"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office."

It should be noticed, however, that the incompatibility of congressional membership with the holding of an "office" does not apply to service as an agent. Senators have often been sent on special diplomatic missions, under presidential appointment. The occupancy of a judicial office is not incompatible with the holding of another office. John Jay and Oliver Ellsworth were each sent on diplomatic missions by appointment of the President, consented to by the Senate, while justices of the Supreme Court, and on other occasions justices have been appointed by the President to serve on courts of arbitration.22 The Senate held that Gallatin's position as Secretary of the Treasury was incompatible with his appointment as commissioner to conclude the Peace Treaty of Ghent and forced his withdrawal from the former position. The grounds of this incompatibility, however, were never precisely stated and do not seem to be sustained by analogy or subsequent practice. Thus while Civil Governor of the Philippines, Mr. Taft was appointed on a special mission to the Pope, and while Secretary of State, Mr. Lansing was appointed upon the mission to conclude the Peace. Treaty of Versailles. In neither of these cases, however, was the appointment to a regular office, nor was it submitted to the Senate.28 230. Powers of Removing and of Directing Officers and Agents.

In the United States Government, though not in the states, the removal power seems to belong inherently to the Chief Executive. This was decided in the debate of the first Congress on a bill for organizing the Department of State and has been consistently admitted since, with exception of the period of the tenure of office acts, 1867

21 U. S. Constitution, I, sec. 6, cl. 2.

22 Corwin, op. cit., p. 66; supra, sec. 176.

23 Moore, Digest, 4: 447. For facsimile reproduction of Mr. Lansing's commission, see Lansing, The Peace Negotiations, 1921, p. 28.

1887. These acts, originating in political hostility to President Johnson, were virtually held to have been unconstitutional by the Supreme Court after their repeal.24

Through the power of removal the President has the power to direct administrative officials with no practical restraint, as was illustrated by President Jackson's action in the bank controversy. By successive removals of Secretaries of the Treasury, he was able to direct the removal of government deposits from the Second United States Bank, although by law discretion in this matter belonged to the Secretary.25

"I think," wrote Attorney General Cushing in 1855, "the general rule to be ... that the head of department is subject to the direction of the President. (This was said in relation to duties imposed by statute upon a head of a department.) I hold that no head of department can lawfully. perform an official act against the will of the President and that will is, by the Constitution, to govern the performance of all such acts." 26

As Commander-in-Chief, the President has complete power of directing the military and naval services of the national government.27

B. Application of Principles to Foreign Affairs.

231. The Types of Agencies Conducting Foreign Relations.

The instruments used for conducting foreign relations may be classified as (1) national, military, naval, administrative, and judi

24 Parsons v. U. S., 167 U. S. 324. The power to remove has usually been considered an implication of the power to appoint. (Ex parte Hennen, 13 Pet. 230, 1839; U. S. v. Perkins, 116 U. S. 143; Shurtleff v. U. S., 189 U. S. 311; President Wilson's veto of National Budget Bill, June 4, 1920.) This derivation of the power, however, would seem to leave Congress discretion to determine the authority to remove inferior officers" for whose appointment they may provide, a discretion it has never successfully exercised as to executive and administrative officers and which is inconsistent with the recognized practice whereby the President alone removes, even when the appointing power is the President acting with advice and consent of the Senate. See Powell, National Municipal Review, 9: 538-545, and supra, secs. 52, 53.

25 Goodnow, op. cit., pp. 77-82.

28 Cushing, Att. Gen., 7 Op. 453, 470.

27 Ex parte Milligan, 4 Wall. 2, supra, sec. 221.

cial officers; (2) national and international political officers and agents; (3) international administrative and judicial agencies. Officers of the first kind are clearly national. They are the product of national law alone and are accountable to national law alone. Agencies of the last kind are just as clearly international. They can be founded only by the agreement of nations, and can exercise authority only in matters, as to which nations have agreed to be bound by them. Officers and agencies of the second class, however, occupy a twilight zone. We may distinguish the offices in the group which are primarily national from the agencies primarily international. Thus a diplomatic officer or consul, though enjoying certain rights, privileges and powers under international law, is primarily a national officer, bound primarily by his national law and policy. He can act only under express instructions. He is in fact a delegate. On the other hand, the representative of a nation sitting in a general congress or conference, such as the Hague or Algeciras conferences, the Berlin or Versailles congresses or the Assembly of the League of Nations, though theoretically occupying a status similar to that of a diplomatic officer,28 bound by his national laws and subject to instructions, tends to be in fact a representative rather than a delegate. His judgments tend to be founded upon an international point of view, developed by the discussions of the conference itself, rather than by the instructions of his home state. In the Senate discussion upon the character of the representatives to the Panama congress in 1825, Senator Benton recognized this distinction.29

"The Ambassadors and Ministers here intended (that is, by the Constitution) are such only as are known to the law of nations. Their names, grades, rights, privileges, and immunities are perfectly defined in the books which treat of them, and were thoroughly understood by the framers of our Constitution. They are, Ambassadors-Envoys-Envoys Extraordinary-Ministers-Ministers Plenipotentiary-Ministers Resident. . . . Tried by these tests, and the diplomatic qualities of our intended Ministers fail at

28 Scott, ed., Reports to the Hague Conferences, Intro., XIX.

29 Benton, Abridgment of Debates, 8: 463-464. We do not intend to endorse Senator Benton's implication with reference to the power of the Senate to consent to the appointment of such representatives.

every attribute of the character. Spite of the names which are imposed upon them, they turn out to be a sort of Deputies with full powers for undefinable objects. They are unknown to the law of nations, unknown to our Constitution; and the combined powers of the Federal Government are incompetent to create them. Nothing less than an original act, from the people of the States, in their sovereign capacity, is equal to the task. Had these gentlemen been nominated to us as Deputies to a Congress, would not the nominations have been instantly and unanimously rejected? And shall their fate be different under a different name? The delicacy of this position was seen and felt by the administration. The terms 'Deputy' and 'Commissioner' were used in the official correspondence up to near the date of the nomination, but as these names could not pass the Senate, a resort to others became indispensable. The invitations and acceptance were in express terms, for 'Deputies and Representatives' to a CONGRESS." The nominations to the Senate are wholly different."

It is true, Senator Benton's view did not prevail in the Senate, and, according to American constitutional theory as well as to the theory of international law, representatives in an international conference or congress are no different from diplomatic officers, 30 The distinction has existed, however, as a psychological fact and will necessarily be emphasized if such conferences or congresses sit periodically.

Count Beust remarked in 1870, upon finding it impossible to call together the Concert of Europe to prevent the Russian violation of the Treaty of Paris and the impending Franco-Prussian War, "Il ne vois pas d'Europe." 31 He thus emphasized that by its periodic meetings before that time, the Concert had in fact constituted a European organ and not a mere group of national delegates. It was because of its confidence in this psychological effect of periodic conferences that the Hague Conference of 1907 recommended a third conference32 and the actual play of this psychological factor is emphasized by the remarks of M. Nelidow of Russia, president of the conference, in his closing remarks: 33

"We are the agents of our governments and act by virtue of special instructions, based before all other considerations upon the interests of our respective countries. The higher considerations of the good of mankind in

30 Corwin, op. cit., p. 57; supra, note 28.

31 Von Beust, Memoires, Trans. H. de Worms, London, 1887, 2: 222. 32 Scott, ed., Reports to Hague Conferences, pp. 216, 222. See also Instruction of Secretary of State Root to American delegates to the Second Hague Conference, 1907, Scott ed., Instructions to the American Delegates to the Hague Conferences and their Official Reports, 1916, p. 72.

33 Ibid., p. 200.

general should no doubt guide us, but in applying them we must have uppermost in our minds the intentions of those who direct our Governments. But the direct interests of different States are often diametrically opposed. It was in endeavoring to bring them into agreement with the theoretical requirements of absolute law and justice, that the spirit of good understanding, which I have just mentioned, came into play."

A similar thought in the Congress of Versailles led to the establishment of the League of Nations and in this institution the problem of, to a certain extent, merging national official delegates with true representatives in an international institution was consciously confronted. Thus said President Wilson in presenting the first draft of the Covenant to the Peace Conference on February 14, 1919:

84

"When it came to the question of determining the character of the representation in the Body of Delegates (Assembly), we were all aware of a feeling which is current throughout the world. Inasmuch as I am stating it in the presence of the official representatives of the various governments here present, including myself, I may say that there is a universal feeling that the world can not rest satisfied with merely official guidance. There has reached us through many channels the feeling that if the deliberating body of the League of Nations was merely to be a body of officials representing the various Governments, the peoples of the world would not be sure that some of the mistakes which preoccupied officials had admittedly made, might not be repeated."

232. National Military, Naval and Administrative Offices.

From the standpoint of foreign relations the most important national agencies are the Army, Navy and Department of State. The Constitution puts the organization of the Army, Navy and militia in the hands of Congress. The President, however, exercises considerable independent power as Commander-in-Chief in the detailed organization of the military forces and in the organization of military governments for occupied territory, and territory annexed by treaty but not yet organized by Congress.35

"Theoretically," said the Supreme Court, "Congress might prepare and enact a scheme of civil government to take effect immediately upon the

34 League of Nations, II, special No., p. 17.

35 Santiago v. Nogueras, 214 U. S. 260.