INSTRUMENTALITIES FOR FOREIGN RELATIONS. 411 



237. Power to Determine Occasion for Appointments in Foreign 

 Service. 



During the early days of the government it was customary to 

 send special missions for the conclusion of treaties and on several 

 of these occasions the President appointed commissioners without 

 consulting the Senate. On other occasions, as in the appointment 

 of John Jay to negotiate a treaty with Great Britain and later in 

 the appointment of two successive missions of three commissioners 

 sent to negotiate with France, he consulted the Senate and they did 

 not question his authority to decide that the occasion required a 

 diplomatic mission.^® 



In March, 181 3, during the recess of the Senate, President Madi- 

 son appointed Gallatin, J. Q. Adams, and Bayard as " Envoys Ex- 

 traordinary and Ministers Plenipotentiary " to negotiate a treaty of 

 peace with Great Britain. When the Senate reassembled, Senator 

 Gore, of Massachusetts, introduced a resolution. It recited the 

 constitutional provision authorizing the President " to fill up all 

 vacancies that may happen during the recess of the Senate by grant- 

 ing commissions which shall expire at the end of the next session " 

 and then asserted that " no such vacancy can happen in any office 

 not before full " and consequently the President's act was not 

 " authorized by the Constitution, inasmuch as a vacancy in that 

 office did not happen during such recess of the Senate and as the 

 Senate had not advised and consented to their appointment." 



Senator Gore assumed that the existence of an " office " in the 

 foreign service could only be determined by the President acting 

 with the Senate and consequently there having been no *' office " 

 there was no " vacancy." Senator Bibb, of Georgia, however, took 

 the position in reply that the President alone decided whether an 

 " office " in the foreign service existed and might decide that it did 

 during a recess in which case he could fill the vacancy. ^'^ 



" Sir," he said, " there are two descriptions of offices altogether different 

 in their nature, authorized by the Constitution — one to be created by law, 

 and the other depending for their existence and continuance upon con- 



'' Crandall, op cit., pp. 75-76. 

 57 Benton Abridgment, 5: 86, 91. 



