WASHINGTON, _April 20, 1846_.
_To the House of Representatives_:
I have considered the resolution of the House of Representatives of the
9th instant, by which I am requested "to cause to be furnished to that
House an account of all payments made on President's certificates
from the fund appropriated by law, through the agency of the State
Department, for the contingent expenses of foreign intercourse from the
4th of March, 1841, until the retirement of Daniel Webster from the
Department of State, with copies of all entries, receipts, letters,
vouchers, memorandums, or other evidence of such payments, to whom paid,
for what, and particularly all concerning the northeastern-boundary
dispute with Great Britain."
With an anxious desire to furnish to the House any information requested
by that body which may be in the Executive Departments, I have felt
bound by a sense of public duty to inquire how far I could with
propriety, or consistently with the existing laws, respond to their
call.
The usual annual appropriation "for the contingent expenses of
intercourse between the United States and foreign nations" has been
disbursed since the date of the act of May 1, 1810, in pursuance of
its provisions. By the third section of that act it is provided--
That when any sum or sums of money shall be drawn from the Treasury
under any law making appropriation for the contingent expenses of
intercourse between the United States and foreign nations the President
shall be, and he is hereby, authorized to cause the same to be duly
settled annually with the accounting officers of the Treasury in the
manner following; that is to say, by causing the same to be accounted
for specially in all instances wherein the expenditure thereof may in
his judgment be made public, and by making a certificate of the amount
of such expenditures as he may think it advisable not to specify; and
every such certificate shall be deemed a sufficient voucher for the sum
or sums therein expressed to have been expended.
Two distinct classes of expenditure are authorized by this law--the one
of a public and the other of a private and confidential character. The
President in office at the time of the expenditure is made by the law
the sole judge whether it shall be public or private. Such sums are to
be "accounted for specially in all instances wherein the expenditure
thereof may in his judgment be made public." All expenditures "accounted
for specially" are settled at the Treasury upon vouchers, and not on
"President's certificates," and, like all other public accounts, are
subject to be called for by Congress, and are open to public
examination. Had information as respects this class of expenditures been
called for by the resolution of the House, it would have been promptly
communicated.
Congress, foreseeing that it might become necessary and proper to apply
portions of this fund for objects the original accounts and vouchers for
which could not be "made public" without injury to the public interests,
authorized the President, instead of such accounts and vouchers, to make
a certificate of the amount "of such expenditures as he may think it
advisable not to specify," and have provided that "every such
certificate shall be deemed a sufficient voucher for the sum or sums
therein expressed to have been expended."
The law making these provisions is in full force. It is binding upon all
the departments of the Government, and especially upon the Executive,
whose duty it is "to take care that the laws be faithfully executed." In
the exercise of the discretion lodged by it in the Executive several of
my predecessors have made "certificates" of the amount "of such
expenditures as they have thought it advisable not to specify," and upon
these certificates as the only vouchers settlements have been made at
the Treasury.
It appears that within the period specified in the resolution of the
House certificates were given by my immediate predecessor, upon which
settlements have been made at the Treasury, amounting to $5,460. He has
solemnly determined that the objects and items of these expenditures
should not be made public, and has given his certificates to that
effect, which are placed upon the records of the country. Under the
direct authority of an existing law, he has exercised the power of
placing these expenditures under the seal of confidence, and the whole
matter was terminated before I came into office. An important question
arises, whether a subsequent President, either voluntarily or at the
request of one branch of Congress, can without a violation of the spirit
of the law revise the acts of his predecessor and expose to public view
that which he had determined should not be "made public." If not a
matter of strict duty, it would certainly be a safe general rule that
this should not be done. Indeed, it may well happen, and probably would
happen, that the President for the time being would not be in possession
of the information upon which his predecessor acted, and could not,
therefore, have the means of judging whether he had exercised his
discretion wisely or not. The law requires no other voucher but the
President's certificate, and there is nothing in its provisions which
requires any "entries, receipts, letters, vouchers, memorandums, or
other evidence of such payments" to be preserved in the executive
department. The President who makes the "certificate" may, if he
chooses, keep all the information and evidence upon which he acts in his
own possession. If, for the information of his successors, he shall
leave the evidence on which he acts and the items of the expenditures
which make up the sum for which he has given his "certificate" on the
confidential files of one of the Executive Departments, they do not in
any proper sense become thereby public records. They are never seen or
examined by the accounting officers of the Treasury when they settle an
account on the "President's certificate." The First Congress of the
United States on the 1st of July, 1790, passed an act "providing the
means of intercourse between the United States and foreign nations," by
which a similar provision to that which now exists was made for the
settlement of such expenditures as in the judgment of the President
ought not to be made public. This act was limited in its duration. It
was continued for a limited term in 1793, and between that time and the
date of the act of May 1, 1810, which is now in force, the same
provision was revived and continued. Expenditures were made and settled
under Presidential certificates in pursuance of these laws.
If the President may answer the present call, he must answer similar
calls for every such expenditure of a confidential character, made under
every Administration, in war and in peace, from the organization of the
Government to the present period. To break the seal of confidence
imposed by the law, and heretofore uniformly preserved, would be
subversive of the very purpose for which the law was enacted, and might
be productive of the most disastrous consequences. The expenditures of
this confidential character, it is believed, were never before sought to
be made public, and I should greatly apprehend the consequences of
establishing a precedent which would render such disclosures hereafter
inevitable.
I am fully aware of the strong and correct public feeling which exists
throughout the country against secrecy of any kind in the administration
of the Government, and especially in reference to public expenditures;
yet our foreign negotiations are wisely and properly confined to the
knowledge of the Executive during their pendency. Our laws require the
accounts of every particular expenditure to be rendered and publicly
settled at the Treasury Department. The single exception which exists is
not that the amounts embraced under President's certificates shall be
withheld from the public, but merely that the items of which these are
composed shall not be divulged. To this extent, and no further, is
secrecy observed.
The laudable vigilance of the people in regard to all the expenditures
of the Government, as well as a sense of duty on the part of the
President and a desire to retain the good opinion of his
fellow-citizens, will prevent any sum expended from being accounted for
by the President's certificate unless in cases of urgent necessity. Such
certificates have therefore been resorted to but seldom throughout our
past history.
For my own part, I have not caused any account whatever to be settled on
a Presidential certificate. I have had no occasion rendering it
necessary in my judgment to make such a certificate, and it would be an
extreme case which would ever induce me to exercise this authority; yet
if such a case should arise it would be my duty to assume the
responsibility devolved on me by the law.
During my Administration all expenditures for contingent expenses of
foreign intercourse in which the accounts have been closed have been
settled upon regular vouchers, as all other public accounts are settled
at the Treasury.
It may be alleged that the power of impeachment belongs to the House of
Representatives, and that, with a view to the exercise of this power,
that House has the right to investigate the conduct of all public
officers under the Government. This is cheerfully admitted. In such a
case the safety of the Republic would be the supreme law, and the power
of the House in the pursuit of this object would penetrate into the most
secret recesses of the Executive Departments. It could command the
attendance of any and every agent of the Government, and compel them to
produce all papers, public or private, official or unofficial, and to
testify on oath to all facts within their knowledge. But even in a case
of that kind they would adopt all wise precautions to prevent the
exposure of all such matters the publication of which might injuriously
affect the public interest, except so far as this might be necessary to
accomplish the great ends of public justice. If the House of
Representatives, as the grand inquest of the nation, should at any time
have reason to believe that there has been malversation in office by an
improper use or application of the public money by a public officer, and
should think proper to institute an inquiry into the matter, all the
archives and papers of the Executive Departments, public or private,
would be subject to the inspection and control of a committee of their
body and every facility in the power of the Executive be afforded to
enable them to prosecute the investigation.
The experience of every nation on earth has demonstrated that
emergencies may arise in which it becomes absolutely necessary for the
public safety or the public good to make expenditures the very object of
which would be defeated by publicity. Some governments have very large
amounts at their disposal, and have made vastly greater expenditures
than the small amounts which have from time to time been accounted for
on President's certificates. In no nation is the application of such
sums ever made public. In time of war or impending danger the situation
of the country may make it necessary to employ individuals for the
purpose of obtaining information or rendering other important services
who could never be prevailed upon to act if they entertained the least
apprehension that their names or their agency would in any contingency
be divulged. So it may often become necessary to incur an expenditure
for an object highly useful to the country; for example, the conclusion
of a treaty with a barbarian power whose customs require on such
occasions the use of presents. But this object might be altogether
defeated by the intrigues of other powers if our purposes were to be
made known by the exhibition of the original papers and vouchers to the
accounting officers of the Treasury. It would be easy to specify other
cases which may occur in the history of a great nation, in its
intercourse with other nations, wherein it might become absolutely
necessary to incur expenditures for objects which could never be
accomplished if it were suspected in advance that the items of
expenditure and the agencies employed would be made public.
Actuated undoubtedly by considerations of this kind, Congress provided
such a fund, coeval with the organization of the Government, and
subsequently enacted the law of 1810 as the permanent law of the land.
While this law exists in full force I feel bound by a high sense of
public policy and duty to observe its provisions and the uniform
practice of my predecessors under it.
With great respect for the House of Representatives and an anxious
desire to conform to their wishes, I am constrained to come to this
conclusion.
If Congress disapprove the policy of the law, they may repeal its
provisions.
In reply to that portion of the resolution of the House which calls for
"copies of whatever communications were made from the Secretary of State
during the last session of the Twenty-seventh Congress, particularly
February, 1843, to Mr. Cushing and Mr. Adams, members of the Committee
of this House on Foreign Affairs, of the wish of the President of the
United States to institute a special mission to Great Britain," I have
to state that no such communications or copies of them are found in the
Department of State.
"Copies of all letters on the books of the Department of State to any
officer of the United States or any person in New York concerning
Alexander McLeod," which are also called for by the resolution, are
herewith communicated.