ister at Paris, addressed to the Duc de Broglie, French minister for foreign affairs, a note in which is the following: "The President, as the chief executive power, must have a free and entirely unfettered communication with the co-ordinate powers of the Government. As the organ of intercourse with other nations, he is the only source from which a knowledge of our relations can be conveyed to the legislative branches. It results from this that the utmost freedom from all restraint, in the details into which he is obliged to enter of international concerns and of the measures in relation to them, is essential to the proper performance of this important part of his functions. Were any foreign powers permitted to scan the communications of the Executive, their complaints, whether real or affected, would involve the country in continual controversies; for, the right being acknowledged, it would be a duty to exercise it by demanding a disavowal of every phrase they might deem offensive, and an explana tion of every word to which an improper interpretation could be given. The principle, therefore, has been adopted, that no foreign power has a right to ask for explanations of anything that the President, in the exercise of his functions, thinks proper to communicate to Congress, or of any course he may advise them to pursue. This rule is not applicable to the Government of the United States alone, but, in common with it, to all those in which the constitutional powers are distributed into different branches. No such nation, desirous of avoiding foreign in fluence or foreign interference in its councils-no such nation, possess ing a due sense of its dignity and independence, can long submit to the consequences of this interference. If the principle is correct, every communication which the President makes, in relation to our foreign affairs, either to the Congress or to the public, ought in prudence to be previously submitted to those ministers, in order to avoid dis putes and troublesome and humiliating explanations." Hunt's Life of Livingston, 401, 402. * Communications of the President to Congress and the debates of Congress are domestic matters, concerning which this Department will not entertain the criticisms or answer the questions of foreign sovereigns. Mr. Buchanan, Sec. of State, to Mr. Rosa, Feb. 15, 1849. MSS. Notes, Mex. A foreign minister, accredited to the United States, has no right to "ask explanations from the President concerning the debates or proceed. ings of Congress, or any message which he may transmit to either house in the exercise of his constitutional power and duty. In a note to M. de la Rosa, minister of Mexico, from Mr. Buchanan, Secretary of State, February 15, 1849, it is said: "So far as regards the debates or proceedings of Congress, this is the first occasion on which it has become necessary to address the representative of any foreign Government. Not so in relation to the messages of the President to Congress. Mr. Castillo, one of your predecessors, in a note of the 11th of December, 1835, to Mr. Forsyth, the Secretary of State, called upon him for an explanation of the meaning of a paragraph, relating to Mexico, contained in President Jackson's annual message to Congress, of December, 1835. Mr. Forsyth, in his auswer of 16th December, 1835, told Mr. Castillo that remarks made by the President in a message to Congress are not deemed a proper subject upon which to enter into explanation with the representative of a foreign Government. Mr. Livingston, then our min ister to France, on 13th of January, 1835, informed the French minister of foreign affairs that in the message of President Jackson to Congress of the previous December, 'there was nothing addressed to the French nation': and he likened it very properly to a proceeding well known in French law a family council, in which their concerns and interests are discussed, but of which, in our case, the debates were necessarily public." (Annual message of the President, &c., 1849-50, part 1, p. 71.) "Mr. Webster, Secretary of State, wrote to the same Mexican minister, February 21, 1851: The undersigned flattered himself that after the expression of the sentiments of the Government contained in the note of Mr. Buchanan to M. de la Rosa, of 15th February, 1849, M. de la Rosa would have abstained from making a message of the President to either house of Congress a subject of diplomatic representation." Lawrence's Wheaton (ed. 1863), 385. The President's communications to Congress are matters of domestic concern which are not within the range of the official notice of foreign sovereigns. Mr. Webster, Sec. of State, to Mr. Hülsemann, Dec. 21, 1850. MSS. Notes, Germ. "The President's annual message is a communication from the Executive to the legislative branch of the Government; an internal trans-` action, with which it is not deemed proper or respectful for foreign powers or their representatives to interfere, or even to resort to it as the basis of a diplomatic correspondence. It is not a document addressed to foreign Governments." Mr. Marcy, Sec. of State, to Mr. Herran, Dec. 22, 1856. MSS. Notes, Colombia. During Mr. Buchanan's administration, in 1857, he held certain "confidential conferences" with Lord Napier on questions concerning Central America. The misunderstandings that followed these interviews (see Lord Napier to General Cass, Apr. 12, 1858; Br. and For. St. Pap., 1857-58, vol. 48, 651) are further illustrations of the wisdom of the position taken by Mr. Monroe, and followed by other Presidents, to hold no official intercourse with foreign ministers except through the Secretary of State, the Secretary's action not binding the Governments concerned unless when in the shape of notes or of reports of interviews reduced to writing and assented to by both parties. As further illustrations of the position above stated, see Lord Napier's report of Mr. Buchanan's informal talk in British and Foreign State Papers, ut supra, 755. See also as to danger of oral communication, infra, § 89b. "This Department is the legal organ of communication between the President of the United States and foreign countries. All foreign powers recognize it and transmit their communications through it, through the dispatches of our ministers abroad, or their own diplomatic representatives residing near this Government. These communications are submitted to the President, and, when proper, are replied to under his direction by the Secretary of State. This mutual correspondence is recorded and preserved in the archives of this Department. This is, I believe, the same system which prevails in the Governments of civilized states everywhere." Mr. Seward, Sec. of State, to Mr. Dayton, June 27, 1862. MSS. Inst., France. "At the same time I think it proper to suggest to you that all corre spondence between diplomatic and consular agents of the United States residing in foreign countries is conducted, under the law of natious, confidentially, with amenability only to the Government of the United States." Mr. Seward, Sec. of State, to Mr. Sullivan, Oct. 25, 1867. MSS. Dom. Let. "It is neither convenient nor customary with the Executive depart ment to discuss or give explanations concerning the expressions of opinions which are made in incidental debates and resolutions from time to time in either or both of the legislative bodies, at least until they assume the practical form of law. When they assume that form they are constitutionally submitted to the President for his consideration, and he is not only entitled, but he is obliged to announce his concurrence or non-concurrence with the will of the legislature. (See infra, § 107.) "It would not be becoming for me to entertain correspondence with a foreign state concerning incidental debates and resolutions in regard to the treaty for the two Danish islands while it is undergoing constitutional consideration in the Senate and in Congress." Mr. Seward, Sec. of State, to Mr. Yeaman, Jan. 2, 1868. MSS. Inst., Denmark. "Your dispatch No. 14, of the Sth ultimo, has been received. The view is correct which it takes of the absurd newspaper report of a letter from President Grant to the Emperor of Russia, congratulating the lat ter upon his denunciation of the clause of the treaty of Paris which restricts liberty of navigation in the Black Sea. The occasions are rare which are conceived to warrant or require a deviation on the part of the President from the rule which limits his communications to foreign sov ereigns to mere letters of ceremony. The occasion adverted to was not deemed sufficient to call for any such communication. It is true that the United States, not having been a party to the treaty of Paris, may have more or less reason to complain of any curtailment of their rights under the law of nations which it may have effected. No formal complaint on the subject, however, has as yet been addressed to either of the parties to that instrument, though the restriction which it imposes on the right of our men-of-war to the passage of the Dardanelles and the Bosphorus is under serious consideration." Mr. Fish, Sec. of State, to Mr. McVeagh, Jan. 5, 1871. MSS. Inst., Turkey; Correspondence by a foreign minister with the press in this country on subjects connected with his mission, such correspondence involving an appeal to the people on diplomatic issues, is ground for his dismissal. Mr. Fish, Sec. of State, to Mr. Curtin, Nov. 16, 1871. MSS. Inst., Russia. See infra, § 82. Official communications with the President can be only through the Secretary of State. Mr. Fish, Sec. of State, to Mr. Washburne, June 19, 1873. MSS. Inst., France. "It is not regular for any other authority than that of the department of foreign affairs in the country where diplomatists are accredited to address letters upon public business directly to them. When such other authority has occasion to communicate with them, this is invariably done through the department intrusted with the foreign relations of the country." Mr. Fish, Sec. of State, to Mr. Cox, Jan. 22, 1874. MSS. Dom. Let. The opinion of the Attorney-General of the United States cannot be taken officially by a diplomatic representative of the United States except through the medium of the Secretary of State. Mr. Fish, Sec. of State, to Mr. Jay, Aug. 2, 1874. MSS. Inst, Austria. "The policy of the law is to prohibit all communication with private and unofficial persons on subjects under discussion between this Government and another. Such communication can be made verbally by trusted messengers, as much to the detriment of the public service and the public interest, and in as complete disregard of the policy and the letter of the statute, as it can by written correspondence. It may even be more dangerous to intrust it to the memory or even the fidelity of a messenger than to the exact words of a written communication." Mr. Fish, Sec. of State, to Mr. Bassett, Nov. 20, 1875. MSS. Inst., Hayti. Prince Bismarck, having declined to be "the medium of communication between the House of Representatives of the United States and the Reichstag of a resolution on the subject of the death of Mr. Lasker" (a late member of that body, who died in New York), Mr. Frelinghuysen, Secretary of State, in a telegram to Mr. Sargent, minister to Berlin, after explaining the friendly intent of the resolution, stated that "its non-transmission officially, as it was intended and claimed on its face to be of friendly intent, while a matter of regret, is not one of concern to either branch of the Government of the United States." Mr. Frelinghuysen to Mr. Sargent, Mar. 10, 1884. MSS. Inst., Germ. A foreign minister here is to correspond with the Secretary of State on matters which interest his nation, and ought not to be permitted. to resort to the press. He has no authority to communicate his sentiments to the people by publications, either in manuscript or in print, and any attempt to do so is contempt of this Government. His inter ! course is to be with the Executive of the United States only, upon matters that concern his mission or trust. 1 Op., 74, Lee, 1797. See infra, § 84. That interference by a foreign minister in the politics of the country of his mission is a breach of duty, see infra §§ 84, 106. III. CONTINUITY OF FOREIGN RELATIONS UNBROKEN BY PARTY CHANGES. § 80. Whatever may be the changes in the persons directing at home and abroad our foreign relations, the Department maintains a continuity in the traditions and management of the office; nor will it permit an appeal, based on party changes, to be made either to or from foreign representatives. (See 8 J. Q. Adams' Mem., 264.) This course was taken by Mr. Webster and Mr. Marcy in connection with the action of Mr. Clayton in sending Mr. Mann to Hungary. (Supra, §§ 47 ff.) How far a Secretary of State can disclaim the action of his prede cessor was discussed when the nomination of Mr. Van Buren came before the Senate in 1832. Mr. Van Buren, when Secretary of State, had said, in instructions to Mr. McLane, that "in reviewing the causes which have preceded and more or less contributed to a result so much regretted (the refusal of Great Britain to modify the restrictions on the trade between the United States and the West Indies), there will be found three grounds upon which we are most assailable: (1) In our too long and too tenaciously resisting the right of Great Britain to impose protecting duties in her colonies; (2) in not relieving her vessels from the restrictions of returning direct from the United States to the colonies after permission had been given by Great Britain to our vessels to clear out from the colonies to any other than British port; and (3) in omitting to accept the terms offered by the act of Parliament of July, 1825." It was argued that these instructions were a reflection on the preceding Administration (that of Mr. J. Q. Adams), and this was one of the chief grounds for the rejection of Mr. Van Buren by the Senate, Mr. Calhoun, Vice-President, giving the casting vote against it. It afterwards transpired that these instructions were drawn from a dispatch of Mr. Gallatin sent to the State Department in the last year of Mr. Adams's administration. 1 Benton's Thirty Years in the Senate, 216. IV. EXECUTIVE DISCRETION DETERMINES THE WITHDRAWAL OR RE. § 81. "It is necessary for America to have agents in different parts of Europe, toive some information concerning our affairs, and to refute the abominable lies that the hired emissaries of Great Britain circulate in every corner of Europe, by which they keep up their own credit and I have been more convinced of this since my peregrinations ruin ours. |