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: 44 "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. 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. 46 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. 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." 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 con 56 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. |