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1064



1918



United States



Jeoartroent of state j
Secret statutes jf the United States
Memorandum bv -Javid Hunter liiller




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SECRET STATUTES OF THE
UNITED STATES



A MEMORANDUM



BY



DAVID HUNTER MILLER

Specied Assistant in the Department of State




WASHINGTON

GOVERNMENT PRINTING OFFICE

1918



CONFIDENTIAL

For Official Use Only

SECRET STATUTES OF THE
UNITED STATES



A MEMORANDUM



BY



DAVID HUNTER MILLER

Special Assistant in the Department of State




WASHINGTON

GOVERNMENT PRINTING OFFICE

1918



SECRET STATUTES OF THE UNITED STATES

AND THE

PROCEEDINGS IN THE SENATE IN SECRET SESSION
AT THE THIRD SESSION OF THE ELEVENTH CON-
GRESS.



It is well known that when acting upon " Executive business,"
that is, upon treaties and on nominations to office, the Senate of
the United States usually meets with closed doors, although "open
Executive sessions," as they are called, may be held. In this respect
the provisions of the Standing Rules of the Senate are as follows :

2. When acting upon confidential or Executive business, unless the same shall
be considered in open Executive session, the Senate Chaniher shall be cleared
of all persons except the Secretary, the Chief Clerk, the I'rincipal Legislative
Clerk, the Executive Clerk, the Minute and Journal Clerk, the Sergeant-at-
Arms, the Assistant Doorkeeper, and such other officers as the Presiding Officer
shall think necessary ; and all such officers shall be sworn to secrecy.

3. All confidential communications made bj' the President of the United States
to the Senate shall be by the Senators and the officers of the Senate kept secret;
and all treaties which may be laid before the Senate, and all remarks, votes,
and proceedings thereon shall also be kept secret, until the Senate shall, by

lO their resolution, take off the injunction of secrecy, or unless the same shall be
^^ considered in open Executive session.

X, (Extract from Standing Rule XXXVI, Senate Rules and Manual, United
\ States, 1913, pp. 32-33.)

I Both Houses of Congress, however, may sit with closed doors for

discussion of or for proceedings upon business of any character,

^ although there has been no instance of this pi'actice for many years,

Kpther than the meetings of the Senate, when acting upon " Executive

business."

On a iiK^tion made and hfoconded to close the doors of the Senate, on the
^ discussion of any business whicli may. in tlie opinion of a Senator, require
N4 secrecy, the Presiding Officer shall direct the galleries to be cleared ; and during
«f the discussion of such motion the doors shall remain closed. (Standing Rule
.XXXV, Senate Rules and Manual. United Slates, 1913, p. 31.)
jS» A rule, not invoked for many years, provides for secret sessions of the House
^ whenever the President may send a confidential message or the Speaker or any
^ Member may announce that he has a confidential connnunication to present.
Rule XXX provides :

" Whenever confidential communications are received from the President of
the United States, or whenever the Speaker or any Member shall inform the
House that he has communications which he believes ought to be kept secret
for the present, the House shall be cleared of all persons except the Members
and officers thereof, and so continue during the reading of such communicatigus,
the debates, and proceedings thereon, unless otherwise ordered by the House."

The rule providing for secret sessions of the House dates from February 17,
1792, and December 30, 1793, although secret sessions were held before there
was any rule for them. In the revision of 1880 the old rule was retained in an
abbreviated form, as the Committee on Rules thought some occasion might
arise for its use. ^^/l ^0*^i



TIC



In the early days of Congress secret sessions of the House were frequent.
The sessions of the old Continental Congress hud been secret, and under the Con-
stitution the sessions of the Senate were so until the second session of the
Third Con.uress. By special order the galleries were thrown open during the
contested election case of A. Gallatin, from Pennsylvania. The House, on the
other hand, sat regularly with the galleries open, but when occasion required,
as on the receipt of a confitlential communication from the President, the
galleries were cleared by order of the House.

Up to and during the war of 1S12 secret sessions were held quite frequently.
Since that period the practice had gone into disuse, although there was one
t-ecret session in 1825, on December 27 (see House Journal, supplemental, first
session Nineteenth Congress; also Debates, December 20, 1825, first session
Nineteenth Congress, p. 828), when a confidential message was received from
President John Quincy Adams, who transmitted a copy of the message of
President Jefferson to both Houses of Congress on January 18, 1803. This
message of 1803 reconnnended an exploring expedition across the continent
to establish relations with the Indian tribes and ascertain the nature and
extent of the region. The message was confidential, and as the injunction of
secrecy was for some reason not removed, it had not been published up to
J 825. So the secret .session of the later year was held for the special and only
purpose of removing the injunction of secrecy from the message of 1803. This
nies.sage of President Jefferson may be found on page 3-52 of Volume I of
Ivichard.son*s Messages and Papers of the Presidents. There was also a secret
session on May 27, 1S30 (first se.ssion Twenty-first Congress, Journal, p. 755;
Debates, p. 1139), to receive a confidential communication from President
Jackson.

illiiiils' J'rcrcflcnts <if I In Jlousc of Representatives, 1907, sec. 7247 and note.
Vol. V. p. 1094.)

In 1811, at the third session of the Eleventh Congress, two stat-
utes and a joint resohition in regard to Florida were passed at secret
sessions of the Senate and of the House of Representatives, and these
enactments were approved by President James Madison.^

On January 3, 1811, President Madison sent a " confidential " mes-
sage to Congre.ss transmitting certain papers therein mentioned and
containing the following:

Taking into view the tenor of the.se .several communications, the posture of
things with which they are connected, the intimate relation of the country
adjoining the United States, eastward of the river Perdido, to their security and
tranquillity, and the peculiar interest they otherwise have in its destiny, I rec-
omniend to the consideration of Congress, the seasonableness of a declaration
that the United States could not see, without serious inquietude, any part of a
neighboring territory, in which th'-y have. In different respects, so deep and so
just a concern, pass from the hands of Spain into those of any other foreign
Power.

I recommend to their consideration, also, the expediency of authorizing the
Executive to take temporary pos-session of any part or parts of the said terri-



> Tho Hfcrot prof •»•»•(! I ngH In both IfouH"s arc printed In tho Appendix heroto, as the
Bame arc Hu^jsequently reported In thu Annala of Conijress, vol. 22; as to the Senate,
pp. 3ei»-380; HH to the IIouHe of Representativea, pp. 480, 1117-1148.



<..'



tory, in pursuance of arrangements which may be desired by the Spanish authori-
ties ; and for making provision for the government of the same, during such pos-
session.

Tlie wisdom of Congress will, at the same time, determine how far it may be
expedient to provide for the event of a subversion of the Spanish authorities
within the territory in question, and an apprehended occupancy tliereof by any
other foreign Powir. ( 0/>. fit., pp. 301), 3TU, 1117, 1251, lL:r)2.)

Without quoting at length from the accounts of the subsequent
proceedings in Congress, it may be said that not only were the debates
and votes secret in both Houses of Congress, but also that the neces-
sary messages exchanged between the two Houses and the notifications
from President Madison of his approval of the resolution and stat-
utes were received as confidential and behind closed doors, and that
the House of Representatives by a vote of 51 to 40 refused to remove
"the injunction of secrecy." (Op, cit., p. 1146.)

These two statutes and resolution are found in volume 3, United
States Statutes at Large, pages 471, 472, and are preceded by the
following note of the editor :

" The following resolution and acts, passed in 1811 and 1813, were not promul-
gated until their publication in " the sessions acts " of the Fifteenth Congress,
ending April 20, 1818. Tliey are altogether omitted in Mr. Justice Story's edi-
tion of the laws of the United States, and they are also omitted in Davi.s' and
Force's edition of the laws, from 1816 to 1827, published under the authority of
Congress, in 1822 and 1827. They were passed in the secret sessions of the
Eleventh and the Tw(>lfth Congress.

The editor has not considered it proper to insert these laws in this edition,
before their promulgation under the authority of the Secretary of State ; under
whose directions the laws of each session of Congress are published.

Act of 1818, ch. 80. .sec. 1."

The texts of the statutes and resolution are as follows :

Taking into view the peculiar situation of Spain, and of her American prov-
inces ; and considering the influence which the destiny of the territory adjoining
the southern border of the United States may have upon their security, ti*an-
quillity, and conmierce : Therefore,

Rcaolvcd hy the Senate and House of Representatives of the United States
of America, in Congress assembled, That the United States, under the peculiar
circumstances of the existing crisis, cannot, without serious inquietude, see any
part of the said territory pass into the hands of any foreign power ; and that a
due I'egard to their own safety compels them to provide, under certain contin-
gencies, for the temporary occupation of the said territory ; tliey, at tlie same
time, declare that the said territory shall, in their hands, remain subject to
future negotiation.

Approved, January 15, 1811.

An Act to enaile the President of the United Statea, under certain contingencies, to take
ponsession of the country lying cast of the river Pcrdido, and south of the state of
Georgia and the Mississippi territory, and for other purposes.

Be it enacted bii the Senate and House of h'cpresentatires of the United States
of America, in Congress assembled, That the President of the United States be,
and he is hereby, authorized, to take possession of, and occupy, all or any part
of the territory lying east of the river Perdido, and south of the state of Georgia



6

and the Mississippi territory, in case an arraiiirenient has been, or shall be,
made with the local authority of the said territory, for delivering up the pos-
session of the same, or any part thereof, to the United States, or in the event
of an attempt to occupy the said territory, or any part thereof, by any foreign
government; and he may, for the purpose of taking possession, and occupying
the territory aforesaid, and in order to maintain therein the authority of the
United States, employ any ]iart of the army and navy of the United States
which lie may deem necessary.

Sec. 2. Aud be it further enacted, That one hundred thousand dollars be ap-
propriated for defraying such expenses as the President may deem necessary
for obtaining possession as aforesaid, and the security of the said territory, to
be api)liod under the direction of the President, out of any moneys in the treas-
ury not otherwise appropriated.

Sec. 3. And be it further enacted. That in case possession of the territory
aforesaid shall be obtained by the United States, as aforesaid, that until other
provision be made by Congress, the President be, and he is hereby authorized
to establish, within the territory aforesaid, a temporary government, and the
military, civil, and judicial, powers thereof shall be vested in such person and
persons, and be exercised in such manner as he may direct, for the protection
and maintenance of the inhabitants of the said territory in the full enjoyment
of their liberty, property, and religion.

Approved, January 15, 1811.

An Act concerning an act to enable the President of the United States, under certain
contingencies, to take possession of the country lying east of the river Perdido, and
south of the state of Georgia and th'e Mississippi territory, and for other purposes,
and the declaration accompanying the same.

Be it enacted bij the Senate and Ilonsc of Representatives of the United States
of America, in Congress assembled. That this :ict. and the a<-t passed during the
present session of Congress, entitled "An act to enable the President of the
T'nited States, under certain contingencies, to take possession of the comitry
lying east of the river Perdido, and south of the state of Georgia and the Mis-
sissippi territory, and for other purposes," and the declaration accompanying
the same, be not printed or published, until the end of the next session of Con-
gress, unless directed by the President of the United States, any law or usage
to the contrary notwithstanding.

Approved March .S. 1811.

From the fore^oinir it appears that these enactments were not
pul)lislie(l or pronml^ated in due course; they are found in vohime
3 of the Statutes at Large immediately after the various acts of April
20, 1818, one of which (Chapter 80) was entitled "An Act to provide
for the publication of the laws of the United States, and for other
purposes," and contained the following:

He it enacted hy the Senate and House of Representatives of the United
States of America,, in Congress assembled. That, at and during the session of
each Tongress r)f the T'liiteu States, the Serretaiy foj- the Department of State
shall cause the acts and resolutions passed by Congress at such .session, to be
publislied, currently as they are enacted, and as soon as practicable, in not
more tlian one newspaper in the District of Columbia, and in not more than
three newsj)apers in each of the several states, and in not more than three
newspapers in esich of the territories of the United States. And he .shall also
cause to be published, in the like manner, in the .said newspapers, or in such of



theiu as he shall for that purpose designate, the public treAtles entered into and
ratiliod by the United States.

ie * * H: * * *

Sec. 4. And he it further enacted, That the Secretary of State shall cause to
be published, at the close of every session of Congress, und as soon as prac-
ticable, eleven thousand copies' of the acts of Congress at large, including all
resolutions passed by Congress, amendments to the constitution ndoiitcd, and all
public treaties made and ratified since the then last publication of the laws.

(3 Statutes at Large, p. 439.)

Previous acts regarding the promulgation and publication of
statutes of the United States had been less explicit in their language
as to the time of publication.

Chap. XIV. An Act to provide for the snfc-keeping of the Acts, Records and Seal of
the United States, and for other purposes.

Section 1. Be it enaeted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Executive depart-
ment, denominated the Department of Foreign Affairs, shall hereafter be de-
nominated the Department of State, and the principal officer therein shall
hereafter be called the Secretary of State.

Sec. 2. And be it further enacted, That whenever a bill, order, resolution, or
vote of the Senate and House of Representatives, having been approved and
signed by the President of the United States, or not having been returned by
him with his objections, shall become a law, or take effect, it shall forthwith
thereafter be received by the said Secretary from the President ; and whenever
a bill, order, resolution, or vote, shall be returned by the President with his
objections, and shall, on being reconsidered, be agreed to be passed, and be
approved by two-thirds of both Houses of Congress, and thereby become a law
or take effect, it shall, in such case, be received by the said Secretary from the
President of the Senate, or the Speaker of the House of Representatives, in
whichsoever House it shall last have been so approved ; and the said Secretary
shall, as soon as conveniently may be, after he shall receive the same, cause
every such law, order, resolution, and vote, to be published in at least three of
the public newspapers printed within the United States, and shall also cause
one printed copy to be delivered to each Senator and Representative of the
United States, and two printed copies duly authenticated to be sent to the
Executive authority of each State; and he shall carefully preserve the originals,
and shall cause the same to be recorded in books to be provided for the purpose.

(Act of Sept. 15, 1789, 1 Statutes at Large, p. 08.)

Chap. L. — An Act for the more general promulgation of the laios of the United States.

Section 1. Be it enacted by the Senate and House of E'cprcscntatircs of the
United States of America in Congress assembled. That, for the more general
promulgation of the laws of the United States, the Secretary for the department
of Stale shall, after the end of the next session of Congress, cause to be printed
and collated at the public expense, a complete edition of the laws of the United
States, comprising the constitution of the United States, the public acts then in
force, and the treaties, together with an index to the same.

* # :» * 41 * *

Sec. 3. And be it further enacted. That the acts passed at each succeeding
session of Congress, including future treaties, shall be printed and distributed,
in like manner and proportion.

(Act of March 3, 1795, 1 Statutes at Large, p. 443.)



8

Chapter I. — An Act to amend the act intituled "An act for the more general promulga-
tion of the Laws of the United States."

Be it enacted by the Senate and Hoxine of Representatives of the United
States of America in Congress assembled, Thut the Secretary for the department
of State shall cause to be included in the edition of the laws of the United
States, directed to be printed by the said act, the laws of the United States
which may be passed during the present session of. Congress: Provided, the
same can be done at an expense which he shall judge reasonable.

(Act of Dec. 21, 179G, 1 Statutes at Large, p. 496.)

Chap. XXX. — An Act in addition to an act intituled "An act for the more general
promulgation of the Laws of the United States."

Section 1. Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Secretary of State
.shall, as soon as conveniently may be, after he shall receive any order, resolu-
tion or law passed by Congress, cause the same to be published at least in one
of the public newspapers printed within each state ; and whenever in any state,
the aforesaid publication shall be found not sufficiently extensive for the
promulgation thereof, the Secretary of State shall cause such orders, resolutions
and laws to be published in a greater number of newspapers printed within
such state, not exceeding three in any state.

(Act of Mar, 2, 1799, 1 Statutes at Large, p. 724.)

Chap. VI. — Ati Act to authorize the publication of the laws of the United States
within the territories of the United States.

Be it enacted by the Senate and House of Representatives of the United
States of America, in Congress assembled. That the Secretary for the Depart-
ment of State be, and he is hereby authorized to cause the laws of the United
States, passed, or to be passed, during the present or any future session of
Congress, to be published in two of the public new.spapers within each and
every territory of the United States: — Provided, in his opinion, it shall become
necessary and expedient.

(Act of Nov. 21, 1814, 3 Statutes at Large, p. 145.)

With the language of the foregoing statutes and of that of the
act of April 20, 1818 (supra), may well be compared that of the
act of January 12, 1895.

The Secretary of State shall cause to be edited, printed, published, and dis-
tributed pamphlet copies of the statutes of the present and each future session
of Congre.ss to the officers and persons hereinafter provided for; said distri-
bution shall be made at the close of every session of Congress.

U tf if if ip if *

The Secretary of State is authorized to have printed as many additional
copies of the pamphlet laws as he may deem needful for distribution and sale
by him, at cost price, not exceeding one thousand copies of the laws of any
one session in any one year.

The Public Printer shall deliver to the folding rooms of the Senate and
House of Representatives seven thousand copies of the pamphlet laws, two
thousand copies of which shall be for the Senate and five thousand copies for
the House, and to the superintendent of documents five hundred copies, for
distribution to State and Territorial libraries and to designated depositories.

After the close of ejich Congre.ss the Secretary of State shall have edited,
printed, and bound a sufficient number of the volumes containing the Statutes



9

at Large enacted by that Congress to enable him to distribute copies, or as
many thereof as may be needed.

The pamphlet copies of the statutes and the bound copies of the Acts of
each Congress shall be legal evidence of the laws and treaties therein con-
tained in all the courts of the United States and of the several States therein.
The said pamphlet and the Statutes at Large shall contain all laws, joint and
concurrent resolutions passed by Congress, and also all conventions, treaties,
proclamations, and agreements.

(Extriict from section 73 of the Act of Jan. 12, 189.5, 28 Statutes at Large,
pp. 614-615.)

The injunction of secrecy as to the act of January 15, 1811, had,
however, been remoAed by resohition of the House of Representatives
of July 6, 1812 (mentioning the act as "passed January 12, 1811"),
ilhLstrating the practical necessity of the continuing consent of both
Houses of Congress if secrecy is to remain effective.

Resolved, That the injunction of secrecy, so far as concerns "An act to en-
able the President of the United States, under certain contingencies, lo take
possession of the country lying east of the Perdido, and south of the State of
Georgia and the Mississippi Tei-ritory, and for otlier purposes," passed on the
twelfth of January, one thousand eight hundred and eleven, and "A bill au-
thorizing the President to take possession of a tract of country lying south of
the Mississippi Territory, .-ind of the State of Georgia, and for other purjjoses ; "
passed the twenty-fifth of June last, and the proceedings thereon, respectively,
be removed: And, also, so far as relates to the following letters: two from the
Secretary of State to General G. Matthews, one dated the twenty-sixth of
January, one thousand eight hundred and eleven, and the other the fourth of
April, one tliousand eight hundred and tw'clve; and two from Mr. Monroe to
General D. B. Mitchell, one dated the tenth of April, the otlier the tw-enty-
seventh of May, one thousand eight hundred and twelve.

{Annals of Congress, vol. 24, p. 1694.)

The proceedings at the second session of the Twelfth Congress in
the consideration and passage of the act of February 12, 1813,^ were
very similar to those at the third session of the Eleventh Congress,
in 1811, heretofore discussed. {Annals of Congress^ vol. 25, pp. 12-1-
134, 1015, 1016, 1079.)

That statute is also referred to in the editor's note on page 471 of
volume 3 of the Statutes at Large, above quoted, and is found on
page 472 of that volume, as follows :

An Act authorizing the President of the United i>tates to take possession of a tract of
country lying south of the Mississippi territory and west of the river Perdido.

Be it enacted by the Senate and Eouse of Representatives of the United
States of America, in Congress assembled. That the President be, and he is
hereby, authorized to occupy and hold all that tract of country called West
Florida, which lies west of the river Perdido, not now in possession of the
United States.

1 Printed in the Appendix hereto.



10

Sec. 2. .•1»(7 be it further enacted, Thnt. for the purpose of occupying and
holding the country aforesaid, and of affording protection to the inhabitants


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