"It is in the light of this conception of the ex ecutive character of foreign negotiations and acts concerning foreign relations that our constitution gave the president power to send and receive min isters and agents to or from any country he sees fit, and when he sees fit, and not to send or re ceive any, as he may think best. Also, the power to make treaties ; that is, to negotiate with or without agents, as he may prefer, when he may prefer, or not at all, if he prefer ; to draw up such articles as may suit him; and to ratify the acts of his plenipotentiaries, instructed by him, the only qualification of his power being the advice and con sent of the states in the senate to the treaty he makes. These grants confirm the executive charac ter of the proceedings, and indicate an intent to give all the power to the president, which the fed eral government itself was' to possess—the general control of foreign relations.
At the time of the presentation to the sen ate of the Hale memorandum, Senator Hoar, after remarking that it was not the time for full debate, said: "Therefore, I wish to bring out distinctly, if I can, by a question to the senator from Maine, whether, in his researches into the history of this country for a hundred years, in which we must have recog nized foreign governments more than a hundred times, taking all the numbers of the governments of the world and their political changes and revo lutions which have established new governments— "Mr. HALE. Over a hundred.
"Mr. HOAR. There must be over a hundred cases, as the senator says. Is there a single instance where in fact our relations with the foreign coun try have not been determined by the act of recog nition by the president of the United States and without congress? Has there been a single one? "Mr. HALE. As the result of some considerable, and what I have tried to make 'faithful, examina tion of the subject and of what others have done for me, I answer the senator from Massachusetts that I do not find one.
"Mr. ALLEN. Aa this question is very important and going out to the country to be criticised, I ask the senator from Maine whether he wili not state to the senate whether he finds any instance in the history of this country where the queation of in dependency was determined to belong to the execu tive department exclusively? "Mr. HALE. In every one of the eases that have been referred to by the senator from Massachusetts (Mr. Hoar) the recognition was made by the ex ecutive department, acted upon, submitted to, and not questioned." Cong. Rec. 54th Cong., 2nd Sees.
682.
The extent of executive control of foreign relations was the subject of an extended de bate in congress in 1796, upon a resolution calling upon the president for details of the negotiations leading up to the Jay treaty with England, the exact question, however, being the effect of a treaty when negotiated. See TREATY.
With respect to the express power of the executive to make treaties, that is shared with the senate and there is no precedent for the primary act of recognition of a new for eign state, by the joint action of president and senate under the treaty-making power. As to the power to "receive ambassadors and other ministers," though it was much debated as giving the president too much power, the only comments on it in the Federalist are the following: "This, though it has been a rich theme of decla mation, is more a matter of dignity than of au thority. It is a circumstance which be without consequence in the administration of the Govern ment; and it was far more convenient that it should be arranged in this manner, than that there should be necessity for convening the legislature, or one of its branches, upon every arrival of a foreign minister ; though it were merely to take the place of a departed predecessor." Federalist, No. 69, p. 326.
"Except some cavils about the power of . . . receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. . . . As to the reception of am baseadore, what I have said in a former paper will furnish a sufficient anwer." id. No. 77, p. 362.
The executive can alone appoint a diplo matic representative to a new government, but to do this there is required congressional' action to provide for the payment of his sal ary, and it might be an inference from the practice of the government that the creation of an office, either directly or by provision for compensation to its incumbent, is a prerequi site to the appointment of a person to exercise any public functions. It has been argued, on the other hand, that such an officer, appoint ed by the president and senate, and his posi tion as an officer having been established, might serve gratuitously or be paid out of the contingent fund. It would seem, how ever, that it might be urged with more force that merely from an appointment authorized by the constitution, there would arise an ob ligation to provide compensation, of the same character as those created in many cases without the direct action of congress, notably under the power to make a treaty v.).