In 1798 a discussion arose as to this power, in which was considered the possible clashing between the appointing power of the president and the ap propriating financial power of congress. In the course of debate Mr. Otis concluded hie remarks with some observations not less pertinent to the present question than to that to which they were addressed: "It was owing to the apparent contra dictions arising from a theoretical view of consti tutione like ours that they were pronounced to be impracticable by some of the best writers of an tiquity. And these abstract questions and extreme caeea were not calculated to reconcile the minds of our citizens to our exceiient form of government. It is a plain and conciueive reply, by which all such objections are obviated, that the constitution is not predicated upon a presumed abuse of power by any department, but on the more reasonable confidence that each will perform its duty within its own sphere with aincerity, that division of senti ment will yield to reason and explanation, and that extreme cases are not likely to happen." And Attorney-General Cushing objected to an act in which it was provided that the president "shall" appoint a consul at Port au Prince, that it involved the diplomatic recognition of the Haytien empire, which rested entirely within the discretion of the president. '7 Op. Attye. Gen. 248.
Turning to the precedents, the right to recognize a foreign power was first discussed in 1818 with reference to the South American republics. The matter first came up on an appropriation to pay a minister, which was defeated, after a debate, in which Mr. Clay maintained that recognition might be either by president in receiving or sending a minister, or by congress under the commerce clause ; and the relation of the two powers of gov ernment to the subject was much considered; Ann. of Cong. (1818), pp. 1468-1608-1655. The subject was at this time much discussed both in congresa and between the president and individual members, eo much eo that Mr. Adams, the aecretary of state, in his memoirs, mentions jocular remarka made in the cabinet in that connection about the power of im peachment; 4 Memoirs, J. Q. Adams 204-206. Sub sequently the subject was revived in the house and various resolutions were considered, with the result of a request for information from the president, which was responded to by the message of March 8, 1822, in which he said it was his duty to invite the attention of congress to a very important subject, and to communicate the sentiments of the executive on it ; that, should congress entertain other senti ments, then there might be such co-operation be tween the two departments of the government as their respective rights and duties might require. And after atating that in his judgment the time had come to recognize the republics, he said: "Should congress concur in the view herein presented, they will doubtless see the propriety of making the nec essary appropriations for carrying it into effect.' The house then resolved that it "concur in the opinion expressed by the president in his message of the 8th of March, 1822, that the late American provinces of Spain which have declared their in dependence and are in the enjoyment of it, ought to be recognized by the United States as inde pendent nations," and directed an appropriation "to enable the President of the United States to give due effect to such recognition." The Hale memo randum conciudee a review of thia matter with a Protest against the conclusion which has been drawn that President Monroe, after all the discussion, had admitted the power of recognition in congress, hut concedes that he did acknowledge "the importance of consulting the legislative branch when a step was about to be taken whose expediency might be doubted, and which would necessarily result in a request for appropriations." In June, 1836, in reporting a resolution declaring that the independence of Texas ought to be- recog nized, the committee on foreign affairs of the senate made a report in which it was said: "The recog nition of Texas as an independent power may be made by the United States in various ways: First, by treaty; second, by the passage of a law regulat ing commercial intercourse between the two pow ers; third, by sending a diplomatic agent to Texas with the usual credentials ; or, lastly, by the execu tive receiving and accrediting a diplomatic repre sentative from Texas, which would be a recogni tion ae far as the executive only is competent to make it. . . . The President of the United States, by the constitution, has the charge of their foreign intercourse. Regularly he ought to take the Initia tive in the acknowledgment of the independence of any new power, but in this case he has not yet done It for reasons which he, without doubt, deems sufficient. 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, as was done in relation to the republics formed out of Spanish America." Quoted in Senate Report, No. 1160, 54th Cong. 2d Sess.
President Jackson, in his message of Dec. 21, 1836, after referring to the resolution, said that there had never been any deliberate inquiry as to where be longed the power of recognizing a new state,—a power in some instances' equivalent. to a declara
tion of war, and expressly given, but only as it Is implied from some of the great powers giv en to congress or in that given to the president to make treaties and receive and appoint ministers. Then he continues: "In the preamble to the resolu tion of the house of representatives it is distinctly intimated that the expediency of recognizing the in dependence of Texas should be left to the decision of congress. In this view, on the ground of expe diency, I am disposed to concur, and do not, there fore, consider it necessary to express any opinion ae to the strict constitutional right of the executive, either apart from or in 'conjunction with the senate, over the subject. It is to be presumed that on no future occasion will a dispute arise, as none has heretofore occurred, between the executive and the legislature in the exercise of the power of recogni tion. It will always be considered consistent with the spirit of the constitution and most safe that it should be exercised, when probably leading to war, with a previous understanding with that body by whom war can alone be declared, and by whom all the provisions for sustaining its perils must be furnished. Its submission to congress, which rep resents in one of its branches the states of this Union, and in the other the people of the United States, where there may be reasonable ground to apprehend so grave a consequence, would certainly afford the fullest satisfaction to our own country and a perfect guaranty to all other nations of the justice and prudence of the measures which might be adopted." As to this message the Hale memorandum, which, it is to be remembered, is an argument for the absolute and unqualified power of the executive (but modified only by what might be termed a moral duty to consult congress in extreme cases) remarks: "President Jackson plainly was of the opinion that, in a doubtful case, when international com plications might be involved, the president should not recognize a revolutionary government without the assent of congress. His language is so care fully guarded that no inference can be made with entire confidence as to the proper course if the ex ecutive were strongly of the opinion that facts justifying the recognition of independence did not exist." With respect to other expressions on this sub ject from the executive department of the govern ment, Secretary Seward wrote to Minister Dayton, April 7, 1864: "The question of recognition of for eign revolutionary or reactionary governments is one exclusively for the executive, and cannot be de termined internationally by congressional action." This had reference to the action of the house of rep resentatives. which had unanimously adopted a res olution protesting against the establishment of an empire in Mexico under Maximilian. The senate did not act on it. The French government asked an explanation, and the secretary of state, using the expression quoted, said that a vote of the house or the senate could neither coerce the executive to modify its policy nor deprive it of its freedom of action. In Dec., 1864, the house by a large majority affirmed their right to advise on questions of for eign policy; but, as was remarked by an intelligent foreign writer, this declaration does not appear to have had any influence on the course of the admin istration. Chambrun, Exec. Pow. in the U. S. 101. On the other hand, Secretary Clayton, writing to Mr. Mann, a special agent to investigate the Hun garian insurrection, says: "Should the new gov ernment prove to be, in your opinion, firm and stable, the president will cheerfully recommend to congress, at their next session, the recognition of Hungary ; and you might intimate, if you should see fit, that the president would in that event be gratified to receive a diplomatic agent from Hun gary in the United States by or before the next meeting of congress, and that he entertains no doubt whatever that in case her new government should prove to be firm and stable, her independ ence would be speedily recognized by that enlight ened body." In his Digest of International Law, from which the foregoing is quoted, Dr. Wharton concludes his statement of precedents on this sub ject as follows: "As to this it is to be remarked that while Mr. Webster, who shortly afterwards, on the death of President Taylor, became secretary of state, sustained the sending of Mr. Mann as an agent of inquiry, he was silent as to this paragraph, and suggests, at the utmost, only a probable con gressional recognition in case the new government should prove to be firm and stable. In making con gress the arbiter, President Taylor followed the precedent of President Jackson, who, on March 3, 1837, signed a resolution of congress for the recog nition of the independence of Texas. The recog nition, however, by the United States, of the Inde pendence of Belgium, of the powers who threw off Napoleon's yoke, and of the South American states who have from time to time declared themselves independent of prior governments, has been pri marily by the executive, and such also has been the case in respect to the recognition of the suc cessive revolutionary governments of France.