INSTRUMENTALITIES FOR FOREIGN RELATIONS. 401 



criers, reporters, etc., under the constitutional clause referred to, but 

 doubtless in the absence of such statutes the courts could make such 

 appointments as they have done in the states. 



229. Limitations upon the Appointing Power. 



Apparently the only constitutional limitation upon the appoint- 

 ing power is that which provides : ^^ 



" No Senator or Representative shall, during the time for which he was 

 elected, be appointed to any civil office under the authority of the United 

 States which shall have been created or the emoluments whereof shall have 

 been increased during such time ; and no person holding any office under the 

 United States shall be a member of either House during his continuance in 

 office." 



It should be noticed, however, that the incompatibility of congres- 

 sional membership with the holding of an " office " does not apply 

 to service as an agent. Senators have often been sent on special 

 diplomatic missions, under presidential appointment. The occu- 

 pancy of a judicial office is not incompatible with the holding of 

 another ofifice. John Jay and Oliver Ellsworth were each sent on 

 diplomatic missions by appointment of the President, consented to 

 by the Senate, while justices of the Supreme Court, and on other 

 occasions justices have been appointed by the President to serve on 

 courts of arbitration.^^ The Senate held that Gallatin's position 

 as Secretary of the Treasury was incompatible with his appoint- 

 ment as commissioner to conclude the Peace Treaty of Ghent and 

 forced his withdrawal from the former position. The grounds of 

 this incompatibility, however, were never precisely stated and do not 

 seem to be sustained by analogy or subsequent practice. Thus 

 while Civil Governor of the Philippines, Mr. Taft was appointed on 

 a special mission to the Pope, and while Secretary of State, Mr. 

 Lansing was appointed upon the mission to conclude the Peace 

 Treaty of Versailles. In neither of these cases, however, was the 

 appointment to a regular ofifice, nor was it submitted to the Senate.^^ 



21 U. S. Constitution, I, sec. 6, cl. 2. 

 -2 Corwin, op. cit., p. 66; supra, sec. 176. 



23 Moore, Digest, 4: 447. For facsimile reproduction of Mr. Lansing's 

 commission, see Lansing, The Peace Negotiations, 1921, p. 28. 



