VI. NOT USUAL TO ASK AS TO ACCEPTABILITY IN ADVANCE. § 82a. "This Government does not require other powers to ask, in advance, if contemplated appointments of ministers will or will not be acceptable." But when such an inquiry is put, it is competent for this Department to answer, "that unless certain prevalent impressions were unfounded, the purposed appointment could not prove acceptable." Mr. Fish, Sec. of State, to Mr. Neal, Mar. 11, 1870. MSS. Inst., Portugal. "Upon reflection the importance of the question becomes apparent. Consequently, I have made careful search for the precedents and practice in this Department for the last ninety years. The result enables me to inform you that no case can be found in the annals of this Government in which the acceptability of an envoy from the United States was inquired about or ascertained in advance of his appointment to the mission for which he was chosen. "Whilst the practice to which Count Kalnoky refers may, in a limited degree, prevail among European states, yet in this respect the exceptions are very numerous, and there are important reasons why, in this country, the practice should never have been adopted, and why its adoption would not be practical or wise. "Our system of frequently recurring elections at regular and stated periods provides, and was intended to provide, an opportunity for the influence of public opinion upon those to whom the administration of public affairs has been intrusted by the people temporarily, and for a fixed time only, on the expiration of which an opportunity for a change in its agents and policies is thus afforded. "The affiliation in sentiment between a political administration thus defeated at the polls and a foreign nation closely interested in maintaining certain international policies and lines of political conduct, might render it difficult for an administration, elected for the very purpose of producing a change of policy, to procure the consent of the foreign Government to the appointment of agents whose views were in harmony with the latest and prevailing expression of public opinion as the result of popular election." Mr. Bayard, Sec. of State, to Baron Schaeffer, May 20, 1885. MSS. Notes, Aus- As to asking for acceptance of a minister in advance, see discussion in Schuy- 599 VII. CONDITIONS DEROGATORY TO THE ACCREDITING GOVERNMENT CANNOT BE IMPOSED. § 83. "You will at the same time perceive that the French Government appears solicitous to impress the opinion that it is averse to a rupture with this country, and that it has in a qualified manner declared itself willing to receive a minister from the United States for the purpose of restoring a good understanding. It is unfortunate for professions of this kind that they should be expressed in terms which may countenance the inodmissible pretension of a right to prescribe the qualifications which a min ister from the United States should possess, and that while France is asserting the existence of a disposition on her part to conciliate with sincerity the differences which have arisen, the sincerity of a like dişposition on the part of the United States, of which so many demonstrative proofs have been given, should even be indirectly questioned. It is also worthy of observation that the decree of the Directory alleged to be intended to restrain the depredations of French cruisers on our commerce has not given, and can not give, any relief. It enjoins them to conform to all the laws of France relative to cruising and prizes, while these laws are themselves the sources of the depredation of which we have so long,,so justly, and so fruitlessly complained. "The law of France, enacted in January last, which subjects to capture and condemnation neutral vessels and their cargoes, if any portion of the latter are of British fabric or produce, although the entire property belong to neutrals, instead of being rescinded, has lately received a confirmation by the failure of a proposition for its repeal. While this law, which is an unequivocal act of war on the commerce of the nations it attacks, continues in force, those nations can see in the French Government only a power regardless of their essential rights, of their independence and sovereignty-and if they possess the means, they can reconcile nothing with their interest and honor but a firm resistance." President John Adams, Second Annual Address, 1798. The correspondence of Messrs. Pinckney, Marshall, and Gerry, when ministers to France in 1797-'98, together with the X Y Z papers, is given in 2 Am. St. Pap. (For. Rel.), 153 ff, 185 ƒƒ, 205 ƒƒ, 229 ff. The report of Mr. Pickering, Sec. of State, Jan. 18, 1799, on this correspondence, is given in 2 Am. St. Pap. (For. Rel.), 229. "Persevering in the pacific and humane policy which has been invariably professed and sincerely pursued by the executive authority of the United States, when indications were made on the part of the French Republic of a disposition to accommodate the existing differences between the two countries, I felt it to be my duty to prepare for meeting their advances by a nomination of ministers, upon certain conditions which the honor of our country dictated, and which its moderation had given a right to prescribe. The assurances which were required of the French Government previous to the departure of our envoys have been given through their minister of foreign relations, and I have directed them to proceed on their mission to Paris. They have full power to conclude a treaty, subject to the constitutional advice and consent of the Senate. The characters of these gentlemen are sure pledges to their country that nothing incompatible with its honor or interest, nothing inconsistent with our obligations of good faith or friendship to any other nation, will be stipulated." President John Adams, Third Annual Address, 1799. While under ordinary circumstances the Government of the United States will recall a minister sent to a foreign country when requested by the Government of such country, such recall will not be made when it would be an implied approval of prior misconduct or of unjust aggressions by the Government requesting it. Mr. Buchanan to Mr. Wise, Sept. 27, 1845. MSS. Inst., Brazil. "The question thus raised by your Government involves principles of the greatest importance, and has no precedent as yet discoverable to me in modern times and in intercourse between friendly nations; and having submitted the matter to the consideration of the President, I am instructed by him to inform your Government, through you, that the ground upon which it is announced, that the usual ceremonial courtesy and formal respect are to be withheld from this envoy of the United States to your Government, that is to say, because his wife is alleged or supposed by your Government to entertain a certain religious faith, and to be a member of a certain religious sect, cannot be assented to by the Executive of the Government of the American people, but is and must be emphatically and promptly denied. "The supreme law of this land expressly declares that 'no religious test shall ever be required as a qualification to any office or public trust under the United States,' and by the same authority it is declared that 'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.' "This is a Government of laws, and all authority exercised must find its measure and warrant thereunder. "It is not within the power of the President nor of the Congress nor of any judicial tribunal in the United States to take, or even hear, testimony, or in any mode to inquire into or decide upon the religious belief of any official, and the proposition to allow this to be done by any foreign Government is necessarily and a fortiori inadmissible. "To suffer an infraction of this essential principle would lead to a disfranchisement of our citizens because of their religious belief, and thus impair or destroy the most important end which our Constitution of Government was intended to secure. Religious liberty is the chief corner-stone of the American system of government, and provisions for its security are imbedded in the written charter and interwoven in the moral fabric of its laws. "Anything that tends to invade a right so essential and sacred must be carefully guarded against, and I am satisfied that my countrymen, ever mindful of the suffering and sacrifices necessary to obtain it, will never consent to its impairment for any reason or under any pretext whatsoever. "In harmony with this essential law is the almost equally potential unwritten law of American society that awards respect and delicate consideration to the women of the United States, and exacts deference in the treatment at home and abroad of the mothers, wives, and daugh ters of the Republic. "The case we are now considering is that of an envoy of the United States, unquestionably fitted, morally and intellectually, and who has been duly accredited to a friendly Government, towards which he is thoroughly well affected; who, in accordance with the laws of this country, has long since contracted and has maintained an honorable mar riage, and whose presence near the foreign Government in question is objected to by its agents on the sole ground that his wedded wife is alleged to entertain a religious faith which is held by very many of the most honored and valued citizens of the United States. "It is not believed by the President that a doctrine and practice so destructive of religious liberty and freedom of conscience, so devoid of catholicity, and so opposed to the spirit of the age in which we live can for a moment be accepted by the great family of civilized nations or be allowed to control their diplomatic intercourse. Certain it is, it will never, in my belief, be accepted by the people of the United States, nor by any Administration which represents their sentiments. "Permit me, therefore, being animated only by the sincerest desire to strengthen the ties of friendship and mutual respect between the Governments we respectively represent, most earnest ly and respectfully to crave careful consideration of this note, and to request your Govern ment to reconsider the views you have communicated to me in respect of the possible reception of Mr. Keiley on the mission of amity, and mutual advantage which, in the amplest good faith, he was selected by this Government to perform. "Into the religious belief of its envoy, or that of any member of his family, neither this Government nor any officer thereof, as I have shown you, has any right or power to inquire, or to apply any test whatever, or to decide such question, and to do so would constitute an infraction of the express letter and an invasion of the pervading spirit of the supreme law of this land. "While thus making reply to the only reason stated by your Govern ment as the cause of its unreadiness to receive Mr. Keiley, permit me 1 also to remark that the President fully recognizes the highly important and undoubted right of every Government to decide for itself whether the individual presented as the envoy of another state is or is not an acceptable person, and, in the exercise of its own high and friendly discretion, to receive or not the person so presented. This right, so freely accorded by the United States to all other nations, its Government would insist upon should an occasion deemed to be proper arise. Mr. Bayard, Sec. of State, to Baron Schaeffer, May 18, 1885. MSS. Notes, Austria. Senate Ex. Doc. No. 4, 49th Cong., 1st sess. "Question has arisen with the Government of Austria-Hungary touching the representation of the United States at Vienna. Having, under my constitutional prerogative, appointed an estimable citizen of unimpeached probity and competence as minister at that court, the Government of Austria-Hungary invited this Government to take cognizance of certain exceptions, based upon allegations against the personal acceptability of Mr. Keiley, the appointed envoy, asking that, in view thereof, the appointment should be withdrawn. The reasons advanced were such as could not be acquiesced in without violation of my oath of office and the precepts of the Constitution, since they necessarily involved a limitation in favor of a foreign Government upon the right of selection by the Executive, and required such an application of a religious test as a qualification for office under the United States as would have resulted in the practical disfranchisement of a large class of our citizens and the abandonment of a vital principle in our Government. The Austro-Hungarian Government finally decided not to receive Mr. Keiley as the envoy of the United States, and that gentleman has since resigned his commission, leaving the post vacant. I have made no new nomination, and the interests of this Government at Vienna are now in the care of the secretary of legation, acting as chargé d'affaires ad interim." President Cleveland, First Annual Message, 1885. VIII. MINISTER MISCONDUCTING HIMSELF MAY BE SENT BACK. § 84. "The representative and executive bodies of France have manifested generally a friendly attachment to this country, have given advantages to our commerce and navigation, and have made overtures for placing these advantages on permanent ground. A decree, however, of the National Assembly, subjecting vessels laden with provisions to be carried into their ports, and making enemy goods lawful prize in the vessel of a friend, contrary to our treaty, though revoked at one time as to the United States, has been since extended to their vessels also, as has been recently stated to us. Representations on this subject will be immediately given in charge to our minister there, and the result shall be communicated to the legislature. |