416 WRIGHT— POWER TO ESTABLISH 



may be his name, what his duties, or how he may be instructed to perform 

 them. And it is only because secret agents are not officers of the United 

 States, but the mere agents of the President or of his Secretaries, or of his 

 military or naval commanders, that I disclaim all participation tn this ap- 

 pointment" 



Senator Livingston answered : '^^ 



" Sir, there are grades in diplomacy which give different ranks and 

 privileges — from an ambassador to a secret agent. . . . Ambassadors and 

 other public Ministers are directed to be appointed by the President by and 

 with the advice and consent of the Senate; because public missions re- 

 quired no secrecy, although their instructions might. But the framers of the 

 Constitution knew the necessity of missions, of which not only the object 

 but the existence should be kept secret. They therefore wisely made co- 

 operation of the Senate ultimately necessary in the first instance, but left 

 the appointment solely to the President in the last. . . . On the 30th March, 

 1795. in the recess of the Senate, by letters patent under the great broad 

 seal of the United States, and the signature of their President (that Presi- 

 dent being George Washington), countersigned by the Secretary of State, 

 David Humphreys was appointed commissioner plenipotentiary for negoti- 

 ating a treaty of peace with Algiers. . . . 



" I call the attention of the Senate to all the facts of this case with 

 the previous remark, that the construction which it gives to the Constitu- 

 tion was made in the earliest years of the Federal Government, by the 

 man who presided in the convention which made that Constitution, acting 

 with the advice and assistance of the leading members of that body, all 

 fresh from its discussion ; men who had taken prominent parts in every 

 question that arose. . . . 



" By those men, with this perfect and recent knowledge of the Con- 

 stitution, acting under the solemn obligation to preserve it inviolate and with- 

 out any possible motive to make them forget their duty, was this first 

 precedent set ; without a single doubt on the mind that it was correct ; with- 

 out protest, without even remark. A precedent going the full length of that 

 which is now unhesitatingly called a lawless, unconstitutional usurpation ; 

 bearing the present act out in all its parts, and in some points going much 

 beyond it." 



Although futilely, the Senate continued to protest. In 1882, in con- 

 senting to ratification of the treaty with Corea it resolved that it : ^^ 



" does not admit or acquiesce in any right or constitutional power in the 

 President to authorize or empower any person to negotiate treaties or carry 

 on diplomatic negotiations with any foreign power, unless such person shall 

 have been appointed for such purpose or clothed with such power by and 



^s Ibid., 1 1 : 220-222. 



69 Malloy, Treaties, etc., p. 340. 



