The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-11-15
The Pesce Com missloners.

In 1913 President MADISON ap-
pointed Commissioners TO negotiate
the treaty Of peace Of Client The
Senate was not then In session. The
question was raised whether MADISON
had the constitutional authority to
appoint and commission these Min
listers Of the United States Govern
ment without the advice and consent
Of the Senate, there being no vacancy
OF any existing Office. and the Presi-
dents power to appoint without Sen
atorial concurrence being limited to
vacancies and not to the creation Of
new Offices:
"The President shall have power to
MI up all vacancies that may happen
during the recess Of the Senate, by
granting commissions which shall ex-
pire at the end Ct their next session"
In that case the Senate afterward
protested against President MADISON S
act Judge STORY points out in his
commentaries" that the Senate
seems to have held distinctly In an
other instance nine years later that
the President could not create the Of
Gee Of Minister and make appoint
menfs, to such an Office during the re-
cess without the consent of the SEN
ate" The question raised at the time
Of the unconfirmed appointment Of
the Commissioners to Client con-
cerned only the fact Of their appoint
ment during recess Of the Senate.
There would have then been no doubt
Mt all Of the Executives usurpation
of power II during q session of the
Senate he had appointed and commits
stoned the Ministers to Client with
out sending his nominations to the
Capitol for confirmation.
We speak of this ancient instance
because 1t serves to show the distance
10 which the country has drifted from
the early Interpretation Of the limits
imposed upon the Presidents appoint
BO"CIs ~ 10 CuouSu
any treaty negotiated and signei by
his Commissioners at Paris or else
where must he ratified by twO-thir,s
vote in the Senate before it becomes
binding on this Government. Is II
equally clear that any Commissioner
appointed by the President to nego-
tate the treaties of peace concluding
the present war In which the United
States Government Is engaged, and
not previously holding diplomatic
Office by virtue of Senatorial cOnflrma-
ton, can constitutionally represent The
American Executive at peace con-
ference now to be held, unless his
name has previously gone to the
United States Senate. in accordance
with the requirements Of Clause 2,
Section 2 of Article II. of our Consti-
tuition? This provides as to the Pres
ident's power:
"He shall nominate. and by and wit
the consent Of the Senate shall appoint
Ambassadors, other public ministers and
consuls. Judge, OF the Supreme Court.
and all other officers of the United
States, whose appointments are not here
in otherwise provided for. and which
shall be established by law. But the
Congress may by law vest the appoint
ment OF ouch inferior officers as they
think proper. in the President alone, in
the courts of law, or in the heads OF
departments"
How does this distinct provision
bear on the coming appointment Of
the Peace Commissioners representing
the United States Government at Yer
sailles, or wherever the coming con.
ference may be held? Further, how
does 1t affect the question OF the ap-
pointment of President WILSON him.
self as one Of our representatives at
that conference?
Whatever has been the record as
to the confirmation or nOn-cOnfirmn.
ton Of Pence Commissioners by the
Senate. the fact remains that these
high functionaries cannot be re,
gariled as "inrerior officers" whose
appointment may he vested by Con
gress in the President alone. At the
time Of the second conference at The
Hague, for example, the representa-,
tlves Of the United States commits
stoned by the President were respec
lively and officially described in the
prologue to the conventions as "Am
bassador Extraordinary" or Envoy
Extraordinary and Minister Plenipo
ientiary" or minister PIenlpoten
fiary"-all these titles clearly belong
ing to the class requiring Senatorial
confirmation. The functions and re
!. ,,ponsibillties Of our delegates 10 Tht
HAGUE man'festly did not exceed ir
Importance those which are to be ex
e uR0ma