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For instances of the publication of controversial diplomatic notes before they had been received by the parties to whom they were addressed, see 11 J. Q. Adams' Mem., 360.

As to tone of correspondence, see infra, § 107.

The publication, by a foreign minister to the United States, "of his correspondence with the Department without the authority of his Government, is believed to be unexampled in the history of diplomacy and not decorous to the United States."

Mr. Forsyth, Sec. of State, to Mr. Ellis, Dec. 9, 1836. MSS. Inst., Ministers.

As to Mr. Webster's criticism on the action of Mr. Cass, in reference to publication of official action, see 6 Webster's Works, 383.

By the rules of the Department papers connected with pending diplo matic negotiations cannot be made public unless the documents are called for by Congress with the usual limitations.

Mr. Marcy, Sec. of State, to Mr. McKeon, Feb. 8, 1854. MSS. Dom. Let. "The cipher now used by this Department has been used for the last forty years at least, and is framed upon a system which is considered to render it entirely inscrutable to any one not having the key. No doubt offers of other systems have often been made to the Department since the one now in use was adopted. Indeed, the chief clerk, who has been an officer of the Department for about twenty-five years, informs me that such offers have averaged at least four a year within that time."

Mr. Marcy, Sec. of State, to Mr. Breckenridge, Dec. 22, 1853. MSS. Dom. Let.

"Your idea of improving our foreign diplomacy by having each minister apprised of the principal objects pursuing at every court is excellent. I urged something analogous to it upon Mr. Forsyth, while I was at St. Petersburg, and I pressed it upon Mr. Webster when Secretary of State. It is the great practical advantage enjoyed by the diplomats of Russia. It produces a harmony of action and inculcation that, in a long run, teils conclusively. Mr. Webster's difficulty was in the great labor which it must throw upon somebody in the Department already overtaxed. How that may be, I can't pretend to say, but if there be any use at all in having missions dotted over Europe, they might as well be made to co-operate in the general policy of the Government as run the risk of impeding it by a want of information from the fountain-head."

Mr. Dallas to Mr. Cass, Sec. of State, Oct. 13, 1857. 1 Dallas, Letters from London, 317.

Communications to the Government of the United States by its foreign ministers are so far privileged that, though published by order of Congress, the Government cannot sanction criticisms of them by other foreign powers.

Mr. Fish, Sec. of State, to Mr. Jay, July 11, 1870. MSS. Inst., Austria. "The Department gives to the consideration and preparation for publication of the dispatches of its agents abroad every attention, with the object of guarding against the publication of their personal views,

which might, if known, expose them to criticism or censure in the land of their official residence. In an examination of the blue books of other Governments it is believed that far more care is here exercised in this respect than in other countries. It is, of course, impossible to prevent malicious or honestly mistaken perversion of such publication by outside parties. *

"If the propriety of making such matters public in due time be left to the discretion of the Secretary of State, it is, indeed, possible that his views as to what parts of such communications may or may not be unobnoxious to adverse criticism may differ from those of the writer. The latter being brought into direct contact with the foreign adverse elements surrounding him, is naturally often better qualified to judge of what may be liable to be used by unfair partisanship to his discredit. Fully aware of this, the Department always gives the most considerate attention to any intimation its agents may convey that their dispatches are to be deemed confidential, and it rarely happens that public interests are so grave as to override such intimations."

Mr. Davis, Acting Sec. of State, to Mr. Sargent, May 23, 1883. MSS. Inst.,
Germ.

The publication of diplomatic correspondence in its archives is a matter at the discretion of each particular Government, and for a Government to publish at its discretion letters to it from foreign ministers is a question for its exclusive determination.

Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, Aug. 28, 1883. MSS. Inst.,

Mex.

"The attention of diplomatic agents is especially called to the provis ion of law by which they are forbidden to correspond in regard to the public affairs of any foreign Government or in regard to any matter which may be a subject of official correspondence or discussion with the Government to which they are accredited, with any newspaper or other periodical, or with any person other than the proper officers of the United States."

Printed Pers. Inst., Dip. Agents, 1885.

"Among the most important general duties of a diplomatic representative of the United States is that of transmitting to his own Government accurate information concerning the policy and views of that to which he is accredited, in its important relations with other powers. To gain this information requires steady and impartial observation, a free though cautious correspondence with other agents of the United States abroad, and friendly social relations with the members of the diplomatic body at the place of his residence.

"In their regular correspondence with the Department, diplomatic representatives of the United States will transmit early copies of all official reports and such information relating to the Government, finances, commerce, arts, sciences, agriculture, manufactures, mining, tariffs, taxation, population, laws, judicial statistics, and to the condi tion of the countries where they reside, as may be useful. In dispatches

communicating such information, however, political affairs should not be referred to, but should be reserved for separate communications. Books of travel, history, and all such as relate to matters of political importance, maps published by authority of the state or distinguished by extraordinary reputation, and new publications of useful discoveries and inventions, will always be acceptable acquisitions to this Department. Expenditures for such purpose should, in all cases, form a separate charge against the Department; but none should be incurred without its previous express direction, unless in a case of absolute necessity. "With the exception of the correspondence with the Treasury Department respecting accounts, and such other correspondence as special provisions of law or instructions of this Department may require, no correspondence will be held by diplomatic or consular representatives of this Government with any Department other than the Department of State. This injunction is especially applicable to communications to or from subordinates of other Departments. This rule is, however, not intended to prohibit a diplomatic agent from answering any reasonable inquiry of an officer of another Department unless the inquiry shall have been referred to the Department of State, but he may, if circumstances permit, answer such inquiries without awaiting special instructions; and in so doing he should invariably send his reply, unsealed and accompanied by a copy for the files, to the Secretary of State, who will decide whether, and bow, it shall be forwarded to the person addressed. "Drafts of correspondence sent out should not be allowed to accumulate, but should be destroyed as soon as accurately transcribed in the proper record books.

"It is the particular desire of the Department that no diplomatic agent, or any officer of the legation, should retain or carry away with him drafts or copies of his official correspondence. Obedience to this request is enjoined, inasmuch as it has sometimes happened, and may at any time happen, that on the death of the possessor of such copies, they pass into the hands of others not so scrupulously observant of their confidential character.

"Under no circumstances should any public or official paper be published without the express consent of the Department of State.

"Voluntary recourse to private letters to the Secretary of State or to officers of the Department of State, on topics relating to the official business of the legation, is discouraged.

"It is considered best that all communications of diplomatic officers to the Department of State should be in the form of regular dispatches. Where the whole dispatch appears to the writer to be necessarily of a reserved or secret character, it should be conspicuously marked as 'Confidential.' Where one or more paragraphs of a dispatch seem to require any precaution against undue publicity, a red line may be drawn to mark them and the word "confidential" plainly written in the margin. The Secretary of State, however, reserves the ultimate right to decide whether the suggested reserve is necessary in the public interest."

Ibid.

"Even with all the care that can be exercised, dispatches are not' infrequently published which get their writers into trouble. It may be remembered, for instance, that the late Mr. Marsh became involved in an annoying difficulty in Italy on account of the publication of a sentence (which he had even written in cipher) in one of his confidential dispatches, questioning the sanity of the King. Of still more recent

date is the difficulty with Germany, arising from the publication of a dispatch of our minister on the pork question, which resulted ultimately in his recall, disguised under the name of transfer."

Schuyler's Am. Diplom., 34.

(1) CONFINED TO OFFICIAL BUSINESS.

§ 89a.

The judiciary alone are competent to determine most questions of law in the United States, and the Executive will decline to give an opinion as to such questions when appealed to by a foreign sovereign or his minister.

Mr. Jefferson, Sec. of State, to the minister of France, Mar. 20, 1793. MSS. Notes, For. Leg. To same effect, see Mr. Jefferson to Mr. Hammond, Apr. 18, 1793. MSS. Notes, For. Leg.

"It is not competent for the Government of the United States to interfere with the legislation of the respective States in relation to the prop erty of foreigners dying ab intestato, or in regard to inheritances of any kind, nor has Congress authority, under the Constitution, to pass a general law, as you seem to suppose, upon the subject."

Mr. Marcy, Sec. of State, to Mr. Fay, June 19, 1854. MSS. Inst., Switz. "There has for many years been established in this Department a rule which inhibits the Secretary of State from giving letters of introduc tion, circular or otherwise, for persons going abroad, to the ministers or consuls of the United States."

Mr. Seward, Sec. of State, to Mr. Spencer, June 20, 1863. MSS. Dom. Let. "We receive from all monarchical states letters announcing the births and deaths of persons connected nearly with the throne, and we respond to them in the spirit of friendship and in terms of courtesy. On the contrary, on our part, no signal incidents or melancholy casualties affecting the Chief Magistrate or other functionaries of the Republic are ever officially announced by us to foreign states. While we allow to foreign states the unrestrained indulgence of these peculiar tastes, we carefully practice our own. This is nothing more than the courtesy of private life extended into the intercourse between nations."

Mr. Seward, Sec. of State, to Mr. Webb, July 24, 1865. MSS. Inst., Brazil. "It is the long-established practice of this Department to decline giving advice upon a hypothetical case arising out of our foreign rela tions."

Mr. Fish, Sec. of State, to Mr. Harriman, Apr. 27, 1870. MSS. Dom. Let. "The Department, by a new regulation, has ceased to give personal letters of introduction to its officers abroad, except in special cases where they may be necessary to the conduct of the public business.” Mr. Blaine, Sec. of State, to Mr. Morse, Mar. 24, 1881. MSS. Dom. Let.

"The practice of granting general introductory letters to facilitate travel will be discontinued."

Circular, Mr. Blaine, Sec. of State, Apr. 25, 1881. MSS. Inst., Arg. Rep.

(2) USUALLY IN WRITING.

§ 89b.

The misunderstandings likely to result from reliance on oral communications between Secretaries of State and foreign ministers are noticed, though with his usual suppressed sarcasm, in a letter from Mr. Canning to Mr. Pinkney, then minister at London, September 23, 1808.

3 Am. St. Pap. (For. Rel.), 230. Mr. Pinkney's reply is given in same work, 233. On October 9, 1809, Mr. Robert Smith, then Secretary of State, proposed to Mr. Jackson, British minister at Washington, that their correspondence should be in writing, and on this being objected to by Mr. Jackson, Mr. Smith, on October 19, cited the similar proposition previously made by Mr. Canning to Mr. Pinkney. The position that important diplomatic correspondence is to be in writing is reiterated by Lord Wellesley in an interview with Mr. J. S. Smith, chargé d'affaires of the United States at London, on June 16, 1811.

Mr. J. S. Smith to the Sec. of State, June 16, 1811. MSS. Dispatches Gr. Brit. 3 Am. St. Pap. (For. Rel.), 421. As to the correspondence with Mr. Jackson, and his subsequent recall, see supra, § 84; infra, § 107.

"No foreign Government or its representative can take just offense at anything which an officer of this Government may say in his private capacity. Official communications only are to be regarded as indicating the sentiments and views of the Government of the United States."

Mr. Webster, Sec. of State, to Mr. McCurdy, Jan. 8, 1852. MSS. Inst. Austria.
Senate Ex. Doc. No. 92, 32d Cong., 1st sess.

That official communications must be to the Secretary, see supra, § 79.
As to form of conducting business, see infra, § 107.

"In connection with your dispatch permit me to offer you a word of caution with regard to cipher telegrams. You should never give both the cipher and the text, as in the present instance. The latter is all that is requisite. * Such telegrams should either be paraphrased or their import conveyed in a written note, in order that no clue whatever to the Department's cipher may be obtained."

Mr. Bayard, Sec. of State, to Mr. Morgan, May 26, 1886. MSS. Inst., Mex.

XV. DIPLOMATIC AGENTS TO ACT UNDER INSTRUCTIONS.

§ 90.

For personal instructions, see § 89.

A minister, unless in an extraordinary case of an indignity offered to him in his character as an individual, or as a minister, cannot, without the authority of his Government, threaten to break off diplomatic intercourse with the sovereign to whom he is sent.

Mr. Marcy, Sec. of State, to Mr. Jackson, Apr. 8, 1856. MSS. Inst., Austria.

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