On the Constitutional Power of the President to originate the Appointment of a Foreign Minister.
Mr. BERRIEN. By the Constitution, the President is authorized to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, and other public ministers and consuls, judges of the supreme courts, and all other officers of the United States, whose appointments are not therein otherwise provided for, and which shall be established by law. Now, it is plain that the appointing power does not include the power to create the office; in other words, that the office to which the appointee is nominated must be previously created by law. If an appointment be to an office to be exercised within the limits of the United States or its territories, it must be to one which exists, and has been created by the municipal laws of the United States. If to an office which is to be exercised without the limits of the United States, within the dominions of a foreign sovereign, it must be to one which exists, and is recognized by the general principles of international law, or which is specially created by positive and particular pacts and conventions. The limitation in the latter case results not only from the fundamental law of this government, but from the exclusive dominion, within his own territories, of the sovereign within whose territories this minister is to exercise his functions. That sovereign is bound, as a member of the great family of nations, to recognize as legitimate an appointment which is consonant to the code of international law, and of course to acknowledge one which, by express convention, he has stipulated; but this is the extent of his obligation, and consequently the limit of the appointing power under our Constitution.
Let us look to the first of these propositions. Is it within the "constitutional competency" of the President to appoint to an office the functions of which are to be exercised within the limits of the United States, which office has not been created by the laws of the United States? Take an example. The President deems it expedient to establish a home department. Is there any one sufficiently absurd to assert that he has a right, ex mero motu, or even with the assent of a majority of the Senate, to appoint a secretary for that department—to assign to him certain specific duties, and then to call on Congress for the requisite appropriation, to compensate his services?—to imagine that the acts of such an officer would be valid, or that his attestations would be respected by our judicial tribunals?
Before the passing of an act of Congress for the organization of a newly-acquired territory, and the creation, by that act, of the legislative, executive, and judicial officers deemed necessary for its government, is it within the "constitutional competency" of the President, aided even, as before, by a majority of the Senate, to appoint an officer or officers to exercise all or either of these functions? The proposition is believed to be too clear for argument.
Within the United States, the office must be created by law before the appointing power can be called into action. Why should a different rule prevail without? The law of nations operates on this government, in its intercourse with other sovereignties, as the municipal law does in its action on its own citizens. In this case, then, the law of nations, as in the other the municipal law, must have created the office, before the power of appointment can exist. Now, the law of nations does recognize ambassadors and other ministers, in the intercourse between sovereigns. But this law does no where recognize the right of a congress of ministers to receive an embassy. The right to receive, and the right to send, a minister, are co-relative. The one does not exist without the other. A congress of ministers is not authorized to receive an ambassador, unless it is authorized to send one. Who will assert, for the congress of Panama, the right to exercise the latter power?
A sovereign cannot, then, be represented in a congress of ministers, otherwise than by a deputy, who becomes a member of that congress. He is not an ambassador to that congress, but is himself a constituent part of it. He is not accredited to any particular power, but is commissioned as one of a number of deputies who are collectively to compose the congress. How are these deputies created? The answer is obvious. From the necessity of the thing, it must be by conventions or treaties between the respective powers who are to be represented by those deputies. In this manner the congress at Verona was created by the treaty of Paris. The deputies who appeared there were called into existence by the express stipulations of that treaty. So, too, in the congress of Panama, the office of deputy to that congress is created by the special provisions of the treaties between the several powers who are to be represented there.
The result of what has been said is this: The office of a deputy to an international congress does not exist permanently under the law of nations, but is the offspring of particular convention—and this of necessity, because the congress itself is not preexisting, but is the creature of treaty; and the treaty which creates the congress stipulates also for the appointment of the deputies of whom it is to be composed. Then the clause of the Constitution which authorizes the appointment of ambassadors, or other ministers, cannot be invoked to sustain this nomination, because a deputy to a congress is not a minister existing by force of the law of nations, but created by particular conventions between the powers represented in that congress; and we have no such conventions with the powers represented in the congress of Panama. Consequently, as to us, the office of minister or deputy to that congress does not exist, not being derived from the law of nations, nor provided for by any convention. A very simple view of the subject seems to be decisive. Could the President have sent ministers to the congress of Panama uninvited by the powers represented there? Could he, without such invitation, have required such ministers to be accredited by that congress? Would a refusal to receive them have furnished just ground of complaint? If these questions are answered in the negative, as I presume they must be, the conclusion is obvious: the office exists only by force of the invitation.
Unless, then, the mere invitation of a foreign nation is competent to create an office, and thus to call into action the appointing power of the President,—unless this appointing power includes the power to create the office, which we have seen that it does not,—the appointment by the President of ministers to the congress of Panama cannot be valid, nor can it be rendered so by the advice and consent of a majority of the Senate, nor by any power short of that which is competent to create the office; and that, we have seen, is the treaty-making power. The President can appoint a minister to the republic of Colombia, because such an office exists under the law of nations, and is, therefore, a legitimate object of he appointing power; and he may instruct such minister to communicate with the congress of Panama; but he cannot appoint a minister to take a seat in that congress, because we have no conventions with the powers represented there, by which, as to us, the office is created; nor can he send a minister, as an ambassador or legate, to that congress, because the congress, as such, has not the rights of embassy. If it be said that this is mere form, the answer is obvious: form becomes substance in this case, by force of the constitutional provision which requires the assent of two thirds of the Senate to the ratification of a treaty, while a bare majority is sufficient to give effect to an exercise of the appointing power.
Let us consider this question, for a moment, freed from the prejudices which operate in favor of the Spanish American republics. If the states represented in the congress of Vienna or Verona, or the Holy Alliance had given us an invitation to be represented there, apart from the expediency of the measure, could it have been within the "constitutional competency" of the President to have sent ministers to take their seats in either of those assemblies? If the nations of Europe should, by treaties provide for a congress to devise the means of abolishing the slave trade, of resisting the extortions of the Barbary powers, or of suppressing the piracies of the West Indian seas, could the President, the United States not being parties to those treaties, of his own mere will, make us members of that congress, by sending deputies to represent us there? The question is proposed in this form, because our ministers would, of necessity, if received at all, be members, and not ambassadors, since such a congress is neither competent to send or to receive an embassy.
Why, then, in the creation of this office of deputy or minister to the congress of Panama, was not the constitutional organ, the treaty-making power, resorted to? What would have been the result of such a course is obvious, I think, in the recorded votes of the Senate, on the preliminary questions which have arisen. The object could not have been effected. Two thirds of the Senate could not have been obtained. The office would not have had existence; or the Senate, in the exercise of their legitimate powers, would have so modified the treaty, as to have limited the functions of the ministers to those objects of which they would have approved.
Mr. ROBBINS. The theory of our Constitution charges the executive with the care of our foreign relations, and of the public interest connected therewith: it supposes him intimately acquainted with all those interests, and therefore possessed of the means of forming a correct opinion of the measures conducive to their advancement. This opinion, though not binding as authority, is yet, I think, entitled to much weight, as well as to much respect, in our deliberations. We have the executive opinion in this case, under circumstances that entitle it to peculiar consideration. The credit of the government, in the estimation of all those nations, is in a degree connected with the adoption of this measure; and that estimation ought not, in my opinion, lightly to be forfeited, nor unnecessarily impaired.