To James Monroe
Montpellier Sepr. 24. 1822
The mail of saturday brought me your favour of the 16th. The letters inclosed in it are returned. Accept my thanks for the odd vol:1 Congl. Journals.
As I understand the case presented in the other paper inclosed, it turns on the simple question, whether the Senate have a right, in their advice & consent, to vary the date at which, according to the nomination of the President an appointment to office is to take effect.
The subject continues to appear to me in the light which I believe I formerly intimated. The power of appointment, where not otherwise provided by the Constitution, is vested in the President & Senate. Both must concur in the Act: But the Act must originate with the President. He is to nominate, and their advice & consent are to make the nomination an appointment. They cannot give their advice & consent without his nomination, nor of course differently from it. In so doing they would originate or nominate so far as the difference extended; and it would be his, not their advice & consent, which consummated the appointment. If the President should nominate A to be an officer from the 1st. day of May, and the Senate should advise that he be an officer from the 1st. day of January preceding, it is evident that for the period not embraced by the nomination of the President, the nomination would originate with the Senate & would require his subsequent sanction to make it a joint act. During that period therefore it would be an appointment made by the nomination of the Senate, not of the President; and with the advice & consent of the President, not of the Senate.
The case is not essentially changed by supposing the President to nominate A to be an officer from the 1st. day of January, and the Senate to confirm from the 1st. day of May following. Here also the nomination of the President would not be pursued, and the Constitutional order of appointment would be transposed. His intention would be violated, and he would not be bound by his nomination to give effect to the advice & consent of the Senate. The proceeding would be a nullity, nor would this result from mere informality. The President might have as just objections to a postponement of the date of an appointment,2 as good reasons for its immediate commencement. The change in the date might have an important bearing on the public service; and a collateral or consequential one on the rights or pretensions of others in the public service. In fact, if the Senate, in disregard of the nomination of the President, could postpone the commencement of an appointment for a single day, they could do it for any period, how ever remote, and whatever might be the intermediate change of things. The date may be as material a part of the nomination as the person named in it.3 Health & success
RC (DLC: Monroe Papers); draft (DLC). RC docketed by Monroe. Minor differences between the copies have not been noted.
1. In the draft “of” is added here.
2. In the draft “for three months” is added here.
3. Following this sentence in his draft JM wrote an additional paragraph but crossed through it: “We are still suffering under the intense drought of which you witnessed its encreasing effects. Ten weeks have now passed since we had any rain of sensible value. On some of our farms it may be sd. there has been none at all. Our crops of Corn, notwithstanding, w[h]ere they were forward were so favored by the early part of the Season, as to promise support till the next summer harvest. The Tobo. crop is in a sad plight, and no weather now can repair it. Your neighborhood in albemarle, I understand, has fared much better.”