripped of our immunities, as American citizens, by this assumed imperial sovereignty, which, while it usurps the power to sacrifice our rights, denies its reponsibility? Are we, Koszta-like, to be banished from the protection of our country, and told that it is neither under any obligation to enforce our rights, nor under any responsibility to indemnify us? Why, sirs, even under this tyrannical, despotic government of Austria, a more enlarged spirit of justice and equity prevails. It is reported that the tribunals of Austria have held that an humble shoemaker might bring his action against the Emperor on a common contract !

Let us suppose for a moment, in the Koszta case, at the time he was held in custody by the French consul at Smyrna, awaiting the final action of this government, that President Pierce had died, and the succeeding administration abandoned and reversed the position and action of Mr. Marcy, what would have been the public opinion? It certainly would have condemned the right of the Executive so to do, while the power to act could be denied.

Sirs, this is the only case to be found on record, in the whole history of our government, in which a succeeding administration had imper

BRIG GENERAL ARMSTRONG

illed the national honor by receding from the position of a previous administration, assumed upon unequivocal and undoubted testimony of the legality and justice of the claim it had pledged the national honor

to assert.

Now, I ask the learned Solicitor, was it the act of the Executive, or that of the Department of State, that assumed the responsibility in the Koszta case, and was not that act beyond the right of interference by any other administration?

I submit to your honors if it be not clearly shown that the Executive, in this case, in referring it to arbitration, acted against the express and known wishes of the claimants, which had been signified to the previous Executive. The succeeding administration was informed of and knew this fact. It acted in secret, and on its own responsibility; without reference either to the previous action of the government, or consulting with the claimants to ascertain their wishes. It took the responsibility of reversing the position of this case, and the settled and final decision of the past Executive, which we contend it had not the right to do. It was bound to have sent the case to Congress for its legislative decision. But as it did not do so, and having taken the responsibility to arbitrate the claim and failed, the failure to procure indemnity carries with it the force of an obligation to recompense the claimants.

The dissenting opinion of the Court maintains the sovereign capacity of the Executive, and quotes Mr. Adams to show that it was proper to compromise this claim.-(See the Report, p. 223.)

As a general principle, I do not deny the doctrine of Mr. Adams, provided the negotiation is properly conducted. The political obligation which rests upon the government is that it shall, in all its transactions, see that the solemn forms of the law are fully and completely executed and gone through, with a due regard to the claimants' rights; while, on the other hand, in its negotiation with another nation, it must see that the forms, equally solemn and imperious, shall be strictly complied with. Can it be said that, in negotiating the treaty with Portugal, this organic rule, "that the Executive shall see that the solemn forms of the law are fully complied with, and executed with a due regard to the claimants' rights," was strictly observed?"

If the Executive had strictly complied with this rule, he would have carried out the solemn decision of his predecessor. For it is admitted in the learned dissenting opinion, that where the government asserts to interfere for the citizen, its action may be even by reprisals.

There is no room for doubt but that was the evident intended resort, by General Taylor, if Portugal had not complied with the demand. And I feel to-day morally certain, if the action of General Taylor had been carried out and the case submitted to Congress, Portugal would have immediately yielded to our just rights.

The learned judge, in his dissenting opinion, seems to have forgotten the position taken by the previous administration, and has not considered the rights of the claimants in connexion with its reversal. It must be remembered, too, that in 1818 Mr. Adams reiterated this demand against Portugal, declaring its justness upon the admitted acknowledgments of the Portugese authorities. But while the dis

senting opinion denies that the government acts as the agent of the citizens, Mr. Marcy, Mr. Justice Story, Lieber, and our leading distinguished jurists assert the contrary.

Let us now examine the effect of this treaty on the claim in equity which we make against the government.

Can it be established that this treaty-making power-the act of the Executive, combined with the co-operation of the Senate-is sovereign, supreme, and omnipotent, having no liability or responsibility attached to it? That because of this power, delegated by the people, no wrong or injury to the citizen can be committed or result from it, and that all treaties so made by consequence shields the responsibility of the gov ernment to the citizen? If this be so, then our government is arbitrary, despotic, and tyrannical, and the Constitution by which its powers are strictly defined and limited is mere blotting paper.

war,

In the case of the schooner Peggy, (1 Cranch, 103,) the Supreme Court of the United States held that individual rights, acquired by and vested rights of the citizens might be sacrificed by treaty for national purposes. And, in the case of Ware vs. Hilton, (3 Dallas, 199, 245,) it was said to be a clear principle of national law that private rights might be sacrificed by treaty to secure the public safety, though the government would be bound to make compensation and indemnity to the individuals whose rights had thus been surrendered.

(1 Kent, 167.) The power to alienate and the duty to make compensation are both laid down by Grotius, (b. 3, c. 20, sec. 7,) in equally explicit terms.

These authorities cannot be overthrown-the principle is clear, the law is positive. The Solicitor does not even attempt to controvert it. His whole argument is directed to create in the mind of the Court a fear and a terror of its assuming the responsibility of reviewing the action of the Executive, and of placing itself in direct conflict with the treaty making power. This position is only an imaginary one, and is wholly irrelevant to the question of the responsibility of the government now before the Court. This question does not involve the Court in a conflict with the power of the Executive and Senate, nor is the Court called upon to revise or reverse their action, as the Solicitor contends. The power of the Executive to make this treaty has never been contradicted or denied. The policy, and its right so to do, under the peculiar circumstances of this case, have been gravely questioned. By the course of this policy has arisen its liability, growing out of its duties and obligations towards the claimants. We have never assumed, in any manner, an antagonistical position in opposition to the power of the Executive to treat, or denied the binding force of the treaty between the two nations. On the contrary, between them, the two treating powers, we hold and assert that it is res judicata. It is simply the effect and operation of this treaty on the rights of the claimants, from whence arises the obligation of the government to its citizens, as declared by the Supreme Court of the United States in the cases cited in Cranch and Dallas. This position, supported by the high authorities cited, cannot be disturbed.

The confusion of theories which the Solicitor has heaped up like a fog bank in this case, needs only the calm light of reflection on the

true question before the Court to dispel it entirely. This mist of terror which he has raised for himself before the eyes of the Court, to prevent it from seeing a naked question of right, which is totally unconnected, and every way isolated from the power of the treaty making branch of the government, is perfectly transparent.

Divest the case, then, of this mock sanctity of sovereign power which the Solicitor has such a pious dread of violating, and let us see where we stand.

No exercise of power resulting in a wrong to a citizen, or the sacrifice of his rights, can be committed under the federal government without a responsibility, either to a superior authority or directly to the people. If the government has power and rights to exercise, it also has duties and obligations to perform. Those duties and obligations imply as well rights and immunities on the part of the citizen. For even Lord Landsdown has said "the people have rights, kings and princes have none." We are not questioning the power of the government, under any circumstances, to make a treaty, nor its right. to sacrifice or surrender the claims of its citizens for the general welfare of the country, under the obligation to indemnify them. But the right of one administration to reverse the decision of another is a different affair. Even then it has the power, while the right is questionable. The power of the government is one thing-the right to exercise that power, without a responsibility, is another. The principle is fully recognized, and Secretary Marcy admits the government to be but an agent; and he says the government is liable where it acts against the express and known wishes of the citizen. It did so act in this case, and made a treaty, to which we have shown we were no parties in any sense. It took our rights, sacrificed and surrendered them, and bound itself to submit to the decree of an arbiter against the consent and the express and known wishes of the claimants.

We are not, then, arraigning or trying the government, nor sitting in judgment on its acts, in the sense contended by the Solicitor. We are but trying the question of the right of the citizen against the government, for a wrong and injury sustained. Can the finding of this Court on a naked question of the right of the citizen reflect in any manner upon the government? Can this pious dread of sovereignty on the part of the Solicitor and the Attorney General prevent the establishment of justice by this Court? If so, the object of the Court is defeated, and the whole enactment is a mere farce!

If the acts of the government are to be sheltered by a veil of imaginary sanctity from all scrutiny or examination by this Court-if its acts are always to pass upon the world for just, although wrong and palpably oppressive, then it is in vain that the law of nations have laid down rules of conduct for governments and their citizens.-(Ruth. Inst. Nat. Law, vol. 2, 598.)

No sophistry can establish this position, that, although a flagrant wrong has been done by the government to one of its citizens, under the color of the sovereignty of an existing authority, nor by virtue of it, that the injurious act becomes to all effectual purposes a lawful one, for no other reason but because it has been done.

It will not be denied but an obligation rests upon the government