Front Page Titles (by Subject) 1822 - TO HEZEKIAH NILES. 1 chic. hist. soc. mss. - The Writings, vol. 9 (1819-1836)
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1822 - TO HEZEKIAH NILES. 1 chic. hist. soc. mss. - James Madison, The Writings, vol. 9 (1819-1836) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.
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TO HEZEKIAH NILES.1chic. hist. soc. mss.
Montpellier Jany 8 1822.
In Ramsay’s History of the American Revolution vol:2, pa. 300-301 is the following passage.
“Mr. Jay was instructed to contend for the right of the U. States to the free navigation of the river Mississippi, and if an express acknowledgement of it could not be obtained, he was restrained from acceding to any stipulation by which it should be relinquished. But in February 1781, when Lord Cornwallis was making rapid progress in overruning the Southern States, and when the mutiny of the Pennsylvania line and other unfavorable circumstances depressed the spirits of the Americans, Congress, on the recommendation of Virginia, directed him to recede from his instructions so far as they insist on the free navigation of that part of the Mississippi which lies below the thirty first degree of North Latitude, provided such cession should be unalterably insisted on by Spain, and provided the free navigation of the said river above the said degree of North Latitude should be acknowledged and guaranteed by his Catholic Majesty, in common with his own subjects.”
In this account of the instruction to Mr. Jay to relinquish the navigation of the Mississippi below the Southern boundary of the U. States, the measure would seem to have had its origin with the State of Virginia.
This was not the case: and the very worthy historian, who was not at that period a member of Congress, was led into his error by the silence of the journals as to what had passed on the subject previous to Feby 15, 1781, when they agreed to the instruction to make the relinquishment, as moved by the Delegates of Virginia in pursuance of instructions from the Legislature. It was not unusual with the Secretary of Congress to commence his entries in the Journal with the stage in which the proceedings assumed a definitive character; omitting, or noting on separate & informal sheets only, the preliminary stages.
The Delegates from Virga had been long under instructions from their State to insist on the right to the navigation of the Mississippi; and Congress had always included it in their ultimatum for peace. As late as the 4th of Ocr 1780 (see the secret Journals of that date) they had renewed their adherence to this point by unanimously agreeing to the report of a Committee to whom had been referred “certain instructions to the delegates of Virga by their constituents and a letter of May 29 from Mr. Jay at Madrid,” which report1 prohibited him from relinquishing the right of the U. States to the free navigation of the River Mississippi into and from the sea, as asserted in his former instructions. And on the 17th of the same month, October (see the secret Journals of that date) Congress agreed to the report of a Committee explaining the reasons & principles on which the instructions of October the 4th were founded.
Shortly after this last measure of Congress, the Delegates of S. Carolina & Georgia, seriously affected by the progress and views of the Enemy in the Southern States, and by the possibility that the interference of the Great neutral powers might force a peace on the principle of Uti possidetis, whilst those States or parts of them might be in the military occupancy of G. Britain, urged with great zeal, within & without doors, the expediency of giving fresh vigour to the means of driving the enemy out of their country by drawing Spain into an alliance, and into pecuniary succours, believed to be unattainable without yielding our claim to the navigation of the Mississippi. The efforts of those Delegates did not fail to make proselytes till at length it was ascertained that a number was disposed to vote for the measure sufficient without the vote of Virginia and it happened that one of the two delegates from that State concurred in the policy of what was proposed [see the annexed letter of Novr 25 & extract of Decr 5, 1788, from J. Madison to Jos. Jones].
In this posture of the business, Congress was prevailed on to postpone any final decision untill the Legislature of Virginia could be consulted; it being regarded by all as very desirable, when the powers of Congress depended so much on the individual wills of the States, that an important member of the Union, on a point particularly interesting to it, should receive every conciliatory mark of respect, and it being calculated also that a change in the councils of that State might have been produced by the causes producing it in others.
A joint letter bearing date Decr 13, 1780 [which see annexed] was accordingly written by the Delegates of Virginia to Governor Jefferson to be laid before the Legislature then in session simply stating the case and asking instructions on the subject; without any expression of their own opinions, which being at variance could not be expressed in a letter to be signed by both.
The result of these communications from the Delegates was a repeal of the former instructions and a transmission of different ones, the receipt of which, according to an understanding when the decision of Congress was postponed, made it incumbent on the two Delegates to bring the subject before Congress. This they did by offering the instruction to M. Jay agreed to on the 15th of Feby. 1781 and referred to in the historical passage above cited.
It is proper to add that the instant the menacing crisis was over the Legislature of Virginia revoked the instruction to her Delegates to cede the navigation of the Mississippi and that Congress seized the first moment also for revoking theirs to Mr. Jay.
I have thought a statement of these circumstances due to truth; and that its accuracy may be seen to depend not on memory alone the copies of contemporary documents verifying it are annexed.
In the hope that this explanation may find its way to the notice of some future Historian of our Revolutionary transactions I request for it a place, if one can be afforded, in your Register, where it may more readily offer itself to his researches than in publications of more transient or diffusive contents.
With friendly respects
TO JAMES MONROE.mad. mss.
Montpellier, May 6, 1822.
This will probably arrive at the moment for congratulating you on the close of the scene in which your labours are blended with those of Congress. When will your recess from those which succeed commence; and when & how much of it will be passed in Albemarle? We hope for the pleasure of halts with us, & that Mrs. M & others of your family will be with us.
Mr. Anduaga I observe casts in our teeth the postponement of the recognition of Spanish America til the cession of Florida was secured, and taking that step immediately after.1 This insinuation will be so readily embraced by suspicious minds, and particularly by the wiley Cabinets of Europe, that I cannot but think it might be well to take away that pretext against us, by an Exposé, brought before the public in some due form, in which our conduct would be seen in its true light. An historical view of the early sentiments expressed here in favor of our neighbours, the successive steps openly taken, manifesting our sympathy with their cause, & our anticipation of its success, more especially our declarations of neutrality towards the contending parties as engaged in a civil, not an insurrectionary, war, would shew to the world that we never concealed the principles that governed us, nor the policy which terminated in the decisive step last taken. And the time at which this was taken, is surely well explained, without reference to the Florida Treaty, by the greater maturity of the Independence of some of the new States, & particularly by the recent revolution in Mexico which is able not only to maintain its own Independence, but to turn the scale if it were doubtful, in favor of the others. Altho’ there may be no danger of hostile consequences from the Recognising act, it is desirable that our Republic should stand fair in the eyes of the world, not only for its own sake, but for that of Republicanism itself. Nor would perhaps a conciliatory appeal to the candour & liberality of the better part of Europe be a superfluous precaution, with a view to the possible collisions with Spain on the Ocean, & the backing she may receive from some of the great powers friendly to her or unfriendly to us. Russia has, if I mistake not, heretofore gone far in committing herself against a separation of the Colonies from Spain. And her enterprising policy agt. revolutionary events every where make it the more probable that she may resent the contrast to it in that of the U. S. I am aware that these ideas cannot be new to you, & that you can appreciate them much better than I can. But having the pen in my hand I have permitted them to flow from it. It appears that the Senate have been discussing the precedents relating to the appointment of public Ministers. One question is, whether a Public Minister be an officer in the strict constitutional sense.1 If he is, the appointment of him must be authorized by law, not by the President & Senate. If on the other hand, the appointment creates the office, the office must expire with the appointment, as an office created by Law expires with the law; & there can be no difference between Courts to which a Public Minister had been sent, & those to which one was sent for the first time. According to my recollection this subject was on some occasion carefully searched into, & it was found that the practice of the Govt. had from the beginning been regulated by the idea that the places or offices of Pub. Ministers & Consuls existed under the law & usages of Nations, and were always open to receive appointments as they might be made by competent authorities.
Other questions may be started as to Commissions for making Treaties; which when given to a public Minister employ him in a distinct capacity; but this is not the place, nor am I the person, to pursue the subject.
We had a hard winter & our wheat fields exhibit the proof of it. To make the matter worse, the fly has commenced its ravages in a very threatening manner, a dry cold spell will render them very fatal. I know not the extent of the evil. There has been of late a reanimation of prices for the last crop, occasioned by the expected opening of the W. India Trade; but there is so little remaining in the hands of the Farmers, that the benefit will be scarcely felt by them.
TO JAMES MONROE.mad. mss.
Montpellier, May 18, 1822.
I am just favored with yours of the 12th, in which you ask whether I recollect any case of a “nomination of an officer of the Army to a particular office, to take rank from a certain date, in which the Senate have interposed to give rank from another date?” and again, whether I recollect “any instances of filling original vacancies, in civil or military Offices in the recess of the Senate, where authority was not given by law?”
On the first point I have no particular recollection, but it is possible that there may have been cases such as you mention.1 The journals of the Senate will of course present them if they ever existed. Be the fact as it may, it would seem that such an interposition of the Senate, would be a departure from the naked authority to decide on nominations of the Executive. The tenure of the officer, in the interval bn the two dates, where that of the Senate was the prior one would be altogether of the Senate’s creation; or if understood to be made valid by the Commission of the President, would make the appointment originate with the Senate, not with the President; nor would a posteriority of the date of the Senate, possibly be without some indirect operation beyond the competency of that Body.
On the second point, although my memory cannot refer to any particular appointments to original vacancies in the recess of the Senate, I am confident that such have taken place under a pressure of circumstances, where no legal provision had authorized them. There have been cases where offices were created by Congress, and appointments to them made with the sanction of the Senate, which were notwithstanding found to be vacant in consequence of refusals to accept them, or of unknown death of the party at the time of the appointment, and thence filled by the President alone. I have a faint impression that instances of one or both occurred within the Mississippi Territory. These however were cases of necessity. Whether others not having that basis have occurred my present recollections do not enable me to say.
In the inclosed English Newspaper is sketched a debate in the House of Commons throwing light on the practice there with respect to filling military vacancies in certain cases. If I understand the sketch from a very slight perusal, the rule of promotion is not viewed as applicable to original vacancies. In the abstract it has always appeared to me desirable that the door to special merit should be widened as far as could possibly be reconciled with the general Rules of promotion. The inconveniency of a rigid adherence to this Rule gave birth to Brevets; and favors every permitted mode of Relaxing it, in order to do justice to superior capacity for public service.
The aspect of things at Washington to which you allude could escape the notice of no one who ever looks into the Newspapers. The only effect of a political rivalship among the members of the Cabinet which I particularly anticipated & which I believe I mentioned once in conversation with you, was an increased disposition in each to cultivate the good will of the President. The object of such rivalship on & through the proceedings of Congress is to be ascribed I hope to a peculiarity and Combination of circumstances not likely often to recur in our Annals.1
I am afraid you are too sanguine in your inferences from the absence here of causes which have most engendered & embittered the spirit of party in former times & in other Countries. There seems to be a propensity in free Govts. which will always find or make subjects, on which human opinions & passions may be thrown into conflict. The most, perhaps that can be counted on, & that will be sufficient, is, that the occasions for party contests in such a Country & Govt. as ours, will be either so slight or so transient, as not to threaten any permanent or dangerous consequences to the character & prosperity of the Republic. But I must not forget that I took up my pen merely to answer your two inquiries, and to remind you that you omitted to answer mine as to your intended movements after the release from your confinement at Washington.
TO EDWARD LIVINGSTON.mad. mss.
Montpr., July 10, 1822
I was favored some days ago with your letter of May 19, accompanied by a copy of your Report to the Legislature of the State on the subject of a penal Code.1
I should commit a tacit injustice if I did not say that the Report does great honor to the talents and sentiments of the Author. It abounds with ideas of conspicuous value and presents them in a manner not less elegant than persuasive.
The reduction of an entire code of criminal jurisprudence, into statutory provisions, excluding a recurrence to foreign or traditional codes, and substituting for technical terms, more familiar ones with or without explanatory notes, cannot but be viewed as a very arduous task. I sincerely wish your execution of it may fulfil every expectation.
I cannot deny, at the same time, that I have been accustomed to doubt the practicability of giving all the desired simplicity to so complex a subject, without involving a discretion, inadmissible in free Govt. to those who are to expound and apply the law. The rules and usages which make a part of the law, tho’ to be found only in elementary treatises, in respectable commentaries, and in adjudged cases, seem to be too numerous & too various to be brought within the requisite compass; even if there were less risk of creating uncertainties by defective abridgments, or by the change of phraseology.
This risk wd seem to be particularly incident to a substitution of new words & definitions for a technical language, the meaning of which had been settled by long use and authoritative expositions. When a technical term may express a very simple idea, there might be no inconveniency or rather an advantage in exchanging it for a more familiar synonyme, if a precise one could be found. But where the technical terms & phrases have a complex import, not otherwise to be reduced to clearness & certainty, than by practical applications of them, it might be unsafe to introduce new terms & phrases, tho’ aided by brief explanations. The whole law expressed by single terms, such as “trial by jury, evidence, &c, &c.” fill volumes, when unfolded into the details which enter into their meaning.
I hope it will not be thought by this intimation of my doubts I wish to damp the enterprize from which you have not shrunk. On the contrary I not only wish that you may overcome all the difficulties which occur to me; but am persuaded that if compleat success shd. not reward your labors, there is ample room for improvements in the criminal jurisprudence of Louisiana as elsewhere which are well worthy the exertion of your best powers, and wh will furnish useful examples to other members of the Union. Among the advantages distinguishing our compound Govt. it is not the least that it affords so many opportunities and chances in the local Legislatures, for salutary innovations by some, which may be adopted by others; or for important experiments, which, if unsuccessful, will be of limited injury, and may even prove salutary as beacons to others. Our political system is found also to have the happy merit of exciting a laudable emulation among the States composing it, instead of the enmity marking competitions among powers wholly alien to each other.
I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Congs., when they appointed Chaplains, to be paid from the Natl. Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Constn. the maxim of the law, de minimis non curat.
There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eye of the Constitution. Whilst I was honored with the Executive Trust I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms. In this sense, I presume you reserve to the Govt. a right to appoint particular days for religious worship throughout the State, without any penal sanction enforcing the worship. I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small & even unpopular sect in the U. S., would rally, as they did in Virga. when religious liberty was a Legislative topic, to its broadest principle. Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst. And in a Govt. of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together. It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; And that the only question to be decided was which was the true religion. The example of Holland proved that a toleration of sects, dissenting from the established sect, was safe & even useful. The example of the Colonies, now States, which rejected religious establishments altogether, proved that all Sects might be safely & advantageously put on a footing of equal & entire freedom; and a continuance of their example since the declaration of Independence, has shewn that its success in Colonies was not to be ascribed to their connection with the parent Country. If a further confirmation of the truth could be wanted, it is to be found in the examples furnished by the States, which have abolished their religious establishments. I cannot speak particularly of any of the cases excepting that of Virga. where it is impossible to deny that Religion prevails with more zeal, and a more exemplary priesthood than it ever did when established and patronised by Public authority. We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt.
My pen I perceive has rambled into reflections for which it was not taken up. I recall it to the proper object of thanking you for your very interesting pamphlet, and of tendering you my respects and good wishes.
J. M. presents his respects to Mr. [Henry B(?)]. Livingston and requests the favor of him to forward the above inclosed letter to N. Orleans or to retain it as his brother may or may not be expected at N. York.
TO W. T. BARRY.mad. mss.
Aug 4, 1822
I recd. some days ago your letter of June 30, and the printed Circular to which it refers.
The liberal appropriations made by the Legislature of Kentucky for a general system of Education cannot be too much applauded. A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.
I have always felt a more than ordinary interest in the destinies of Kentucky. Among her earliest settlers were some of my particular friends and Neighbors. And I was myself among the foremost advocates for submitting to the Will of the “District” the question and the time of its becoming a separate member of the American family. Its rapid growth & signal prosperity in this character have afforded me much pleasure; which is not a little enhanced by the enlightened patriotism which is now providing for the State a Plan of Education embracing every class of Citizens, and every grade & department of Knowledge. No error is more certain than the one proceeding from a hasty & superficial view of the subject: that the people at large have no interest in the establishment of Academies, Colleges, and Universities, where a few only, and those not of the poorer classes can obtain for their sons the advantages of superior education. It is thought to be unjust that all should be taxed for the benefit of a part, and that too the part least needing it.
If provision were not made at the same time for every part, the objection would be a natural one. But, besides the consideration when the higher Seminaries belong to a plan of general education, that it is better for the poorer classes to have the aid of the richer by a general tax on property, than that every parent should provide at his own expence for the education of his children, it is certain that every Class is interested in establishments which give to the human mind its highest improvements, and to every Country its truest and most durable celebrity.
Learned Institutions ought to be favorite objects with every free people. They throw that light over the public mind which is the best security against crafty & dangerous encroachments on the public liberty. They are the nurseries of skilful Teachers for the schools distributed throughout the Community. They are themselves schools for the particular talents required for some of the Public Trusts, on the able execution of which the welfare of the people depends. They multiply the educated individuals from among whom the people may elect a due portion of their public Agents of every description; more especially of those who are to frame the laws; by the perspicuity, the consistency, and the stability, as well as by the just & equal spirit of which the great social purposes are to be answered.
Without such Institutions, the more costly of which can scarcely be provided by individual means, none but the few whose wealth enables them to support their sons abroad can give them the fullest education; and in proportion as this is done, the influence is monopolized which superior information every where possesses. At cheaper & nearer seats of Learning parents with slender incomes may place their sons in a course of education putting them on a level with the sons of the Richest. Whilst those who are without property, or with but little, must be peculiarly interested in a System which unites with the more Learned Institutions, a provision for diffusing through the entire Society the education needed for the common purposes of life. A system comprizing the Learned Institutions may be still further recommended to the more indigent class of Citizens by such an arrangement as was reported to the General Assembly of Virginia, in the year 1779, by a Committee1 appointed to revise laws in order to adapt them to the genius of Republican Government. It made part of a “Bill for the more general diffusion of knowledge” that wherever a youth was ascertained to possess talents meriting an education which his parents could not afford, he should be carried forward at the public expence, from seminary to seminary, to the completion of his studies at the highest.
But why should it be necessary in this case, to distinguish the Society into classes according to their property? When it is considered that the establishment and endowment of Academies, Colleges, and Universities are a provision, not merely for the existing generation, but for succeeding ones also; that in Governments like ours a constant rotation of property results from the free scope to industry, and from the laws of inheritance, and when it is considered moreover, how much of the exertions and privations of all are meant not for themselves, but for their posterity, there can be little ground for objections from any class, to plans of which every class must have its turn of benefits. The rich man, when contributing to a permanent plan for the education of the poor, ought to reflect that he is providing for that of his own descendants; and the poor man who concurs in a provision for those who are not poor that at no distant day it may be enjoyed by descendants from himself. It does not require a long life to witness these vicissitudes of fortune.
It is among the happy peculiarities of our Union, that the States composing it derive from their relation to each other and to the whole, a salutary emulation, without the enmity involved in competitions among States alien to each other. This emulation, we may perceive, is not without its influence in several important respects; and in none ought it to be more felt than in the merit of diffusing the light and the advantages of Public Instruction. In the example therefore which Kentucky is presenting, she not only consults her own welfare, but is giving an impulse to any of her sisters who may be behind her in the noble career.
Throughout the Civilized World, nations are courting the praise of fostering Science and the useful Arts, and are opening their eyes to the principles and the blessings of Representative Government. The American people owe it to themselves, and to the cause of free Government, to prove by their establishments for the advancement and diffusion of Knowledge, that their political Institutions, which are attracting observation from every quarter, and are respected as Models, by the new-born States in our own Hemisphere, are as favorable to the intellectual and moral improvement of Man as they are conformable to his individual & social Rights. What spectacle can be more edifying or more seasonable, than that of Liberty & Learning, each leaning on the other for their mutual & surest support?
The Committee, of which your name is the first, have taken a very judicious course in endeavouring to avail Kentucky of the experience of elder States, in modifying her Schools. I enclose extracts from the laws of Virginia on that subject; though I presume they will give little aid; the less as they have as yet been imperfectly carried into execution. The States where such systems have been long in operation will furnish much better answers to many of the enquiries stated in your Circular. But after all, such is the diversity of local circumstances, more particularly as the population varies in density & sparseness, that the details suited to some may be little so to others. As the population however, is becoming less & less sparse, and it will be well in laying the foundation of a Good System, to have a view to this progressive change, much attention seems due to examples in the Eastern States, where the people are most compact, & where there has been the longest experience in plans of popular education.
I know not that I can offer on the occasion any suggestions not likely to occur to the Committee. Were I to hazard one, it would be in favour of adding to Reading, Writing, & Arithmetic, to which the instruction of the poor, is commonly limited, some knowledge of Geography; such as can easily be conveyed by a Globe & Maps, and a concise Geographical Grammar. And how easily & quickly might a general idea even, be conveyed of the Solar System, by the aid of a Planatarium of the Cheapest construction. No information seems better calculated to expand the mind and gratify curiosity than what would thus be imparted. This is especially the case, with what relates to the Globe we inhabit, the Nations among which it is divided, and the characters and customs which distinguish them. An acquaintance with foreign Countries in this mode, has a kindred effect with that of seeing them as travellers, which never fails, in uncorrupted minds, to weaken local prejudices, and enlarge the sphere of benevolent feelings. A knowledge of the Globe & its various inhabitants, however slight, might moreover, create a taste for Books of Travels and Voyages; out of which might grow a general taste for History, an inexhaustible fund of entertainment & instruction. Any reading not of a vicious species must be a good substitute for the amusements too apt to fill up the leisure of the labouring classes.
I feel myself much obliged Sir by your expressions of personal kindness, and pray you to accept a return of my good wishes, with assurances of my great esteem & respect.
P. S. On reflection I omit the extracts from the laws of Virga, which it is probable may be within your reach at home. Should it be otherwise, and you think them worth the transmission by the mail, the omission shall be supplied.
TO THOMAS RITCHIE.mad. mss.
Aug. 13, 1822.
Your favor of Aug 7 is so full & satisfactory an answer to my request of July 2, that I ought not to withhold my thanks for it. The delay was immaterial. But I lament most sincerely the afflicting causes of it.
With much esteem & friendly respects.
The Enquirer of the 6th, very properly animadverts on the attempts to pervert the historical circumstances relating to the Draught of the Declaration of Independence.1 The fact that Mr. Jefferson was the author and the nature of the alterations made in the Original, are too well known and the proofs are too well preserved, to admit of successful misrepresentation.
In one important particular, the truth, tho’ on record, seems to have escaped attention; and justice to be so far left undone to Virga. It was in obedience to her positive instruction, to her Delegates in Congs. that the motion for Independence was made. The instruction passed unanimously in her Convention on the 15 of May, 17762 and the Mover was of course, the Mouth only of the Delegation, as the Delegation was of the Convention. Had P. Randolph the first named not been cut off by Death, the motion wd. have been made by him. The duty, in consequence of that event devolved on the next in order R. H. Lee, who had political merits of a sort very different from that circumstantial distinction.
TO JAMES MONROE.mad. mss.
Montpr, Sepr 24, 1822.
The mail of saturday brought me your favor of the 16th. The letters inclosed in it are returned. Accept my thanks for the odd Vol: of 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, when not otherwise provided by the Constitution is vested in the President & the 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 shd nominate A, to be an officer from the 1st day of May, and the Senate shd. advise that he be an officer from the 1st day of Jany preceding, it is evident that for the period not embraced by the nomination of the P. the nomination wd originate with the Senate, and would require his subsequent sanction to make it a joint act. During that period therefore it would be an appt. made by the nomination of the Senate with the advice & consent of the President; not of the President with the advice & consent of the Senate.
The case is not essentially changed by supposing the Presidt. to nominate A to be an officer from the 1st day of Jany, and the Senate to confirm it from the 1st day of May following. Here also the nomination of the P. would not be pursued; and the Constitutional order of appt. would be transposed. Its 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 wd this result from pure informality. The P. might have as just objections to a postponement of the date of an appt. for three months as good reasons for its immediate commencement. The change in the date might have an essential 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 P. would postpone the commencement of an appt. for a single day, it could do it for any period however remote, & 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.
We are still suffering under the intense drought of which you witnessed its increasing 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, they were forward were so favored by the early part of the season, as to promise support, until 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.
[1 ]The letter with the annexed copies of supporting letters was printed in Niles’ Weekly Register, January 26, 1822, Vol. xxi., p. 347. For the letter of November 25, 1780, to Joseph Jones, see ante I., 101; for that of December 5, 1780, to Jones, Id., 110; for the joint letter of Thedorick Bland and Madison to Jefferson, December 13, 1780, Id., 102, n.
[1 ]Drawn by J. M.—Madison’s note.
[1 ]The Florida treaty was proclaimed February 22, 1821; Monroe’s message recommending recognition of South American independence was dated March 8, 1822.
[1 ]Madison made the following memorandum on the subject (undated):
Power of the President to appoint Public Ministers & Consuls in the recess of the Senate.
1. It is not created by the Constitution.
2. It is not created by a law authorized by the Constitution.
3. It cannot, as an office, be created by the mere appointment for it, made by the President & Senate, who are to fill, not create offices. These must be “established by law,” & therefore by Congress only.
4. On the supposition even that the appointment could create an office, the office would expire with the expiration of the appointment, and every new appointment would create a new office, not fill an old one. A law reviving an expired law is a new law.
The place of a foreign Minister or Consul is to be viewed, as created by the Law of Nations to which the U. S. as an Independent nation, is a party; and as always open for the proper functionaries, when sent by the constituted authority of one nation, and received by that of another. The Constitution in providing for the appointment of such functionaries, presupposes this mode of intercourse as a branch of the Law of Nations.
The question to be decided is, What are the cases in which the President can make appointments without the concurrence of the Senate; and it turns on the construction of the power “to fill up all vacancies which may happen during the recess of the Senate.”
The term all embraces both foreign and municipal cases; and in examining the power in the foreign, however failing in exact analogy to the municipal, it is not improper to notice the extent of the power in the municipal.
If the text of the Constitution be taken literally no municipal officer could be appointed by the President alone, to a vacancy not originating in the recess of the Senate. It appears however, that under the sanction of the maxim, qui hæret in litera hæret in cortice, and of the argumentum ab inconvenienti, the power has been understood to extend, in cases of necessity or urgency, to vacancies happening to exist, in the recess of the Senate, though not coming into existence in the recess. In the case, for example, of an appointment to a vacancy by the President & Senate, of a person dead at the time, but not known to be so, till after the adjournment and dispersion of the Senate, it has been deemed within the reason of the constitutional provision, that the vacancy should be filled by the President alone; the object of the provision being to prevent a failure in the execution of the laws, which without such a scope to the power, must very inconveniently happen, more especially in so extensive a country. Other cases of like urgency may occur; such as an appointment by the President & Senate rendered abortive by a refusal to accept it.
If it be admissible at all to make the power of the President without the Senate, applicable to vacancies happening unavoidably to exist, tho’ not to originate, in the recess of the Senate, and which the public good requires to be filled in the recess, the reasons are far more cogent for considering the sole power of the President as applicable to the appointment of foreign functionaries; inasmuch as the occasions demanding such appointments may not only be far more important, but on the further consideration, that unlike appointments under the municipal law, the calls for them may depend on circumstances altogether under foreign controul, and sometimes on the most improbable & sudden emergencies, and requiring therefore that a competent authority to meet them should be always in existence. It would be a hard imputation on the Framers and Ratifiers of the Constitution, that while providing for casualties of inferior magnitude, they should have intended to exclude from the provision, the means usually employed in obviating a threatened war; in putting an end to its calamities; in conciliating the friendship or neutrality of powerful nations, or even in seizing a favourable moment for commercial or other arrangements material to the public interest. And it would surely be a hard rule of construction, that would give to the text of the Constitution an operation so injurious, in preference to a construction that would avoid it, and not be more liberal than would be applied to a remedial statute. Nor ought the remark to be omitted that by rejecting such a construction this important function unlike some others, would be excluded altogether from our political system, there being no pretension to it in any other department of the General Government, or in any department of the State Govts. To regard the power of appointing the highest Functionaries employed in foreign missions, tho’ a specific & substantive provision in the Constitution, as incidental merely, in any case, to a subordinate power, that of a provisional negotiation by the President alone, would be a more strained construction of the text than that here given to it.
The view which has been taken of the subject overrules the distinction between missions to foreign Courts, to which there had before been appointments, and to which there had not been. Not to speak of diplomatic appointments destined not for stations at foreign courts, but for special negotiations, no matter where, and to which the distinction would be inapplicable, it cannot bear a rational or practical test in the cases to which it has been applied. An appointment to a foreign court, at one time, unlike an appointment to a municipal office always requiring it, is no evidence of a need for the appointment at another time; whilst an appointment where there had been none before, may, in the recess of the Senate, be of the greatest urgency. The distinction becomes almost ludicrous when it is asked for what length of time the circumstance of a former appointment is to have the effect assigned to it on the power of the President. Can it be seriously alleged, that after the interval of a century, & the political changes incident to such a lapse of time, the original appointment is to authorize a new one, without the concurrence of the Senate; whilst a like appointment to a new court, or even a new nation however immediately called for, is barred by the circumstance that no previous appointment to it had taken place. The case of diplomatic missions belongs to the Law of Nations, and the principles & usages on which that is founded are entitled to a certain influence in expounding the provisions of the Constitution which have relation to such missions. The distinction between courts to which there had, and to which there had not been previous missions, is believed to be recorded in none of the oracular works on international law, and to be unknown to the practice of Governments, where no question was involved as to the de facto establishment of a Government.
With this exposition, the practice of the Government of the U. States has corresponded, and with every sanction of reason & public expediency. If in any particular instance the power has been misused, which it is not meant to suggest, that could not invalidate either its legitimacy or its general utility, any more than any other power would be invalidated by a like fault in the use of it.—Mad. MSS.
[1 ]This letter was shown to John Quincy Adams by Monroe and the part relating to appointments was read to the Cabinet.—Adams’s Diary, v., 539; vi., 25.
[1 ]Adams, Secretary of State, Crawford, Secretary of the Treasury, and Calhoun, Secretary of War, were candidates for the nomination to succeed Monroe and at enmity with each other.
[1 ]Livingston’s famous Report of the Plan of the Penal Code had just been published in New Orleans.
[1 ]The report was made by Mr. Jefferson, Mr. Pendleton, and Mr. Wythe.—Madison’s Note.
[1 ]The attempt to give credit to Richard Henry Lee for part authorship of the Declaration of Independence appeared in the Philadelphia Union and Federal Republican, reprinted in the Charleston Patriot, and all copied in the Richmond Enquirer, August 6, 1822.
[2 ]See the Journal of that date (Madison’s Note).