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

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: 6

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." 07

"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, II: 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: "9 "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.

with the advice and consent of the Senate, except in the case of a Secretary of State or diplomatic officer appointed by the President to fill a vacancy occurring during the recess of the Senate, and it makes the declaration in order that the means employed in the negotiation of said treaty (with Corea) be not drawn into precedent."

In 1888 the Senate Foreign Relations Committee in reporting adversely upon the proposed fisheries treaty with Great Britain held in "reserve, for the time being, those grave questions touching usurpations of unconstitutional powers or the abuse of those that may be thought to exist on the part of the Executive." The minority report, however, sustained the President's appointments in this case by citation of precedents, and in the debate Senator Sherman, chairman of the Foreign Relations Committee, who had concurred in the majority report, admitted: 70

"The President of the United States has the power to propose treaties, subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he can not take any money from the Treasury to pay those agents without an appropriation by law. He can use such instruments as he pleases. . . . I suppose precedents have been quoted by the Senator from Alabama (Mr. Morgan, who prepared the minority report) to sustain that position. I do not disagree with him, nor does this controversy turn upon that point."

Senate criticism was directed against the commissioning of J. H. Blount to Hawaii in 1893 with "paramount" authority in all matters affecting the relationship of the United States to the Islands. The majority report of the Foreign Relations Committee, however, held: 71

"Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress. These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents."

This position was endorsed by Senator Lodge in presenting the German peace treaty to the Senate in 1921:

718

"It is the unquestioned right of the President to appoint personal agents to gather information for him, as was done in a rather famous case when Ambrose Dudley-Mann was sent to Hungary at the time of Kossuth's rebel70 Moore, Digest, 4: 455; Cong. Rec., Aug. 7, 1888, pp. 7285, 7287. 71 Cong. Rec., 53d Cong., 2d Sess., p. 127; Corwin, op. cit., p. 64. 71a Cong. Rec., September 26, 1921, 61: 6458.

lion, or the President, of course, can appoint anyone he chooses to represent him in a negotiation, because the power of initiating and negotiating a treaty is in his hands.

"We have an example at this moment in the treaty with Germany now before us. As I stated on Saturday, the Gentleman who represented us in Berlin had been sent there by President Wilson, taken from the diplomatic service and charged to represent the United States as far as it could be done as a commissioner. He was simply a personal agent of the President. He could not officially represent the United States. We could not have an ambassador because we were technically at war with Germany. Therefore he was sent there, and he represented the President in negotiating the treaty with Germany now before us and signed it."

Finally notice may be taken of the 7th proposed Senate reservation to the Treaty of Versailles. As considered on November 19, 1919, it provided:

"No citizen of the United States shall be selected or appointed as a member of said commisssions, committees, tribunals, courts, councils, or conferences except with the approval of the Senate of the United States."

Later this sentence was omitted, and, as considered on March 19, 1920, reservation seven retained merely the requirement that the United States should only be represented in the League of Nations, and, on the agencies established by the treaty, by persons authorized thereto by "an act of the Congress of the United States providing for his appointment and defining his powers and duties.” 72

241. Presidential Agent Not an Officer.

The power of the President independently to dispatch diplomatic agents seems to be considered a proper implication from the President's diplomatic powers and is well established in practice. Such an agent, however, is not an officer of the United States. This is evidenced by the fact that Senators who, according to the Constitution, cannot at the same time hold offices under the United States, have occasionally served on special missions and also by express statement of the Attorney-General. He is not, under the law, en

72 The League of Nations, III, no. 4, pp. 179, 196 (Aug., 1920). A reservation of similar effect was made by the Senate in consenting to ratification of the German peace treaty of August 25, 1921, Cong. Rec., Oct. 18, 1921, 61: 7194.