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ed, several preliminary points, such as the subjects, to which the attention of the Congress should be directed, the substance and the form of the powers to be given to the respective representatives, and the mode of organizing the Congress, and that, if these points should be satisfactorily arranged, the President would be disposed to accept, in behalf of the United States, the invitation, with which you are provisionally charged.

"In your note there is not recognised so exact a compliance with the conditions, on which the President expressed his willingness, that the United States should be represented at Panama, as could have been desired. It would have been, perhaps, better if there had been a full understanding between all the American powers, who may assemble by their representatives, of the precise questions, on which they are to deliberate, and that some other matters, respecting the powers of the deputies, and the organization of the Congress, should have been distinctly arranged, prior to the opening of its deliberations. But as the want of the adjustment of these preliminaries, if it should occasion any inconvenience, could be only productive of some delay, the President has determined at once to manifest the sensibility of the United States to whatever concerns the prosperity of the American hemisphere, and to the friendly motives, which have actuated your government in transmitting the invitation, which you have communicated.

"He has therefore resolved, should the Senate of the United States, now expected to assemble in a few days, give their advice and consent, to send commissioners to the Congress at Panama. Whilst they will not be authorized to enter upon any deliberations, or to concur in any acts, inconsistent with the present neutral position of the United States and its obligations, they will be fully empowered and instructed upon all questions, likely to arise in the Congress, on subjects, in which the nations of America have a common interest."

We have placed a single paragraph of this extract in italies, in order to show, that the disadvantage, to which we have alluded, of an absence of precise information in regard to the subjects to be discussed, together with the powers of the deputies, was, also, seriously felt by the government. In the following December a nomination, accompanied by a formal message, was made to the Senate, of Richard C. An

derson of Kentucky and John Sergeant of Philadelphia, to be envoys extraordinary and ministers plenipotentiary to the assembly of American nations at Panama.

A topic of constitutional law was developed in this message, that deserves a serious consideration. Though the President referred the matter of the appointments, both to the Senate and House, yet he declares the "measure to be within the constitutional competency of the Executive." The article on the subject of foreign intercourse, applicable to this case in the constitution, is in these words: "The President shall have power to fill up all vacancies, that may happen during the recess of the Senate by granting commissions, which shall expire at the end of their next session."

"In the year 1814, President Madison appointed ministers to negotiate the treaty of Ghent in the recess of the senate. The principle acted upon in this case, however, was not acquiesced in, but protested against by the senate at their succeeding session. And on a subsequent occasion April 20, 1822, during the pendency of the bill for an appropriation to defray the expenses of missions to the South American States, it seemed distinctly understood to be the sense of the senate, that it is only in offices that become vacant during the recess, that the President is authorized to exercise the right of appointing to office, and that in original vacancies, where there has not been an incumbent of the office, such a power under the constitution does not attach to the executive. An amendment, that had been proposed, providing that the president should not appoint any minister to the South American States, but with the advice and consent of the senate, was therefore, withdrawn as unnecessary. And in a report of a committee on the 25th April 1822, it is declared that the words "all vacancies that may happen during the recess of the senate" mean vacancies occurring from death, resignation, promotion, or removal. The word happen has reference to some casualty, not provided for by law. If the senate be in session, when offices are created by law, which were not before filled, and nominations be not then made to them by the President, the President cannot appoint after the adjournment of senate, because, in such case, the vacancy does not happen during the recess. 60


In many instances where offices are created by law, special power

is given to the President to fill them in the recesses of the senate : and in no instance has the President filled such vacancies without the special authority of law."

On the occasion of the Panama mission the same question was again submitted to the senate in an abstract form, but becoming unfortunately embarrassed by considerations, accompanying that political topic, the decision of that body cannot be fairly considered, as altogether divested of some influence, foreign from the discussion. We hope we shall be pardoned for not dismissing the subject without presenting a brief account of the precedents (besides the cases mentioned on a preceding page) that have taken place under this exercise of executive authority. They are, fortunately, not numerous, and can be despatched in a few words. Before doing this, however, we must advert, for a moment, to the peculiarity of our foreign intercourse at the time of the organization of the federal government, terminating at the same moment and by a single act the existence of every diplomatic agent of the confederation. Though the necessity immediately arose of restoring foreign intercourse in every direction, where it had been suspended, there is no instance, during the administration of General Washington, of an original appointment without the advice and approbation of the It has been stated, that John Paul Jones, in May 1792, was appointed, without the advice of the senate, minister to Algiers to negotiate a treaty of peace and commerce. But on examination, this representation turns out to be erroneous in two particulars;-Commodore Jones was never appointed a minister for any purpose, nor was any diplomatic step taken in relation to Algiers without complying with every formality, prescribed by the constitution. Indeed, it seems to have been the practice of General Washington in all new cases of importance, previous to nominations or diplomatic arrangements of any sort, to submit the matter to the senate for their consideration. This was a wise, judicious disposition and such, as we cannot doubt, was originally intended by the constitution, considering the peculiar


power of the senate in regard to treaties and nominations. The first and only clear, undoubted exercise of this authority (though several cases have been mentioned, which we are satisfied on examination will be found to be within the constitutional competency of the President) is the instance of Mr. Short, nominated, in 1809, by President Jefferson, minister plenipotentiary to the court of St. Petersburg:

"The emperor of Russia," says Mr. Jefferson, "having on several occasions indicated sentiments particularly friendly to the United States, and having expressed a wish through different channels that a diplomatic intercourse should be established between the two countries" and "believing in the then extraordinary state of the world and under the constant possibility of sudden negotiations for peace, that the friendly dispositions of such a power might be advantageously cherished by a mission, which should manifest our willingness to meet his good will, &c."-On these accounts, President Jefferson appointed Mr. Short, during the recess of the senate, a minister to Russia. Such is the account given of this appointment by the President himself in his message of the 24th February 1809, to the senate. Notwithstanding the extraordinary emergency, which was then said to exist, however, and which, alone as has been stated, was relied upon by President Jefferson to excuse him for the exertion of this then unprecedented exercise of power, the senate on the 27th February, rejected the nomination by an unanimous vote."

During a state of war, we may, by some little refinement of reasoning, imagine a case, that might form an exception to this construction. Upon the presumption that peace is the legitimate end of war, and the acknowledged competency of the President to direct the whole military force of the country for the purpose of harassing and distressing the enemy, it may seem a reasonable exercise of his authority to take advantage of a favourable moment to negotiate. In this country, war is a law enacted in the usual forms, the execution of which depends, to a certain extent, on the President. Peace is either obtained by a treaty, not differing, except as to the object, from any other treaty, or by the mutual cessation of hostilities. It may, therefore, savour somewhat of a meta

physical distinction, that, Congress having declared war, that exigency is created by statute, in which the President may, by his own authority, employ a commissioner to negotiate a peace.

We now return to the Panama mission. The nominations, made in December 1825, were approved after a long debate, and by a majority of six voices. The first message of the President to the senate was followed by one to the House in the following March, composed in a forcible manner and with clearness and beauty of expression. We have purposely omitted the state paper of December in order (with the least encumbrance to the reader) to present him with a more minute and finished developement, and a more studied and profound vindication of the plans and objects of the congress.

"With regard to the objects in which the agents of the United States are expected to take part in the deliberations of that Congress, I deem it proper to premise, that these objects did not form the only, nor even the principal, motive for my acceptance of the invitation. My first and greatest inducement was, to meet, in the spirit of kindness and friendship, an overture made in that spirit by three sister Republics of this hemisphere.

"Among the topics enumerated in official papers, published by the Republic of Colombia, and adverted to in the correspondence now communicated to the house, as intended to be presented for discussion at Panama, there is scarcely one in which the result of the meeting will not deeply affect the interests of the United States. Even those in which the belligerent states alone will take an active part, will have a powerful effect upon the state of our relations with the American, and probably with the principal European states. Were it merely that we might be correctly and speedily informed of the proceedings of the Congress, and of the progress and issue of their negotiations, I should hold it advisable that we should have an accredited agency with them, placed in such confidential relations with the other members, as would ensure the authenticity, and the safe and early transmission, of its reports. Of the same enumerated topics, are the preparation of a manifesto, setting forth to the world the justice of their cause, and

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