1. McHenry means GW’s letter to Timothy Pickering of 24 June.

2. The enclosure reads: “The first point for consideration is Whether the President during the recess of the Senate has a right to send an additional minister to a foreign court?

“Upon this the Secry of war observes, that where there is a minister at a foreign court, it does not appear, that the President can commission another to the same court, or that he can, during the recess, appoint a minister to a court where there is none.

“To enter a little further into this subject, it will be proper, to take a short view of the executive power vested in the President as relative to the question propounded.

“The constitution declares art. II. Sect. I. That, ’the executive power shall be vested in a President of the U.S. of America.’

“This may be considered as a general grant of all executive power to the President necessary to carry into effect the objects of the constitution, subject only to such exceptions and restrictions as are found in the constitution.

“Had the constitution stopped with the general grant; had it vested no portion of executive power in any branch or department of the government other than the President; had it gone into no specifications of it; or had it imposed no restrictions upon its exercise; then and in that case, the exercise of all power strictly excutive, and necessary to carry into effect the objects of the constitution, would have belonged exclusively to the President.

“But the general grant of executive power is controuled and abridged.

“1st. By an assignment of a certain portion of it to Congress; for Congress have power ‘to declare war and grant letters of marque and reprisal.’

“2. By a controuling power vested in the Senate over another portion of it: for the Senate may noncur in the appointment to offices.

“3. By a specific restriction on the same portion when exercised, as it may be, without the immediate participation of the Senate: For in appointments during the recess of the Senate, the Presidents commission’s must expire at the end of their next session.

“To be more particular. The restrictions on that portion of the executive power, which relates to the appointment of ministerial characters are in the following words.

“‘He (the President[)] shall nominate and by and with the advice of the Senate, shall appoint ambassadors other public ministers and consuls.’

“‘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.’

“The first of these rules is general. It goes to this. That no ministerial character whatever shall be appointed, without the advice and consent of the Senate.

“The second is an exception to the first as admitting of appointments in a particular case, without their consent or advice.

“That case is in vacancies only. Hence to enable the President to send a ministerial character to a foreign court during the recess of the Senate, it is requisite, that there should be a minister in commission for that court, and that he should resign die or be recalled, so that a vacancy may be created, and a door thereby opened to the President to appoint by granting a temporary commission.

“It is next to be considered whether the President has a right to recal officers or ministers.

“To appoint to and remove from office are equally executive powers, and equally necessary to the well being of the government. Should we confine the power to remove, to impeachment, the public safety would run the greatest danger from corrupt men.

“It is with the President, who is the eye of the constitution; the watchful guardian of the laws, and responsible for their due execution, that the power of removal is chiefly lodged. The Senate cannot remove from office; they have a participative influence or check only in removals; but the President may remove without consulting the Senate.

“But whence is the right derived? From its being one essential attribute of Executive power; and from its being vested by the constitution in no other body nor excerciseably by any other body, except in cases of removal by impeachment. In all other cases it belongs to the President to remove.

“Why has the constitution provided two modes of removal; vz. one by the President, and one independent of the President?

“To guard against two opposite evils. To obviate by the one, the difficulty of getting a corrupt Senate to agree to the removal of a corrupt minister or officer. In that case the President may remove during their recess. To prevent, by the other, a President from keeping corrupt men in office, by refusing to make a nomination which would remove them. In such a case they may be removed by impeachment.

“The power of removal by the President is subject to two restrictions only. 1. To the controul which the Senate has over all nominations. 2 To the limitation of all commissions granted by the President during their recess, which must expire at the end of their next session.

“It may now be asked in what cases ought this power to be exercised?

“If we are to regulate the use of it by reason, it may be lawfully exercised,

“1. When the President shall discover that his minister wants the capacity and qualifications requisite for the mission in which he has been employed.

“2. When the President shall have reason to believe, though the minister may not be deficient in capacity or resources, that he neglects the duties of his mission, to the injury or disadvantage of the U.S.

“3. When the President discovers, that tho’ his minister has the requisite capacity and pays the proper attention to business, yet from his being disliked by the court, that he can render no service to his country.

“4. When the President shall be of opinion that the essential interests of the U.S. might be better promoted by a man of greater talents and capacity.

“5. When it shall appear to the President, that his minister has entered into designs of a domestic or foreign faction, hostile to the government and union.

“Either of these constitute a cause for removal from office; but when circumstances shew the existence of the last case, the necessity for a removal becomes irresistable.

“How can the President be said to see the laws, or treaties which are laws, faithfully executed, if he keeps in office a person, knowing him to be enployed in forwarding measures and projects to defeat their object or execution?

“A minister being an agent of the President is bound to execute his orders; and to obey implicitly his instructions. If he disobeys instructions; or labours to counter act them by insiduous manœuvres, he ought to be displaced.

“To apply these remarks to the minister to the French Republic.

“It appears from some of his letters which the President has been pleased to communicate; and from conversations which have passed with the heads of departments

“1. That the minister in question has been early informed of the motives and reasons which induced the U.S. to settle their differences, and enter into a commercial treaty with Great Britain, by which he was enabled to enter into explanations with the cabinet of France upon the subject.

“2. It appears by letters from the minister that the cabinet or Directory of France had taken exception to the treaty; had shewn an evident disapprobation of the U.S. for having entered into it; had it under consideration t⟨o⟩ demand, by a minister extraordinary, an eclaircissement on the subject; notwithstanding which, the minister had entered into no justification of the U.S. nor made use of any of the means with which he had been furnished to explain the motives of government.

“While these things remain unexplained, the minister must be considered as having neglected a very evident and pointed duty, and as having put in jeopardy the peace of the U.S.

“On this ground alone his removal may be considered as a proper and necessary measure.

“The next question respects a fit person to replace him, should the President determine on his recal during the recess of the Senate.

“In the choice of a fit person, respect is to be had to the feelings of France; to the objects connected with his recal; to the feelings of the people of the U.S. and to certain commercial arrangements with France by a new treaty.

It is of consequence that France should be convinced of the friendly intentions of this country towards her; of its earnest wish to remain connected with her; and that on no occasion where the U.S. could favour her special interest, without involving them in the war, or violating a principle of neutrality, has the opportunity been neglected: and that if a party in the U.S. have endeavoured to excite in France contrary ideas, it ought to be ascribed to the usual proceedings of party when intent upon demolishing at all risques their opponents.

“To make these and such like impressions with effect, the minister should if possible possess a character likely to smooth the way to her confidence in his representations.

“If Charles Carroll of Carrollton could be prevailed on to go, temporarily, he combined with sufficient abilities and knowledge, all the weight of an immense fortune, and the full confidence of the people of this country. Besides, as no public act of his has rendered him obnoxious to the French, he bids fair to be received by them without prepossessions or forerunning prejudices.

“Charles Cotesworth Pinckney in the latter point of view would also be a proper person. He has not, that the Secry has heard of, been branded as the enemy of France; he is besides a very respectable citisen, of independent fortune, circumstances which added to his standing in society would give dignity to the mission.

“Either of these gentlemen, would carry with them the good opinion of this country and could not be ill received by France.

“Mr Marshal of Virginia comes also into view. If he can be induced to accept he may be considered as an acquisition to the diplomatic corps.

“Mr William Smith is a man well instructed in the commercial and other interests of the U.S. of a strong understanding and ready at composition. So far therefore he is fitted for the mission. The objections to him, relate chiefly to French prejudices, which lay against every person as well as him, who has been in our public councils, and advocated measures calculated to preserve peace between the U.S. and Great Britain.

“Patrick Henry would have been earlier mentioned, had his cast of thinking at this particular moment been known. If it is not wayward, and there is a probability that he would accept, the occasion would justify sending him.

“Mr Adams, the minister to Portugal has been strongly suggested by Mr Pickering & Mr Woolcot.

“To send him would not suit the solemnity of the crises. He would not be presumed to carry with him a correct knowledge of circumstances. He might also be distrusted from the relation he stands in to the Vice President, who may be thought by France a favourer of England. He is besides (tho’ a man of abilities) too young, and too little known in the U.S. for the importance of such a mission; one object of which is to dissipate a threatening storm, and restore good understanding and harmony between two nations” (DLC:GW).

3. See the Cabinet to GW, this date.

4. Secretary of the Treasury Oliver Wolcott, Jr., copied the letter from James Ross, U.S. senator from Pennsylvania, to McHenry written at Pittsburgh on 24 June. It reads: “On my way home I recd the inclosed Notes which contain much additional information & will serve as a caution against Judge T. [George Turner] who has letters of introduction to Adet & is expected to play a great part. That gentleman is yet in this place but will set out for Philadelphia in a few days.

“The writer of these & former notes has had the address to become an Agent for receiving & transmitting Letters to & from Adet; at first I doubted an imposition upon me, but I have the strongest of all proofs, the letters themselves directed to Collot, signed with a fictitious name, but evidently written by the Minister: They contain nothing material except information that the French are about to send a Commissioner who will demand a guarranty of the W. Indies & explanations of the B. Treaty, that the President has been alarmed, that Adet will not be recalled as expected & that upon the whole it is not probable that the French will break with the United States, although they will deal severely with their Ships going to English Ports—that the President will not serve again & exhorting Collot to make use of all these things as had been agreed. After examining this strange Letter I determined to send it forward as it was easy to see from the Letter itself that others of more consequence would soon follow & fall into our hands—This being settled I have thought it adviseable that our Man should go on & join Collot, that he should endeavour to see the the instructions and know where they are kept, in order that they may be seized.

“Collot opened himself pretty fully to two persons, stated that he was sent by the French Minister, was paid by him, that the French expect Louisiana & wish to have the western parts of the United States disunited from the Union; expressed hopes of Kentucky & the lower settlements, but doubted of the upper settlements in Pensylvania; he has taken plans of all the passes to the western Country through the Mountains between Potomac & the Susquehannah, dwells in every company upon the ingratitude of this Country to France & the great affection of the French for the Americans: Insinuates that most of the present administration are attached to England & some of them doubtless corrupted by it Speaks disrespectfully of the President especially for not noticing Rochambeau & himself more than he did, in their misfortunes. To a man of sense & honour he stated that there was good reason to believe that France would prevail upon Spain to refuse a final ratification of her Treaty with us, that they thought this measure in a good train for success, as pains had been taken to alarm them about the article in our Treaty with Britain respecting the Mississipi. In case of success the French would get Louisiana & establish there Ship yards & depots for Ship timber & lumber for the W. Indies; that he is to visit that Country & make report of the practicability of this project—In one word there is no doubt of the information recd in Philadelphia respecting this mission is correct, & that this man although disappointed in his hopes & expectations here, because he had no confederates in the Country, yet he will be able to do much mischief where he is going—Sebastian is gone home, he did not shew himself publickly here, but is highly praised by Collot.

“I think there is no doubt of our agents fidelity he has already gone too far to recede, but he is poor, involved in debt beyond what I expected & very importunate for money, this will be troublesome to us, but I will deal as economically as possible without loosing sight of our object—It has been sugested that Warin might be corrupted, but I have declined that attempt as dangerous & unecessary as things stand.

“General Wayne is arrived & I will concert the measures for seizing & securing the papers with him, before he leaves us; It is always hazardous to commit things of this description to paper, & therefore I shall never write but when there is something of consequence to communicate. It was proper to risque it now, that you might see in what shape the business stands & be ascertained of the attention & fidelity of those to whom it had been committed” (DLC:GW).

Wolcott evidently copied the notes Ross had enclosed with his letter to McHenry. The notes run from 28 May to 6 June and received Wolcott’s certification: “Copied from the original paper July 3d 1796” (DLC:GW; filed under 28 May 1796). Earlier entries dated 22, 25, and 26 May, found in another version of the notes, may be the “former notes” that Ross mentions (MHi: Adams Papers). The notes that Wolcott copied read: “May 28th Gl C. informed me that he had recd from his friend Adet the agreable news, that if a new Minister was to come over, it would be a Mr Vincent formerly a distinguished Officer in the Corps of Engineers a gentleman of great Merit and well known in this country. he knew well that this new Minister, would adopt every plan and follow every step begun or suggested by Adet, consequently things would go on smooth & easy. he added that his mind was now fully satisfied & he would continue his travels with alacrity & spirit. he also informed me, that having considered the uncertainty of my staying here or going down the River he had finally wrote to his friend Adet not to direct his dispatches to me, but forward him the same by Express to Kentucky or fort Washington, as soon as the new Minister was arrived and matters arranged between them, so as to establish the chain of corrospondence upon a fixed plan.

“From the different conversations I have had with him I have reason to suspect that he has powerful recommendations to Genl Wilkinson and expects a great deal of information from that quarter. he calls him the popular General & seems to entertain a very indifferent opinion of the Commander in Chief [Anthony Wayne], whom he considers as a Slave to the Executive and of course a dangerous Man.

“May 29th—I paid a morning visit to Gl C. & upon a pressing invitation I dined with him—the conversation turned upon his voyage, and a map being produced, we examined the ground he had to go through from Limestone to Lexington from thence to Fort Washington &c. &c., upon a reasonable calculation it appeared that it will require from two to three months & perhaps more, to accomplish the viewing of Kentucky, North west territory, the new State of Tennasse & Post Vincennes, before he could reach the banks of the Mississipi at Kaskakias. in the course of the conversation I intimated that in all probability I would go down the Ohio, in the course of the next month and likely would see him at Fort Washington, on his return from Lexington, he seemed highly pleased & assured me he would be very glad if I could make it convenient to accompany him for the remainder of his voyage; I told him that it would depend in a great measure upon the turn my business would take in that Country.

“June 1st. Genl C. came and spent with me two hours this morning, in this long conversation I discovered that his departure which had been postponed first by a bad state of health, and afterwards by an accident which has happened to his baggage on the road is now deferred by an intimacy which has taken place between him & Judge Turner. the latter is this moment giving copies of Notes, in the North western territory, Kentucky & he is also communicating drafts of the different Forts which he says he has taken himself on the Spot. &c. Genl C. seems to be in rapture with his new acquaintance & promises himself wonders from the information he expects; he went as far as to say, that he would not begrudge the expences of a stay of two weeks more here, if it was necessary. he is to spend this day with the Judge and will take with him his Adjutant whose name is Warin, this gentleman as I formerly observed, is an Engineer of great abilities & has a peculiar talent in taking drafts of any place or object. Genl C. asked me, if he might depend upon my going down the Ohio as I had hinted in our last conversation; I said I would go for certain; now said he I will write to Adet and inform him of your determinatio⟨n⟩ by the next post, he shall direct his dispatches under your Cover, by the return of the mail & that will save the expence of an Express, this will answer a good purpose for we are not rich enough for the grand object we have in view. I promised to wait for the dispatches a week or two longer, if it was necessary, & carry them to him at Fort Washington.

“June 2nd—Gl C. informed me that he was well satisfied with the Notes of Judge T. as also with his verbal information that his adjutant was hard at work in taking copies and that in all probability he could not leave Pittsburgh before wednesday next [8 June], in the course of this conversation he was a little more opened than before; he told me plainly that he was travelling at the expence of the French Republic that money had been advanced to him by Mr Adet for himself and his Suite; he professed a great desire to serve me, & went so far as to say, that if I would quit this Country (to which no true Frenchman ought to be attached) a proper situation would be procured for me; & in order to force conviction upon my mind, he told me in confidence, that part of his instructions were to prepare the way to an Exchange of the province of Louisiana for San Domingo lately ceeded to France by the Treaty of Peace with Spain; at all events he had in charge to establish or at least to ascertain the possibility of establishing in the province of Louisiana a Company to furnish the French Republic with timber & Spars for the Navy, & that I might be made the Agent of Government in that undertaking. But said he, you must shake your American prejudices, which I have often discovered in our different conversations, & of which I am well informed from other quarters; even Judge T. who has travelled with you once down the Ohio says you are the least of a Frenchman he ever saw; I have taken pains continued he, to undeceive him, because he will see Adet in Philadelphia, for whom I have given him a Letter of introduction, & he might give him an unfavourable opinion of you.

“June 4th. Genl C. came to see me this morning, informed me that he had recd no letter from Philadelphia yesterday, & that in all probability he would leave Pittsburgh to morrow or monday morning as he thought that by that time, his Adjutant would have finished his work with the Judge—he asked me again if I positively woud go the Ohio, as I had promised him & upon my answering in the Affirmative he said he would depend upon my word, as he had wrote by post yesterday to his friend Adet, who would accordingly forward me his dispatches, now said I am satisfied & shall expect you at Fort Washington by the latter end of this month, on my return from the upper settlements of Kentucky. I will then inform you of my success & prospects, & may perhaps let you more into my secret views & operations, especially if you can make it convenient to accompany me for the remainder of my voyage.

“June 6th—Genl C. came this morning to bid farewell—he informed me that he heard yesterday of Genl Wilkinson, having began his march towards the British Posts; that this intelligence, would alter his plan of voyage; that instead of taking horses at Limestone for Lexington he would proceed directly with his boat to Fort Washington & follow the Tract of the Army as expeditiously as possible to overtake Genl Wilkinson whom he must necessarily see. on his return to Fort Washington he would order his boat to Louisville & himself with his adjutant travel by Land through Kentucky &c. Fort Washington is still our rendezvous, & the first arrived thither is to wait for the other. In the course of this conversation he informed me, that he was perfectly pleased with the communications & information he had from Judge T.; that in all probability he would be of considerable service & that he had written accordingly to Mr Adet; he blamed me for my want of attention to the Judge, strongly recommended my seeing him every day till his departure from Pittsburgh—amongst many other instructions he gave me, he particularly insisted, that I should be upon my guards in any conversation I might have with Mr James Ross Senator in Congress, who was to his certain knowledge the Champion of government & the Colleague of the infamous Bingham &c. &c. &c.—the Genl left Pittsburgh at 11 oClock.”

5. For a French privateer’s capture of the ship Mount Vernon, see Pickering to GW, 12 June, and n.2 to that document; see also Wolcott to GW, 20 June.