Posted by: Democratic Thinker | June 25, 2010

History of the Logan Act

Foreign Affairs


 

Charles Warren, Assistant Attorney General, wrote a treatise (1917) on the history of the the Logan Act (currently 18 USC §953) which forbids citizens, other than those under authority of the Executive Branch, from corresponding with foreign governments; and on one of the Neutrality Laws (currently 18 USC §958) which forbids American citizens from accepting commissions from foreign governments.

HISTORY OF LAWS PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT AND ACCEPTANCE OF A COMMISSION

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MEMORANDUM ON THE HISTORY AND SCOPE OF THE LAWS PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT, AND ACCEPTANCE OF A COMMISSION TO SERVE A FOREIGN STATE IN WAR.

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BY CHARLES WARREN, Assistant Attorney General.

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— Logan Act, § 5 — Neutrality Laws, § 9

HISTORY AND SCOPE OF SECTION 5 OF THE FEDERAL PENAL CODE.

SEC. 5. Every citizen of the United States, whether actually resident or abiding within the same, or in any place subject to the jurisdiction thereof, or in any foreign country,* without the permission or authority of the Government, directly or indirectly, commences or carries on any verbal or written correspondence or intercourse with any foreign Government or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign Government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the Government of the United States; and every person, being a citizen of or resident within the United States or in any place subject to the jurisdiction thereof, and not duly authorized, counsels, advises, or assists in any such correspondence with such intent, shall be fined not more than $5,000 and imprisoned not more than three years; but nothing in this section shall be construed to abridge the right of a citizen to apply, himself or his agent, to any foreign Government or the agents thereof for redress of any injury which he may have sustained from such Government or any of its agents or subjects.

* The word “who,” which appeared in Revised Statutes, section 5335, has been, by oversight, omitted when that section was embodied in section 5 of the act of March 4 1909, chapter 321 now termed the Federal Penal Code of 1910.

GENERAL CONSIDERATIONS.

The original act, reproduced in section 5 of the Federal Penal Code (35 Stat. 1088, ch. 321, sec. 5, formerly Rev. Stat. sec. 5335), is the act of January 30, 1799 (1 Stat. 613). There have been no substantial changes except that the words “or in any place subject to the jurisdiction thereof,” have been twice inserted.

The statute has never been construed in any reported case. It is cited in United States v. Craig (1886—28 Fed. 795, 801) as an illustration of the power of the United States to punish its own citizens for acts committed in a foreign country. It is also cited in American Banana Co. v. United Fruit Co. (1909—213 U. S. 347, 356).

They [civilized countries] go further, at times, and declare that they will punish any one, subject or not, who shall do certain things, if they can catch him, as in the case of pirates on the high seas. In cases immediately affecting national interests they may go further still and may make, and if they get the change, execute similar threats as to acts done within another recognized jurisdiction. An illustration from our statutes is found with regard to criminal correspondence with foreign governments. (Rev. Stat., sec. 5335.)

History, therefore, must throw the chief light upon the meaning of the statute. While congressional debates are not determinative of the meaning of statutory language, they are unquestionably of great aid in ascertaining the history of the period and the chief causes which led to the legislation.

As was said in Standard Oil Co. v. United States (1911—221 U.S., 1,50):

The debates * * * show, however, that the main cause which led to the legislation was the thought that it was required by the economic condition of times. * * *

Although debates may not be used as a means for interpreting a statute (United States v. Trans-Missouri Freight Association, 166 U. S. 318 and cases cited) that rule in the nature of things is not violated by resorting to debates as a means of ascertaining the environment at the time of the enactment of a particular law, that is, the history of the period when it was adopted.

Moreover, as the Supreme Court has not hesitated to have recourse to the debates in the Constitutional Convention of 1787 in order to ascertain the construction of words and phrases in the Constitution, the general rule as to the statutes laid down above may be somewhat relaxed when the congressional debates in question occurred over a hundred years ago and only 12 years after 1787, and in a time which has now become historical. Debates so long removed from present times and among men of historical eminence may be valuable aids toward the ascertainment of the purport and purpose of the legislation discussed.

OCCASION FOR THE ENACTMENT OF THE ACT OF 1799.

The immediate cause of the passage of the act of 1799 was the intermeddling of a private citizen, Dr. George Logan, in negotiations pending in 1798 between the United States and France.

President Adams, in 1797, had sent John Marshall, Charles C. Pinckney, and Elbridge Gerry as special envoys to France to negotiate and settle, if possible, all claims and causes of differences which then existed between the French Directory and the United States. From this mission arose the X Y Z letters controversy, the failure of the envoys, increased anti-France feeling in the United States, warlike preparations in Congress, and stringent measures against aliens. The envoys one by one returned, having accomplished nothing. Thereupon, Logan, a benevolent Quaker of Pennsylvania, undertook to act upon his own account. Bearing letters of introduction from Jefferson, Thomas McKean, and others, he sailed for France, moved to do what the three envoys had failed to do. In France “he was hailed by the newspapers as the envoy of peace, was dined and feasted by Merlin (the new President of the Directory), received by Talleyrand, and came home to Philadelphia in November with some copies of old letters to the Consul General and the verbal assurance that France would negotiate for peace.” (McMaster’s History of the United States, vol. 4, pp. 368-410.)

While this errand had been sincerely intended, and probably without any partisan political motive, Logan was denounced by the Federalists during his absence and after his return as a treasonable envoy of the Republican party, carrying on a traitorous correspondence between the American and the French “Jacobins.” On his return he was coldly received by the Secretary of State, and even more coldly by ex-President Washington, who regarded his action as fatal intermeddling. Federalists, in general, condemned him; and it was resolved that such interference should be forbidden in the future.* President Adams wrote to Timothy Pickering, Secretary of State, November 2, 1798 (Life and Works of John Adams, Vol. VIII. p. 615):

* References to Logan’s mission and the consequent legislation are also to he found in Writings of Thomas Jefferson, Vol. VII, letter of June 21, 1791, p. 273; Jan. IS, 1799, p. 161; Jan. 26, 1799, p. 326; Jan. 29, 1799, pp. 338, 339.

Writings of Washington, Vol. XI, pp. 384, 38*. See also Sclumler’s History of the limited Sates, Vol. I pp. 415. 417. Hildreth’s History of the United States, Vol. II. p. 2115.

John Adams’ Works, Vol. VIII, 615; Vol. IX, 243, 244, 265, 293, 307. Writings of John Quincy Adams (1913), Vol. II, 349,398, 399, and letters of Mar. 30. Aug. 11, 14, 15, Sept. 3, 4,18, 25, Oct. 6, 1799. Lawrence’s Wheaton (1863), 1003. Wharton’s State Trials, 20, 21. American State Papers, For. Rel. Vol. II, 242. Memoirs of Dr. George Logan.

The object of Logan, in his embassy, seems to have been to do or obtain something which might give opportunity for the “true American character to blaze forth in the approaching elections.” Is this constitutional for a party of opposition to send embassies to foreign nations to obtain their interference in elections?

In his message to Congress, in December, 1798, the President, while dealing chiefly with relations with France, made no reference to Logan. The address of the Senate to the President, December 11, 1798, however, contained references to professions made by France “neglecting and passing by the constitutional and authorized agents of the Government” and “made through the medium of individuals without public character or authority. The President in his reply to the Senate, December 12, 1798, said (Messages and Papers of the Presidents, Vol. I, pp. 276, 277):

Although the officious interference of individuals without public character or authority is not entitled to any credit, yet it deserves to be considered whether that temerity and impertinence of individuals affecting to interfere in public affairs between France and the United States, whether by their secret correspondence or otherwise, and intended to impose upon the people and separate them from their Government, ought not to be inquired into and corrected.

LEGISLATIVE HISTORY AND PURPOSES OF THE ACT OF 1799.

The history and purposes of the act of 1799 are fully set forth in Annals of Congress, Fifth Congress, 1797-1799, Volumes I and III, at the pages cited, infra.

The questions involved in the act were first presented in a resolution introduced in the House of Representatives, December 26, 1798 (p. 2488), by Roger Griswold, of Connecticut, as a proposal to amend the sedition law. He said:

Its object is to punish a crime which goes to the destruction of the Executive power of the Government—that description of crime which arises from an interference of individual citizens in the negotiations of our Executive with foreign Governments.

The resolution was as follows:

Resolved, That a committee be appointed to inquire into the expediency of amending the act entitled “An act in addition to the act for the punishment of certain crimes against the United States,” so far as to extend the penalties, if need be, to all persons, citizens of the United States, who shall usurp the Executive authority of this Government, by commencing or carrying on any correspondence with the Governments of any foreign prince or state, relating to controversies or disputes which do or shall exist between such prince or state and the United States.

The resolution was debated December 27, 28, 1798 (pp. 2493 et seq.), by Congressmen of great eminence, Griswold, John Rutledge of South Carolina, Albert Gallatin of Pennsylvania, Thomas Pinckney of South Carolina, Robert Goodloe Harper of Maryland, Harrison Gray Otis of Massachusetts, John Nicholas of Virginia, Abraham Baldwin of Georgia, John Williams of New York, Nathaniel Smith of Connecticut, Nathaniel Macon of North Carolina.

Griswold said that the object of the resolution was “of first importance”—

I think it necessary to guard by law against the interference of individuals in the negotiation of our Executive with the Governments of foreign countries. The present situation of Europe, in my opinion, calls aloud for a resolution of this kind. * * * If offenses of this kind are to pass unpunished, it may be in the power of an individual to frustrate all the designs of the Executive. The agent of a faction, if such a faction shall exist, may be sent to a foreign country to negotiate in behalf of that faction, in opposition to the Executive authority, and will any one say that such an offense ought not severely to be punished? ft certainly ought. * * * No gentleman would pretend to say that an unauthorized individual ought to exercise a power which should influence the measures of a foreign Government with respect to this country. This power has been delegated by the Constitution to the President, and the people of this country might as well meet and legislate for us, or erect themselves into a judicial tribunal, in place of the established judiciary, as that any individual, or set of persons, should take upon him or themselves this power, vested in the Executive. Such practices would be destructive to the principles of our Government.

Rutledge said that “if the citizens of this country shall be permitted to have intercourse with foreign Governments, they may do the greatest injury to this country under what they conceive to be the best intentions,” and he stated that he thought this “a good measure of national defense.”

Dana said that a person thus employed —

must be considered as acting in direct hostility with the authority of our Government and against the general character of our country. * * * It is a crime of severe magnitude, as the person thus acting must be considered as the agent of a faction waiting only for an opportunity of joining the enemies of their country.

Pinckney said that it was a leading doctrine of republican government that “no one can pretend to interfere so as to counteract the proceedings of the people of their country as expressed by its legal organs.” He stated that he—

knew of no case, no situation, on which it would be lawful or right for an individual to interfere with a foreign Government at a time when any negotiation is going forward by legal authority. Such an interference can have but a bad effect; it may have a very bad effect. It shows, at least, that there is a party in the country divided from the Government who take upon themselves a separate negotiation, and set up a distinct power, which they wish to be paramount to the legal authority.

Harper said:

The principle once admitted must go to the utter subversion of government—the principle being that whenever an individual, or, by stronger reason, a number of individuals, conceive themselves wiser than the Government, more able to discern or more willing to pursue, the interest of the country, they may assume its functions, counteract its views, and interfere in its most important operations. * * * Upon this pretense, if this principle be once established, any discontented faction, under the name of a club, or patriotic society, or revolution society, * * * may usurp the most essential functions of government in their own country, negotiate on all sorts of subjects with the Governments of other countries, and open a direct and broad road for the entrance of that foreign influence which, with equal and force, has been declared as the “angel of destruction to republican governments.” * * * When we knew that that (foreign) Government openly avows its determination to encourage such intercourse, to protect all factions, all malcontents, all insurgents in all countries, when we knew that this intercourse and her consequent protection of domestic factions are the great engines of her foreign policies—when we know all this, shall we not oppose an effectual barrier?

The resolution was passed, 65—23 (p. 2545), and Griswold, Pinckney, Baldwin, Bayard, and Spaight were appointed a committee.

A bill based on the resolution was introduced in the House by Mr. Griswold January 7, 1799, as follows (pp. 2565, 2583):

“Be it enacted, &c., That if any person, being a citizen of the United States, whether he be actually resident or abiding within the United States, or in any foreign country, shall, without the permission or authority of the Government of the United States, directly or indirectly, commence or carry on any verbal or written correspondence or intercourse with any foreign Government, or any officer or agent thereof, relating to any dispute or controversy between any foreign Government and the United States, with an intent to influence the measures or conduct of the Government having disputes or controversies with the United States, as aforesaid; or of any person, being a citizen of, or resident within, the United States, and not duly authorized shall counsel, advise, aid. or assist, in any such correspondence, with intent as aforesaid, he or they shall be deemed guilty of a high misdemeanor: and, on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding ————— thousand dollars, and by imprisonment during a term not less than ————— months, nor exceeding ————— years.

The bill was debated at length under the heading of “Usurpation of executive authority,” from January 9 to January 17, 1799 (pp. 2583 et seq.), by many eminent Congressmen in addition to those already speaking on the resolution—James A. Bayard of Delaware, Jonathan Dayton of New Jersey, Carter B. Harrison of Virginia, William C. Claiborne of Tennessee, Thomas Claiborne of Virginia, Isaac Parker of Massachusetts, Edward Livingston of New York, Joseph McDowell, John Dennis, Jonathan Brace, Samuel Smith, Samuel Sewall, John Dawson, Josiah Parker, William Gordon, Joseph Eggleston, George Thatcher, John Allen, William Edmond, and others.

The principal opposition came from Albert Gallatin and Edward Livingston, and was largely based on an unfounded fear that the bill would prevent private individuals corresponding in regard to their private and personal affaire.

Gallatin argued (p. 2586):

All cases where a change of the measures of government was attempted, though it were done merely by an individual to secure his private rights, would come within the meaning of this bill. Thus, if an individual whose vessel is taken by the French should, after his vessel is carried into one of their ports, remonstrate or enter into a correspondence with any of the agent* of that Government he must do it in such a manner as that his arguments shall not involve any of the general principles in dispute between the two Governments; because the moment he does this he falls within the penalties of the bill. It appeared extremely difficult that an individual who is not only perhaps concerned for himself but an agent for others should be able to make any effectual application to the French Government without taking into consideration in some respect the principles of dispute between the two Governments.

He wished the bill amended so as to exclude this.

Otis said in reply that the words, “with an intent to influence the measures of a foreign Government” must relate to general public measures, not to the concerns of any individual.

A motion was made to insert in place of “as follows” the words “so as to prevent or impede the amicable adjustment of said disputes or controversies.”

Bayard said:

If this amendment were to pass, a person might carry on any correspondence whatever and no punishment could be inflicted upon him, unless a bad intention was proved.

The object of the law is to prevent these private interferences altogether, since the Constitution has placed the power of negotiation in the hands of the Executive only. An individual may do good, but he may also do evil; and it can not be supposed that any private person has more wisdom or greater desire to serve his country than the Executive of the United States.

The amendment was lost (51 to 33), and on being reviewed was again lost (51 to 35). Later in the debate Gallatin, supported by Nicholas, moved to add the following proviso (p. 2591):

Provided, That nothing in this act contained shall be construed to extend to any person who shall apply to any foreign Government, or to any officer or agent thereof, for the purpose of obtaining either the releasement of American seamen or for the restoration of any property belonging to citizens of the United States and captured, sequestered, or detained by or under the authority of any such foreign Government or any of its officers or agents, or for the payment of any debts due by such Government to the citizens of the United States.

Bayard opposed, saying the bill was not intended to apply to such case and there was no need of the proviso:

In order to establish a crime by this bill, what is to be proved? First, that there are disputes subsisting between the United States and the foreign nation with whom the correspondence is said to have taken place; that this intercourse has really existed; and that it was carried on with a view to influence the measures or conduct of the foreign Government in relation to any disputes or controversies with the United States; and unless all these facts are proved, the crime is not made out. The intention must be proved before the crime will appear.

Dana said that—

the disputes and controversies mentioned in this bill are those which exist between the Government of the United States and foreign Governments—disputes and controversies of a political nature, unconnected with individual claims.

Edmond said:

It will be wise and prudent at this time to frame a law to prevent individuals from interfering with the Executive authority in a manner injurious to the community.

The proviso was defeated (48 to 37).

A motion to add after the word “influence” the words “or defeat” was made by Joseph Parker (p. 2588), saying that he wished “to make the bill as complete as possible and to put every check upon individual interference with foreign negotiations, which the Government had in its power to do so.”

The amendment was voted (48 to 30).

Dayton proposed an amendment to strike out the words “relating to any dispute or controversy between any foreign country and the United States,” and also the word “having” and the words “as aforesaid,” and to insert in place of “having” the words “in relation to any.”

These amendments were voted.

Further statements as to the purpose and intent of the bill were made in the debates on January 10, 1799 (p. 2599), January 11, 1799 (pp. 2626, 2648), January 16 (pp. 2677, 2682), January 17 (pp. 2686, 2721).

Bayard said: “The offense proposed to be punished by this law is separated only by a shade from treason.” Referring to the particular action of Dr. Logan, out of which the bill arose, he said: “It must be clear to every reasonable man that a law of this kind is a necessary barrier to guard against an abrogation of power in public factions. The bill is founded on justice and policy.”

Griswold said that the object of the bill was perfectly well known and understood “to prevent all interference with the Executive power in our foreign intercourse.”

Pinckney said that a grave evil existed which it was wise for all nations to prepare against:

This evil is no less than an endeavor on the part of one government, by means of its diplomatic skill, to overset all the governments which do not concur with them in its mad career. It is become necessary, therefore, for us, in common with other nations, to guard against this evil, and to oppose it by such barriers as are within our power. Upon this footing, the bill now before the House might be justified, if no inconveniences had already been experienced which make such a law necessary. * * * If an individual goes forward to a foreign government to negotiate on national concerns, any sensible government must either laugh at such a man as mad or conclude that he is the agent of a deep-rooted party opposed to the government of the country from which he comes. And certainly no individual ought to be permitted to do an act with impunity which might throw so great a contempt upon the government of his country.

Harper said:

It was this intent which constituted the essence of the offense; an intent to interfere in the political relations of this country with foreign nations, or to defeat the measures of our own Government. * * * It is this interference, this intermeddling, and not an accidental conversation, which the bill forbids. The bill includes, in order to constitute the offense required, that the act should be done with an intent to interfere with the functions of government, and intermeddle with the political relations of the two countries.

Brace said:

The bill proposes to punish any person who shall interfere in any controversy or dispute between the Government and any of these foreign Governments. * * * Indeed, this is a part of our defense which is above all others necessary, as it will defend us against foreign intrigue, against what has already brought upon this country great calamities and involved many others in irretrievable ruin. This crime is, of all others, of the deepest dye. * * * The evil of an offense of this kind is that it involves a whole nation and puts at hazard everything we hold dear.

Rutledge said—

that in all well-constituted Governments it is a fundamental principle that the Government should possess exclusively the power of carrying on foreign relations.

Isaac Parker said that—

this bill is founded on the principle that the people of the United States have given to the executive department the power to negotiate with foreign Governments and to carry on all foreign relations, and that it is therefore an usurpation of that power for an individual to undertake to correspond with any foreign power on any dispute between the two Governments.

Various motions to amend the bill in unessential ways, including a motion to limit its operation to one year, were made and defeated (pp. 2679-2682); and the bill was finally passed in the House of Representatives January 17, 1799, by a vote of 58 to 36 (p. 2686).

The bill was introduced in the Senate, and passed on January 25, 1799, by a vote of 18 to 2. It was signed and became a law, January 30, 1799 (1 Stat. 613).

THE ELEMENTS OF THE CRIME.

The actions made criminal by the statute fall into two classes: (1) Those performed by United States citizens wherever resident or abiding; (2) those performed by a person resident in the United States, whether alien or citizen.

(1) The actions forbidden to United States citizens are:

(a) Without the permission or authority of the Government;

(b) Directly or indirectly;

(c) To commence or carry on any verbal or written correspondence or intercourse with any foreign Government or any officer or agent, thereof.

Or—

(d) To counsel, advise or assist in any “such correspondence.” i.e.. in any verbal or written correspondence by a United States citizen with any foreign Government or any officer or agent thereof;

(e) With an,intent to influence the measures or conduct of any foreign Government or any officer or agent thereof in relation to any disputes or controversies with the United States,

Or—

(f) With an intent to defeat the measures of the Government of the United States.

(2) The actions forbidden to persons resident within the United States, whether alien or citizen, are: to counsel, advise or assist in the verbal or written correspondence, or intercourse made criminal as above, with the intent designated as above.

The dictionaries in vogue in or about 1799 define the phrase “to carry on,” used in the statute, as follows:

Johnson’s Dictionary of the English Language (London, 1755, Todd’s Ed., 1818):

To carry on: To promote; to help forward; to continue; to put forward from one stage to another; to prosecute; not, to let cease.

Sheridan’s English Dictionary (London, 1790) and Walker’s Dictionary of the English Language (London, 1791):

To carry on: To promote; to help forward.

Webster’s American Dictionary (1828):

Carry on: To promote, advance, or help forward; to continue; as, to carry on a design; to carry on the administration of grace; (2) to manage or prosecute; as, to carry on husbandry; (3) to prosecute, continue, or pursue; as, to carry on trade or war.

Similar dictionaries define the words “correspondence” and “intercourse” as follows:

Sheridan’s English Dictionary (London, 1797), and Walker’s Dictionary of the English Language (London, 1791):

Correspondence: Intercourse, reciprocal intelligence.

Intercourse: Commerce, exchange, communication.

Dyche’s English Dictionary (London, 1794):

Correspondence: Intercourse by letter or otherwise.

Intercourse: Commerce, exchange, mutual communication.

Entick’s New Spelling Dictionary (London, 1791):

Correspondence: Agreement, fitness, intercourse.

Intercourse: Communication, commerce, trade.

Johnson’s Dictionary of the English Language (London, 1755):

Correspondence: (2) Intercourse, reciprocal intelligence.

Intercourse: (1) Commerce, exchange; (2) communication.

Kersey’s English Dictionary (London, 1721):

Correspondence: Holding intelligence, intercourse, mutual commerce.

Intercourse: Mutual commerce, traffic, or correspondence.

Marchant’s New English Dictionary (London, 1760):

Correspondence: Intercourse, reciprocal intelligence.

Intercourse: Commerce, communication, free and mutual correspondence between persons.

From the above it would appear that the words “correspondence” and “intercourse” were interchangeable or synonymous. “Correspondence” is evidently used in the statute in the sense of “general communication or intercourse with,” and can not be limited to the technical sense of “communication by letter” inasmuch as it is preceded in the statute by the words “verbal or written.”

Proof of intent is, of course, an essential element of the crime. Intent is to be determined from the facts, circumstances, and surroundings at the time of the transaction and from the defendant’s prior course of dealing. If the natural and probable result of commencing or carrying on the correspondence or intercourse in question or assisting therein would be the influencing of a foreign Government or its officials or would be the defeat of measures of the United States Government, then the law presumes that the person so acting intended so to influence or defeat. In other words, there is a presumption of law that a person intends the natural and probable consequence of acts knowingly done by him.

See in general: Reynolds v. United States (1878—98 U. S. 145, 167); Allen v. United States (1896—164 U. S. 492, 496); Agnew v. United States (1897—165 U. S. 36, 50, 53); United States v. Quincy (1832 -6 Peters 445, 467; 11 L. R. A. Note p.810).

“Any officer or agent” of “any foreign Government” is a broad term and clearly includes diplomatic and consular officers located in the United States, so that intercourse or correspondence with them in the United States by a United States citizen, if for the purpose and with the intent prescribed by the statute, is forbidden.

The only other phrase in the statute about which any question is likely to arise is the scope of the phrase “in relation to any disputes or controversies with the United States.”

Consideration of the history and general purposes of the statute makes it clear that this phrase refers to all questions which are at the time the subject of diplomatic or official correspondence or negotiation between the United States and the foreign country.

GENERAL OBJECT OF THE STATUTE.

Under the Constitution, Article II, section 23, the President has the power (by and with the advice and consent of the Senate) to “appoint ambassadors and other public ministers and consuls” and “shall receive ambassadors and other public ministers.”

By the act of July 27, 1789, chapter 4 (1 Stat., 28), it was provided that—

there shall be an executive department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary for the Department of Foreign Affairs,* who shall perform and execute such duties as shall from time to time be enjoined on or entrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions, or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign States or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct.

* By the act of Sept. 15, 1789, ch. 14 (1 Stat., 68), the name of the Department of Foreign Affairs was changed to that of the Department of State. These statutes are embodied in the Revised Statutes, sec. 202.

These functions of the President with reference to foreign nations were stated by Jefferson to Genet, the French minister, in a letter November 22, 1793, as follows:

He [the President] being the only channel of communication between this country and foreign nations or their agents, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the Nation.

The Executive, therefore, is the head of the Government, especially “charged with our foreign relations,” and their conduct. See Williams v. Suffolk Insurance Co. (1839—13 Peters, 415, 420), in which case it was so held, and the President’s decisions as “to what sovereignty any island or country belongs” was held to be “in the exercise of his constitutional functions,” and “under the responsibilities which belong to him.”

It is highly important to the welfare of the country that there shall be no interference with the President’s constitutional and statutory functions, and especially no attempt to influence or intermeddle in official foreign negotiations carried on by him, through private negotiations with foreign officials in relation to the same subject matter. In foreign negotiation, the President must speak for the people of this country. Private individuals can not be allowed to open negotiations which might have the effect of inducing or promoting in the foreign country views as to discord or faction in this country.

The influencing of a foreign nation by correspondence with foreign officials upon a question in dispute between it and the United States, or upon a measure of the United States, is a function which should be possessed solely by the Government, and which a private citizen ougnt not to be allowed to assume.

PROCEEDINGS UNDER THE STATUTE.

Moore, in his Digest of International Law (1906), volume IV, page 449, says:

As to Pickering’s subsequent violation, when out of power and in opposition, of the statute, the enactment of which he had inspired, see Adams’s History of the United States, IV, 236 et seq.

No conviction or prosecution is known to have taken place under this act, although it has on various occasions been invoked, officially or unofficially, as a possible ground of action against individuals who were supposed to have infringed it.

President Jefferson by message of December 21, 1803, laid before Congress correspondence with Charles Pinckney, minister to Spain, relative to responsibility of Spain for “French seizures and condemnations of our vessels in the ports of Spain, for which we deemed the latter power responsible,” and for which “our minister at that court was instructed to press for an additional article” in the proposed treaty or convention “comprehending that branch of wrongs.”

Among the papers transmitted wore copies of opinions rendered by five of the most eminent American lawyers, Jared Ingersoll, William Rawle, Joseph B. McKean, Peter S. Duponceau, all of Philadelphia, and Edward Livingston, of New York, on an abstract question submitted to them by the Government of Spain, and which opinions were used by the Spanish ministry in declining to adopt the suggestions for an arbitration treaty made by Pinckney. The latter insisted that arbitration must include every class of case of wrong to American citizens, both losses due to acts of Spanish subjects and to acts of French consuls, etc., in Spanish ports—Spain being liable under the law of nations for the acts of aliens in her territory. (See Annals of Congress, Eighth Congress, 2d sess., App., pp. 1261, et seq.)

The legal opinions were rendered in November, 1802, on an abstract hypothetical case, and were adverse to the contentions of the United States as advanced by Pinckney as to the rights of the United States to indemnity under the law of nations. Pinckney claimed that the abstract question did not present the actual facts in the case, and that the United States had never relinquished any rights which it had against Spain by any convention with France.

As a result of this action on the part of American lawyers, a committee of the Senate, to whom the President’s message had been referred, made the following report to the Senate February 24, 1804 (see Executive Journal of the Senate, Vol. I, p.468):

Upon a careful examination of the message and documents communicated by the President on the 21st of December your committee notice certain unauthorized acts and doings of individuals, contrary to law and highly prejudicial to the rights and sovereignty of the United States, tending to defeat the measures of the Government thereof, and which, in their opinion, merit the consideration of the Senate.

They find that on the 15th of November, 1802, and before and subsequent to that day, divers controversies and disputes had arisen between the Governments of the United States and Spain concerning certain seizures and condemnation of the vessels and effects of the citizens of the United States in the ports of Spain, and for which the Government of Spain was deemed responsible, and in the prosecution of which, for indemnification, the minister of the United States near the Court of Spain had been instructed to press that Government, by friendly negotiation, to provide for those wrongs.

Your committee find, while said negotiation was pending and the said disputes and controversies in nowise settled or adjusted, that Jared Ingersoll, William Rawle, Joseph B. McKean, and P. S. Duponceau, of the city of Philadelphia, did, at said Philadelphia, on the same 15th of November, 1802, and Edward Livingston, of the city of New York, did, at said New York, on the 3d day of the same November, in violation of the act entitled “An act for the punishment of certain crimes therein specified,” passed the 30th day of January, 1799, commence and carry on a correspondence and intercourse with the said Government of Spain and with the agents thereof, and, as your committee believe, with an intent to influence the measures and conduct of the Government1 of Spain and to defeat the measures of the Government of the United States; and did, then and there, counsel, advise, aid, and assist, in such correspondence with intent as aforesaid.

Your committee, with the knowledge of these facts, are compelled to observe that however there might exist in Senate a great reluctance to express any opinion in relation to proceedings in the ordinary course of criminal jurisprudence yet, when they reflect on the nature of the offense, the improbability of the ministers of the law ever coming to the knowledge thereof without the aid of the Executive, and the delicate situation of the Executive in relation to the subject, duty seems to demand and propriety to justify their expressing an opinion in favor of that aid, without which, in their judgment, the justice of the Nation would be exposed to suffer.

Your committee have no doubt that precedents may be adduced, and from the best authority, to justify such a measure and warrant the proceedings with safety to the remedial justice of the law, which admits of no rules, or pretended rules, uncorrected and uncontrolled by circumstances, the certain result of which would be the failure of justice.

With these impressions, your committee respectfully offer to the Senate the following resolution:

Resolved, That the President of the United States be requested to cause to be laid before the Attorney General all such papers, documents, and evidence, as he may deem expedient, and which relate to any unauthorized correspondence and intercourse, carried on by Jared Ingersoll, William Rawle, Joseph B. McKean, P. S. Duponceau, and Edward Livingston, with the Government of Spain, or with the agents thereof, with an intent to influence the measures and conduct of the Government of Spain, or to defeat the measures of the Government of the United States, in relation to certain disputes and controversies between the said Governments.

Resolved, That, if in the opinion of the Attorney General, such papers, documents, and evidence, or such other evidence as may be presumed, from any that is particeps criminis, shall be deemed sufficient to warrant a prosecution of the aforesaid persons, or either of them, that the President of the United States be, and hereby is, requested to instruct the proper law officer to commence a prosecution, at such time and in such manner as he may judge expedient, against Jared Ingersoll, William Rawle, Joseph B. McKean, P. S. Duponceau, and Edward Livingston, or either of them on the act, entitled “An act for the punishment of certain crimes therein specified.” And that he be requested to furnish the attorney on the part of the United States, for the purpose of carrying on said prosecution, with such papers, documents, and evidence, from the Executive Department of the Government, as he may deem expedient and necessary.

A motion was made by Mr. White, that it be

Resolved, That the Senate will take no further order on the report made to them respecting the opinions of certain lawyers, relating to the convention between the United States and His Catholic Majesty; the Senate not considering it within the province of their duty to do so, and that the injunction of secrecy upon the same be taken off.

On motion,

Ordered, That the consideration of this resolution be postponed to the first Monday in November next.

No action on the resolution was ever taken (see Foster’s Century of American Diplomacy, 229).

The only other instances in which the statute has been utilized are cited by Moore (Sec. 631), as follows:

The last clause of the statute was appealed to by Mr. Seward in 1861, to stop certain proceedings of Mr. Bunch, British consul at Charleston, S. C, in urging the British Government to recognize Confederate independence. (Bernard’s Neutrality of Great Britain, 185, and infra, Sec. 700.)

See, in relation to the Sackville case, and the “Murchison correspondence,” the report of Mr. Bayard, Secretary of State, to the President, Oct. 29, 1888, For. Rel. 1888, 11, 1670; infra, sec. 640.

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