Page:Debates in the Several State Conventions, v4.djvu/498

482 the respective powers who are to be represented by those deputies. In this manner the congress at Verona was created by the treaty of Paris. The deputies who appeared there were called into existence by the express stipulations of that treaty. So, too, in the congress of Panama, the office of deputy to that congress is created by the special provisions of the treaties between the several powers who are to be represented there.

The result of what has been said is this: The office of a deputy to an international congress does not exist permanently under the law of nations, but is the offspring of particular convention—and this of necessity, because the congress itself is not preexisting, but is the creature of treaty; and the treaty which creates the congress stipulates also for the appointment of the deputies of whom it is to be composed. Then the clause of the Constitution which authorizes the appointment of ambassadors, or other ministers, cannot be invoked to sustain this nomination, because a deputy to a congress is not a minister existing by force of the law of nations, but created by particular conventions between the powers represented in that congress; and we have no such conventions with the powers represented in the congress of Panama. Consequently, as to us, the office of minister or deputy to that congress does not exist, not being derived from the law of nations, nor provided for by any convention. A very simple view of the subject seems to be decisive. Could the President have sent ministers to the congress of Panama uninvited by the powers represented there? Could he, without such invitation, have required such ministers to be accredited by that congress? Would a refusal to receive them have furnished just ground of complaint? If these questions are answered in the negative, as I presume they must be, the conclusion is obvious: the office exists only by force of the invitation.

Unless, then, the mere invitation of a foreign nation is competent to create an office, and thus to call into action the appointing power of the President,—unless this appointing power includes the power to create the office, which we have seen that it does not,—the appointment by the President of ministers to the congress of Panama cannot be valid, nor can it be rendered so by the advice and consent of a majority of the Senate, nor by any power short of that which is competent to create the office; and that, we have seen, is the treaty-making power. The President can appoint a minister to the republic of Colombia, because such an office exists under the law of nations, and is, therefore, a legitimate object of he appointing power; and he may instruct such minister to communicate with the congress of Panama; but he cannot appoint a minister to take a seat in that congress, because we have no conventions with the powers represented there, by which, as to us, the office is created; nor can he send a minister, as an ambassador or legate, to that congress, because the congress, as such, has not the rights of embassy. If it be said that this is mere form, the answer is obvious: form becomes substance in this case, by force of the constitutional provision which requires the assent of two thirds of the Senate to the ratification of a treaty, while a bare majority is sufficient to give effect to an exercise of the appointing power.

Let us consider this question, for a moment, freed from the prejudices which operate in favor of the Spanish American republics. If the states represented in the congress of Vienna or Verona, or the Holy Alliance had given us an invitation to be represented there, apart from the expediency of the measure, could it have been within the "constitutional competency" of the President to have sent ministers to take their seats in