No. 18.
Mr. Bayard to Mr. Phelps.

No. 1054.]

Sir: I have received your dispatch No. 874, of the 29th of December last, in which you transmit the reply of the Marquis of Salisbury, bearing date the 24th of the same month, to your note of the 4th of December, in relation to the case of Lord Sackville. While I concur in his lordship’s opinion that “the general principles admitted by the practice of nations upon this matter are of more importance than the particular case,” yet before proceeding to consider his lordship’s position thereon, I deem it essential to state to Her Majesty’s Government, more fully than heretofore, the views of this Government in respect to the grounds of Lord Sackville’s dismissal. It is true that the Marquis of Salisbury, in the note to which I have now the honor to reply, has observed that the action of this Government has rendered it no longer necessary for that of Her Majesty to consider the merits of the complaint against Lord Sackville. It is not now, however, and has not been my purpose, in stating to Her Majesty’s Government these reasons, to invite a discussion of their sufficiency. On this subject this Government has entertained no doubt. But it is my desire, in a friendly way, to acquaint Her Majesty’s Government with the views of this Government in regard to the misconduct of their envoy: and this is rendered the more important in the light of certain expressions contained in Lord Salisbury’s note and its inclosure.

The offense of Lord Sackville, as heretofore stated, consisted in what this Government was compelled to regard as his intentional interference in our domestic politics, in assuming by his advice to control the political action of persons who, though formerly his countrymen and fellow-subjects, had renounced their allegiance to the British Government, and, in obtaining naturalization as American citizens, had assumed its duties and sworn to support and bear true faith and allegiance to the Government of the United States alone.

On the 12th of September last Lord Sackville, being then at Beverly, in the State of Massachusetts, received a letter dated September 4 at Pomona, Gal., and signed “Charles F. Murchison,” wherein the writer was described to be a naturalized American citizen of English birth, who yet regarded the interests of “England, the motherland,” as paramount, and made this preference his “apology” for applying to the British minister for counsel as to the course he should pursue to further British interests in the affairs of his adopted country. He stated that many English citizens bad for years refrained from being naturalized, since they thought “no good would accrue from the act;” but that the policy of “Mr. Cleveland’s administration” had been so “favorable and friendly towards England, so kind in not enforcing the retaliatory act passed by Congress, so sound on the free-trade question, and so hostile to the dynamite [Page 1719] school of Ireland, that by the hundreds—yes, by the thousands—they had (have) become naturalized for the express purpose of helping to elect him over again, the one above all of American politicians they consider their own and their country’s best friend.” The writer declared himself to be one of those “unfortunates” who had become so naturalized, and whom “Mr. Cleveland’s message to Congress on the fishery question” had “alarmed” and compelled to “seek further knowledge” before “finally casting their (our) votes for him, as they (we) had intended to do.” “If,” continued the writer, “Cleveland was pursuing a new policy toward Canada temporarily only, and for the sake of obtaining popularity and continuation of his office four years more, but intends to cease his policy when his re election is secured in November and again favor England’s interests, then I should have no further doubts, but go forward and vote for him.” The opposing candidate, Mr. Harrison, was further declared to be “a high-tariff man, a believer on the American side of all questions, and undoubtedly an enemy to British interests generally.” With such statements the writer applied to Lord Sackville for advice, and concluded as follows. “As you are at the fountain-head of knowledge on the question, and know whether Mr. Cleveland’s present policy is temporary only, and whether he will, as soon as he secures another term of four years in the Presidency, suspend it for one of friendship and free-trade, I apply to you, privately and confidentially, for information which shall in turn be treated as entirely secret. Such information would put me at rest myself, and if favorable to Mr. Cleveland would enable me, on my own responsibility, to assure many of our countrymen that they would do England a service by voting for Cleveland and against the Republican system of tariff. As I before observed, we know not what to do, but look for more light on a mysterious subject, which the sooner it comes will better serve true Englishmen in casting their votes.”

Such was the letter addressed to and received by Lord Sackville as the representative of Her Britannic Majesty. Whether it was obviously fraudulent, or a thinly veiled fraudulent scheme, is now a question of minor significance. But whether fictitious and fraudulent or no, there are certain facts indubitably and indelibly stamped upon its face. It declared the writer to be actuated by motives of manifest perfidy to the United States. It grossly impugned and aspersed the motives of the President. It solicited from the official to whom it was addressed an authoritative confirmation or denial of those impugnments and aspersions, upon information which his official relations to this Government were supposed to supply, and thus to abuse the confidence he enjoyed.

To this application Lord Sackville promptly responded, on the 13th of September, that “any political party which openly favored the mother country at the present moment would lose popularity, and that the party in power is fully aware of this fact;” and that in respect to the “questions with Canada, which have been unfortunately re opened since the rejection of the (fisheries) treaty by the Republican majority in the Senate, and by the President’s message to which you allude, allowance must therefore be made for the political situation as regards the Presidential election.” And, to give additional emphasis to his views, he inclosed an extract from a newspaper in which electors were distinctly advised to vote for Mr. Cleveland’s re-election.

It is true that the letter of Lord Sackville was marked “private,” and that his correspondent stated that it would be kept secret. In relation to this the Marquis of Salisbury observes: “Private communications, [Page 1720] made by an ambassador in good faith, have never, I believe, before been made the subject of international complaint.”

The precise force or applicability of this observation in the present case is not perceived. Lord Sackville has stated that his correspondent was unknown to him. The request for his advice could not, therefore, rest upon personal relations of intimacy, duty, or confidence. The sole basis of the appeal for his counsel was declared by the correspondent to be his preference, as a native Englishman, for the interests of England as against those of the United States. On behalf of the “motherland” he made his appeal. His assurance of secrecy was palpably an invitation to the representative of that country to commit an act of impropriety, inconsistent with his duty and wholly outside of the scope of his functions. He plainly informed Lord Sackville that he sought his advice not only in order to determine how to cast his own vote, but also in order to influence the political course of “many of our countrymen” in an election which he averred to be critical; referring, by that designation, to persons who, like himself, had “by the hundreds—yes, by the thousands “—become American citizens with the intent to “favor England’s interests.”

Lord Sackville was thus applied to in unmistakable terms to interfere in the political affairs of the United States, and at a time of intense public feeling, when issues of deep moment were awaiting popular decision. And while the conditions then existing did not create the offense of Lord Sackville, they must be taken into account in estimating its gravity. He was invited to assist his correspondent “and many others “to abuse and betray the privileges of their citizenship at an important election involving the control of the Government itself, not in the interest of that Government, but wholly in the interest of a foreign Government.

The character of Lord Sackville’s act is not altered by the fact that another purpose than the one avowed may have been and probably was contained in the application. Nor am I able to perceive that any diminution of his offense can be argued from the supposition that his reply “would be treated as entirely secret.”

Even as to this assurance of his unknown correspondent, the comment of Lord Sackville, in his interview published in the New York Herald of the 23d of October, is noticeable. “He understood, from what was said in the letter to which he was replying, that his answer would be shown to other people than the recipient.”

The case can not be altered by the consideration that, by reason of a breach of confidence on the part of his correspondent, the minister’s letter did not affect only the class for whom it was professedly sought, but that it was solicited and used to influence another and different class of voters. The fact of the offense must be determined by the principles which it violated, and without respect to any particular direction in which its injurious effects operated. In this aspect of the case, the question is simply whether a foreign diplomatic representative shall assume the function of influencing elections in this country. Such an usurpation is of itself an intolerable offense.

The correspondence now under consideration not only constituted an unprecedented interference in our domestic politics, but it contained gross impugnments of the President’s public action. Hence, had the objectionable conduct of Lord Sackville ended with his reply to the Murchison letter the situation would have been sufficiently serious; but in various statements made by him to representatives of the public press the impugnments of the action of this Government were ernphasized. [Page 1721] In regard to these statements, I shall only say that, as Lord Sackville has in a general way questioned their accuracy, and has excused himself from failing to make any public contradiction or explanation of them on the ground that it could only have led “to unseemly and undignified controversy,” it is greatly to be regretted that his lordship should originally have resorted to such channels of communication in order to comment upon the serious questions raised by the publication of his correspondence. That the situation was rendered more difficult by his lordship’s utterances through the public press is manifest.

I advert, however, to a passage in Lord Sackville’s letter to the Marquis of Salisbury of the 13th of December last, wherein he comments upon your note of the 4th of the same month, saying: “That the statement that no contradiction or explanation of them (his newspaper utterances) had ever been published by me is true, but that all mention of my letter to Mr. Bayard, copy of which was inclosed in my dispatch of the 31st October, is omitted; and in this connection I beg to refer your lordship to my statement forwarded in Mr. Herbert’s dispatch of the 9th November.”

As this forms part of the reply of Lord Salisbury to your note, it should be noticed.

It is true that on the 26th of October, before writing the letter to me of that date, Lord Sackville called upon me and exhibited the Murchison letter. I then drew his attention very seriously to his statements in the Tribune, but, as he states, made no expression of personal resentment towards him. Yet, it is also true that in the most emphatic language I expressed to him my amazement at and reprobation of his conduct and avowed my sense of the gravity of the situation he had created. Personal displeasure was outside the case. His letter to me, as published by him, will be found upon examination, to contain not a denial co-extensive with the offensive language published in the Tribune, but merely a disavowal of intent to offend and of the use of special words attributed to him in other newspapers than the Tribune.

This imperfect denial, which did not meet the language to which his attention had been directed, was contained in a personal note to me, as if the issue was personal in its nature between his lordship and myself; a view which is without justification, and never can be accepted.

It may also be observed that in his explanatory statement of November 8 to his own Government, to which I should not advert if it were not referred to in the inclosure in Lord Salisbury’s note, Lord Sackville continued his impugnments of the President, saying “that party exigencies overruled international comity,” and referring to “telegrams received at the White House,” etc.

I now proceed to consider that part of the Marquis of Salisbury’s note laying down the rule which, in his opinion, governs the dismissal of diplomatic agents.

In your note of December 4, you had stated the position of this Government, as follows:

In asking from Her Majesty’s Government the recall or withdrawal of its minister upon a representation of the general purport of the letter and statement above mentioned, the Government of the United States assumed that such request would be sufficient for that purpose, whatever consideration the reasons for it might afterwards demand or receive.

It was believed that the acceptance or retention of a minister was a question solely to be determined, either with or without the assignment of reasons, by the Government to which he was accredited.

[Page 1722]

Replying to this, the Marquis of Salisbury observes:

Her Majesty’s Government are unable to assent to the view of international usage which you have here expressed. It is, of course, open to any Government, on its own responsibility, suddenly to terminate its diplomatic relations with any other state or with any particular minister of any other state. But it has no claim to demand that the other state shall make itself the instrument of that proceeding, or concur in it, unless that state is satisfied by reasons, duly produced, of the justice of the grounds on which the demand is made.

The principles which govern international relations on this subject appear to Her Majesty’s Government to have been accurately laid down by Lord Palmerston on the occasion of Sir Henry Bulwer’s sudden dismissal from the court of Madrid in 1848:

“The Duke of Sotomayor, in treating of that matter, seems to argue as if every Government was entitled to obtain the recall of any foreign minister, whenever, for reasons of its own, it might wish that he should be removed; but this is a doctrine to which I can by no means assent. It is quite true, as said by the Duke of Sotomayor, that the law of nations and international usage may permit a Government to make such a demand; but the law of nations and international usage also entitle the Government to whom such a request may be preferred to decline to comply with it.

“I did not mean to say that if a foreign Government is able to state to the Government of Her Majesty grave and weighty reasons why the British minister accredited to such Government, should be removed, Her Majesty’s Government would not feel it to be their duty to take such representations into their serious consideration, and to weigh them with all the attention which they might deserve. But it must rest with the British Government in such a case to determine whether there is or is not any just cause of complaint against the British diplomatic agent; and whether the dignity and interests of Great Britain would be best consulted by withdrawing him or by maintaining him at his post.”

The case of Lord Stratford de Redcliffe, then Mr. Stratford Canning, who was rejected without assignment of reasons by the Russian Government, and the acceptance of that decision by Lord Palmerston, might be cited to show that the rule laid down by him a few years later in Sir Henry Bulwer’s case is by no means inflexible, and can be applicable only to that very peculiar case.

The circumstances of that case, briefly stated, are that on the 10th of March, 1848, Lord Palmerston instructed Her Majesty’s representative at Madrid “to recommend earnestly to the Spanish Government, and to the Queen Mother, if you have an opportunity of doing so, the adoption of a legal and constitutional course of government in Spain,” and his lordship concluded his instructions with the following observations:

It would then be wise for the Queen of Spain, in the present critical state of affairs to strengthen the executive government by enlarging the basis upon which the administration is founded, and by calling to her councils some of those men who possess the confidence of the liberal party.

These instructions were duly made known by Sir Henry, then Mr. Bulwer, who, on the 8th of April, 1848, transmitted a copy to the Duke of Sotomayor.

On the 10th of the same month the Duke of Sotomayor returned these communications with bitter and indignant comments, winch I forbear to reproduce, and in regard to which I desire merely to observe that they were expressly directed against “Her Britannic Majesty’s minister for foreign affairs,” and condemned “the unheard-of pretensions of Lord Palmerston thus to mix himself up in the internal affairs of Spain.”

It is true that when the step of summarily dismissing Her Majesty’s minister was shortly afterwards taken, objections to his personal conduct were included in the explanations of the Spanish Government. But in this relation it is pertinent to quote from the letter of Sir H. Bulwer to Lord Palmerston of the 30th of May, 1848, which statements were fully accepted by Her Majesty’s Government:

I did not fly from slander; I was less likely to fly from menace; but a triumph was to be gained in some way or other at my expense, and not at mine individually. Let [Page 1723] this always be remembered: your lordship’s name—and your lordship’s name is in foreign affairs the Government’s name—was continually connected with my own, and through me it was meant to strike at the Government itself.

The account of the episode given in the “Life of Lord Palmerston,” by the Hon. Evelyn Ashley, is as follows:

The “Spanish marriages” have been sufficiently discussed in recent histories to warrant their omission without further notice. General Narvaez had, as will be remembered, caused Sir Henry Bulwer to quit Madrid, and the English Government had been compelled by this open affront to send the Spanish ambassador his passport. I say compelled, because the recall of ambassadors was a form of protest which Lord Palmerston, as a rule, disliked. In a letter to Lord Howden (September 1, 1850) he says: “The rupture of diplomatic relations seems to me one of the worst ways of showing displeasure, unless it is meant to be an immediate forerunner of war. The non-intercourse situation as between two states which have political and commercial interests in common is exceedingly inconvenient to both parties, and probably as much to the one as to the other.” (Vol. I, p. 16, ed. 1876.)

If applied to the case of the dismissal of a minister for misconduct, I hold the position of Lord Palmerston, for reasons already stated, to be obviously unsound. But, in fact, the condition of affairs Lord Palmerston was then discussing did not constitute such a case. The complaint of the Spanish Government was, in fact, against his lordship rather than against his envoy, and in the consequences which ensued Sir EL Bulwer became a vicarious sacrifice for his lordship, which naturally the latter was indisposed to permit. So that the case was, in reality, as stated by Lord Palmerston in his letter to Lord Howden, a suspension of diplomatic intercourse.

The case of Lord Sackville is wholly dissimilar. In the former the objection of Spain was to the action of Lord Palmerston and presumptively of the ministry of Great Britain, of which Sir Henry Bulwer was but the channel of communication, and throughout the entire transaction Sir Henry Bulwer received the entire approval of his lordship.

The offense of Lord Sackville consisted in personal misconduct, wholly inconsistent with his official duty and relations, of which no suggestion of approval by his Government has yet been intimated.

Thus the present issue is not whether it is requisite that a sovereign asking the recall of a foreign minister should give the reasons for the application, but whether, when, as in the present case, such recall has been asked on the ground of interference in the politics of the country to which he is accredited, the question of the culpability or degree of such interference is to be left not to the decision of the offended sovereign but to the determination of the sovereign by whom the offending minister was accredited. It is not understood how the latter view can be held by Her Majesty’s Government to be a principle of the law of nations, for it would be equivalent to saying that, by such law, that Government is entitled to determine how far it will interfere in the politics of foreign states, and what degree of interference by its ministers in the internal affairs of such states it may see proper to sustain. It would be far better to suspend diplomatic relations entirely than to continue them on the basis of such a right of interference in the domestic politics of other states as would appear to be assumed, and under which, if admitted, the independence and dignity of the injured nation would perish.

What I deem to be the true international rule on this subject I find stated under the high authority of Calvo:

When the government near which a diplomatic agent resides thinks fit to dismiss him for conduct considered improper, it is customary to notify the government which accredited him that its representative is no longer acceptable, and to ask for his recall. If the offense committed by the agent is of a grave character, he may be dismissed [Page 1724] without waiting the recall of his own government. The government which asks for the recall may or may not, at its pleasure, communicate the reasons on which it bases its request; but such an explanation can not be required. It is sufficient that the representative is no longer acceptable. In this case international courtesy prescribes his immediate recall; and if, notwithstanding, the other government does not comply with the request, the dismissal of the agent follows as a necessary consequence, it is effected by a simple notification and the sending of his passport. The dismissal of a diplomatic agent for improper conduct, either in his individual capacity or in the discharge of his official duties, is not an act of discourtesy or hostility toward the Government which accredited him, and, consequently, can not be a reason for declaring war. (Int. Law, vol. 3, p. 213, 4th ed., 1888.

The point of time at which this exclusive discretion is to be exercised—whether before the departure of the envoy for his post, or at his entrance upon his duties, or at any period during their continuance—would not apparently affect the claim put forward by the Marquis of Salisbury.

Under the rule adopted by him the receiving government must take whoever may be sent; and, in case by misbehavior the envoy should render himself unacceptable, its rights are to be restricted to a submission of the reasons, which, if “grave and weighty,” would be taken into serious consideration and weighed by Her Majesty’s Government “with all the attention they might deserve.”

To accept such a proposition as a rule of international intercourse would be absolutely inconsistent with national independence. I have, therefore, forborne to cite from Calvo the numerous cases from which he deduces the rule laid down by him.

An envoy is intended to be a confidential intermediary between two governments professing friendly relations, and in reliance upon his good faith the best assurance of continued amity and good understanding will be found.

It can not, therefore, be justly regarded as a cause of international offense to request the recall of an envoy whenever it is discovered that his conduct has been such as to unsettle the confidence of the receiving government; nor for that government to dismiss him whenever, in its judgment circumstances have arisen, owing to his misconduct, which endanger its own safety and welfare or tend to jeopardize the good relations of the two governments.

I renew my expressions of sincere regret that what Lord Salisbury has correctly termed a “personal incident” should have been thought by Her Majesty’s Government in any degree to qualify the harmony of intercourse between two nations, for whose amicable relations none can be more sincerely desirous than the President and those who, together with him, are charged with the administration of the affairs of the Govern merit and people of the United States.

You are authorized to communicate a copy of this paper to Her Majesty’s Government.

I am, sir, your obedient servant,

T. F. Bayard.