“The engagement to fight Mexico for Texas, while we were at
peace with Mexico, was to make war with Mexico!--_a piece of
business which belonged to the Congress_, and which should
have been referred to them, and which, on the contrary, was
concealed from them, though in session and present.”[92]
In the face of this indignant judgment, already the undying voice of
history, the “assumpsit” of John C. Calhoun will not be accepted as a
proper example for a Republican President. But there is not a word of
that powerful utterance by which this act is forever blasted that is
not strictly applicable to the “assumpsit” in the case of Dominica.
If an engagement to fight Mexico for Texas, while we were at peace
with Mexico, was nothing less than war with Mexico, so the present
engagement to fight Hayti for Dominica, while we are at peace with
Hayti, is nothing less than war with Hayti. Nor is it any the less “a
crime against God and man and our own Constitution” in the case of
Hayti than in the case of Mexico. But the present case is stronger than
that which aroused the fervid energies of Benton. The “assumpsit” here
has been followed by belligerent intervention and acts of war.
President Polk, in his Annual Message of December, 1846, paid homage
to the true principle, when he announced that “the moment the terms
of annexation offered by the United States were accepted by Texas, the
latter became so far a part of our own country as to make it our duty
to afford protection and defence.”[93] And accordingly he directed
those military and naval movements which ended in war with Mexico. But
it will be observed here that these movements were conditioned on the
acceptance by Texas of the terms of annexion definitively proposed by
the United States, while our title had been created by Act of Congress,
and not by the President alone.
Therefore, according to the precedents of our history, reinforced
by reason and authority, does the “assumpsit” of the treaty fail. I
forbear from characterizing it. My duty is performed, if I exhibit it
to the Senate.
But this story of a violated Constitution is not yet complete. Even
admitting some remote infinitesimal semblance of excuse or apology
during the pendency of the treaty, all of which I insist is absurd
beyond question, though not entirely impossible in a quarter unused
to constitutional questions and heeding them little,--conceding that
the “assumpsit” inserted in the treaty by the Secretary of State had
deceived the President into the idea that he possessed the kingly
prerogative of declaring war at his own mere motion,--and wishing
to deal most gently even with an undoubted usurpation of the kingly
prerogative, so long as the Secretary of State, sworn counsellor of
the President, supplied the formula for the usurpation, (and you
will bear witness that I have done nothing but state the case,)--it
is hard to hold back, when the same usurpation is openly prolonged
after the Senate had rejected the treaty on which the exercise of
the kingly prerogative was founded, and when the “assumpsit” devised
by the Secretary of State had passed into the limbo of things lost
on earth. Here there is no remote infinitesimal semblance of excuse
or apology,--nothing,--absolutely nothing. The usurpation pivots on
nonentity,--always excepting the kingly will of the President, which
constitutionally is a nonentity. The great artist of Bologna, in a much
admired statue, sculptured Mercury as standing on a puff of air. The
President has not even a puff of air to stand on.
Nor is there any question with regard to the facts. Saying nothing of
the lapse of the treaty on the 29th March, 1870, being the expiration
of the period for the exchange of ratifications, I refer to its formal
rejection by the Senate, June 30, 1870, which was not unknown to the
President. In the order of business the rejection was communicated to
him, while it became at once matter of universal notoriety. Then, by
way of further fixing the President with this notice, I refer to his
own admission in the Annual Message of December last, when he announces
that “during the last session of Congress a treaty for the annexation
of the Republic of San Domingo to the United States failed to receive
the requisite two-thirds of the Senate,” and then, after denouncing the
rejection as “folly,” he proceeds as follows:--
“My suggestion is, that by Joint Resolution of the two Houses
of Congress the Executive be authorized to appoint a Commission
_to negotiate a treaty with the authorities of San Domingo for
the acquisition of that island_, and that an appropriation be
made to defray the expenses of such Commission. The question
may then be determined, either by the action of the Senate
upon the treaty, or the joint action of the two Houses of
Congress upon a resolution of annexation, as in the case of the
acquisition of Texas.”
Thus by the open declaration of the President was the treaty rejected,
while six months after the rejection he asks for a Commission to
negotiate a new treaty, and an appropriation to defray the expenses of
the Commission; and not perceiving the inapplicability of the Texas
precedent, he proposes to do the deed by Joint Resolution of Congress.
And yet during this intermediate period, when there was no unratified
treaty extant, the same belligerent intervention has been proceeding,
the same war-ships have been girdling the island with their guns, and
the same naval support has been continued to the usurper Baez,--all at
great cost to the country and by the diversion of our naval forces from
other places of duty, while the Constitution has been dismissed out of
sight like a discharged soldier.
Already you have seen how this belligerent intervention proceeded after
the rejection of the treaty; how on the 21st July, 1870, Commodore
Green reported that “a withdrawal of the protection of the United
States and of the prospect of annexation at some future time would
instantly lead to a revolution headed by Cabral”; how on the 28th
August, 1870, Lieutenant Commander Allen reported Baez as “requesting
the presence of a vessel on the north side of the island on account
of an intended invasion by Cabral”; how at the same time the usurper
cries out that he “deems the presence of a ship-of-war in the Bay of
Manzanillo of immediate importance”; how on the 3d September, 1870,
Commander Irwin reported that Baez “feared an outbreak,” and appealed
to the Commander to “bring him some of his men that were at Azua,”
which the obliging Commander did; how under date of September 2, 1870,
the usurper, after declaring the necessity of a man-of-war at the
port of San Domingo, says that “none would be more convenient than
the Yantic for the facility of entering the river Ozama, owing to
her size”; and how again under date of October 8, 1870, the usurper
writes still another letter “to reiterate the necessity of the vessels
now in that bay [Samana] coming to these southern coasts.” All these
things you have seen, attesting constantly our belligerent intervention
and the maintenance of Baez in power by our Navy, which became his
body-guard and omnipresent upholder, and all after the rejection of
the treaty. I leave them to your judgment without one word of comment,
reminding you only that no President is entitled to substitute his
kingly will for the Constitution of our country.
In curious confirmation of the first conclusion from the official
document, the letter of Captain Temple to Mr. Wade should not be
forgotten. This letter has found its way into the papers, and if not
genuine, it ought to be. It purports to be dated, Tennessee, Azua Bay,
February 24, 1871. Here is the first paragraph:--
“I understand that several of the gentlemen belonging to the
expedition are to start to-morrow overland for Port-au-Prince.
It may not have occurred to these gentlemen that by so doing
they will virtually place themselves in the position of spies,
and if they are taken by Cabral’s people, they can be hung to
the nearest tree by sentence of a drum-head court-martial,
according to all the rules of civilized warfare. _For they
belong to a nation that, through the orders of its Executive
to the naval vessels here, has chosen to take part in the
internal conflicts of this country_; they come directly from
the head-quarters of Cabral’s enemies; they are without arms,
uniform, or authority of any kind for being in a hostile
region. They _are_, in fact, spies. They go expressly to learn
everything connected with the enemy’s country, and their
observations are intended for publication, and thus indirectly
to be reported back to President Baez. Surely Cabral would have
a right to prevent this, if he can.”
It will be seen that the gallant Captain does not hesitate to recognize
the existing rights of Cabral under the Laws of War, and to warn
against any journey by members of the Commission across the island
to Hayti,--as, if taken by Cabral’s people, they could be hung to
the nearest tree by sentence of drum-head court-martial, “according
to all the rules of civilized warfare”; and the Captain gives the
reason: “For they belong to a nation that, through the orders of its
Executive to the naval vessels here, has chosen to take part in the
internal conflicts of this country.” Here is belligerent intervention
openly recognized by the gallant Captain, and without the authority of
Congress. If the gallant Captain wrote the letter, he showed himself
a master of International Law whom Senators might do well to follow.
If he did not write it, the instructive jest will at least relieve the
weariness of this discussion.