Mr. Yeaman to Mr. Seward.
Sir: Referring to the subject of my despatch, No. 70, of the 28th May last, and to your circular of the 29th March last, received at this legation the 30th July last, and to your despatch of the 6th July last, No. 46, I have now to say that recent publications, in both European and American papers, stating that some of the diplomatic servants of the United States had appeared in military uniform, in virtue of the construction given by the department in that circular to the two acts of Congress affecting the subject, have only served to place other members of the diplomatic service in a still more embarrassing position. I have already declined to attend some occasions at which uniforms were worn, (also attending one in citizen’s dress when my absence would have subjected me to unjust criticism, and given rise to false and unjust inferences against my government,) and my absence from fêtes where uniforms are worn, of course gives rise to an explanation. Then when the announcement is made that American diplomats at other capitals wear uniforms, that causes inquiries and observations and gives rise to another explanation; and when that explanation is made the wondering foreigner thinks he has discovered at last that after all we have classes and castes, and that a gentleman who has been in the military service is something more than an American citizen, and that they were mistaken in supposing that a man not actually in the public service was only a private citizen, and that a diplomat was only a diplomat while in that service. [Page 682] Thus in attempting to set ourselves right before the world as a democracy of equal citizens, we have only complicated it and given rise to false conclusions.
With the utmost possible respect and deference, I have to submit that the construction given by those gentlemen who declined to wear any uniform after the passage of the resolution of Congress, and before the receipt of the circular referred to, which is stated to have been their course in the published accounts I have seen, was right; and that the construction given in the circular cannot be maintained. I have not the whole act of 28th July, 1866, before me, which is always necessary for a thorough conclusion, but only the section 34 given in the circular. From that section, nothing else appearing, it would naturally seem to be a sort of honor by brevet conferred upon those who served as volunteers in the civil war, by putting them always thereafter, in some things, as dress and title, upon an equality with regular officers of the army and navy; and that the “occasions of ceremony” referred to are such ceremonies of a naval, military, political and funeral character as occur within the United States, and recognized or directed by the government or some department thereof.
Then turning to the very short resolution of Congress of 27th March last, it would seem that the object of it must have been to prevent our diplomatic agents from doing that which was believed to be inconsistent with our political institutions, and to indicate what would appear most natural for us to do at foreign courts, and if so, the policy of the act applies to all equally, no matter what may have been the past official position at home of some of them.
In this view the words “not previously authorized by Congress “do not mean or refer to what was previously authorized, but to what shall be previously authorized before it is worn. That section 34 did not refer to a diplomatic uniform, nor was thought to confer any privilege in regard to it, would seem to be shown by the fact (as I am informed) that several had worn their military uniforms before the passage of that act, in the exercise of that discretion indicated by Mr. Marcy’s circular, and by virtue of which others wore a non-military uniform. And if section 34 clearly did embrace diplomatic agents’ uniforms and ceremonies, I would still hold that the object and positive character of the resolution of 27th March require that the words “previously authorized” shall be construed to apply to the prohibition from “wearing any uniform,” except such as may hereafter be authorized by Congress if it sees fit to do so; and therefore that to this extent it repeals section 34, rather than refers to it, on the well-known rule of construction that a subsequent act repeals all acts and parts of acts inconsistent with it, though not specially referred to.
Puffendorf, in his chapter on interpretation says: “That which is only permitted gives place to that which is commanded;” and “a law forbidding the doing anything is to be preferred before a law directing the doing anything.” These just and sound rules of construction seem to me exactly applicable to this case.
I cannot too distinctly assure you that I feel not a particle of personal interest or preference in the matter. My first desire was simply to know what the law was, that I might obey it, and now my solicitude is that our government may have a consistent and just policy, and not one which is uselessly and inconveniently open to criticism; and further, that some of the courts of Europe that are sensitive on such points should have no occasion to ask why we appear to show more deference to Paris, St. Petersburg, and one or two others, than we do to themselves.
If Congress agrees with the department in the construction given it ought promptly to amend the law.
I am, sir, very respectfully, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.