mental agencies established for the management of foreign affairs no longer appear to perform adequately their proper functions if they endeavor or incline to withhold from the people in times of public stress information which if known would control the foreign policies of the State. For that reason it is to be anticipated that such agencies, both in the United States and elsewhere, will hereafter, as a means of retaining power and of directing securely the control of foreign affairs, become increasingly disposed to enlighten public opinion, on matters pertaining to the outside world.

All negotiations between States must be carried on through the medium of governmental agencies constitutionally or legally established for the purpose. Effective diplomatic intercourse demands, therefore, mutual respect for them. In token thereof it must be assumed, under normal circumstances, that a government of a foreign State with which diplomatic relations are maintained will fail in no obligation which it owes to the people of its own country. Consequently, action based on a different assumption must be regarded with hostility by the government which is denied this customary imputation of efficiency or loyalty to its domestic institutions and constituents. The fact of such hostility must weigh heavily against the winning of popular approval in the State to whose people a direct appeal is taken. It thus requires an extraordinary combination of circumstances to cause the communication of intelligence to a foreign State by a process which designedly evades official channels to meet with a friendly response and so to achieve the end desired. For that reason recourse to such procedure is not likely to be a frequent occurrence.

1 The Interparliamentary Union "has for its aim the uniting in common action the Members of all parliaments constituted in National Groups in order to bring about the acceptance in their respective countries, either by legislation or by international treaties, of the principle that differences between nations should be settled by arbitration or in other ways either amicable or judicial." Constitution, Revision of 1912, Art. I. The Union is declared to expect of its members that they, "as far as possible, see that the resolutions passed at the Interparliamentary Conferences be brought to the attention of their respective parliaments." Id., Art. V. The organization although made up chiefly of responsible statesmen belonging to the legislative departments of numerous States embracing the United States, does not undertake to communicate information from one government to the legislature of another It is not understood that the views which are communicated as among various legislatures are more than those of the several National Groups constituting the Union. According to the statement of Dr. C. L. Lange, Secretary General, published by the American Group in 1914, the Union had up to that time always limited itself to the discussion of questions relating to international law, refraining from the discussion of economic questions, and from pronouncements of a political nature, in which the interests of different States might be opposed. See The Interparliamentary Union Hand Book of the American Group, 1914, 14. Also Annual Report for 1914 submitted by the Secretary General, Kristiania, 1915.

THE SECRETARY OF STATE

3

[$ 410

410. The Secretary of State as Organ of Correspondence. As early as 1789, the Congress created an executive department to be known as the Department of State, and a Secretary of State who was to be its head.1 It was provided that that officer should perform such duties as the President might enjoin on or entrust to him relative to correspondence, commissions or instructions to or with diplomatic or consular officers of the United States, or to negotiations with foreign public ministers, or to memorials or to other applications from such officials or other foreigners, or to such other matters respecting foreign affairs as the President might assign to the Department. It was expressly declared that the business of the Department should be conducted by the Secretary in such manner as the President should direct.2

3

In early days of the Republic it was regarded as "not the established course" for diplomatic officers to have direct correspondence with the President; and as late as 1888, Secretary Bayard declared that "all the acts of the President, in his official capacity, pass through the constitutional and statutory channel of the Secretary of State."4 In more recent years the President has, on numerous occasions, addressed himself directly to the heads of foreign States, from whom also he has himself been the recipient of communications.5 Foreign ambassadors have, more

1 Rev. Stat. § 199, Moore, Dig., IV, 780.

Before the adoption of the Constitution, the foreign affairs of the United States were conducted by the Congress, which at first endeavored to perform certain of its duties through committees. In 1781, it established a Department of Foreign Affairs in charge of a "Secretary for Foreign Affairs", who in 1785 was declared to be the medium of all communications to and from the Congress in respect to foreign relations. Gaillard Hunt, History of the Department of State, Chap. I, and documents there cited.

2 Rev. Stat. § 202, Moore, Dig., IV, 781.

The acts of the Department of State with respect to foreign affairs "are in legal contemplation the acts of the President." Gray, J., in Jones v. United State, 137 U. S. 202, 217.

3 Mr. Jefferson, Secy. of State, to M. Genet, French Minister, Aug. 16, 1793, 5 MS. Dom. Let. 231, Moore, Dig., IV, 686.

Communication to Mr. Pratt, Minister to Persia, No. 104, Dip. Series, April 5, 1888, MS. Inst. Persia, I, 208, Moore, Dig., IV, 687, 688.

5 See statement in Moore, Dig., IV, 689; telegram of condolence from President Roosevelt, to the King of Portugal Feb. 3, 1908, in respect to the assassination of the King and Crown Prince of that State, For. Rel. 1908, 687. Correspondence between President Roosevelt and the Emperor of Japan in 1905, respecting the services of the former in the cause of peace between Japan and Russia, For. Rel. 1905, 823-824.

President Taft, to Prince Chun, Regent of the Chinese Empire, July 15, 1909, respecting the participation by American capital in a railway loan, For.

over, availed themselves on occasion of the privilege of conferring with the President.1

In the course of The World War, both before and after the United States became a belligerent, the President himself undertook to make suggestions in relation to the terms of peace. In December, 1916, certain of them were communicated to both belligerent and neutral powers through the medium of the Department of State. In January, 1918, others were announced in an address to the Congress,3 and thereby attained wide publicity abroad regardless of the official channels through which they were brought to the attention of foreign powers. Later, the President, "acting in his own name and by his own proper authority", became the head of the American Commission for the conclusion, in conjunction with the Allied and Associated Powers, of a treaty of peace with Germany. In that capacity he became the direct spokesman of the United States in the matter of negotiation. In assuming in person the conduct of negotiations which are normally confided to the Secretary of State or to diplomatic representatives, the President does not appear to be restricted by the statutory law. Such action on his part is, moreover, without international significance.

4

DIPLOMATIC MISSIONS

a

411. Classification of Ministers.

In determining the relative rank and precedence of diplomatic representatives, the Department of State has adopted and preRel. 1909, 178; same, to the President of Cuba, Aug. 2, 1911, referring to European claims against that State, For. Rel. 1911, 129.

President Wilson, to the Provisional Government of Russia, Official Bulletin, June 9, 1917, I, No. 26; same, to the American Consul General at Moscow, for communication through the Soviet Congress to the people of Russia, Official Bulletin, March 12, 1918, II, No. 255.

1 Ambassadorial Privileges, infra, § 459.

2 Communication of Mr. Lansing, Secy. of State, to Mr. W. H. Page, American Ambassador at London, Dec. 18, 1916, American White Book, European War, IV, 321.

3 President Wilson, address to the Congress, Jan. 8, 1918, announcing a proposed basis for a program of peace, Official Bulletin, Jan. 8, 1918, II, No. 202; J. B. Scott, President Wilson's Foreign Policy, 354.

It is to be noted that at the time of this address, responsible statesmen of Europe were making known their views in relation to peace through the medium of public speeches which were given widest circulation in America and elsewhere.

5 Senate Doc. No. 49, 66 Cong., 1 Sess., p. 3.

CLASSIFICATION OF MINISTERS

[§ 411 scribed the seven rules of the Congress of Vienna, found in the protocol of the session of March 19, 1815, and the supplementary or eighth rule of the Congress of Aix-la-Chapelle of November 21, 1818.1 They are as follows:

Article I. Diplomatic agents are divided into three classes: That of ambassadors, legates, or nuncios; that of envoys, ministers, or other persons accredited to sovereigns; that of chargés d'affaires accredited to ministers for foreign affairs. Art. II. Ambassadors, legates, or nuncios only have the representative character.

Art. III. Diplomatic agents on an extraordinary mission have not, on that account, any superiority of rank.

Art. IV. Diplomatic agents shall take precedence in their respective classes according to the date of the official notification of their arrival. The present regulation shall not cause any innovation with regard to the representative of the Pope. Art. V. A uniform mode shall be determined in each State for the reception of diplomatic agents of each class.

Art. VI. Relations of consanguinity or of family alliance between courts confer no precedence on their diplomatic agents. The same rule also applies to political alliances.

Art. VII. In acts or treaties between several powers which grant alternate precedence, the order which is to be observed in the signatures shall be decided by lot between the ministers. Art. VIII. It is agreed that ministers resident accredited to them shall form, with respect to their precedence, an intermediate class between ministers of the second class and chargés d'affaires.

The diplomatic representatives of the United States are of the first, the second, the intermediate and the third of the foregoing classes as follows:

(a) Ambassadors extraordinary and plenipotentiary.

(b) Envoys extraordinary and ministers plenipotentiary, and special commissioners, when styled as having the rank of envoy extraordinary and minister plenipotentiary.

(c) Ministers resident.

These grades of representatives are accredited by the President.

"Instructions to Diplomatic Officers of the United States (1897), § 18, Moore, Dig., IV, 430.

The rules of the Congress of Vienna are contained in Nouv. Rec., II, 449; the supplementary rule of the Congress of Aix-la-Chapelle, id., IV, 648.

(d) Chargés d'affaires, commissioned by the President as such, and accredited by the Secretary of State to the minister for foreign affairs of the government to which they are sent.1

It is declared by the Department of State that in the absence of the head of the mission the secretary acts ex officio as chargé d'affaires ad interim, requiring no special letter of credence; but that in the absence of a secretary and second secretary, the Secretary of State may designate any competent person to act ad interim, in which case he is specifically accredited by letter to the minister for foreign affairs.2

Sometimes the office of consul-general is superadded to the diplomatic office filled by a single individual. In such case the diplomatic rank is regarded as superior to and independent of the consular rank. The officer is, moreover, instructed to fulfill his consular duties in accordance with the consular regulations of the United States, and to keep them in every sense distinct from those pertaining to the diplomatic service.4

1 Instructions to Diplomatic Officers of the United States (1897), § 19, Moore, Dig., IV, 430–431.

According to the existing statutory law, a "Diplomatic officer" is "deemed to include ambassadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commissioners, chargés d'affaires, counselors, agents, secretaries of embassy and legation, and secretaries in the Diplomatic Service, and none others." Chap. 208, 39 Stat. 252, U. S. Comp. Stat. 1918, § 3116.

As to the use of the office of chargé d'affaires in the earlier part of the nineteenth century, see Mr. Clay, Secy. of State, to the President, Jan. 31, 1827, Am. State Pap., For Rel., VI, 554; also documents in Moore, Dig.. IV, 432433.

Declared Mr. Cushing, Attorney-General, in the course of an opinion, May 25, 1855: "The title chargé d'affaires, which is in itself quite as generic and comprehensive as any of the others, and may be and often is borne by persons exercising as ample and high functions as any of the others, has settled into the designation of a mere provisional officer, and in dignity of the lowest rank." 7 Ops. Attys.-Gen., 186, 192.

2 Instructions to Diplomatic Officers of the United States (1897), § 19, Moore, Dig., IV, 431. See, also, Circular Instruction to Diplomatic Officers of the United States, March 25, 1902.

3 Thus, under the existing law, the American diplomatic representative to Liberia is accredited as minister resident and consul general. Rev. Stat. § 1683, U. S. Comp. Stat. 1918, § 3129; also Diplomatic and Consular Service of the United States (corrected to July 26, 1919).

4 Instructions to Diplomatic Officers of the United States (1897), § 20, Moore, Dig., IV, 431.

Some foreign governments do not recognize the union of consular with dipplomatic functions. See President Cleveland, Annual Message, Dec. 8, 1885, For. Rel. 1885, xvii, Moore, Dig., IV, 445, also documents, id., respecting difficulties with Italy and Venezuela.

Declared Mr. Foster, Secy. of State: "So far as the rule of this government is concerned, the diplomatic function of a consular officer is only recognized when he bears a special letter of credence addressed to the Secretary of State; and conversely a consular officer of the United States, even when left in custody of a legation, has no diplomatic rank, function or immunities, unless