which is to be exercised without the limits of the United States, within the dominions of a foreign sovereign, it must be to one which exists, and is recognized by the general principles of international law, or which is specially created by positive and particular pacts and conventions. The limitation in the latter case results not only from the fundamental law of this government, but from the exclusive dominion, within his own territories, of the sovereign within whose territories this minister is to exercise his functions. That sovereign is bound, as a member of the great family of nations, to recognize as legitimate an appointment which is consonant to the code of international law, and of course to acknowledge one which, by express convention, he has stipulated; but this is the extent of his obligation, and consequently the limit of the appointing power under our Constitution.
Let us look to the first of these propositions. Is it within the "constitutional competency" of the President to appoint to an office the functions of which are to be exercised within the limits of the United States, which office has not been created by the laws of the United States? Take an example. The President deems it expedient to establish a home department. Is there any one sufficiently absurd to assert that he has a right, ex mero motu, or even with the assent of a majority of the Senate, to appoint a secretary for that department—to assign to him certain specific duties, and then to call on Congress for the requisite appropriation, to compensate his services?—to imagine that the acts of such an officer would be valid, or that his attestations would be respected by our judicial tribunals?
Before the passing of an act of Congress for the organization of a newly-acquired territory, and the creation, by that act, of the legislative, executive, and judicial officers deemed necessary for its government, is it within the "constitutional competency" of the President, aided even, as before, by a majority of the Senate, to appoint an officer or officers to exercise all or either of these functions? The proposition is believed to be too clear for argument.
Within the United States, the office must be created by law before the appointing power can be called into action. Why should a different rule prevail without? The law of nations operates on this government, in its intercourse with other sovereignties, as the municipal law does in its action on its own citizens. In this case, then, the law of nations, as in the other the municipal law, must have created the office, before the power of appointment can exist. Now, the law of nations does recognize ambassadors and other ministers, in the intercourse between sovereigns. But this law does no where recognize the right of a congress of ministers to receive an embassy. The right to receive, and the right to send, a minister, are co-relative. The one does not exist without the other. A congress of ministers is not authorized to receive an ambassador, unless it is authorized to send one. Who will assert, for the congress of Panama, the right to exercise the latter power?
A sovereign cannot, then, be represented in a congress of ministers, otherwise than by a deputy, who becomes a member of that congress. He is not an ambassador to that congress, but is himself a constituent part of it. He is not accredited to any particular power, but is commissioned as one of a number of deputies who are collectively to compose the congress. How are these deputies created? The answer is obvious. From the necessity of the thing, it must be by conventions or treaties between
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