The term “am- bassadors and other public ministers,” comprehends “all officers having diplomatic functions, whatever their title or designation.”515 It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority—the President and Senate—deemed desirable.516 During the first sixty-five years of the Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation, even of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money “for the expenses of foreign intercourse,” to be expended at the discretion of the President. In Madison’s second term, the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.
In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent, the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument, it was answered that the Constitution recognizes “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 contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive.”517
By the opening section of the act of March 1, 1855, it was provided that “from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,” with a specified annual compensation for each, “to the following countries. . . .” In the body of the act was also this provision: “The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the government at the time of their appointment. . . .”518 The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was “to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more.”519
This line of reasoning is only partially descriptive of the facts. The Foreign Service Act of 1946,520 pertaining to the organization of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as to duties. Under the terms thereof the President, by and with the advice and consent of the Senate, appoints ambassadors, ministers, foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations of a Board of the Foreign Service.
- 7 Ops. Atty. Gen. 168 (1855). [Back to text]
- It was so assumed by Senator William Maclay. THE JOURNAL OF WILLIAM MACLAY 109–10 (E. Maclay ed., 1890). [Back to text]
- 26 ANNALS OF CONGRESS 694–722 (1814) (quotation appearing at 699); 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 350–353 (1865). [Back to text]
- 10 Stat. 619, 623. [Back to text]
- 7 Ops. Atty. Gen. 186, 220 (1855). [Back to text]
- 60 Stat. 999, superseded by the Foreign Service Act of 1980, Pub. L. 96–465, 94 Stat. 2071, 22 U.S.C. §§ 3901et seq. [Back to text]