1

sense or degree diplomatic in its nature", but rather "purely a business matter of negotiation." Governor Taft was successful in his mission.

It is not believed that commissioners appointed to fulfill judicial functions through service on mixed claims commissions, joint commissions or courts of arbitration are to be regarded as deriving from their offices a diplomatic character.2 According to Article XLVI of the Hague Convention of 1907, for the Pacific Settlement

1 The statement in the text is based upon that contained in Moore, Dig. IV, 447-448, in which the facts stated are taken from a paper by Hon. Simeon E. Baldwin, in the Yale Law Journal for Nov. 1902, xii, 1.

SELF-CONSTITUTED MISSIONS. The United States has strongly condemned, and by Act of Congress declared to be illegal, self-constituted missions. Act of Jan. 30, 1799, 1 Stat. 613, reproduced in § 5, Chap. 321, 35 Stat. 1088, Rev. Stat. § 5335. By the terms of this Act every citizen of the United States, wheresoever residing, who, without the consent of the Government, "directly or indirectly commences or carries on any verbal or written correspondence or intercourse with any foreign government or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the Government of the United States", and every person, being a citizen of or resident within the United States or in any place subject to the jurisdiction thereof, and not duly authorized, who counsels, advises or assists in any such correspondence with such intent, subjects himself to fine and imprisonment. Respecting the Act see Moore, Dig., IV, 448-450, and documents there cited, with reference especially to the mission of Dr. George Logan in 1798; also Lindell T. Bates, Unauthorized Diplomatic Intercourse by American Citizens with Foreign Powers as a Criminal Offense under the Laws of the United States, New York, 1915; Charles Warren, History of Laws Prohibiting Correspondence with a Foreign Government and Acceptance of a Commission, 1917, Senate Doc. No. 696, 64 Cong., 2 Sess.

According to Title VIII, of the so-called Espionage Act of June 15, 1917, 40 Stat. 226, § 1, it is rendered a criminal offense for any person, in relation to any dispute or controversy between a foreign government and the United States, willfully and knowingly to make any untrue statement, either orally or in writing, under oath before any persons authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the Government of the United States, or of any branch thereof, to the injury of the United States. § 3 of the same Title declares that "Whoever, other than a diplomatic or consular officer or attaché, shall act in the United States as an agent of a foreign government without prior notification to the Secretary of State,” shall be subjected to punishment.

2 Mr. Monroe, Secy. of State, to Mr. Harris, Chargé d'Affaires at St. Petersburg, July 31, 1816, MS. Inst. United States Ministers, VIII, 89, Moore, Dig., IV, 428. Also Moore, Arbitrations, 345-349, respecting the question as to the immunities claimed in 1796 by Messrs. Gore and Pinkney, American commissioners under Art. VII, of the Jay Treaty with Great Britain of Nov. 19, 1794.

Mexico invested its commissioners serving on the Mixed Claims Commission under the convention with the United States of April 11, 1839, Malloy's Treaties, I, 1101, with a diplomatic character. "By their respective commissions each of them was appointed 'a plenipotentiary of the Mexican Republic' as well as a commissioner." Moore, Arbitrations, 1220.

FOREIGN MISSIONS IN THE UNITED STATES [8 417

of International Disputes, it is provided that members of a tribunal selected from the Permanent Court shall, "in the exercise of their duties and out of their own country, enjoy diplomatic privileges and immunities."1 Such a provision is for the purpose both of safeguarding a judicial officer from interference in the performance of his duties, and of enhancing respect for the office which he holds. It purports to confer upon an arbitrator certain rights possessed by a public minister without suggesting that the former is in any sense a diplomatic representative of the State appointing him, or that he is engaged in any diplomatic service in its behalf.

It must be clear that a general agreement to clothe an administrative officer with diplomatic privileges and immunities is not decisive that the individual is regarded as possessed of a diplomatic character.2

g

§ 417. Foreign Diplomatic Missions in the United States. Following the outbreak of The World War, and notably after the participation by the United States therein as a belligerent, foreign diplomatic missions at Washington were enlarged not only in personnel, but also in the functions entrusted to the officials accredited. Thus, Lord Reading presented credentials as British High Commissioner, as well as Ambassador Extraordinary and Plenipotentiary.3 The British Government, moreover, found it expedient to accredit also an officer with the rank of Minister Plenipotentiary as an aide to the Ambassador.4 Attached to certain embassies were also special missions for financial or other purposes and headed by an officer of specified diplomatic rank, and given a particular designation such as "Financial Commissioner General."5 These special supplementary missions attached

1 Malloy's Treaties, II, 2236.

2 According to Art. VII of the Covenant of the League of Nations, "Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities."

3 Official Bulletin, Feb. 14, 1918, No. 234, p. 5.

4 Thus in October, 1919, Sir William Tyrrell was appointed Minister Plenipotentiary, on the staff of Viscount Grey, the Ambassador. It may be observed that other States were not reluctant to pursue, upon occasion, a similar course, especially where it was deemed wise to attach a special mission of importance to an embassy.

5 Thus in 1919, the Italian Government supplemented its Embassy_at Washington with a special mission headed by an officer with the rank of Envoy Extraordinary and Minister Plenipotentiary, and designated as "Financial Commissioner General", and whose headquarters were established at New York. Diplomatic List, January, 1920.

to permanent embassies or legations doubtless possessed an essentially diplomatic character, although the functions of the individuals composing them were in large degree of a commercial character, pertaining to the purchase of supplies and war material, or to the negotiation of loans and the extension of credit.

TITLE C

BEGINNING AND END OF MISSION

§ 418. Appointments.

1

"The power to appoint diplomatic agents, and to select for employment any one out of the varieties of the class, according to his judgment of the public service, is a constitutional function of the President, not derived from, nor limitable by Congress, but requiring only the ultimate concurrence of the Senate; and so it was understood in the early practice of the Government." 1

The President has, on numerous occasions, without the advice or consent of the Senate, employed such agencies as he has seen fit, for the negotiation of treaties or the making of investigations.2 The names of the plenipotentiaries to adjust the existing controversies with France in 1799, and to conclude a treaty of peace

The language quoted is that of Mr. Cushing, Attorney-General, May 25, 1855, in an exhaustive opinion respecting ambassadors and other public ministers of the United States, 7 Ops. Attys.-Gen. 186, 193. See, also, statement in Moore, Dig., IV, 451.

2 Declared Mr. Sherman, Chairman of the Senate Committee on Foreign Relations, in the course of a debate upon a treaty concluded with Great Britain Feb. 15, 1888, by representatives appointed by the President without the advice and consent of the Senate: "The President of the United States has the power to propose treaties, subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he cannot take any money from the Treasury to pay those agents without an appropriation by law. He can use such instruments as he pleases. . . In my judgment, he has a right to use such means as are necessary to bring about any treaty." Congressional Record, Aug. 7, 1888, pp. 7285, 7287, Moore, Dig., IV, 455–456. For the report of the Senate Committee on Foreign Relations adverse to the treaty, see Reports of Senate Committee on Foreign Relations, VI, 259. For a minority report sanctioning the method of negotiating the treaty, id., VI, 286, 332–333.

In 1913 President Wilson sent Mr. John Lind, formerly Governor of Minnesota, as his "personal spokesman and representative" to Mexico to negotiate with parties exercising authority in that country. Address of President Wilson to the Congress Aug. 27, 1913, Am. J., VII, Supp., 279,

281.

See list of instances of appointments in Moore, Dig., IV, 452-457, indicating the discussion that has at times arisen respecting the constitutionality of executive appointments lacking Senatorial approval. Also E. S. Corwin, The President's Control of Foreign Relations, 49-70.

with Great Britain to terminate the War of 1812, were submitted to the Senate for its approval.1 It does not appear that President Polk pursued such a course in appointing Mr. Trist, to negotiate a treaty of peace with Mexico.2 The commissioners plenipotentiary chosen by President McKinley to negotiate a treaty of peace with Spain in 1898,3 and likewise those selected by President Wilson in 1918, to conclude such a treaty with Germany, were appointed without the approval of the Senate.

It seems to be the accepted view that the provisions of the Constitution forbid the permanent appointment of an individual to the regular diplomatic service of the United States without the approval of the Senate.1

2

§ 419. Reciprocity of Treatment.

As a general rule, no government sends to, or at least continues in, another country a minister of a higher grade than that country may reciprocate.5

An Act of Congress of March 1, 1893, authorized the President when advised that any foreign government was or was about to be represented in the United States by an ambassador, envoy

1 United States Peace Commissions, statement showing all commissioners appointed by the President to negotiate terms of peace upon the conclusion of the various wars in which the United States has been engaged, 1775-1898 Senate Doc. No. 311, 65 Cong., 3 Sess.

2 Id., where it is declared that the commission of Mr. Trist does not appear in the Senate Executive Journal.

Concerning the secrecy attending Mr. Trist's appointment, see Polk's Diary, II, 465-467, quoted in Geo. L. Rives, United States and Mexico, II,

423-424.

3 The commissions of these plenipotentiaries were issued Sept. 13, 1898, when the Senate was not in session. See, also, S. B. Crandall, Treaties, Their Making and Enforcement, 2 ed., 1916, §§ 37-38.

4 Constitution, Art. II, Section 2, paragraph 2, where it is provided that the President shall "nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls."

This provision is not regarded as forbidding a recess appointment when the Senate is not in session, enabling the appointee to act temporarily, pending his nomination and confirmation when the Senate convenes.

The language of the text is that of Mr. Marcy, Secy. of State, to Mr. Pennington, Chairman of the Committee on Foreign Affairs, House of Representatives, May 23, 1856, 7 MS. Report Book, 274, Moore, Dig., IV, 458. Mr. Marcy added: "This rule, however, is by no means invariable, and for various reasons it seems to be proper to leave it to the President to determine the cases in which exceptions ought to be made. There are not sufficient advantages in having ministers of the highest grade accredited to all governments the most inconsiderable as well as the most important — to justify a departure from a long prevalent and common usage, with many good reasons to sustain it."