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From Thomas Jefferson to Wilson Cary Nicholas, 26 January 1802

To Wilson Cary Nicholas

Washington Jan. 26. 1802.

Dear Sir

The inclosed paper was put into my hands by mr Madison to fill up some dates, but I have been so engaged as to do little to it; and supposing you will want it to-day I send it as it is. to that list may be added the appointment of Gouvr. Morris to negociate with the court of London, by letter written & signed by Genl. Washington, & Dav. Humphreys to negociate with Lisbon by letter. commissions were not given in form because no ministers had yet been sent here by those courts: but the powers were given them, and half the salary. (as they were not to display a diplomatic rank, half salary was thought sufficient.) but they were compleatly officers on salaries, and no notice given the Senate till afterwards.

The phrase in the constitution is ‘to fill up all vacancies that may happen during the recess of the Senate.’ this may mean ‘vacancies that may happen to be’ or ‘may happen to fall.’ it is certainly susceptible of both constructions, and we took the practice of our predecessors as the commentary established. this was done without deliberation; and we have not before taken an exact view of the precedents. they more than cover our cases. but I think some of them are not justifiable. we propose to take the subject into consideration, and to fix on such a rule of conduct, within the words of the constitution, as may save the government from serious injury, & yet restrain the Executive within limits which might admit mischief.—you will observe the cases of Read & Putnam, where the persons nominated declining to accept, the vacancy remained unfilled & had happened before the recess. it will be said these vacancies did not remain unfilled by the intention of the Executive, who had, by nomination, endeavored to fill them. so in our cases, they were not unfilled by the intention of the successor, but by the omission of the predecessor. Chas. Lee informed me that whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess. however this discussion is too long for a letter. we must establish a correct & well digested rule of practice, to bind up our successors as well as ourselves. if we find that any of our cases go beyond the limits of such a rule, we must consider what will be the best way of preventing their being considered as authoritative examples. in the mean time I think it would be better to give the subject the go-by for the present, that we may have time to consider and to do what will be best for the general safety. health & respect

Th: Jefferson

P.S. when you are done with the inclosed paper I shall be very glad to recieve it again to copy it for deliberation.

RC (LNT: George H. and Katherine M. Davis Collection); addressed: “Wilson C. Nicholas of the Senate.” PrC (DLC); in ink at foot of first page: “W. C. Nicholas.” Enclosure not found.

Supposing you will want it today: on 26 Jan., the Senate confirmed all of TJ’s interim appointments except the justices of the peace for the District of Columbia (JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:405). On 13 Oct. 1789, President Washington sent instructions and a letter of credence to Gouverneur Morris, who was traveling in France, for his negotiations with the court of London. Since Morris was an unofficial envoy, Washington did not seek Senate confirmation of his mission (Washington, Papers, Pres. Ser., 4:179–83; 5:117–9). On 11 Aug. 1790, TJ sent instructions to David Humphreys for his secret mission to Lisbon. Humphreys’s allowance was $2,250 per year (same, 6:217–20; Vol. 17:125–7). For the events that led to Humphreys’s nomination as minister to Portugal on 18 Feb. 1791, see JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:74–5.

phrase in the Constitution: Article 2, Section 2. As secretary of state in 1792, TJ sought Attorney General Edmund Randolph’s opinion on the constitutional provisions for recess appointments. Randolph responded that the “Spirit of the Constitution” was that interim appointments should be limited to cases where a vacancy occurred because an officer had resigned or died while Congress was in recess, or to a position remaining unfilled because an appointee declined the office but did not send notification until Congress had adjourned (see Vol. 24:165–7).

cases of Read & Putnam: probably the interim appointments of John Read and Rufus Putnam. On 29 Nov. 1797, President Adams sought the Senate’s approval of the appointment of Read as agent for the U.S. to settle claims under Article 6 of the Jay Treaty, in place of Charles Hall of Pennsylvania, who had declined the appointment. Adams had appointed Hall on 6 July, four days before Congress recessed. In December 1796, Washington sought Senate approval of Putnam’s appointment as surveyor general. The president had first appointed Simeon De Witt on 28 May, but even a month after Congress had adjourned on 1 June, Washington did not know whether De Witt had accepted the offer or not (JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:212–3, 216–7, 248–50, 252; Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, D.C., 1931–44, 39 vols. description ends , 35:106).

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