tingencies. Of the first kind are judicial, revenue, and similar offices. Of the second are Ambassadors, other public Ministers and Consuls. . . . They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. . . . I say, then, that whether the office of a Minister exists or does not-how and when it exists are questions not particularly and precisely settled by the Constitution; but that the Executive authority to nominate to the Senate foreign Ministers and Consuls, and to fill vacancies happening during the recess, necessarily includes the power of determining those questions."

The Senate ultimately ratified all of these appointments and those of two additional commissioners, Clay and Russel, though it insisted that Gallatin should first resign the office of Secretary of the Treasury.

On December 25, 1825, President J. Q. Adams sent to the Senate the names of three men "to be envoys extraordinary and ministers plenipotentiary to the assembly of American Nations at Panama." Senator Benton, of Missouri, contended that these persons were in reality"Deputies and Representatives to a Congress" and were not Ambassadors and Public Ministers in the meaning of the Constitution at all. However, his view did not prevail and the appointments were eventually ratified though the appointees arrived at Panama too late to take part in the Congress.58

In result, these two cases seem to demonstrate the power of the President to decide when occasion for appointment to an office in the foreign service exists and this has been since sustained in the opinions of many Attorneys-General.59 In spite of this admission of his power, on subsequent occasions, the President has usually sent special missions without reference to the Senate at all, perhaps because recollection of the Senate opposition in these two instances. lurked in his mind. In this way, peace missions following the Mexican, Spanish and World Wars and the American representation at the Hague, Algeciras and other international conferences were constituted. The President alone has decided that the occasion existed, sent the mission and compensated it out of the contingent 58 Ibid., 8: 463–464.

59 1 Op. 631; 2 Op. 535; 3 Op. 673; 4 Op. 532; 7 Op. 190, 223; 10 Op. 357; 11 Op. 179; 12 Op. 32; 19 Op. 261; Corwin, op. cit., p. 55.

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fund or relied upon a subsequent appropriation. Here also the Congress has sought to intervene, though its power is less than in the case of permanent missions, requiring steady appropriations. By an act of March 4, 1913, it provided: 61

"Hereafter the Executive shall not extend or accept any invitation to participate in any international congress, conference, or like event without first having specific authority of law to do so."

Congress has undoubtedly gone beyond its powers in thus attempting to control the President's foreign negotiations and the President has ignored the act, notably at the Versailles Peace Congress. The actual influence of Congress in this field depends upon the necessity for appropriations. If international conferences become frequent, this necessity would doubtless be controlling.

238. Power of President to Appoint Diplomatic Agents.

62

Finally, the Senate has often criticized the President's practice of appointing agents, sometimes with the titles of diplomatic officers, without gaining its consent. This practice began almost immediately after ratification of the Constitution when President Washington by a letter of October 13, 1789, requested Gouverneur Morris, then in Paris, to go to London as private agent, and “on the authority and credit" of the letter to "converse with His Britannic Majesty's Ministers as to certain matters affecting the relations between the two countries." In 1792 John Paul Jones, then an admiral in the United States Navy, was appointed as commissioner to treat with Algiers. In 1816 President Monroe sent three commissioners to investigate affairs in the revolting Spanish-American colonies and in the same year he sent Isaac Chauncey, a naval captain, to act with Consul William Shaler to negotiate a treaty with Algiers.63

60 Crandall, op. cit., p. 76. This was also true of the conference on limitation of armament, 1921, though provisions in the Naval appropriation acts of 1916 and 1921 authorized the calling of such a conference, supra, sec. 204.

61 37 Stat. 913; Comp. Stat., 7686.

62 Report on Foreign Service, supra, note 55, pp. 225-228.

63 Moore, Digest, 4: 452-453.

239. Practice of Sending Presidential Agents.

Since that time the practice has become exceedingly common. Among the more notable appointments have been Charles Rhind, Commodore Biddle, and Consul David Offley to negotiate a treaty with Turkey in 1829; Colonel Roberts, special agent to China, Siam and other eastern states in 1832; A. Dudley Mann, special agent to various German states in 1846, confidential agent to revolting Hungary in 1849, and special agent to Switzerland in 1850; Nicholas Trist, commissioner to conclude a treaty of peace with Mexico in 1847; Commodore Perry, commissioner to conclude a treaty with Japan in 1852. During the Civil War a number of special and confidential agents were sent to England for purposes of investigation and propaganda as well as negotiation. Commodore R. W. Shufeldt was sent as special envoy to conclude a treaty with Corea in 1881; Secretary of State Bayard with William Putnam of Maine and J. B. Angell of Michigan were vested with power to treat with Great Britain on the North East Fisheries question in 1887. James H. Blount was sent as special commissioner to Hawaii in 1893. Secretary of State Day and Whitelaw Reid, associated with Senators Cushman K. Davis, William P. Frye and George Gray, were sent to Paris to conclude a treaty of peace with Spain in 1898. Missions were sent to the Hague conferences in 1899 and 1907 and W. W. Rockhill was sent as commissioner of the United States to China with diplomatic privileges and immunities " in 1900. Henry White and Samuel R. Gummere were commissioned by President Roosevelt to represent the United States at the Algeciras conference of 1906. Governor Taft, of the Philippines Commission, was sent to negotiate with the Pope in 1902. John Lind was sent as confidential agent to Mexico in 1913, Colonel House was sent to Germany in 1916 and to France in 1917, and Elihu Root at the head of a special mission of nine was sent to Russia in 1917, with the title of Ambassador Extraordinary. President Wilson constituted himself, with Secretary of State Lansing, Colonel House, Henry White and General Tasker Bliss, a commission to conclude a treaty of peace with Germany in 1919, and in 1921, after failure of the Senate to consent to the ratification of the treaty of Versailles, President Hard

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ing authorized Ellis Loring Dresel to negotiate a separate peace treaty with Germany. In the same year President Harding appointed Secretary of State Hughes, Elihu Root, Senators Lodge and Underwood American delegates to the Conference on Limitation of Armament.64 A minority of the Senate Foreign Relations Committee reported in 1888: 65

"The whole number of persons appointed or recognized by the President, without the concurrence or advice of the Senate, or the express authority of Congress, as agents to conduct negotiations and conclude treaties (prior to June 25, 1887) is four hundred and thirty-eight. Three have been appointed by the Secretary of State and thirty-two have been appointed by the President with the advice and consent of the Senate."

Apparently the only appointments to special missions which have been confirmed by the Senate since 1815 are the commissioners to the Panama Congress of 1825, those to negotiate with China in 1880, and the five commissioners to negotiate the Treaty of Washington with Great Britain in 1871.66

240. Controversies with Respect to Presidential Agents.

In spite of the habitual practice, the Senate has often protested. Its objection to the interim appointments by President Madison in 1813 would extend a fortiori to purely presidential commissioners. President Jackson's mission appointed to treat with Turkey in 1829 was criticized in the Senate in 1831, though Senator Tazewell, of Virginia, the principal critic, admitted "the power of the President to appoint secret agents when and how he pleases." 67

"But," he continued, " as a Senator, I do claim for the Senate, in the language of the Constitution, the right of advising and consenting to the appointment of any and every officer of the United States, no matter what

64 Ibid., 4: 440, 446, 456; Crandall, op. cit., p. 78; Foster, Diplomatic Practice, chap. X; Corwin, op. cit., pp. 62, 64; Henry Adams, Education, p. 146; J. M. Forbes, Letters and Recollections, 1899, 2: 32; Paullin, Diplomatic Negotiation of American Naval Officers, passim; Gerard, My Four Years in Germany, p. 197; Lansing, The Peace Negotiations, Chap. II; Root, The United States and the War, 1918, p. 92; Lodge, Remarks in the Senate, September 26, 1921, Cong. Rec., 61: 6458.

65 Fiftieth Cong., 2d Sess., Sen. Doc. No. 231, VIII, 332.

66 Crandall, op. cit., p. 77.

67 Benton, Abridgment, 11: 207.

may be his name, what his duties, or how he may be instructed to perform them. And it is only because secret agents are not officers of the United States, but the mere agents of the President or of his Secretaries, or of his military or naval commanders, that I disclaim all participation in this appointment."

Senator Livingston answered: 68

Sir, there are grades in diplomacy which give different ranks and privileges-from an ambassador to a secret agent. . . . Ambassadors and other public Ministers are directed to be appointed by the President by and with the advice and consent of the Senate; because public missions required no secrecy, although their instructions might. But the framers of the Constitution knew the necessity of missions, of which not only the object but the existence should be kept secret. They therefore wisely made cooperation of the Senate ultimately necessary in the first instance, but left the appointment solely to the President in the last. . . . On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President (that President being George Washington), countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. . . .

"I call the attention of the Senate to all the facts of this case with the previous remark, that the construction which it gives to the Constitution was made in the earliest years of the Federal Government, by the man who presided in the convention which made that Constitution, acting with the advice and assistance of the leading members of that body, all fresh from its discussion; men who had taken prominent parts in every question that arose. . . .

"By those men, with this perfect and recent knowledge of the Constitution, acting under the solemn obligation to preserve it inviolate and without any possible motive to make them forget their duty, was this first precedent set; without a single doubt on the mind that it was correct; without protest, without even remark. A precedent going the full length of that which is now unhesitatingly called a lawless, unconstitutional usurpation; bearing the present act out in all its parts, and in some points going much beyond it."

Although futilely, the Senate continued to protest. In 1882, in consenting to ratification of the treaty with Corea it resolved that it:69 "does not admit or acquiesce in any right or constitutional power in the President to authorize or empower any person to negotiate treaties or carry on diplomatic negotiations with any foreign power, unless such person shall have been appointed for such purpose or clothed with such power by and

68 Ibid., 11: 220-222.

69 Malloy, Treaties, etc., p. 340.