University of Virginia Library

5246. MINISTERS (Foreign), Appointment and grade.—

The Constitution having
declared that the President shall nominate and,
by and with the advice and consent of the
Senate, shall appoint, ambassadors, other public
ministers, and consuls, the President desired
my opinion whether the Senate has a
right to negative the grade he may think it
expedient to use in a foreign mission as well
as the person to be appointed. I think the
Senate has no right to negative the grade. The
Constitution has divided the powers of government
into three branches, Legislative, Executive
and Judiciary, lodging each with a distinct
magistracy. The Legislative it has given completely
to the Senate and House of Representatives.
It has declared that the Executive powers
shall be vested in the President, submitting
only special articles of it to a negative by the
Senate, and it has vested the Judiciary power
in the courts of justice, with certain exceptions
also in favor of the Senate. The transaction
of business with foreign nations is Executive
altogether. It belongs, then, to the head of
that department, except as to such portions of it
as are specially submitted to the Senate. Exceptions
are to be construed strictly. The
Constitution itself indeed has taken care to
circumscribe this one within very strict limits;
for it gives the nomination of the foreign
agents to the President, the appointments to
him and the Senate jointly, and the commissioning
to the President. This analysis calls
our attention to the strict import of each term.
To nominate must be to propose. Appointment
seems that act of the will which constitutes or
makes the agent, and the commission is the
public evidence of it. But there are still other
acts previous to these not specially enumerated
in the Constitution, to wit: 1st. The destination
of a mission to the particular country
where the public service calls for it, and 2nd,

the character or grade to be employed in it.
The natural order of all these is first, destination;
second, grade; third, nomination;
fourth, appointment; fifth, commission. If
appointment does not comprehend the neighboring
acts nomination or commission (and
the Constitution says it shall not, by giving
them exclusively to the President), still less
can it pretend to comprehend those previous
and more remote, of destination and grade. The Constitution, analyzing the three last,
shows they do not comprehend the two first.
The fourth is the only one it submits to the
Senate. Shaping it into a right to say that
“A or B is unfit to be appointed”. Now, this
cannot comprehend a right to say that A or B
is indeed fit to be appointed, but the grade
fixed on is not the fit one to employ, or, “our
connections with the country of his destination
are not such as to call for any mission”. The
Senate is not supposed by the Constitution to
be acquainted with the concerns of the Executive
Department. It was not [325] intended that
these should be communicated to them, nor can
they, therefore, be qualified to judge of the necessity
which calls for a mission to any particular
place, or of the particular grade, more or
less marked, which special and secret circumstances
may call for. All this is left to the
President. They are only to see that no unfit
person be employed. It may be objected that
the Senate may by continual negatives on the
person, do what amounts to a negative on the
grade, and so, indirectly, defeat this right of
the President. But this would be a breach of
trust; an abuse of the power confided to the
Senate, of which that body cannot be supposed
capable. So the President has power to convoke
the Legislature, and the Senate might
defeat that power by refusing to come. This
equally amounts to a negative on the power
of convoking. Yet nobody will say they possess
such a negative, or would be capable of
usurping it by such oblique means. If the
Constitution had meant to give the Senate a
negative on the grade, or destination, as well
as on the person, it would have said so in
direct terms, and not left it to be effected by
a sidewind. It could never mean to give them
the use of one power through the abuse of another.—
Opinion on Powers of the Senate. Washington ed. vii, 465. Ford ed., v, 161.
(1790)