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not appoint any minister to the South American States, but with the advice and consent of the senate, was therefore, withdrawn as unnecessary.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

VOL. II.

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 senate. 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

the relations they desire to hold with other christian powers; and to form a convention of navigation and commerce, applicable both to the confederated states and to their allies.

"It will be within the recollection of the House, that immediately after the close of the war of our independence, a measure closely analogous to this Congress of Panama, was adopted by the Congress of our confederation, and for purposes of precisely the same character. Three commissioners, with plenipotentiary powers, were appointed to negotiate treaties of amity, navigation and commerce with all the principal powers of Europe. They met, and resided for that purpose about one year at Paris; and the only result of their negotiations at that time, was the first treaty between the United States and Prussia-memorable in the diplomatic annals of the world, and precious as a monument of the principles, in relation to commerce and maritime warfare, with which our country entered upon her career as a member of the great family of independent nations.

"The late President of the United States, in his message to Congress of the second December 1823, while announcing the negotiation then pending with Russia, relating to the northwest coast of this continent, observed, that the occasion of the discussions to which that incident had given rise, had been taken for asserting as a principle in which the rights and interests of the United States were involved, that the American continents, by the free and independent condition which they had assumed and maintained, were thenceforward not to be considered as subjects for future colonization by any European power. The principle had first been assumed in that negotiation with Russia. It rested upon a course of reasoning equally simple and conclusive. With the exception of the existing European colonies, which it was in no wise intended to disturb, the two continents consisted of several sovereign and independent nations, whose territories covered their whole surface. By this, their independent condition, the United States enjoyed the right of commercial intercourse with every part of their possessions. To attempt the establishment of a colony in those possessions would be to usurp, to the exclusion of others, a commercial intercourse which was the common possession of all. It could not be done without encroaching upon existing rights of the United States. The government of Russia has never disputed these po