cession, but practically, there always have been delays and always will be. Time is required for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as Commander-in-Chief, . . . But whatever may be the limits of the military power, it certainly must include the authority to establish courts of justice which are so essential a part of the government." The authority of such officers and courts is, however, confined to the locality. They cannot exercise a prize jurisdiction.3

233. Appointment of Military and Civil Officers.

37

36

The states are guaranteed the privilege of appointing militia officers, but the President may delegate his authority as Commanderin-Chief of the militia when "in the actual service of the United States" to an officer of his own appointment. The appointment of army and navy officers, as well as of civil officers, is vested in the President acting by and with the advice and consent of the Senate, except insofar as Congress may have vested the appointment of inferior officers "in the President alone, in the courts of law, or in the heads of departments." The President may make interim appointments during a recess of the Senate.38

Congress has actually vested the appointment of warrant officers of the Navy and Marine Corps in the President alone and temporarily in the Secretary of the Navy.39 Petty officers in the Navy and non-commissioned officers in the Army are appointed by commissioned officers. Commissioned officers are generally appointed by the President with the advice and consent of the Senate but

se Supra, sec. 227.

37 Secretary of War Monroe, 1812, Am. State Pap., Mil. Aff., 1: 604; Att. Gen. Butler, 2 op. 711 (1835).

38 Supra, sec. 228.

* Rev. Stat., sec. 1405, Act May 22, 1917, sec. 5, 40 Stat. 86; Comp. Stat., secs. 2554, 2555.

emergency appointments below the rank of colonel have been vested in the President alone.40 Promotion and retirement are provided. for by detailed acts of Congress. All military officers are commissioned by the President and he has the power of removal, though in the Army and Navy this power is exercised only through courtsmartial. As Commander-in-Chief, the President exercises the power of directing all the military and naval services.41

234. Organization of the Department of State.

The Department of State is peculiarly under control of the President. It was organized by an act of 1789 and, differing from other departments, is not required to make any reports to Congress.

"It is," says Senator Spooner, of Wisconsin, a department which from the beginning the Senate has never assumed the right to direct or control, except as to clearly defined matters relating to duties imposed by statute and not connected with the conduct of foreign relations. We direct all the other heads of departments to transmit to the Senate designated papers or information. We do not address directions to the Secretary of State, nor do we direct requests, even to the Secretary of State. We direct requests to the real head of that department, the President of the United States, and, as a matter of courtesy, we add the qualifying words: 'if in his judgment not incompatible with the public interest.'" 42

Though Senate confirmation of the appointment of the Secretary of State is required, yet, as in the case of other cabinet officers, it is never withheld. As "real head of that department" the President has never tolerated a lack of political harmony with the Secretary of State. Thus in 1800 after President Adams had requested Timothy Pickering to tender his resignation and no response had been forthcoming he addressed him a note which "discharged him from any further service as Secretary of State." President Wilson promptly accepted Secretary of State Lansing's resignation in 1920 when a divergence in policy became evident.43

40 Act May 18, 1917, sec. 8, 40 Stat. 81, as amended April 20, 1918; Comp. Stat., sec. 2044b.

41 Ex parte Milligan, 4 Wall. 2.

42 Senate Debate, Feb. 6, 1906, Cong. Rec., 40: 1419; Reinsch, Readings in Am. Fed. Govt., p. 85; Corwin, op. cit., p. 176; Hunt, The Department of State of the United States, 1914, pp. 84, 105.

43 Foster, A Century of Am. Diplomacy, p. 180; Lansing, The Peace Negotiations, 1921, p. 3.

Negotiations are ordinarily conducted primarily by the Secretary of State, but the President may act personally. Thayer, in his Life of Hay, thus indicates the relation between Presidents and Secretaries of State: "4

"Mr. Hay used to tell his friends that often President McKinley did not send for him once a month on business, but that he saw President Roosevelt every day. That statement illustrates the difference in initiative between the two Presidents; or, at least, the ratio of their interest in foreign relations. From the moment of Mr. Roosevelt's accession, the State Department felt a new impelling force behind it. The Secretary still conducted the negotiations, but the origination and decisions of policy came to rest more and more with the President. In no other case was this so true as in that of the Panama Canal. In the earlier stages Mr. Roosevelt gave directions which Mr. Hay carried out; before the end, however, the President took the business into his own hands; and has always frankly assumed entire responsibility for the decisive stroke."

235. National and International Political Officers and Agents.

The Constitution itself recognizes the offices of "ambassadors, other public ministers and consuls" and specifically vests power to appoint their occupants in the President acting with advice and consent of the Senate. The exact definition of the grades, powers and privileges of these officers is determined by international law and treaty. As has been noticed, each of the three departments of government is held to have inherent power to appoint subordinates necessary for carrying out its functions. The President's power to negotiate, implied from his power to receive foreign ambassadors and ministers, and from his power in the making of treaties, undoubtedly makes it necessary for him to employ special, sometimes secret, agents to conduct negotiations. These powers, however, have given rise to controversy.

Congress, and particularly the Senate, has questioned the power of the President (a) to interpret international law and treaty with reference to the grades, functions and privileges of diplomatic officers, (b) to decide when and where occasion has arisen for dispatching such officers, and (c) to act through agents appointed by himself alone and holding no "office" established either by the Constitution or by act of Congress.

44 Thayer, Life of John Hay, 2: 297. See also Hunt, op. cit., p. 91.

236. Power to Determine Grades in Foreign Service.

Until 1855 there appears to have been no question but that the President had exclusive power to decide, according to international law and treaty, upon the grades of diplomatic and consular officers.45 Jefferson, as Secretary of State, expressed the opinion that the Senate had "no right to negative the grade" in advising and consenting to appointments.46 Congress passed no laws on the subject, and appropriation acts were drawn so as to impose no limitations upon the President's discretion in this respect.

By an act of March 1, 1855, Congress provided:

"From and after the 30th of June, next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary," with a specified annual compensation for each, "to the following countries, etc. . . . The President shall appoint no other than citizens of the United States who are residents thereof, or abroad in the employment of the Government, at the time of their appointment."

Attorney-General Cushing held that the provisions of this act "must be deemed directory or recommendatory only, and not mandatory." 48

"The limit of the range of selection," he continued, "for the appointment of constitutional officers depends on the Constitution. Congress may refuse to make appropriations to pay a person unless appointed from this or that category; but the President may, in my judgment, employ him, if the public interest requires it, whether he be a citizen or not, and whether or not at the time of the appointment he be actually within the United States. ... For Congress can not by law constitutionally require the President to make removals or appointments of public ministers on a given day, or to make such appointments of prescribed rank, or to make or not make them at this or that place. He, with the advice of the Senate, enters into treaties; he, with the advice of the Senate, appoints ambassadors and other public ministers. It is a constitutional power to appoint to a constitutional office, not a statute power nor a statute office. Like the power to pardon, it is not limitable by Congress."

45 The rules of the Treaty of Vienna, 1815, with reference to the grades of diplomatic officers have been applied as international law, Moore, Digest,

4: 430.

48 Ibid., 4: 450; Jefferson, Writings (Ford, ed.), 5: 161; Hunt, op. cit., p. 105.

47 Madison to Monroe, 1822, Ibid., 4: 451; Corwin, op. cit., p. 67. 48 Cushing, Att. Gen., 7 Op. 214.

49

In spite of this reasoning, Congress has continued such legislation. The revised statutes specified the salaries of diplomatic officers at various countries but did not specify the grade individually except for a few of the less important countries such as Hayti, Liberia, Egypt, etc. They refused compensation to diplomatic and consular officers not citizens of the United States and provided that they take bonds for good behavior.50 The latter provision has been sustained in the Court of Claims.51 An act of March 3, 1893, "authorized" the President to appoint "ambassadors" in certain cases, and an act of March 2, 1909, provided "hereafter no new ambassadorship shall be created unless the same shall be provided for by an act of Congress." 52 Since then Congress has specifically authorized new grades as an Ambassador to Spain, 1913; to Argentine, 1914; to Chile, 1914; an Envoy Extraordinary and Minister Plenipotentiary to Paraguay, 1913; and to Uruguay, 1913.53 An act of 1915 provided grades and salaries for secretaries of legation, consulsgeneral and consuls, and provided that appointments be hereafter to the grade and not to a specific country. The consular service was reorganized in detail by an act of April 5, 1906.54

Thus Congress has, in fact, organized the permanent diplomatic and consular services and through its control of appropriations it seems able to compel acceptance of its organization. It has not usually authorized special or temporary missions or representation on international conferences and congresses. The President himself has designated the grade of such officers, and provided compensation from the contingent fund at his own disposal. However, Congress has recently attempted to prevent such action.55

49 Rev. Stat., sec. 1675; Comp. Stat., sec. 3117.

50 Rev. Stat., secs. 1744, 1697; Comp. Stat., secs. 3149, 3150.

51 Williams v. U. S., 23 Ct. Cl. 46; Moore, Digest, 4: 457.

52 27 Stat. 496; 35 Stat. 672; Comp. Stat., 3121.

58 38 Stat. 110, 241, 378.

54 34 Stat. 99; 38 Stat. 805.

55 Act March 4, 1913, 37 Stat. 913; Comp. Stat., sec. 7686. See Report on the Foreign Service, National Civil Service Reform League, N. Y., 1911, p. 65. As to the value of legislation on the subject, see Ibid., 220-223, and as to methods of Congressional control, Ibid., 227–228.