George Washington to the Senate
[ca. 4 Jan. 1792]
Gentlemen of the Senate
Your house has been pleased to communicate to me their resolutions, purporting a decision by them that it is expedient &c.
From whence an implication arises1 that in their opinion they might have decided that no such appointments were expedient.
After mature consideration and consultation, I am of opinion that the constitution has made the President the sole competent judge to what places circumstances render it expedient2 that Ambassadors or other public ministers should be sent, and of what grade they should be:3 and that it has ascribed4 to the Senate no executive act but the single one of giving or witholding their consent to the person nominated.5
I think it my duty therefore to protest, and I do protest against the validity of any resolutions of the Senate asserting or implying any right in that house to6 exercise any executive authority but the single one before mentioned.
It is scarcely necessary to add that nothing herein is meant to question their right to concur in making treaties: this being considered not as a branch of Executive, but of Legislative powers, placed by the constitution under peculiar modifications.
PrC (DLC); entirely in TJ’s hand; at foot of text: “not sent.” Entry in SJPL reads: “draught of message to Senate on their right to controul grade &c. not sent.” Dft (DLC: TJ Papers, 98: 16748); with many differences in wording, most of which are noted in textual notes below. On bottom of second sheet, TJ wrote the following notes: “nomination of ambassador &c. and judges on same footing. Could they decide whether a judge shall be appointed. May happen that one should be appointed during recess. Would his proceeding be void, because the competent judge [i.e. the Senate] had not sanctioned. He shall receive ambassadors and other public ministers. But every where he who receives can render in exchange and in usage before recieved. There must be a preliminary promise to render in exchange. Now the constitution could not mean to give a power to recieve, and refuse a power over the only condition which could produce the demand to recieve.”
TJ’s proposed message was part of the ongoing struggle to secure Senate confirmation of the nominations of Pinckney, Morris, and Short to serve as ministers of the United States. TJ, whose belief in the exclusive right of the Executive over foreign affairs was well known, probably drafted this strong defense of the President’s prerogatives in reaction to Benjamin Hawkins’ notes of the Senate debate on these nominees (see enclosure to Hawkins to TJ, 3 Jan. 1792; TJ, Opinion on the Powers of the Senate respecting Diplomatic Appointments, 24 Apr. 1790). But despite TJ’s strong convictions on this point, the message he drafted for the President was not sent to the Senate, perhaps because of the meeting that is described in the following document. His initial reaction, however, lends some plausibility to the claim of an anonymous Federalist critic that while dining with Elbridge Gerry and Thomas FitzSimons on 3 Jan. 1792 TJ stated that “the Senate ought to be deprived, by what he calls an amendment of the Constitution, of every thing except their legislative vote—and even that he says appears doubtful to him and to his little friend [James Madison], since the French in their new Constitution have proved that the dangers to be apprehended from a single branch of the Legislature are unfounded and chimerical”—a remark that undoubtedly reflects nothing more than TJ’s temporary exasperation with the upper house of the national legislature (Anonymous to Washington, [20 Jan. 1792], DLC: Washington Papers).
1. In Dft, TJ first wrote “is unavoidable,” then substituted this word.
2. Preceding four words interlined.
3. At this point, TJ first wrote and then deleted “and I do therefore protest against leaving to.”
4. In Dft, TJ first wrote “given,” then “allowed.”
5. At this point in Dft, TJ first wrote “by him for the mission. I do therefore protest,” deleted.
6. From this point in Dft, TJ heavily edited the remainder of the paragraph. He first wrote, then deleted, the following: “decide on the expediency of <the> any mission of Ambassadors, or other public ministers […] exercise any executive powers but the single one <of> before mentioned which the constitution has given to them of [‥ ] however was to examine their constitutional right of […] the person nominated, and their legislative […] legislative provision for the support of any mission on […] of which they alone are the judges. […] that the power may not be misconstrued as <extending to their powers […] mentioned> comprehending the right to make treaties. Treaties being legislative in their nature, the rights of the Senate to concur in making them, is not meant to be drawn into question by this protest, which is confined to Executive <considering treaties as legislative acts>.”