From Thomas Jefferson
New York. April 24. 1790.
The Constitution having declared that the President “shall nominate, & by & with the advice & consent of the Senate, shall appoint ambassadors other public ministers & 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 & Judiciary, lodging each with a distinct magistracy. the Legislative it has given completely to the Senate & 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; & it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.
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 & 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 the Agent: & the Commission is the public evidence of it. but there are still other acts previous to these, not specially enumerated in the Constitution; to wit 1. the destination of a mission to the particular country where the public service calls for it: & 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, (& the constitution says it shall not, by giving them exclusively to the President) still less can it pretend to comprehend those previous & more remote of destination & 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 right 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, 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 is not supposed by the Constitution to be acquainted with the concerns 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; & 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. so the President has a power to convoke the legislature; & the Senate might defeat that power by refusing to come. this equally amounts to a negative on the power of convoking. yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique 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, & 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.
ADS, MHi: Adams Family Papers; ADS (letterpress copy), DLC: Thomas Jefferson Papers; ADf, DLC: Thomas Jefferson Papers; LB, DLC:GW.
1. In his message to Congress of 8 Jan. 1790, GW wrote that “The interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect, in the manner, which circumstances may render most conducive to the public good: And to this end, that the compensations to be made to the persons, who may be employed, should, according to the nature of their appointments, be defined by law; and a competent fund designated for defraying the expenses incident to the conduct of our foreign affairs.” In response the House of Representatives appointed a committee to prepare a bill to provide compensation to members of the foreign service. This bill, designated the Foreign Intercourse Bill (HR–35), was presented on 21 January. It empowered the president to draw up to $40,000 out of the Treasury for the support of the foreign service and designated the maximum salaries to be paid to resident ministers, chargés d’affaires, and secretaries. In the ensuing debate Richard Bland Lee argued for inserting a clause requiring the president to obtain the advice and consent of the Senate before making disbursements (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 4:698–701). This proposal and the attendant debate raised the possibility that the Senate might attempt to use the power over disbursements to control the number, grade, and placement of American diplomats abroad. The issues at stake were crucial to the establishment of the diplomatic service, as well as to the broader division of authority over foreign affairs between Congress and the president. Under the Articles of Confederation, the Continental Congress had control of foreign affairs, including the naming and placement of diplomats, as well as their instructions, rank, and pay. The federal Constitution had shifted most of this power to the president, acting in some situations with the “advice and consent” of the Senate. The extent of Senate authority under the “advice and consent” provision remained uncertain, however, and GW was determined to resist legislation based on this provision that might undermine executive authority over foreign affairs. The House bill was recommitted on 24 Mar., and a new bill, designated the Foreign Intercourse Act (HR–52), was presented on 31 March. On 8 April debate on the measure was postponed until 27 April (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 4:702–3). The new bill did not contain a provision requiring the president to obtain the advice and consent of the Senate before disbursing funds, but GW seemingly anticipated that the proposal would again be introduced, or that some other amendment might be offered that would compromise executive authority over foreign affairs. The issues at stake were crucial to the establishment of the diplomatic service, a matter to which GW devoted a great deal of time and attention during the spring of 1790. GW and Jefferson first discussed diplomatic appointments on 23 Mar., two days after Jefferson’s arrival. On 26 Mar. they discussed the Foreign Intercourse Bill, which had just been recommitted, agreeing that the diplomatic service would require between $36,000 and $50,000 annually, and on 16 April they had a long discussion about the consular establishment. GW probably asked Jefferson for a written opinion on the issues raised by the Foreign Intercourse Act at this meeting or shortly after. GW was on his tour of Long Island from 20 April to 24 April and doubtless received Jefferson’s written opinion immediately after his return (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:51–52, 54, 60, 64–66). In addition to Jefferson, GW consulted James Madison, John Jay, and probably John Adams about these issues. On 27 April, the day debate on the Foreign Intercourse Act resumed in the House, GW “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. Jays and Mr. Jeffersons—to wit—that they have no Constitutional right to interfere with either, & that it might be impolitic to draw it into a precedent, their powers extending no farther 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” (ibid., 68). No written opinion by John Jay on this matter has been found. A copy of Jefferson’s letter, in his writing and endorsed by GW “Construction of the Powers of the Senate with respect to their agency in appointg Ambassadors &c. and fixing the grade,” is in MHi: Adams Papers, suggesting that GW consulted Adams about the matter as well. After debate resumed in the House, it became clear that the size of the appropriation constituted the principal challenge to executive authority over the diplomatic service. On 30 April the House set the appropriation at $30,000, which threatened to make it impossible for GW to appoint resident ministers to both France and England and to provide proper representation elsewhere (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 4:704–5). Debate then moved to the Senate. On 3 May the Senate referred the House bill to a committee consisting of Strong, Ellsworth, Carroll, Maclay, and Few. The committee reported on 7 May. On that day GW recorded in his diary: “As the House of Representatives had reduced the Sum, in a Bill to provide for the expences of characters in the diplomatic line, below what would enable the Executive to employ the number which the exigencies of Government might make it necessary I thought it proper to intimate to a member or two of the Senate the places that were in contemplation to send persons to in this Line—viz to France & England (when the latter manifested a disposition to treat us with more respect than She had done upon a former occasion) Ministers Plenipotentiary and to Spain, Portugal & Holland Chargé des Affaires and having an opportunity, mentioned the matter unofficially both to Mr. [Charles] Carroll & Mr. [Ralph] Izard” (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:75). Carroll was a member of the committee to which the bill was referred by the Senate on 3 May. The Senate considered the committee report on 10 May and ordered the bill recommitted. A final committee report was delivered on 25 May. The Senate passed an amended version of the House bill on 26 May, but the House refused to agree to the changes, and the bill was referred to a conference committee on 31 May. When a compromise bill was reported in the Senate on 23 June, William Maclay recorded that the bill had been referred “to a Committee of Conference so long That I had forgot it. but the thing was neither dead nor sleeping. It was only dressing. and friends making. The report encreased the Salaries. and added 10,000 dollars to the Appropriations. I concluded that they had secured Friends enough to support it. before they committed it to the House. This turned out to be the case. The Whole appropriation was 40,000 Doll. and they were voted with an air of perfect indifference. by the affirmants. altho’ I consider the Money as Worse than thrown away. For I know not of a Single thing, that we have for a single Minister to do at a Single Court in Europe. indeed the less We have for them to do the better. Our Business is to pay them What We owe and the less Political connection the better, with any European power. It was well spoke against. I voted against every part of it” (Bowling and Veit, Diary of William Maclay, description begins Kenneth R. Bowling and Helen E. Veit, eds. The Diary of William Maclay and Other Notes on Senate Debates. Baltimore, 1988. description ends 301). Both houses agreed to the compromise bill on 25 June. On 30 June GW noted in his diary the passage of the bill appropriating $40,000, which he signed on 1 July (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:78–79). While Congress was considering this legislation, the Senate took up GW’s nominations for the consular service. Senate actions on these nominations in June also constituted a challenge to executive authority over foreign affairs (see GW to the U.S. Senate, 4 June 1790, note 1).