Evening journal., 1918-11-18

In 1913 President Madison appointed
commissioners TO negotiate the treaty
OF peace OF Ghent. The Senate was
not then In session. The question was
raised whether Madison had the con-
stitutional authority TO appoint and
commission these ministers OF the
United States Government without the
advice and consent OF the Senate. there
being no vacancy Of any existing Of
flee, and the Presidents power TO ap-
point without Senatorial concurrence
being limited 10 vacancies and not 10
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 Of their next session ("
In that case the Senate afterward
protested against President Madisons
act. Judge story points out in his
Commentaries" that the Senate seems
TO have held distinctly in another in
stance nine years later that the Presi-
dent could not create the office Of min
lister and make appointments TO such
an office during the decess without the
consent Of the Senate" The question
raised at the time Of the unconflrmed
appointment Of the commissioners to
Client concerned only the fact Of their
appointment during a recess OF the SEN
ate. There would have then been no
doubt at all Of the Executives usurp-
alton Of power If during a session of
the Senate he had appointed and COM
missioned the ministers TO Client with
out sending his nominations 10 the Cap
itol 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
ing power. Il is clear enough that any
treaty negotiated and signed by his
commissioners at Paris or elsewhere
must be ratified by a twO-thirds vote
In the Senate before IL becomes bind
ing on this government. Is 10 equally
clear that any commissioner appointed
by the President TO negotiate the treat
les of peace concluding the present war
In which the United States Government
Is engaged, and not previously holding
diplomatic office by virtue of Senator
ial confirmation, can constitutiOnally
represent the American Executive at a
peace conference now 10 be held, unless
his name has previously gone TO the
United States Senate, in accordance
with the requirements of Clause 2, Sec
tion 2 Of Article II, OF our Constitution?
This provides as TO the Presidents
power:
"He shall nominate. and by and with
,he consent Of the Senate SHAH appoint
ambassadors, other public ministers and
consuls, judges Of the Supreme Court,
and all other officers Of the United
States, whose appointments are not
herein otherwise provided for, and
which shall be established by law. But
the Congress may by law vest the ap--
pointment Of such 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 Versailles,
or wherever the coming conference may
be held? Further, how does IL affect
the question of the appointment OF
President Wilson himself as one OF our
representatives al that cOnference2
Whatever has been the record as to
the confirmation Or REORGANIZATION
Of peace commissioners by the Senate,
the fact remains that these high func-
tionaries cannot De regarded as "in-
feriOr officers" whose appointment may
be vested by Congress in the President
alone. AT the time Of the second con-
ference at The Hague, for example, the
representatives OF the United States
commissioned by the President were
respectively and officially described in
the prologue to the conventions as Am
bassador Extraordinary" or Envoy
Extraordinary and Minister Plenipo-
tentiary" or Minister PlenipOtentiary"
all these titles clearly belonging to
the class requiring Senatorial confirma-
tion. The functions and responsible
ties of our delegates 10 The Hague man
ifestly did not exceed in importance
those which are to be exercised by the
gentlemen now to be chosen by Mr..
Wilson TO help arrange at Versailles or
elsewhere the future destinies Of the
world.
The most recent notable instance Of
the kind was President McKinley's ap-
pointment OF the five peace commits
sioners, Judge Day, Senator Davis, SEN
ator Frye, Ambassador Reid and Judge
George Gray, who represented this gov
ernmene at Paris after our war with
Spain. These appointments were made
during a recess of the Senate. Con-
gress adjourned in 1898 on July 8. The
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