The Online Library of Liberty

A project of Liberty Fund, Inc.

• Autobiography. Continued.
• Diary.
• Notes of a Debate In the Senate of the United States.
• Essays and Controversial Papers of the Revolution.
• On Private Revenge. No. I. 1
• On Self-delusion. No. II.
• On Private Revenge. No. III.
• A Dissertation On the Canon and Feudal Law.
• Instructions of the Town of Braintree to Their Representative, 1765.
• The Earl of Clarendon to William Pym.
• Governor Winthrop to Governor Bradford
• Instructions of the Town of Boston to Their Representatives, 17 June, 1768.
• Instructions of the Town of Boston to Their Representatives, 15 May, 1769.
• The Independence of the Judiciary; a Controversy Between William Brattle and John Adams 1773
• Appendix.
• A.
• On the Powers of the Senate.

July 15. Carroll.1 The executive power is commensurate with the legislative and judicial powers.

Ellsworth.1

Butler.2

Lee.3

Grayson.4

Patterson.1

Read.2

Johnson.1

Izard.2

Cujus est instituere, ejus est abrogare.3

Antwerp and the Scheldt. Reasons of state have influenced the Pennsylvanians to prevent the navigation from being opened.1 The limiting the seat of empire to the State of Pennsylvania, on the Delaware, is a characteristic mark of partiality. The Union will think that Pennsylvania governs the Union, and that the general interest is sacrificed to that of one State. The Czar Peter took time to inquire and deliberate before he fixed a place to found his city.

Morris moves to expunge the proviso.2

Maclay.3

The centre of territory is the only permanent centre.4

January 25. Monday.1 It was not the sense of either House, or of any member of either, that the business pending at the adjournment should be lost.

In legislative assemblies, more to be apprehended from precipitation than from delay.2

Great numbers emigrate to the back part of North and South Carolina and Georgia, for the sake of living without trouble. The woods, such is the mildness of the climate, produce grass to support horses and cattle, and chestnuts, acorns, and other things, for the food of hogs; so that they have only a little corn to raise, which is done without much labor. They call this kind of life following the range. They are very ignorant, and hate all men of education; they call them pen and ink men.3

Yesterday, Dr. Tufts and Mr. Otis and family dined with me. Otis1 was very full of elections, and had many things to say about Pinckney and Henry, Jefferson and Burr. He says there was a caucus at Philadelphia; that they agreed to run Jefferson and Burr; that Butler was offended and left them. Otis takes it for granted the President will retire. Pickering has given out publicly that he will. Mrs. W. takes it for granted he will. Collections, packages, and removals of clothes and furniture of their own, have been made. When the electors are chosen, the declaration is to be made.

7. Sunday. I am reading a work of Cicero, that I remember not to have read before. It is intituled, M. Tullii Ciceronis, si Deo placet, Consolatio;1 remarkable for an ardent hope and confident belief of a future state.

APPENDIX.

A.

(Page 408.)

The following paper is in the handwriting of Mr. Jefferson. It bears on the back the following endorsement by the hand of General Washington:—“Construction of the powers of the Senate with respect to their agency in appointing ambassadors, &c., and fixing the grade.”

How this came into the possession of Mr. Adams, does not appear.

ON THE POWERS OF THE SENATE.

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.

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.

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, and 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; and the commision 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, 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, analyzing the three last, shows they do not comprehend the two first. The fourth 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, 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. So, the president has a power to convoke the legislature, and 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, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.

Th. Jefferson.

New York, April 24, 1790.

end of volume iii.

[1 ]Charles Carroll of Carrollton, Senator of Maryland.

[1 ]Oliver Ellsworth, Senator of Connecticut. Afterwards Chief Justice of the Supreme Court of the United States.

[2 ]Pierce Butler, Senator of South Carolina.

[3 ]Richard Henry Lee, Senator of Virginia.

[4 ]William Grayson, Senator of Virginia.

[1 ]William Patterson, Senator of New Jersey. Afterwards Associate Justice of the Supreme Court of the United States.

[2 ]George Read, Senator of Delaware.

[1 ]William S. Johnson, Senator of Connecticut.

[2 ]Ralph Izard, Senator of South Carolina.

[3 ]The yeas and nays upon this question were, in support of the President’s unqualified power of removal,—Messrs. Bassett, Carroll, Dalton, Elmer, Henry, Morris, Patterson, Read, Strong.

Against it,—Messrs. Few, Grayson, Green, Johnson, Izard, Langdon, Lee, Maclay, Wingate.

[1 ]A motion had been made when the bill was in the House of Representatives to add a proviso requiring the Legislatures of Pennsylvania and Maryland to make provision for removing all obstructions to the navigation of the Susquehannah, below the seat to be selected, and it had failed. Ayes, 24. Nays, 25.

[2 ]It would seem from this that the proviso had been inserted in the Senate.

[3 ]William Maclay, Senator of Pennsylvania.

[4 ]The motion was lost, and the bill was subsequently lost at this session, by a disagreement between the Houses, and a consequent postponement of the subject.

[1 ]The name of the speaker appears to have been accidentally omitted.

[2 ]The report of the committee was sustained. Ten yeas, eight nays.

[3 ]A single entry in the Diary occurs in 1791, as follows. Philip Freneau afterwards became noted in the political struggles of the time, as a friend of Mr. Jefferson, who in his turn sheltered him from the indignation of Washington. Memoirs of T. Jefferson, vol. iv. p. 485.

“November 11. Friday. Yesterday a number of the National Gazette was sent to me by Philip Freneau, printed by Childs and Swaine. Mr. Freneau, I am told, is made interpreter.”

[1 ]Samuel Allyne Otis, Secretary of the Senate.

[1 ]Generally conceded to be spurious.