Page images
PDF
EPUB

remembered that the conference proposed is to be called simply for the purpose of discussing the matters involved and making recommendations, and is not to be called for the drafting of a treaty or convention, it is respectfully submitted by the minority that no precedent whatever can be found for requiring the President to submit the nomination of such delegates as may represent the United States to the Senate for confirmation.

COMMITTEE AMENDMENT ENCROACHES ON EXECUTIVE AUTHORITY FOR MAKING APPOINTMENTS OF THE CHARACTER MENTIONED IN THE BILL.

Article 2, section 2, of the Constitution provides that the President

shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and 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.

Under the above language of the Constitution, even were it true that the conference should propose to draft a treaty, the President would have authority to appoint agents or representatives of his own choosing to represent the executive in initiating the treaty; since its ratification would depend upon the action of the Senate that body's constitutional function would not be abridged. Under the Constitution there can be no doubt that the President, if he so desire, may personally negotiate with foreign powers treaties, to become binding of course, only when ratified by the Senate. If he may act directly and personally why can he not perform the same function through his agents or representatives. Indeed it would seem from the very nature of things highly desirable, at least in some instances, that the President be enabled to exercise the greatest freedom in the matter of the choice of his agents. The delicate and confidential nature of negotiations sometimes attending the initiation of treaties would suggest that wisdom of the highest type would not hamper the President in his selection of representatives. Until a treaty is laid before the Senate for its action, it is the work of the President alone. If personally negotiated by him the last statement can not be gainsaid. In the case of a treaty negotiated by commissioners or plenipotentiaries, it is still the document or instrument of the President. For, when the commissioners or plenipotentiaries report to the President, if he disapprove of the draft he may reject it and decline to submit it to the Senate. On the other hand, if its terms meet his wishes he may adopt the work of his agents and representatives as his own and lay the completed instrument before the Senate. The Constitution nowhere authorizes the making of treaties by commissioners or plenipotentiaries-only the President is authorized so to do by and with the advice and consent of the Senate. Commissioners and plenipotentiaries whenever they act perform their duties for and in behalf of the President in his treaty-making capacity, and not as agents of the Senate. An instrument negotiated by plenipo

tentiaries or commissioners is in no sense a treaty until it is approved by the President; if such an instrument were a treaty before its express approval and adoption by the President and subject to validity upon ratification by the Senate, the President could be denied the exercise of his powers with reference to treaty making altogether. Even after submission to the Senate, if ratified by the Senate with an amendment, it is invalid until such amendment shall have been approved by the President (14 Diamond Rings v. U. S., 183 U.S.).

The above remarks have been submitted in view of the majority's assumption that the proposed conference may draft a convention or treaty. This assumption is held by the minority to be unwarranted, as elsewhere appears.

PRECEDENTS AGAINST ACTION OF COMMITTEE.

The report of the majority, on pages 5, 6, and 7, undertakes to set forth alleged precedents in support of the requirement that the President shall submit nominations of representatives to the conference to the Senate for confirmation. It is contended by the minority that none of the citations referred to by the majority in fact constitutes a precedent for the action proposed by the majority. In each of the instances cited it is believed that investigation will disclose that the President, on his own initiative and voluntarily, submitted the nomination to the Senate, and that it was nowhere sought to compel or require him to do so.

The cases cited in the majority report, if they may be called precedents, are simply authoritative to the extent that some of the Presidents have desired to request the Senate to confirm appointments of commissioners or plenipotentiaries expressly appointed to negotiate treaties. In no sense can it be successfully maintained that they furnish warrant either in law, custom, or practice, for the proposition that Congress can properly require the submission of such nominations to the Senate, even less can it be said that any of them afford authority to require the President to submit the nominations of persons who are appointed simply for the purpose of attending a conference of the character described in the bill.

The voluntary but unnecessary submission by the President of nominations to the Senate is quite another question from that of the Congress undertaking to require him to submit nominations.

The minority begs to refer to a compilation of precedents found in Appendix C to report of the minority of the Committee on Foreign Relations of the Senate on the fisheries treaty with Great Britain of the 15th of February, 1888, found on page 337 et seq. of volume 8 of Senate Document No. 231, Fifty-sixth Congress, second session.

In this table appears a complete list of all the appointments of diplomatic agents to negotiate and conclude conventions, agreements, and treaties with foreign powers from 1792 to 1888.

The total number of persons appointed by the President during this period of time without the concurrence or advice of the Senate, or without the express authority of Congress, as agents to conduct. negotiations and conclude treaties is 438.

During the same time three were appointed by the Secretary of State.

While there were appointed during the same period by the President, with the advice and consent of the Senate, only 32.

From the table it appears that during an interval of 53 years, from 1827 to 1880, the President at no time and in no instance asked the consent of the Senate to any such appointment. It is also made to appear that many of these important appointments were made by the President when the Senate was in session without its advice or consent.

A detailed citation of the 438 appointments of commissioners or diplomatic agents avowedly appointed to negotiate and conclude conventions or treaties with foreign powers whose appointments were made by the President without the confirmation of the Senate will be found in the appendix hereof.

The minority respectfully submits that 438 instances of that character of appointments by the President, with the addition of 3 by the Secretary of State, as against 32 appointed by the President with the advice and consent of the Senate, leaves little doubt as to where the overwhelming weight of authority lies. In this connection it must be borne in mind that these diplomatic agents and representatives were expressly appointed for the purpose of initiating treaties. In the particular instance now under consideration a representative to be appointed will have no such function or authority and even though the weight of authority might be otherwise in the case of diplomatic agents appointed for the purpose of negotiating treaties, it would seem absolutely beside the question to cite the comparatively insignificant number of cases in which the President had voluntarily submitted such nominations to the Senate for confirmation, as authority for the action of the majority of the committee. While the minority has not been able in the limited time available to make exhaustive investigation, it may be said that since 1888 the practice has been the same as it was prior to that time. In a very few instances the President has seen fit to ask the advice and consent of the Senate in the selection of commissioners, or representatives, or delegates to international conferences, but in the vast majority of cases these appointments have been made without the advice and consent of the Senate; in fact, in every instance except three, and there have been a great many of such conferences during that time.

So it will be seen from the foundation of the Government down to the present time there have been not more than 35 instances in which the President has seen fit to send his selections of such commissioners to the Senate to have their nominations confirmed, and there are between five and six hundred instances in which he has made appointments without the advice and consent of the Senate.

In conclusion, the minority desires to direct the thought of the House to the impropriety of the Congress encroaching upon the rights or prerogatives of a coordinate branch of the Government. Legislation encroachment upon the privilege or duties of the Executive is no more to be tolerated than Executive encroachment upon the privilege or independence of the legislative branch. The Congress can with more success and assuredly with greater consistency resist Executive encroachment or dictation if its own actions in that regard are justly without reproach.

Because the action of the majority is without sanction of constitutional authority, is in the face of and against the precedents, and constitutes an undignified and unwarranted interference with Executive functions, the minority of the committee submits that the bill as amended by the committee should not pass.

APPENDIX.

H. D. FLOOD.

J. CHAS. LINTHICUM.
WM. S. GOODWIN.
CHAS. M. STEDMAN.
GEORGE HUDDLESTON.
TOM CONNALLY.

Being a statement of the persons employed by the United States in conducting negotiation between 1789 and 1888.

[blocks in formation]

Being a statement of the persons employed by the United States in conducting negotiations between 1789 and 1888-Continued.

[blocks in formation]
« PreviousContinue »