30 ances whether communicated by diplomatic note, public proclamation or public communication to Congress. Presidents have always maintained that communications of the latter character are not subject to the cognizance of foreign states, but in fact they have often been noticed, as when France protested against the threatening language of President Jackson's message of December, 1834, suggesting reprisals and Austria protested against President Taylor's comments on Kossuth's revolution of 1848.81 In the former case President Jackson seems to have admitted the French demand for retraction by explanations in a later message.2 In the last year of the World War Executive messages to the legislature became the regular medium of communication between Germany and the United States.83 20. President Presumed to Speak for the Nation. Finally, from the President's representative character, foreign nations are entitled to presume that his voice is the voice of the nation. Secretary of State Jefferson told French minister Genet that whatever the President communicated as such, foreign nations had a right and were bound to consider "as the expression of the nation's will" and that no foreign agent could be "allowed to question it." As we shall see, this presumption becomes absolute with reference to the fact of action taken by national organs in the United States and practically so with reference to decisions of fact and policy by the nation,35 but with reference to the constitu 34 30 Moore, Digest, 7: 124-125. 31" The publicity which has been given to that document has placed the Imperial Government under the necessity of entering a formal protest, through its official representatives, against the proceedings of the American Government, lest that Government should construe our silence into approbation, or toleration even, of the principles which appear to have guided its action and the means it has adopted." Moore, Digest, 1: 222. 82 Message, Dec. 7, 1835, Moore, Digest, 7: 125. 33 See speeches of President Wilson, Premier Lloyd George of Great Britain, Count Czernin of Austria and Count Hertling of Germany before their respective legislative bodies in 1918, printed in Dickinson, ed., Documents and Statements relating to Peace Proposals. and War Aims, London, 1919. 34 Moore, Digest, 4: 680; Corwin, op. cit., p. 47. tional law governing the treaty-making power, the foreign nation may in certain cases have to go back of the President's assertions." We thus find that, aside from their cognizance of state and national laws, foreign nations can officially communicate with the United States only through the President. Communication of governments with private individuals on claims and with representatives of de facto or belligerent governments are of an unofficial character. Furthermore, all official utterances of the President are of international cognizance and are presumed to be authoritative. 36 Infra, sec. 24 et seg CHAPTER IV. CONCLUSIVENESS OF THE ACTS AND UTTERANCES OF National ORGANS UNDER INTERNATIONAL LAW. To how great an extent are foreign governments expected to know American constitutional law defining the competence of governmental organs? The answer varies according as the issue relates to (a) the making of a national decision on fact or policy, (b) the making of a treaty or agreement, (c) the meeting of an international responsibility. A. With Reference to the Making of National Decisions. 21. Acts of the President. Foreign nations need not know and they are not entitled to discuss the constitutional competence of organs of the United States making national decisions on fact or policy. They must accept the assertion of the President as final. Thus in a conversation with Citizen Genet in 1793, Secretary of State Jefferson refused to discuss the question of whether it belonged to the President under the constitution to admit or exclude foreign agents. "I inform you of the fact," he said, "by authority of the President."1 This principle was also illustrated by the prompt acceptance by foreign nations of President Lincoln's proclamation of blockade on April 19, 1861, as a proclamation that war existed. The power of the President to thus proclaim war without authority of Congress was questioned in the United States and in the decision finally given by the Supreme Court sustaining the President's act, three justices 1 Moore, Digest, 4: 680. 2"It was, on the contrary, your own government which, in assuming the belligerent right of blockade, recognized the Southern States as Belligerents. Had they not been belligerents the armed ships of the United States would have had no right to stop a single British ship upon the high seas." Earl Russell, British Foreign Minister, note, May 4, 1865. Moore, Digest, I: 190. out of seven vigorously dissented. However, since the fact of war was a matter subject to foreign cognizance, foreign nations would doubtless have been justified in issuing neutrality proclamations, even had they not been obliged to consider the President's act conclusive.1 Aside from declarations of war and recognitions of new states, governments and neutrality," the President's assertions may be considered authoritative by foreign nations when they relate to the termination of war, the termination of a treaty, or the existence of a national sentiment or policy. Thus Great Britain officially recognized the President's proclamation of the termination of the Civil War,' and Mr. C. F. Adams, the American Minister to Great Britain, insisted that the British government was incompetent to inquire into the competence of the Secretary of State to give notice of the denunciation of the Great Lakes disarmament treaty of 1817 or to withdraw that notice.R "It could," he said, "only accept and respect the withdrawal as a fact." The question of competency, "being a matter of domestic administration affecting the internal relations of the executive and legislative powers," in no wise concerned Great Britain. The raising by her of a question as to "the authority of the executive power" in the matter, would have constituted " an unprecedented and inadmissible step in the international relations of governments." & The Prize Cases, 2 Black 635; Moore, Digest, 1: 190, 7: 172; Willoughby, Constitutional Law, 2: 1210. 4 Dana, note to Wheaton, pp. 37-38; Willoughby, op. cit., p. 1212; Moore, Digest, 1 189. 5 The recognition power is vested in the President. See Moore, Digest, I: 243-248, and "Memorandum on the method of recognition of foreign governments and foreign states by the government of the United States, 1789-1892. 54th Cong., 2 Sess., Sen. Docs. 40, 56; The Divina Pastora, 4 Wheat, 52; Corwin, op. cit., p. 71. See also infra, sec. 192. Lord Salisbury considered the interpretation of the Monroe Doctrine given by President Cleveland and Secretary of State Olney as subject to international cognizance as an official expression of American opinion. See Moore, Digest, 6: 560. See also supra, sec. 20. 7 U. S. Dip. Correspondence, 1865, 1: 409; Moore, Digest, 1: 187. 8 Report of Mr. Foster, Sec. of State, to the President, Dec. 7, 1892, H. Doc. 471, 56th Cong., 1st Sess., pp. 4, 36; Moore, Digest, 5: 169–170. 22. National and State Statutes. 9 Thus statements of a decision on fact or policy, authorized by the President, must be accepted by foreign nations as the will of the United States. We have noticed that acts prima facie law are subject to international cognizance whether issuing from state or national organs. They may not be accepted as definitive however, if their validity is denied by the President. Thus state constitutional or legislative provisions are not really law if in conflict with the national constitution, laws, or treaties; and acts of congress or treaty provisions are not law if in conflict with the Constitution. If the President discovers such a conflict and denies the validity of the purported law his interpretation is conclusive for foreign nations, even though it differs from the view of the court.10 23. Acts of Subordinates to the President. An act by a subordinate, purporting to be under authority of the President, may not be accepted by foreign nations as the will of the United States if promptly repudiated. Thus the salute to the insurgent Brazilian navy in the harbor of Rio Janeiro, authorized by Commodore Stanton in 1893, could not be considered a recognition of that party as the government of Brazil in view of the President's prompt repudiation of this act.11 With reference to the making of national decisions, foreign nations may accept the voice of the President as authoritative. Purported national or state laws and the acts or utterances of subordinates to the President, presumably subject to his instructions, are the only other pronouncements on this subject which may be considered authoritative, and they cannot, if their validity is promptly denied by the President. On this subject foreign nations are not expected to know the constitutional provisions defining the competence of national organs. Supra, sec. 15. 10 See discussion of the Dillon Case, Moore, 5: 80, 167, and infra, sec. 46. 11 Moore, Digest, I: 24. |