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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 judicial 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

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.

PROC. AMER. PHIL. SOC., VOL. LX., AA, MARCH 14, 1922.

"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 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 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

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 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: 34

"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 miliHague Conference, 1907, Scott ed., Instructions to the American Delegates to the Hague Conferences and their Official Reports, 1916, p. 72.

ss Ibid., p. 200.

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

tary 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 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.36 233. Appointment of Military and Civil Officers.

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.37 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 35 Santiago v. Nogueras, 214 U. S. 260.

36 Supra, sec. 227.

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

18 Supra, sec. 228.

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

by the President with the advice and consent of the Senate but 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.11

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.

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"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.

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