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. 47

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.

53 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.

237. Power to Determine Occasion for Appointments in Foreign Service.

During the early days of the government it was customary to send special missions for the conclusion of treaties and on several of these occasions the President appointed commissioners without consulting the Senate. On other occasions, as in the appointment of John Jay to negotiate a treaty with Great Britain and later in the appointment of two successive missions of three commissioners sent to negotiate with France, he consulted the Senate and they did not question his authority to decide that the occasion required a diplomatic mission.56

In March, 1813, during the recess of the Senate, President Madison appointed Gallatin, J. Q. Adams, and Bayard as "Envoys Extraordinary and Ministers Plenipotentiary" to negotiate a treaty of peace with Great Britain. When the Senate reassembled, Senator Gore, of Massachusetts, introduced a resolution. It recited the constitutional provision authorizing the President "to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of the next session" and then asserted that "no such vacancy can happen in any office not before full" and consequently the President's act was not "authorized by the Constitution, inasmuch as a vacancy in that office did not happen during such recess of the Senate and as the Senate had not advised and consented to their appointment."

66

Senator Gore assumed that the existence of an office " in the foreign service could only be determined by the President acting with the Senate and consequently there having been no "office" there was no vacancy." Senator Bibb, of Georgia, however, took the position in reply that the President alone decided whether an "office" in the foreign service existed and might decide that it did during a recess in which case he could fill the vacancy.57

"Sir," he said, "there are two descriptions of offices altogether different in their nature, authorized by the Constitution-one to be created by law, and the other depending for their existence and continuance upon con56 Crandall, op cit., pp. 75–76.

57 Benton Abridgment, 5: 86, 91.

...

...

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.

fund or relied upon a subsequent appropriation.60 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.

1 37 Stat. 913; Comp. Stat., 7686.

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

63 Moore, Digest, 4: 452-453.