The sun., 1919-06-17
TREATY MAKING UNDER THE
CONSTITUTION.
An Argument for the Presidents
Right to Employ Any Number Of
Uncnnfirmad CnInnAI T.. M. Houses.

an Afbumoht luz hU AtVo'"O"s
Right to Employ Any Number Of
Unconfrmed Colonel e. M. Houses.
To THE EDITOR or TEE sun--Sir: Your
very fiattering editorial reply to my
letter of inquiry referring to your
leader Of June 10, in which various con-
stitutional points growing out OF the
Presidents attitude toward the Senate
in the peace treaty matter were dis
cussed. induced me yeterday to spend
some three hours in the library Of the
Bar Association-through the courtesy
OF friend: / am not q lawyer-where
I unearthed a few facts which believe
are not without pertinent interest. You
have asserted that the Senate'B right to
participate In the choice Of negotiators
through the Senstes power of confirma-
ton or rejection Of such nominees was
secured by the first clause Of the second
section of Article IL, empowering the
President TO nominate. and. by and
with the advice and consent Of the
Senate. appoint Ambassadors. other
public ministers and all other
officers of the United States whose APP
pointments are not herein otherwise
provided for"
As you point out to me. this ceremony
was omitted in the case Of Colonel
House ct al. II was. Nor by law was
It necessary. Colonel House ct al. were
not and are not ''oficers Of the United
States" In the United States W. Maui
rice ct al. Brock pe. Chief Justice
Marshall. sitting In circuit. interpreted
Article IL, section 2. of the Consti-
tuition az limiting officers whom the
President might appoint TO those who
should be established by law: namely,
by Congress. This certainly disposes of
your contention that negotiators desig-
| mated by the President are officers
| within the meaning Of the constitutional
section cited by you. for as Congress
| never acted In creating by law such a
| body. the President perforce must
therefore act for himself in the creation
Sf such an initiative commission. While
| to further clinch this argument It "a
held in ths case Of United States vs.
Hartwsll. Wall. Ssb-8sS. that the
term officer connotes tenure duration
emolumsnt and duties which are con-
| tinuing and permanent, not occasional
| nor temporary.
Colonel House ana the remainder OF
L
conceived delegation, excepting Score
| tary Lansing" as you phrase II, clearly
do not come In under the above ruling.
| AZ your suggestion have very hur.
riedly taken ''the trouble to review the
course of procedure in the making Of
treaties throughout the first century Of
our Governments existence" wherein
Senatorial participation 10 concerned
Or rather Mr.. Samuel B. Crandall die
II for me, for in his authoritative wori
on Treaties, Their Making and En-
forcenent'' 1soD. speaking Of the sub
mission by the President to the Senate fol
| confirmation Of the names Of commits
sioners appointed to negotiate treaties
he says: "since 1915 this course ha.
been exceptional. Nearly one-third o!
the treaties concluded have been signed
at Washington by the Secretary OF
State, while q largo proportion Of tho
remainder have been negotiated through
diplomatio representatives confirmed a.
such by the Senate, but commissioned t.
epter upon negotiations solely on Erecu
tive authority. (The italics are mine
OF course it Is perfectly understood
diplomatic representatives." are officer
of the United States. Colonel House e
al. always excepting tho Secretary o.
State. are not.
Now let me refer to the Senate reso
luton OF January 8. 1888 After ap
i proving the treaty with Corea. 1882
negotiated by Commodore Shufeldt. IL
the absence Of any participation by tn,
Senate in the warrant for his negotia
tons, It declared IL did not admit 20
acquiesce in any right or constitutions
power In the President to authorize O.
empower any person to negotiate treatie
or carry on diplomatic negotiation
with any foreign Power, unless sucl
person shall have been appointed 70
such purpose or clothed with sucl
power by and with the advice and con
sent OF the Senate. except in the cas-
of Secretary of State or diplomati
officer appointed by the President to al
a vacancy occurring during a recess o
the Senate; and 1t makes the declara
tlon In order that the means employe,
in the negotiation OF said treaty be no
drawn into precedent"
Herein Crandall states: THE Exeeu
tive has recognized no limitation in thi
respect," and cites more than sixtee,
treaties concluded from 1915 to 1885 b.
special agents employed by the Presiden
with countries with which diplomat
relations did not at the time exist. Fur
ther he adds: Special agents hav
also been employed instead of the dip
lomatlc officers when the latter wer
available" He instances the reciprocit
treaty with Cuba General T. II. Bliss
and the negotiations of the treaty o
peace with Spain in 1898. adding fur
Their that "of the Ave commissioners az
pointed by the President three wer
prominent members OF the Senate an
of the Committee on Foreign Relation.
procedure quite toithont precedent.
again the italics ara mine,)
May I be permitted In conclusion I
paraphrase the saying OF a distinguish
} Greek tragedian:
From me. alone OF all. persuasion
holds aloof.
EDWARD FALEs COWARD.
NEW YORK, June Is.
A Counter Inquiry Suggested.
To THE EDITOR OF THE SUN-Sir: You
; reply to the inquiry OF Mr.. Edwar