A Century of American Diplomacy/Chapter III
One of the last acts of the expiring Continental Congress was the adoption of the following resolution in September, 1788:
"Resolved, That no further progress be made in the negotiations with Spain by the Secretary for Foreign Affairs, but that the subjects to which they relate be referred to the Federal Government, which is to assemble in March next."
It was the final admission by that body of its impotence respecting the conduct of the foreign relations of the country, and this was a leading motive for the creation of a new government which should be clothed with adequate powers for that purpose.
The Constitutional Convention when it assembled was confronted with this manifest weakness of the Confederation, and it addressed itself to the task of remedying the defect; first, by conferring upon the federal government full and complete power over the relations with foreign nations; and, second, by a careful division of those powers between the executive and legislative departments of the government. The experience of the Continental Congress was most useful to the Convention. It had shown that the powers reserved to the Colonies, or States, deprived Congress of authority to enforce its international obligations, notably in the case of the treaty of peace with Great Britain, in a less degree in its commercial relations with France and other powers, in the negotiations with Spain respecting the navigation of the Mississippi, and in other matters. This experience had also made it clear that a most serious defect was in the absence of an executive, clothed with sufficient power and dignity to properly conduct intercourse with foreign sovereigns, enforce the treaties and laws of Congress, and administer the government. An attempt had been made to supply these wants by the creation of various committees or boards. For example, the conduct of the war was, in the first instance, intrusted to what was termed a "Secret Committee," then a "Cannon Committee," and a "Medical Committee"; and after a time all of these were combined in one committee termed the " Board of War and Ordnance," consisting of five members of Congress, assisted by a secretary and clerks; and to this was added a further body of officials styled the " Board of War," composed of generals of the army, acting under the Congressional Board. The management of the finances underwent a very similar experience and transformation. I have already referred to the action of Congress in the conduct of its foreign relations by the creation, first, of a committee, and, near the close of the war, of a Secretary of Foreign Affairs. The experience of the Confederation with its various boards was most unsatisfactory, and sometimes pathetic.
The result of the careful deliberations of the Constitutional Convention, with respect to the division of powers as to international affairs, was to confer upon Congress two important duties; first, " to regulate commerce with foreign nations," and, second, " to declare war." Other subordinate matters were also intrusted to Congress, to wit, legislation respecting naturalization of aliens, and the punishment of piracy and felonies committed on the high sea, and offenses against the laws of nations. The President was made commander-in-chief of the army and navy; he was given "power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;" it was made his duty to "nominate, and by and with the advice and consent of the Senate, . . . appoint ambassadors, public ministers, and consuls;" and he was authorized to "receive ambassadors and other public ministers."
These conclusions of the Convention were reached after many lengthy and exhaustive deliberations, involving the executive and legislative prerogatives. The ancient and modern history of nations and systems of government, and the opinions of publicists, were laid under contribution; but probably the most trustworthy and controlling authority in these discussions was Blackstone, who then, even more than now, possibly, was held in high esteem by American lawyers. His treatment of the royal powers in Book I., chapter vii., was especially helpful, and the evidences of his influence are seen particularly in Articles I. and II. of the Constitution, which relate to the legislative and executive departments. At the date of the Convention, the power to declare war and to make peace was almost universally exercised by the king, the executive head of the goveminent. The provision of the Constitution giving to Congress the power to declare war was one of the most marked departures from the existing order. The power to make peace, however, was conferred upon the President and the Senate jointly, under the treaty-making clause, as war between two nations can only be brought to a close by a convention or agreement, which must eventually take the shape of a treaty.
The provisions of the Constitution above cited were adopted not only after much debate, but they evoked strong opposition among the people of the States, to whom that instrument was submitted for ratification. A very heated discussion was carried on throughout the country, in which the ablest and most effective defenders of the Constitution were John Jay, Alexander Hamilton, and James Madison. They prepared a series of papers which were published in the periodicals of the day under assumed names, and they were afterwards collected in a volume under the title of the "Federalist," which has become a standard authority upon the object and intent of the various provisions of this organic act. As indicating the style of these papers, and the character of the discussion of the period on the subjects under review, I give a few extracts from the "Federalist."
John Jay was not a member of the Constitutional Convention, being at the time Secretary of Foreign Affairs under the Confederation; but his experience in the diplomatic service in Spain and at Paris, and his duties as secretary, specially fitted him for the discussion of the provisions of the new Constitution affecting foreign relations. The following is a quotation from his article on the clause of that instrument relating to the negotiation and ratification of treaties:
"Some are displeased with the Constitution, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts and the commissions constitutionally given by our governor [of New York], are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judiciary. It surely does not follow that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.
" Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties, like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country; but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us which would be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not only by one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterward be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now as they will be at any future period or under any form of government."
In answer to the objection that the President and Senate may not make treaties in the interest of all the States, or may act corruptly, Mr. Jay wrote :
" As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appoint- ing proper persons, and to assist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of
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attention; and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and having no private inter- ests distinct from that of the nation, they will be under no temptations to neglect the latter.
" As to corruption, the case is not supposable. He must either have been very unfortunate in his inter- course with the world, or possess a heart very suscepti- ble of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.
"With respect to their responsibility, it is difficult to conceive how it should be increased. Every con- sideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of coun- try, and family affections and attachments, afford se- curity for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reasons to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate,
that motive to good behavior is amply afforded by the article on the subject of impeachments." l
Alexander Hamilton had no experience in diplomatic service; and, although a member of the Constitutional Convention, circumstances had prevented him from tak- ing an active and continuous part in the framing of that instrument. His colleagues from the State of New York opposed the creation of a new form of govern- ment, and thereby greatly lessened his influence. Be- sides, while he heartily favored a new form of govern- ment, his own views respecting it were not adopted, and that detracted from his interest in the framing of the details. He was by instinct and association an aristo- crat, and doubted the wisdom of conferring upon the people so great and direct a participation in the federal government; but he was an ardent patriot. Although absent during a considerable part of the sessions, he returned towards the close, and entered with zeal into the final deliberations, throwing his influence in favor of the Constitution as agreed upon.
Before the final adjournment, the venerable Franklin made an appeal for unanimous action, saying : " I con- sent to this Constitution, because I expect no better," and he asked each member to " doubt a little of his own infallibility." It was in this spirit Hamilton gave it his support. His contributions to the "Federalist" constitute much the greater portion of the work. Madi- son's part in the convention, in controlling and fram- ing its conclusions, justly confers upon him the title of " Father of the Constitution;" but his task in bringing i Lodge's Federalist, 404.
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Virginia to its acceptance prevented him from using so freely his pen in its defense. To Hamilton was given the preeminence as the ablest and most effective advo- cate before the country, and in no part of his career was his matchless intellect more conspicuous. The fol- lowing is his discussion of the diplomatic functions of the President, and his executive powers under the Con- stitution, in contrast with the king of Great Britain : " The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can, of his own accord, make treaties of peace, commerce, alli- ance, and of every other description. It has been insinuated that his authority, in this respect, is not conclusive, and that his conventions with foreign pow- ers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doc- trine was never heard of until it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost pleni- tude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations of a new treaty; and this may have possibly given birth to the imagination, that its co-
operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause; from the necessity of adjust- ing a most artificial and intricate system of revenue and commercial laws to the changes made in them by the operation of the treaty; and of adapting new pro- visions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature.
" The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circum- stance which will be without consequence in the ad- ministration of the government; and it was far more convenient that it should be arranged in this manner than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.
"The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise pro- vided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of
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honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this par- ticular, to that of the British king; nor is it equal to that of the governor of New York, if we are to inter- pret the meaning of the constitution of the State by the practice which has obtained under it."
One of the objections most strongly urged against the Constitution was the creation of a President and the powers conferred upon him; the opponents likening him to the king of Great Britain. In the same article, Mr. Hamilton continues :
" It appears yet more unequivocally that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.
" The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince; the one would be amenable to personal punishment and disgrace; the person of the other is sacred and invio- lable. The one would have a qualified negative upon the acts of the legislative body; the other has an abso- lute negative. The one would have a right to com- mand the military and naval forces of the nation; the other, in addition to this right, possesses that of de- claring war, and of raising and regulating fleets and
armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole pos- sessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appoint- ments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church ! What answer shall we give to those who would persuade us that things so unlike resemble each other ? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and peri- odical servants of the people, is an aristocracy, a mon- archy, and a despotism." 1
Notwithstanding the efforts of the framers of the Constitution to that end, the division of powers as to foreign relations between the legislative and executive departments has not been so sharply defined as to pre- vent seeming conflict at times. Congress was given
1 Lodge's Federalist, 432.
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the power " to regulate commerce with foreign nations," and yet the President and the Senate have often modi- fied our laws as to foreign commerce by treaty. Again, it is provided that Congress shall " declare war; " but the President, intrusted with the management of our foreign relations, or as commander-in-chief of the army and navy, can, without any action of Congress, so far commit the nation as to make war inevitable. For instance, we shall see in a later chapter that upon the annexation of Texas the President ordered the army of the United States into disputed territory, which brought on a war with Mexico, without any direct action of Congress.
On the other hand, it is within the power of Con- gress to nullify the action of the treaty-making power, the President and the Senate, by the passage of laws which operate to defeat the provisions of treaties. From the quotation made from the " Federalist," it would seem that it was the opinion of Mr. Jay that Congress would have no such power; as he argued that a treaty was a contract between two parties, and that it could only be repealed by the consent of both parties. But Congress, as in the Chinese immigration law, has intentionally legislated in direct contravention of an existing treaty, and the Supreme Court has sustained the act as binding municipally, on the principle that the last act of Congress repeals all previous laws in conflict with it, even though they may be treaties.
Congress can also greatly embarrass the President in treaty negotiations by the passage of resolutions or laws not in harmony with the objects had in view in
the negotiations. Congress has also assumed the func- tions of treaty-making by joint resolution, a purely legislative act. Such was the case in the annexation of Texas and Hawaii.
The usual practice has been for the President to initiate and carry to a conclusion all treaty negotia- tions, but it is held that under the constitutional pro- vision, " with the advice ... of the Senate; " it is in the power of that body to initiate treaty negotiations by a resolution expressive of its wishes for executive information and action. It has often occurred that the President has consulted the Senate as to the wisdom of certain negotiations before they have been initiated, or before their conclusion. Under the Constitution, the Senate was made an important factor in the conduct of our foreign affairs, and experience has shown that it was a wise provision on the part of the founders of the government. It makes negotiations cumbersome and uncertain, but it operates as a wholesome check upon the executive, and introduces into treaty-making an element of popular opinion which is not unbecoming in a democratic government.
While the Constitution reserves to Congress the func- tion to declare war, when that act is taken the powers of the President suddenly become greatly enlarged. Lawrence, editor of Wheaton, says of the " war powers " of the executive : " It was during the war of secession that the powers of the President were exercised to an extent unprecedented in English history." Secretary Seward, in a note to the British minister, in October, 1861, used this language. "It seems necessary to
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state, for the information of that government, that Congress is by the Constitution invested with no execu- tive power or responsibility whatever, but, on the con- trary, the President of the United States is, by the Constitution and laws, invested with the whole execu- tive power of the government, and charged with the supreme direction of all municipal and ministerial civil agents, as well as of the whole land and naval forces of the United States, and that, invested with these ample powers, he is charged by the Constitution and laws with the absolute duty of suppressing insurrections, as well as of preventing and repelling invasion, and that for these purposes he constitutionally exercises the right of suspending the writ of habeas corpus whenever and wherever and in whatsoever extent the public safety, endangered by treason or invasion in arms, in his judgment requires." l
Mr. Bryce, the author of that admirable work, "The American Commonwealth," in speaking of the presi- dential power, says that in war time " it expands with portentous speed. Both as commander-in-chief of the army and navy, and as charged with the t faithful exe- cution of the laws,' the President is likely to be led to assume all the powers which the emergency requires." 2
John Quincy Adams, in his discourse on " The Ju- bilee of the Constitution," says : " It has perhaps never been duly remarked that, under the Constitution of the United States, the powers of the executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those
1 Dip. Cor. U. S. 1861, p. 171. * l American Commonwealth, 60.
of the legislative. The language of the instrument in conferring authority is, ' All legislative power, herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' But the executive authority is unre- served in terms, e The executive power shall be vested in a President of the United States of America.' '
In the Constitutional Convention there was a numer- ous and influential party strongly opposed to giving the President the large powers finally conferred upon him, and the " Committee on Detail " provided, in the first instance, that the Senate should possess the exclu- sive power to make treaties and appoint ambassadors, thus reserving to one branch of the legislative depart- ment these most important international functions. In defense of the ultimate action of the Convention in clothing the President with the large powers which he now possesses, Hamilton wrote at considerable length, from which I extract the following :
" There is an idea, which is not without its advo- cates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers of this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading char- acter in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of pro-
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perty against those irregular and high-handed combina- tions which sometimes interrupt the ordinary course of justice; to the security of liberty against the enter- prises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.
" There can be no need, however, to multiply argu- ments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execu- tion; and a government illy executed, whatever it may be in theory, must be, in practice, a bad government." l
It was the conclusion of the framers of the govern- ment that, especially respecting international affairs, involving matters of momentous national dignity and importance, and secret and delicate complications, the President should be intrusted with their sole conduct; and, hence, it was made his duty to appoint and receive ambassadors and ministers (thus making him the organ of communication with other governments), and to initiate negotiations and conclude treaties. At the same time they did not give him the unlimited
1 Lodge's Federalist, 436.
powers possessed by the king of Great Britain, but conferred very important functions as to foreign affairs upon Congress and the Senate. It was thus made necessary that there should be cooperation and mutual confidence between the President and Congress, in order that the government of the United States should maintain a dignified and proper position before the nations of the world. And the expectations of the makers of the Constitution, as to the patriotic impulses which would inspire their successors, who would have in their hands the government of the country, have not been disappointed. In times of high political ex- citement, when the legislative and executive depart- ments were not in party harmony, Congress has been tempted to antagonize the President in his foreign policy, but rarely, if ever, has it failed to respond to his call when the honor or the interests of the country were plainly at stake.
The federal organic law having clothed the Presi- dent with vast powers and great responsibilities as to international as well as domestic relations, it remains for us to examine the manner in which the provisions of the Constitution have been supplemented by con- gressional legislation and executive action. At the outset, the matter which attracts our notice is that the Constitution makes no express provision for an execu- tive cabinet or council, and in this respect it is a de- parture from the then existing forms of government, and especially that of Great Britain. A strong effort was made in the Convention to establish such a body, clothed with executive or advisory powers, either to
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keep watch over or to act in conjunction with the Pre- sident. Various projects to this end were brought for- ward; among others it was proposed that a privy coun- cil should be created, to consist of " the President of the Senate, the Speaker of the House of Kepresenta- tives, the Chief Justice of the Supreme Court, and the principal officer in each of five departments, as they shall ... be established." Another plan was for the Senate to appoint a privy council of six members to hold office for six years, two each to be selected from Southern, Middle, and Eastern States, and one third to retire every second year. 1 One or the other of these plans had the support of such influential delegates as Ellsworth, Gouverneur Morris, Madison, Franklin, Wil- son, Mason, and Dickinson.
But all the projects failed, and were substituted by the colorless provision in the Constitution authorizing the President "to require the opinion, in writing, of the principal officer in each of the executive depart- ments." The theory upon which the government was constructed was that what belongs to the executive power is to be exercised by the uncontrolled will of the President. It was argued in the Convention that if a council was created, it would relieve the President of responsibility, and nullify the provision for his im- peachment for malfeasance. Cooley, in his Blackstone, says : " The cabinet, as a body of councilors, has no necessary place in our constitutional system, and each President will accord to it such weight and influence in his administration as he shall see fit. The President
1 2 Bancroft's History of Constitution, 188-190.
not the cabinet is responsible for all the measures of the administration, and whatever is done by one of the heads of departments is considered as done by the President, through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United States; the acts of the former being considered as those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are con- sidered as directed and controlled by him." l The fail- ure to provide for an executive council had a decided influence in the adoption of the provisions of the Con- stitution giving the Senate a share of the control in the making of treaties and in appointments to office.
While, as noted, the Constitution contains no ex- press provision for a cabinet or council, the creation of officials who would bear some such relation to the President is inferentially stated in Article II., which treats of the executive power. It has already been noticed that the President was authorized to require opinions, in writing, of the principal officer in each of the executive departments, and the " heads of depart- ment " are referred to in the next clause of the same section. When the first Congress under the Constitu- tion assembled in 1789, one of its first duties was to provide the President with the means and instruments by which to conduct the executive duties of the new government. The experience under the Confederation, as already mentioned, furnished useful information for its guidance. It had been made manifest that an ad- ministration by boards would not answer the purpose.
1 1 Cooley's Blackstone, 232, note.
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Congress turned instinctively to the system followed by the Confederation in its conduct of foreign affairs as the only successful method, to wit, the placing of the departments under a single responsible head. Where- upon Madison introduced in the House a resolution, which was adopted, that in the opinion of the House there ought to be a Department of Foreign Affairs, of War, and of the Treasury, each presided over by an officer appointed by the President, by and with the advice and consent of the Senate, and removable by the President. Thereupon a bill was introduced cre- ating the Department of Foreign Affairs, 1 and its chief features were passed upon with little debate; but a long discussion was occasioned by the provision making the secretary removable from office by the President. The clause was stricken out, not, however, because the majority believed the President did not possess the
1 1 U. S. Stat. at Large, 28 : " An Act for establishing an Executive Department, to be denominated the Department of Foreign Affairs. Section 1. Be it enacted by the Senate and the House of Representa- tives of the United States of America in Congress assembled, 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 intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions, or instruc- tions 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. . . . Approved July 27, 1789."
power, but because under their construction of the Con- stitution he already possessed the power, and it would have the appearance of conferring the power by act of Congress if it was retained in the bill.
The act was approved by the President July 27, 1789; but soon thereafter another bill was considered by Congress, entitled " An Act to provide for the Safe- keeping of the Acts, Records, and Seal of the United States, and for other purposes," by the first section of which the name of the Department of Foreign Affairs was changed to the " Department of State," and the head of it to " Secretary of State." The only reason why the change of name should have been made was that the secretary was to become the medium of com- munication and correspondence of the President with the executives of the several States, although it was not so provided in the act, which became a law September 15, 1789. 1 It was an unwise and misleading change, as the name indicates that the main business of the department was of a domestic character, whereas it is almost wholly international in its functions, and should be termed the Department of Foreign Affairs, as pro- vided in the original law. This action was in the nature of a compromise, as members were urging the estab- lishment of a separate department to be presided over by a Secretary of Home Affairs, and Congress was un- willing to create another department at that time. It is unfortunate that the name should have been changed, as the new duties might have been added without alter- ing the character of the department, and the misnomer
1 1 U. S. Stat. at Large, 68.
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which has adhered to it for more than a century might have thus been avoided.
The act of July 27, 1789, which was very brief, has stood to this day as the organic law of the department, without any essential modifications so far as foreign relations are concerned, and is a striking proof of the wisdom of the men who framed and enacted it. In the earlier years of the nation other duties were added to it, as will be seen, but most of those have been rele- gated to other departments, as the growth of the coun- try has called them into existence. The organization of the departments of War, the Treasury, and of Jus- tice was likewise authorized by this Congress at its first session, and the Cabinet, as it has since come to be known, was at first composed of four members, the heads of these respective departments.
It is a matter of interest, but somewhat foreign to the topics we have in hand, to note how, as an extra- constitutional body, it has grown into recognized exist- ence and prominence as a part of the executive branch of the government. It appears that Washington began his administration by observing the practice, apparently marked out in the Constitution, of calling upon the heads of departments for written opinions, but he not infrequently called them together for consultation. The same practice was observed under John Adams; but in Jefferson's time the Cabinet assumed more the definite shape now given to it. There is no obligation resting upon the President under the laws of Congress, as we have seen there is none under the Constitution, to consult or be governed by the opinions of his depart-
ment chiefs. For instance, the act creating the De- partment of Foreign Affairs (State) provides in express terms that the secretary "shall conduct the business of the department in such manner as the President of the United States shall from time to time order or instruct." It is stated, upon the authority of one of its members, that Mr. Jefferson did not ask the advice of his Cabinet in the most important event of his ad- ministration the purchase of Louisiana; Mr. Lincoln made the final decision respecting his proclamation of emancipation without consulting his Cabinet; l and Mr. McKinley is understood to have resolved upon the annexation of Hawaii contrary to the views of his Sec- retary of State.
Although the head of the State Department is in a certain sense the mere clerk of the President, it has been asserted that his position is of such importance that he is one of six men, who, through constitutional forms, constitute a nearly irresponsible despotism, the other five being the President, the Secretary of the Treasury, the Speaker of the House, and the chairmen of the two important committees of the two houses of Congress. 2 This is an exaggerated figure of speech, but there is no doubt the Secretary of State occupies a position whereby, through his own hasty or intem- perate action, or that of his agents abroad, he could involve the country in complications which might seri- ously jeopardize its interests or its honor, or even em- broil it in war. Fortunately, the care with which the
1 6 Nicolay and Hay's Lincoln, 405.
2 Schuyler's American Diplomacy, 4.
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office has been filled has not exposed the country to any such peril. Washington called to the place as first secretary Thomas Jefferson, who stood in the first rank of our Revolutionary statesmen. For three successive terms the Secretary of State succeeded to the Presi- dency. John Quincy Adams and Lincoln appointed their party rivals to the post. The selection of his Secretary of State is the first duty of every newly elected President, and is made with more care than that of any other officer. Six Secretaries of State have been elected President, and in the list appear, be- sides, the illustrious names of John Marshall, Henry Clay, Daniel Webster, John C. Calhoun, William L. Marcy, Lewis Cass, William H. Seward, and James G. Elaine.
While the Secretary of State cannot, as understood in Europe, be termed the Prime Minister, in a certain sense he is the head of the Cabinet. By law he suc- ceeds to the Presidency on the death or disability of the President and Vice-President; he sits at the right of the President at the Cabinet table, and is given pre- cedence over his colleagues on all occasions of cere- mony. The secretary also holds very intimate relations with the President, owing to the important and often delicate character of his duties, and the work of no member of the Cabinet is more closely scrutinized by his chief. Such has been the case since the organiza- tion of the government, as will be seen from the follow- ing extracts from notes of Secretary Jefferson to Presi- dent Washington :
" Mr. Jefferson has the honor of enclosing for the
perusal of the President rough drafts of the letters he supposes proper to send to the court of France on the present occasion. He will have that of waiting on him in person immediately to make any changes in them that the President will be so good as to direct, and to communicate to him the letters just received from Mr. Short [charge d'affaires to France]. " April 5, 1790, a quarter before one." *
And, again : " He sends some letters for the Presi- dent's perusal, praying him to alter freely anything in them which he thinks may need it."
The duties of the Department of State are not con- fined exclusively to the business of the foreign rela- tions of the government, and this was much more the case in past years. For a considerable period this de- partment had charge of patents, copyrights, the census, the affairs of the Territories, pardons, and the prepara- tion and publication of the "Official Register," or "Blue Book; " but from time to time these have been trans- ferred to other departments. Among the present duties of the Department of State not directly relating to foreign affairs is that of receiving and publishing the laws of Congress. The acts when engrossed and signed are deposited in this department, and from these certi- fied copies are made when required; and under its supervision they are published. This department like- wise acts as the medium of the President's communica- tion and correspondence with the governors of States. The Secretary of State also attests the issuance of all presidential proclamations.
1 Department of State : Its History and Functions, 65.
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The Department of State is made by law the cus- todian of what is known as " the Great Seal of the United States." Each department and various other branches of the public service have been authorized by law to use a special seal in the course of their business; but the Great Seal is only affixed to the commissions of cabinet, diplomatic, and consular officers, to ceremoni- ous communications from the President to foreign gov- ernments, to all treaties and formal agreements of the President with foreign powers, to exequaturs, to war- rants of extradition of criminals surrendered to foreign governments, and to the commissions of civil officers appointed by the President not by law authorized to bear some other seal. This seal has been guarded with jealous care, it having been in the charge of a single custodian (who has recently died) for more than forty years. By the provisions of the law of Congress enacted in 1789, it cannot be affixed to any commission or docu- ment until the same has been first signed by the Presi- dent of the United States, nor without the specially signed warrant of the President in each particular case. 1
One of the effects of the reorganization of the gov-
1 1 U. S. Stat. at Large, 68. The following is an extract from the Act of June 20, 1782, of the Continental Congress, establishing the Great Seal:
"The device for an armorial achievement and reverse of the Great Seal for the United States in Congress assembled, is as follows :
" Anns : Pale ways of thirteen pieces, argent and gules; a chief, azure; the escutcheon on the breast of the American eagle displayed proper, holding in his dexter talon an olive branch, and in his sinister a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, ' E Pluribus Unum.'
"For the Crest: Over the head of the eagle, which appears above the escutcheon, a glory, or, breaking through a cloud, proper, and sur-
eminent under the Constitution, clothing the executive with abundant power to enforce its international obliga- tions and to conduct its diplomatic intercourse, was to greatly enlarge the importance and usefulness of the Department of State. But from the beginning up to the present it has been one of the smallest of the de- partments in its official force, and least expensive in its cost to the government. The force of the department at the time of the adoption of the Constitution was the secretary, the chief clerk, and three subordinates, at a total cost of $6500. During the first Congress the salary of the Secretary of State was fixed at $3500, the chief clerk at $800, and the clerks at not to exceed $500 each. In 1800 the salary of the secretary was in- rounding thirteen stars, forming a constellation, argent, on an azure field."
(The reverse side is then given, but as it was never cut or used offi- cially, it is omitted here.)
"REMARKS AND EXPLANATIONS.
"The escutcheon is composed of the chief and pale, the two most honorable ordinaries. The pieces, paly, represent the several States all joined in one solid compact entire, supporting a Chief, which unites the whole and represents Congress. The Motto alludes to the Union. The pales in the arms are kept closely united by the chief and the chief depends on that Union and the strength resulting from it for its support, to denote the Confederacy of the United States of America and the pre- servation of their Union through Congress. The colours of the pales are those used in the flag of the United States of America; White signifies purity and innocence, Red, hardiness and valour, and Blue, the colour of the Chief, signifies vigilance, perseverance, and justice. The Olive branch and arrows denote the power of peace and war, which is exclu- sively vested in Congress. The Constellation denotes a new State taking its place and rank among other sovereign powers. The Escutcheon is borne on the breast of an American Eagle without any other supporters, to denote that the United States ought to rely on their own virtue." (Secret Journals of Congress, vol. vii. 301.)
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creased to $5000, but the total pay roll only amounted to $12,950. In 1830 the clerks had increased to thir- teen and the pay roll to $23,650; in 1854 the total force was twenty-five and the pay roll $37,700. The present force of the department, including the secretary and assistants, numbers ninety persons, and the pay roll amounts to $130,000.
The present salary of the Secretary of State is $8000, which is entirely inadequate to meet the neces- sary expenses of the position. Other Cabinet officers may follow their own pleasure or convenience, in great measure, as to their style of living; but there are cer- tain requirements as to the entertainment of the diplo- matic corps, international commissions, and official for- eign visitors which the head of the State Department cannot omit without serious injury to his usefulness and the credit of his government. The social demands of the position are such that no public man, not possessed of a private fortune, can afford to accept and continue in the office for any great length of time. The places of honor and influence in a republic should always be open to men of merit and talent, whatever their finan- cial standing. It will be a sad day for the country when its high offices can be filled only by rich men.
Up to 1853 the only assistant which the secretary had, except the clerical force, was a chief clerk, who represented the department in the absence of the secre- tary. In that year an assistant secretary was authorized by Congress; in 1866 a second- assistant secretary was created; and in 1875 a third assistant secretary. The business of the department is dispatched by the assist-
ant secretaries, under the instructions of the secretary, and with the cooperation of the various bureaus into which the clerical force is divided. The secretary, also, has the assistance of a law officer, nominally belonging to the Department of Justice, but permanently attached and denominated the solicitor, to whom are referred questions of law, the large volume of business arising from claims against foreign governments, and the cases of the surrender of criminals to foreign governments under extradition treaties*
A reference to the different bureaus will convey some idea of the character of the business of the depart- ment. The chief clerk is the executive officer of the department, has the supervision of the clerks, the dis- tribution among the assistant secretaries and bureaus of the correspondence, receives visitors seeking infor- mation, and attends to a great variety of business not specifically assigned.
The Diplomatic Bureau has charge of the conduct of the diplomatic correspondence, both with our missions abroad and with the representatives of foreign gov- ernments in Washington. It has, also, the preparation of the credentials of our diplomatic officials, of ceremo- nious letters to foreign sovereigns, the engrossing of treaties and other formal instruments.
The Consular Bureau is intrusted with the vast and expanding business of the United States consular ser- vice. It embraces about 800 officers scattered all over the world; its correspondence, both with consuls and the commercial interests of the United States, is very voluminous, and the variety of its business is great
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The Bureau of Indexes and Archives first receives all correspondence, where it is opened and classified into diplomatic, consular, and miscellaneous business; a careful index of each paper is made, after which the correspondence is sent to the chief clerk for proper dis- tribution and attention. After receiving the necessary attention, all correspondence is returned to the index room, bound and retained as part of the archives of the department.
The Bureau of Accounts has the supervision of money and appropriations to be disbursed under the direction of the Secretary of State, including the salaries and allowances of officers of the diplomatic and consular service, the expenses of international and other commis- sions, and the adjustment of their accounts. It also has charge of moneys received by the United States from foreign governments in the nature of indemnities and awards of commissions. It attends to the business of issuing passports.
The Bureau of Rolls and the Library embraces two distinct duties. The first has to do with the custody and promulgation of laws, treaties, proclamations, and executive orders. It is also the custodian of the re- cords of international commissions, of the original of the Declaration of Independence, the Articles of Con- federation, the Constitution of the United States, of various Revolutionary papers, private and public cor- respondence of the founders of the government, other historical manuscripts, and valuable presents from for- eign governments. The library of the department numbers more than 60,000 volumes, is especially rich
in international law and diplomatic publications, includ- ing memoirs of diplomatic personages, biographies and maps. It, in connection with the historical manu- scripts, has proven a mine of information for writers on American history and diplomacy.
Other bureaus are those of Foreign Commerce, for the compilation and publication of reports from consuls and others; and of Appointments, having charge of the papers connected with applications and nominations to office.
The Department of State publishes annually one or more volumes, entitled " Foreign Relations of the United States." These contain selections from the correspondence of the department with the diplomatic representatives of the United States abroad and with the foreign representatives resident in Washington, and constitute a fairly consecutive history of our diplomatic affairs. It is not, however, complete, as many docu- ments are withheld because of their confidential char- acter. The department also issues quite a number of publications compiled from the reports of consuls, which are of special value to the business interests of the country.
This department, which has done so much for the nation's prestige, deserves more liberal consideration than it has heretofore received from Congress. More adequate salaries should be allowed the secretary and his assistants, and the clerical force should be in- creased. It is now located in a building with two other departments, and is thereby restricted in its ac- commodations and dwarfed in its importance. In many
ORGANIZATION OF DEPARTMENT OF STATE. 135
of the countries of Europe there are attached to the Department of Foreign Affairs elegantly furnished rooms, which are used for the sessions of international commissions, and also for official receptions, dinners, and other entertainments for foreign guests. The De- partment of State does not have a single room which it can place at the disposal of an international commis- sion, and when such bodies assemble in the capital of the nation upon the invitation of our government, they are assigned to rooms in a hotel or a hired house.
Extravagance and display are not to be encouraged in a democratic government; but the people of this country would heartily approve of the erection of a public building expressly designed for this department, with suitable apartments for the reception and enter- tainment of international commissions, foreign guests, and other like purposes, as well as for the safe-keeping of, and ready access to, its invaluable historic treasures.