The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
TO JAMES MONROE. |
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 | The writings of James Madison, |  |
TO JAMES MONROE.
Dear Sir, 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.[31]
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
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
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.[32] If he is, the appointment
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
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
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.
The Florida treaty was proclaimed February 22, 1821; Monroe's
message recommending recognition of South American independence
was dated March 8, 1822.
Madison made the following memorandum on the subject (undated):
Power of the President to appoint Public Ministers & Consuls in the
recess of the Senate.
The place of a foreign Minister or Consul is not an office in the constitutional
sense of the term.
- It is not created by the Constitution.
- It is not created by a law authorized by the Constitution.
- 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. - 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.
1.
2.
3.
4.
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.
| The writings of James Madison, | |