territory under military occupation, even after conclusion of war and annexation of the territory,14 but he cannot vest such courts with prize jurisdiction.15 This power is, of course, superseded by acts of Congress organizing the territory.

228. The Appointment of Officers and Agents.

Quite different is the situation with reference to the filling of such offices or agencies once created. It is often said that the appointing power is essentially executive in character, and doubtless constitutional understandings have tended toward presidential dominance in this field, but as a matter of federal constitutional law, it seems that the President has no more inherent power in this regard than do the other departments. All power to make appointments seems to be derivable (1) from express delegation by the Constitution, (2) from act of Congress, (3) from inherent powers of the departments under the principle of separation of powers. Strictly speaking, the making of an appointment involves three processes: nomination, appointment and commissioning. The first and last have for the most part been vested in the President alone, and undoubtedly the sole power of initiation and absolute veto upon appointments thus implied makes his will paramount in appointments. It should be noticed that the courts have held that the granting of a commission is a ministerial duty after the appointment has been made but they admit there is no power to compel the President to sign a commission (except threat of impeachment) and without the commission no person is an "officer" with legal powers.16

1. The Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the

14 Cross v. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260. 15 Jecker v. Montgomery, 13 How. 498, but Congress may retroactively confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall. 129. 16 Marbury v. Madison, I Cranch 137. If a commission has been signed and is in the hands of an officer, other than the President, its delivery may be mandamused, ibid.

Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." "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." To the states is "reserved. . . respectively, the appointment of the officers" of the militia even when called forth into national service.17

2. "But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." 18

3. Finally, an inherent power of appointment exists in each of the departments as an implication of the doctrine of separation of powers. "If any one of the departments," says Goodnow, "is to be expected to be independent of the others, it must have the power to appoint its subordinates. The legislature may thus appoint all its subordinate officers, while courts may appoint such officers as criers and others who are necessary in order that the courts may perform their duties properly." 19 It may be added that the President exercises such an inherent power in appointing personal agents for conducting diplomatic intercourse without congressional authorization and without consent of the Senate, a practice which the Senate has often objected to but never with success.20 It may also be noticed that in the National Government Congress has in fact conferred power on the courts to appoint such essential subordinates as clerks, criers, reporters, etc., under the constitutional clause referred to, but doubtless in the absence of such statutes the courts could make such appointments as they have done in the states.

229. Limitations upon the Appointing Power.

Apparently the only constitutional limitation upon the appointing power is that which provides: 21

17 U. S. Constitution, II, sec. 2, cl. 2, 3; I, sec. 8, cl. 16.

18 Ibid., II, sec. 2, cl. 2.

19 Goodnow, op. cit., pp. 37–38.

20 Infra, secs. 238-240.

"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 facsimiie 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.2

B. Application of Principles to Foreign Affairs.

231. The Types of Agencies Conducting Foreign Relations.

27

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.

26 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.