Jefferson’s Opinion on the Powers of the Senate Respecting Diplomatic Appointments
New York. April 24. 1790.
The Constitution having declared that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors other public ministers and consuls’ the President desires my opinion Whether the Senate has a right to negative the grade he may think it expedient to use in a foreign mission, as well as the person to be appointed?1
I think the Senate has no right to negative the grade.
The Constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of representatives: it has declared that ‘the Executive powers shall be vested in the President,’ submitting only special articles of it to a negative by the Senate; and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.2
The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly. The Constitution itself indeed has taken care to circumscribe this one within very strict limits: for it gives the nomination of the foreign Agent to the President, the appointment to him and the Senate jointly, the commissioning to the President. This analysis calls our attention to the strict import of each term. To nominate must be to propose: appointment seems that act of the will which constitutes or makes the3 Agent: and the Commission is the public evidence of it. But there are still other acts previous to these, not specially enumerated in the Constitution;4 to wit 1. the destination of a mission to the particular country where the public service calls for it: and 2. the character, or grade to be employed in it. The natural order of all these is 1. destination. 2. grade. 3. nomination. 4. appointment. 5. commission. If appointment does not comprehend the neighboring acts of nomination, or commission, (and the constitution says it shall not, by giving them exclusively to the President) still less can it pretend to comprehend those previous and more remote of destination and grade. The Constitution, analysing the three last, shews they do not comprehend the two first. The 4th. is the only one it submits to the Senate, shaping it into a right5 to say that ‘A. or B. is unfit to be appointed.’ Now this cannot comprehend a right to say that ‘A. or B. is indeed fit to be appointed,6 but the grade fixed on is not the fit one to employ,’ or ‘our connections with the country of his destination are not such as to call for any mission.’ The Senate is7 not supposed by the Constitution to be acquainted with the concerns8 of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.
It may be objected that the Senate may, by continual negatives on the person, do what amounts to a negative on the grade; and so indirectly defeat this right of the President. But this would be a breach of trust, an abuse of the power confided to the Senate, of which that body cannot be supposed capable.9 So the President has a power to convoke10 the legislature; and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking.10 Yet nobody will say they possess such a negative, or would be11 capable of usurping it by such oblique12 means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power thro the abuse of another.
MS (MHi:AM); entirely in TJ’s hand; endorsed by Washington: “Construction of the Powers of the Senate with respect to their agency in appointing Ambassadors &ca. and fixing the grade.” PrC (DLC). Dft (DLC); with alterations, the more important of which are indicated in textual notes; endorsed by TJ: “Opinion on the right of the President to diplomatic grades.” This is not an actual composition draft, but a fair copy of some previous and missing text, from which TJ departed in some instances in the course of transcription. FC (DNA: RG 59, SDC).
In editing this text for publication in Adams, Works description begins Charles Francis Adams, ed., The Works of John Adams, Boston, 1850–56, 10 vols. description ends , iii, , C. F. Adams made this observation: “How this came into the possession of Mr. Adams, does not appear.” It is very probable that Washington, as he often did when in doubt, sent this to Adams in the way that he sometimes transmitted one cabinet opinion to another officer in asking his views. He sometimes included Adams and Jay in his solicitation of advice, particularly on important matters, and in this instance he did in fact go beyond the cabinet for guidance. Three days after TJ wrote the above opinion, Washington recorded in his diary: “Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no further than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution” (Washington, Diaries, ed. Fitzpatrick, IV, 122). There is no record that Washington consulted Adams, though it is natural that, since the vice-president functioned in both a legislative and executive capacity, he would have looked to him on a subject touching both departments. But the fact that he did consult TJ, Jay, and Madison is a measure of the president’s estimate of the importance of the question. The formulation of foreign policy, the naming of ministers, the assignment of rank and pay, and the designation of places to which these should be sent, and under what instructions, were all functions that had been performed by Congress under the Articles of Confederation. It was quite natural, therefore, that grave doubts should have arisen on both sides under a Constitution that separated executive from legislative functions and gave to each a participation in such matters. Continuity and habits of thought collided with new constitutional distributions of power, creating both concern and the danger of unwise precedent. It would be surprising if Washington had not consulted Adams on such an occasion. He may have done so just before he became gravely ill, thus explaining why Adams did not return the MS of TJ’s opinion.
Doubts existed in fact on both sides concerning the policy involved here. In his first interview with Washington on 23 Mch. 1790, TJ gave the advice that he later amplified for the senate that, except for France where a minister was needed because the diplomatic corps there was larger than at any other court, the rank of chargé at the top grade would suffice for American emissaries. Three days later he and Washington had a further discussion of the question of appointments and provision to be made for them by Congress, “the result of which was that under all circumstances it might be best to have Ministers Plenip’y at the Courts of France and England (if any advances from the latter should be made) and Chargés des Affaires in Spain and Portugal.” They also discussed whether “it might be necessary to send a person in this character to Holland—one in the character of Resident—or simply a person well skilled in commercial matters among other characters being questionable,” but no decision was made. They did conclude that TJ would inform a “Committee of Congress with whom he was to converse on the subject of the Provision to be made, that the salaries allowed to our Diplomatic characters was too low—that the Grades which would be fixed on, to transact our affairs abroad would be as low as they could be made without giving umbrage, that therefore, about 36,000 dollrs. might answer as a provision for the characters to the Courts before named—or that it might take forty-nine or 50,000 dollrs. if it should be found that the lesser grades will not answer” (Washington, Diaries, ed. Fitzpatrick, iv, 107, 109–10, 115, 117). On the other side was the view of Maclay, so erroneously called the first Jeffersonian: “I consider the money as worse than thrown away, for I know not a single thing that we have for a minister to do at a single court in Europe. Indeed, the less we have to do with them the better” (Maclay, Diary, ed. Maclay, p. 304). The problem of establishing an adequate foreign service in the face of executive doubts and legislative isolationism was not an easy one. The legislative history of the so-called intercourse bill, with such documents as TJ presented at his interview with Washington on 26 Mch. 1790 to support his estimates of needs, is presented in connection with his memorandum to Washington, 17 July 1790.
Yet, for all of his isolationism, Maclay left a sketch of TJ that has been deservedly cherished. He respected few and feared none, but this is what he had to say of TJ when the secretary of state, suffering from one of the severest of his attacks of periodic headache, appeared before the senate committee that was considering the intercourse bill on 24 May 1790: “May 24th… We had an appointment with Jefferson the Secretary of State at 6 O’Clock. When I came to the Hall Jefferson and the rest of the Committee were there. Jefferson is a slender Man. Has rather the Air of Stiffness in his Manner. His cloaths seem too small for him. He sits in a lounging Manner on one hip, commonly, and with one of his shoulders elevated much above the other. His face has a scrany Aspect. His whole figure has a loose shackling Air. He had a rambling Vacant look and nothing of that firm collected deportment which I expected would dignify the presence of a Secretary or Minister. I looked for Gravity, but a laxity of Manner, seemd shed about him. He spoke almost without ceasing. But even his discourse partook of his personal demeanor. It was loose and rambling and yet he scattered information wherever he went, and some even brilliant Sentiments sparkled from him. The information which he gave us respecting foreign Ministers &ca. was all high Spiced. He has been long enough abroad to catch the tone of European folly. He gave us a sentiment which seemd to savor rather of quaintness. ‘It is better to take the highest of the lowest, than the lowest of the highest.’ Translation: it is better to appoint a Chargé des Affaires with an handsome Salary, than a Minister Plenipotentiary with a small one. He took his leave, and the Committee agreed to strike out the specific sum to be given to any foreign appointment, leaving it to the President to account, and appropriated 30,000 doll. generally for the purpose” (Maclay’s diary, MS, DLC, ii, 135–6). Maclay could penetrate a Morris, a Wynkoop, or a St. Clair almost at a glance, but here the curiosity, the intent observation, the recognition of brilliance, and the absence of dour comment speak eloquently of TJ’s effect upon him and upon the legislative committee. Maclay’s famous sketch of this first appearance of a secretary of state before a senate committee has been printed invariably in a form that conveys a mistaken sense of TJ’s air at this moment. Maclay’s handwriting, his use of a dialectical expression of Norse derivation (scrany [scranny]), and TJ’s habitually serene humor have made it easy for this passage to be transcribed as: “His face has a sunny Aspect.” The word that Maclay used and the “rambling Vacant look” seem an exact reflection of TJ’s illness at this time, perhaps also of his nervousness at appearing before a public body. But despite this and the ill-fitting clothes that Maclay perpetuated as a stereotype for TJ at all ages and in all places, the portrait remains authentic, especially in its delineation of superiority of intellect, through which Maclay’s silent respect shines.
1. Dft reads at this point: “… appointed to fill that grade.”
2. Dft contains a paragraph at this point which TJ deleted: “It is sufficient then that a power be Executive to attribute it to the President, unless it can be found among the articles specially described and submitted to the Senate.”
3. TJ first wrote in Dft: “… makes him an Agent,” and then altered the passage to read as above.
4. In Dft TJ first wrote: “… previous to all these” deleted “all” and after these words interlined “and not enumerated at all in the Constitution” he then changed the passage to read as above.
5. Following this point in Dft TJ first wrote: “That is, in truth, the right given to the Senate” he altered this to read: “giving them and defining in direct terms a right” and he then changed the passage to read as above.
6. In Dft TJ first wrote “employed,” then substituted “appointed.”
7. In Dft TJ first wrote “They are,” then altered the passage to read as above.
8. In Dft TJ first wrote “secrets,” then substituted “concerns.”
9. In Dft TJ first wrote “… is not supposed capable,” and then altered the passage to read as above.
10. At these points in Dft TJ first wrote, respectively, “assemble” and “assembling,” then substituted “convoke” and “convoking.”
11. At this point in Dft TJ first wrote, then deleted: “justifiable or.”
12. At this point in Dft TJ first wrote “indirect” and then substituted “oblique.”