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Published online by Cambridge University Press: 02 September 2013
The unusual circumstances of the present diplomatic situation of the United States resulting from the European war and the revolution in Mexico have led the present administration to resort to the use of presidential diplomatic agents. The missions of ex-Governor John Lind and of William Bayard Hale to Mexico, and the errands of Col. E. M. House in Europe have aroused considerable discussion of their diplomatic status, which gives point to an effort to explain the basis for the employment of presidential special agents in diplomacy.
At no point is the Constitution more definite and specific than in dealing with the appointing power of the President. Part of Article II, Section 2 reads: “He shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The third section of the same article reads: “The President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.” There would seem to be no loophole here by which the President could either create an office not before existing, or, unless there is specific statutory warrant, appoint an individual to office without senatorial confirmation.
1 Moore, : International Law Digest, IV, pp. 452–457Google Scholar, has the only list of special agents readily available. It does not seem to pretend to completeness, apparently is not correct in all particulars, and contains practically no discussion of the problems involved.
2 This possibility was pointed out by President Polk, 29 Cong., I Sess., House Doc. no. 187, pp. 1–5.
3 Moore, : International Law Digests V, p. 179Google Scholar, quoting instructions to diplomatic officers of the United States (1897), p. 99.
4 50 Cong., I Sess., Sen. Misc. Docs., II, no. 109, pp. 103–104.
5 Ibid., p. 110ff.
6 Congressional Globe, IX, p. 473.
7 29 Cong., I Sess., House Doc. no. 187.
8 53 Cong., II Sess., Sen. Report no. 227, p. 25.
9 Congressional Globe, IX, p. 473.
10 22 Cong., I Sess., House Doc. no. 250, pp. 15–16–17.
11 The following debates are the chief ones in which the principle was directly or indirectly at issue: Resolution by Christopher Gore in the Senate, 1814; Resolution by John Branch in the Senate, 1825; Amendment to the Appropriation bill in the Senate by Levi Woodbury, 1842; Resolution by Senate Foreign Relations committee, 1883; Debate on the Fisheries Treaty, 1888; numerous resolutions in the House and Senate upon the appointment of Blount, 1893.
12 Memoirs of J. Q. Adams, Vol. IX, p. 131.
13 Moore, : International Law Digest, IV, p. 453Google Scholar, says, “In 1816 President Monroe sent,” etc. Monroe did not become President until March 4, 1817. These men were commissioned November 24, 1817.
14 Annals of Congress, 15 Cong., I Sess., Vol. II, 1464.
15 Above, pp. 487–8.
16 41 Cong., III Sess., House Doc. no. 42, p. 11.
17 41 Cong., III Sess., House Doc. no. 42, pp. 10–11.
18 Cf. Moore, , International Law Digest, Vol. I, p. 214.Google Scholar
19 Moore, , The Works of James Buchanan, Vol VI, pp. 133–134.Google Scholar
20 Sparks, , Washington, Vol. X, p. 43.Google Scholar
21 25 Cong., II Sess., House Reports, no. 317.
22 Above, p. 489, note.
23 27 Cong., II Sess., Sen Doc. no. 253. Congressional Globe, Vol. IX, p. 469.
24 53 Cong., II Sess., Sen. Rep. no. 227, pp. 44–45.
25 Ibid., p. 39.
26 30 Cong., I Sees., Sen. Doc. no. 52, p. 81.
27 Diary, Vol. II, p. 483.
28 Moore, : International Law Digest, Vol. IV, p. 457.Google Scholar
29 22 Cong., I Sess., House Doc. no. 250, pp. 15–17.
30 Ibid., p. 73.
31 Ibid., p. 19.
32 Ibid., p. 63.
33 September 12, 1829.
34 22 Cong., I Sess., House Doc. no. 250, p. 94.
35 23 Cong., II Sess., House Doc. no. 44.
36 New York, 1837.
37 Moore, : International Law Digest, Vol. IV, p. 453.Google Scholar
38 Sen. Exec. Journal, Vol. VII, p. 341–342.
39 Ibid., 343.
40 The regular diplomatic powers of naval officers fall outside the scope of this article. For the more important instances of the employment of naval officers as special agents see Paullin, : Diplomatic Negotiations of American Naval Officers. It may further be noted that Indian treaties were usually made by presidential agents. (Cong. Debates, 1825–1826, Vol. II, pt. I, col. 608.)Google Scholar
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