INSTRUAIENTALITIES FOR FOREIGN RELATIONS. 399 



international law to determine the grades of " ambassadors, public 

 ministers and consuls " to be sent by the United States. These 

 offices being established by the Constitution itself, congressional 

 action is not necessary.^^ As Commander-in-Chief, the President 

 has exercised much discretion in organizing the Army and Navy. 

 He may provide administrative agencies and courts for governing 

 territory under military occupation, even after conclusion of war 

 and annexation of the territory,^* but he cannot vest such courts 

 with prize jurisdiction.^^ This power is, of course, superseded by 

 acts of Congress organizing the territory. 



228. The Appointment of Officers and Agents. 



Quite different is the situation with reference to the filling of 

 such offices or agencies once created. It is often said that the ap- 

 pointing power is essentially executive in character, and doubtless con- 

 stitutional understandings have tended toward presidential dominance 

 in this field, but as a matter of federal constitutional law, it seems 

 that the President has no more inherent power in this regard than 

 do the other departments. All power to make appointments seems 

 to be derivable (i) from express delegation by the Constitution, 

 (2) from act of Congress, (3) from inherent powers of the depart- 

 ments under the principle of separation of powers. Strictly speak- 

 ing, the making of an appointment involves three processes : nomi- 

 nation, appointment and commissioning. The first and last have for 

 the most part been vested in the President alone, and undoubtedly 

 the sole power of initiation and absolute veto upon appointments 

 thus implied makes his will paramount in appointments. It should 

 be noticed that the courts have held that the granting of a commis- 

 sion is a ministerial duty after the appointment has been made but 

 they admit there is no power to compel the President to sign a 



^2 Infra, sec. 236. 



"Cross V. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260. 



15 Jecker v. Alontgomery, 13 How. 498, but Congress may retroactively 



confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall'. 129. 



