its control over the salaries of ministers. Since to acknowledge the independence of a foreign Power might involve the risk of war with the parent state, he urged the necessity of consultation with the warmaking branch before taking such a step, of a "perfect understand. ing" between the legislative and executive branches. He therefore expressed his conviction that, "without unconstitutional interference with Executive power, with peculiar fitness, we might express in an act of appropriation our sentiments, leaving him to the exercise of a just and responsible discretion." 39 1940 .. In closing the debate, however, Clay quite distinctly claimed for Congress an independent power of recognition. "There are three modes under our Constitution," he said, "in which a nation may be recognized by the Executive receiving a minister; secondly, by its sending one thither; and, thirdly, this House unquestionably has the right to recognize in the exercise of the Constitutional power of Congress to regulate foreign commerce. . . . Suppose, for example, we passed an act to regulate trade between the United States and Buenos Ayres; the existence of the nation would be thereby recognized as we could not regulate trade with a nation which does not exist. Others, such as Henry St. George Tucker of Virginia and Holmes of Massachusetts, supported Clay's motion, but did not go so far as Clay in asserting any separate power of recognition in Congress, merely urging the desirability of coöperation between Congress and the Executive in the exercise of a power involving such grave consequences. Mr. Tucker, characterized as "the best authority in the House on such questions," said of the proposition: "It commands nothing; but it intimates, in a proper and Constitutional manner, the readiness of this House to go hand in hand with the Executive, in the interesting measure of opening an intercourse with the Government of La Plata, by sending and receiving ministers. It is in this way, and in this way only, that I understand the proposition.'' 42 Nevertheless, the measure was attacked as an act of usurpation and an invasion of Executive authority, by such men as Mr. Forsyth 39 Annals of Congress, 15th Cong., 1st sess., II, 1474-1500. 40 Ibid., 1616, 1618. For criticism of this proposition, see Sen. Doc. No. 56, 54th Cong., 2d sess., 32-33. 41 Corwin, The President's Control of Foreign Relations, 76. 42 Annals of Congress, 15th Cong., 1st sess., II, 1589. of Georgia, Chairman of the Committee on Foreign Relations and later Secretary of State, Mr. Lowndes of South Carolina, Chairman of the Ways and Means Committee and the acknowledged leader of the House, and Mr. Smyth of Virginia, who probably expressed the sentiments of Clay's opponents when he said: The Constitution grants to the President, by and with the consent of the Senate, power to appoint ambassadors and public ministers, and to make treaties. According to the usage of the Government, it is the President who receives all foreign ministers, and determines what foreign ministers shall or shall not be received. It is by the exercise of some one of these powers, in neither of which this House has any participation, that a foreign Power must be acknowledged. Then the acknowledgment of the independence of a new Power is an exercise of Executive authority; consequently, for Congress to direct the Executive how he shall exercise this power, is an act of usurpation.43 Clay's motion failed on March 28th by a vote of 115 to 45, was renewed March 30th by Mr. Anderson of Kentucky, and again beaten by the same vote, the House thus definitely refusing at that time to consider itself vested with any powers in regard to recognition. 44 In spite of this action in Congress, President Monroe still seemed somewhat doubtful as to the exact nature and extent of his powers, and on January 2, 1819, again submitted to his Cabinet the question of recognizing the independence of Buenos Ayres. Mr. Calhoun advised acting in concurrence with Great Britain, clearly practicable only by act of the Executive. Mr. Crawford preferred recognition, not by granting an exequatur to a consul, but by sending a minister, "because the Senate must then act upon the nomination, and thus give their sanction," though he admitted that recognition was strictly. within the powers of the Executive alone. Mr. Wirt suggested that the House of Representatives must also concur by assenting to an act of appropriation. John Quincy Adams, however, argued strongly for recognition by the Executive alone. "Instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution, an act of the Executive authority . . . and in this 43 Annals of Congress, 15th Cong., 1st sess., II, 1569-1570. 44 Ibid., 1646, 1652, 1655. instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclusive duty to perform.' No decision seems to have been reached by the Cabinet as to either the expediency or the mode of extending recognition at that time. Clay continued to press the matter after his defeat in 1818, and on May 10, 1820, was able to secure the passage through the House, by a small majority, of a resolution "that it is expedient to provide by law a suitable outfit and salary for such minister or ministers as the President, by and with the advice and consent of the Senate, may send to any of the Governments of South America, which have established, and are maintaining, their independence of Spain." 46 February 9, 1821, the House defeated another motion by Clay for his $18,000 appropriation," but the next day adopted his resolution expressing deep interest in the success of the Spanish provinces, and assuring cordial support to the President "whenever he may deem it expedient to recognize the sovereignty and independence of any of the said provinces." 48 The most pronounced attempt to assert for Congress a distinct right of recognition was made in 1822, when Mr. Trimble of Kentucky, one of Clay's most radical supporters, offered the following joint resolution on January 31st: That the President of the United States be and he is hereby authorized and requested to acknowledge the independence of the Republic of Colombia; and, by an interchange of accredited ministers, place the political relations of that Government with the United States on an equal footing with those of all other independent nations; and be it further resolved, That such of the Spanish provinces in South America as have established and are maintaining their independence of Spain, ought in like manner to be acknowledged by the United States as free, sovereign, and independent governments. These resolutions were later (February 11th) referred to the Committee of the Whole, and there appear to have been dropped. 49 45 Memoirs of John Quincy Adams, IV, 204-207. 46 Annals of Congress, 16th Cong., 1st sess., II, 2223, 2229-2230 47 Ibid., 2d sess., 1071, 1077. 48 Ibid., 1081, 1091, 1092. 49 Ibid., 17th Cong., 1st sess., I, 854, 982. Meanwhile, another resolution had been adopted, calling upon the President for information with regard to the governments established in those provinces,50 to which Monroe responded by his message of March 8, 1822, stating that, in his opinion, the time had come to recognize these republics, and that he considered it his duty to communicate his sentiments to Congress and to invite attention to the subject, in order that there might be "such coöperation between the two departments of the Government as their respective rights and duties may require." 51 In reply to this invitation from the President, two resolutions were very shortly passed by the House, one proposing that "the House of Representatives concur in the opinion expressed by the President in his message of the 8th of March, 1822, that the American provinces of Spain which have declared their independence, and are in the enjoyment of it, ought to be recognized by the United States as independent nations;" the other instructing the Committee of Ways and Means to report a bill appropriating $100,000 to enable the President to give due effect to such recognition. "52 In accordance with this last resolution, an act was approved May 4, 1822, appropriating $100,000 "to defray the expenses of missions to the independent nations on the American continent.'' 53 This review of the early discussion and action as to the power of recognition seems to show pretty clearly that, while Congress definitely refused to claim any distinct or separate right to accord recognition, both the President and Congress felt that the legislative body might with propriety advise, and was entitled to be consulted, especially when grave consequences might result from the act of recognition. In 1836 the same principles were asserted as a result of the controversy over Texas. Texas had formally declared its independence March 2, 1836, and two days later sent commissioners to Washington to ask for recognition. President Jackson was favorable to the cause of Texas, but was cautious about a premature recognition and declined to receive the commissioners.54 Congress, however, was impatient at the delay, and action was taken to bring about early recognition. 50 Annals of Congress, 17th Cong., 1st sess., I, 825, 828. 52 Annals of Congress, 17th Cong., 1st sess., II, 1320, 1382, 1403. 53 Ibid., II, App., 2603-2604. 54 Reeves, American Diplomacy under Tyler and Polk, 78. Clay, now Chairman of the Senate Committee on Foreign Relations, presented a report, June 18, 1836, in which it was asserted that there were, under the Constitution, four ways of recognizing a Power as independent: (1) by treaty; (2) by the passage of a law regulating commercial intercourse; (3) by sending a diplomatic agent; (4) by the Executive receiving and accrediting a diplomatic representative. The last method, it was said, would be a recognition "as far as the Executive only is competent to make it," while the concurrence of the Senate in its executive character was necessary in the first and third modes, in its legislative character in the second. "The Senate alone, without the coöperation of some other branch of the Government, is not competent to recognize the existence of any Power." The report further went on to say that "the President of the United States by the Constitution has the charge of their foreign intercourse. Regularly he ought to take the initiative in the acknowledgment of the independence of any new Power. If, in any instance, the President should be tardy, he may be quickened in the exercise of his power by the expression of the opinion, or by other acts, of one or both branches of Congress. Believing that the President was tardy in this instance, the committee therefore offered the following resolution: "That the independence of Texas ought to be acknowledged by the United States whenever satisfactory information shall be received that it has in successful operation a civil government capable of performing the duties and fulfilling the obligations of an independent Power," which resolution was adopted unanimously July 1, 1836.56 The House adopted a similar resolution on July 4th by a vote of 128 to 20.57 155 President Jackson, curiously enough, took no offense at these resolutions as an interference with the Executive prerogative. He seemed, on the other hand, rather doubtful as to his powers with regard to recognition, and was inclined to thrust some of the responsibility upon Congress. Referring to the Texas situation in his message of December 21, 1836, he spoke of the acknowledgment of a new state as independent as "at all times an act of great delicacy and responsibility, but more especially so when such state has forcibly separated itself 55 Congressional Debates, XII, Pt. II (24th Cong., 1st sess.), 1847-1848. 56 Ibid., 1848, 1928. 57 Ibid., Pt. IV, 4621. For the report of the House Committee on Foreign Affairs, see Journal of the House of Representatives, 24th Cong., 1st sess., 1218. |