INSTRUMENTALITIES FOR FOREIGN RELATIONS. 409 



236. Power to Determine Grades in Foreign Service. 



Until 1855 there appears to have been no question but that the 

 President had exclusive power to decide, according to international 

 law and treaty, upon the grades of diplomatic and consular officers.'*^ 

 Jefferson, as Secretary of State, expressed the opinion that the Sen- 

 ate had " no right to negative the grade " in advising and consenting 

 to appointments.**' Congress passed no laws on the subject, and 

 appropriation acts were drawn so as to impose no limitations upon 

 the President's discretion in this respect.*^ 



By an act of March i, 1855, Congress provided: 



" From and after the 30th of June, next, the President of the United 

 States shall, by and with the advice and consent of the Senate, appoint 

 representatives of the grade of envoys extraordinary and ministers pleni- 

 potentiary," with a specified annual compensation for each, " to the follow- 

 ing countries, etc. . . . The President shall appoint no other than citizens of 

 the United States who are residents thereof, or abroad in the employment 

 of the Government, at the time of their appointment." 



Attorney-General Gushing held that the provisions of this act 

 " must be deemed directory or recommendatory only, and not man- 

 datory." *« 



" The limit of the range of selection," he continued, " for the appoint- 

 ment of constitutional officers depends on the Constitution. Congress may 

 refuse to make appropriations to pay a person unless appointed from this 

 or that category; but the President may, in my judgment, employ him, if the 

 public interest requires it, whether he be a citizen or not, and whether or 

 not at the time of the appointment he be actually within the United States. 

 . . . For Congress can not by law constitutionally require the President to 

 make removals or appointments of public ministers on a given day, or to 

 make such appointments of prescribed rank, or to make or not make them 

 at this or that place. He, with the advice of the Senate, enters into treaties ; 

 he, with the advice of the Senate, appoints ambassadors and other public min- 

 isters. It is a constitutional power to appoint to a constitutional office, not 

 a statute power nor a statute office. Like the power to pardon, it is not 

 limit'able by Congress." 



*5 The rules of the Treaty of Vienna, 1815, with reference to the grades 

 of diplomatic officers have been applied as international law, Moore, Digest. 

 4: 430. 



*'^' Ibid., 4: 450; Jefferson, Writings (Ford, ed.), 5: 161; Hunt, op. cit., 

 p. 105. 



*^ Madison to Monroe, 1822, Ibid., 4: 451; Corwin, op. cit., p. 67. 



*s Gushing, Att. Gen., 7 Op. 214. 



