tail the discretion of the President in any way in the choice of
diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of
the Senate, the Commissioners who negotiated the Treaty of Ghent the
theory on which the above legislation was based was drawn into question.
Inasmuch, it was argued, as these offices had never been established by
law, no vacancy existed to which the President could constitutionally
make a recess appointment. To this argument it was answered that the
Constitution recognizes "two descriptions of offices altogether
different in their nature, authorized by the constitution--one to be
created by law, and the other depending for their existence and
continuance upon contingencies. Of the first kind, are judicial,
revenue, and similar offices. Of the second, are Ambassadors, other
public Ministers, and Consuls. The first description organize the
Government and give it efficacy. They form the internal system, and are
susceptible of precise enumeration. When and how they are created, and
when and how they become vacant, may always be ascertained with perfect
precision. Not so with the second description. They depend for their
original existence upon the law, but are the offspring of the state of
our relations with foreign nations, and must necessarily be governed by
distinct rules. As an independent power, the United States have
relations with all other independent powers; and the management of those
relations is vested in the Executive."[274]

By the opening section of the act of March 1, 1855, it was provided that
"from and after the thirtieth day of June next, the President of the
United States shall, by and with the advice and consent of the Senate,
appoint representatives of the grade of envoys extraordinary and
ministers plenipotentiary," with a specified annual compensation for
each, "to the following countries, * * *" In the body of the act was
also this provision: "The President shall appoint no other than citizens
of the United States, who are residents thereof, or who shall be abroad
in the employment of the Government at the time of their appointment,
* * *."[275] The question of the interpretation of the act having been
referred to Attorney General Cushing, he ruled that its total effect,
aside from its salary provisions, was recommendatory only. It was "to
say, that if, and whenever, the President shall, by and with the advice
and consent of the Senate, appoint