From Charles Darling to the Duke of Newcastle   22 February 1864

Government Offices,

Melbourne,

22 February 18641

My Lord Duke,

I have the honour to transmit herewith a letter with accompanying Documents, addressed to me by Dr. Ferdinand Mueller, intimating that in addition to Decorations and Distinctions previously offered to him by the Emperor of the French and the King of Denmark, the Emperor of Austria has been pleased to confer upon him the dignity of a Knight of the Order of Francis Joseph. This dignity has been conferred, as appears by Count Apponyi's communication to Dr. Mueller, 2 in acknowledgement of that Gentleman's "scientific merits".

2. I have duly made known to Dr. Mueller the contents of your Grace's Despatch, No. 31 of the 24 October, 1863, 3 and furnished him with a Copy of the regulations respecting Foreign Orders and Medals enclosed therewith. 4

3. The Second of those Regulations appears to be conclusive against the acceptance, by a subject of her Majesty, of an Order from the Sovereign of a Foreign Country conferred upon the ground of scientific eminence alone 5 — but I think that I ought to mention to your Grace, that Dr Mueller is strongly under the impression that a relaxation of the strictness of the Rule has been permitted in more than one instance, and cites the case of Sir William Hooker as one n which the acceptance of the Legion of Honor as been allowed by Her Majesty. The only books of reference on the subject at present within my reach certainly describe Sir William Hooker as Knight of the Legion of Honor; but are not definite as that distinction having been assigned to him under Her Majesty's sanction. I perceive too, that the honor is said to have been granted in 1855; and it is possible therefore, that it was accepted before the restrictive Regulations referred to, which bear date upon the 10th May in that year, came into force. 6

4. I would beg however, to request the reconsideration, by Her Majesty's Government, of Dr. Mueller's case, upon grounds which have been suggested to me by the recent receipt of your Grace's Circular Despatch of the 28th July, last. 7

5. In that Despatch your Grace pointed out that the general Rule is that the effect of Naturalization in a Colony is "confined exclusively to the Colony, in which the alien may reside, and that when such Aliens pass beyond the limits of that Colony, they lose all claim to be considered for any purpose what ever, as British Subjects"— in reply to your Grace's Despatch, I transmitted a form of the Certificate of Naturalization granted in this Colony, and reported from the terms of that document, it is in strict accordance with the general principle referred to. 8

6. Your Grace will be aware, from my predecessors Despatches, that Dr. Mueller is a natural born subject of the King of Denmark. He has taken out letters of naturalization only in this Colony, and in the adjoining province of South Australia—consequently in every other part of the British Dominions, he possesses no "claim to be considered for any purpose whatever as a British subject "

7. It can scarcely therefore, I am led to suppose, be an erroneous inference that Dr. Mueller would not be precluded from wearing the Insignia of a Foreign Order in any part of the British Dominions, (or indeed throughout the world,) except in the Territories of Victoria and South Australia, wherein alone he is a British Subject; and I would beg to submit whether this very limited disability as to wearing the Insignia of a Foreign Order, can equitably be regarded as an insuperable objection to its acceptance—without which acceptance he would be unable to wear the Insignia even in those Countries where such a course would not be prohibited by the fact od possessing the rights of a British Subject; and if it be considered that such disability is in itself, under the circumstances stated, a hardship, then I would suggest for consideration, whether the Regulations do in fact rigidly apply to a case in which the conferee of the Foreign Order is only, so far as Territory is considered, partially a subject of the British Crown.

8. Arising out of this view is the further question whether the Deck od a Foreign Man of War, or indeed of any other Foreign Vessel, may not for the purposes of wearing a foreign decoration at least, be regarded as Foreign Territory—the question may appear in itself very insignificant; but Your Grace will readily understand, that it is precisely upon occasions of the visits of Foreign Ships of war, or Vessels engaged in discovery and scientific exploration, and of the "Reunions" which take place on board of them, that distinctions and their insignia conferred for scientific merit, acquire for the moment at least, additional value and importance.

9. In again bringing this subject under Your Grace's notice, I cannot too distinctly state that Dr. Mueller values his position as a British Subject, limited as its privileges are to the Colonies of South Australia and Victoria, too highly to entertain the slightest wish that these privileges should be, in any degree, impaired in order to accept the Orders with which the Austrian and French Emperors, and the King of Denmark have proposed to distinguish the services he has rendered to science; however desirous he may be to accept those distinctions if he can do so without forfeiting the advantages of British Colonial Citizenship in the Dependencies referred to.

I have the honor to be,

My Lord Duke,

Your Grace's most obedient, humble, Servant

C H Darling 9

Date stamped: Received 18 April 1864.
See R. Apponyi to M, 4 August 1863 (in this edition as 63-08-04a).
There is a marginal annotation against this point:
.
The regulations had been revised in 1855, to remove the fees charged to approve a request, amounting to £37/10/0, that were considered to discriminate against ordinary soldiers offered decorations for actions in the war with Russia, including the Crimea (National Archives, London, HO 45/8830). The regulations were published in the London gazette, 11 May 1855, p. 1824, and remained in force, being included in The Queen's Regulations and the Admiralty Instructions for the Government of Her Majesty's Naval Service, 1862(see Ceremonies and Distinctions, FO 881/1099).

Regulation 2 stated:

Such permission shall not be granted to any Subject of Her Majesty, unless the Foreign Order shall have been conferred in consequence of active and distinguished Service before the Enemy, either at Sea or in the Field; or unless he shall have been actually and entirely employed, beyond Her Majesty's dominions, in the Service of the Foreign Sovereign by whom the Order is conferred.

Regulation 3, which was cited as a reason that the Foreign Office could not entertain M's request to accept the French Legion of Honour (see M to H. Barkly, 23 March 1863 [in this edition as 63-03-23d], note 3) stated

The intention of a Foreign Sovereign to confer upon a British Subject the Insignia of a Order must be notified to Her Majesty's Principal Secretary of State for Foreign Affairs, either through the British Minister accredited at the Court of such Foreign Sovereign, or through His Minister accredited at the Court of Her Majesty.

During the preparation of the revised regulation the case of an application by a Mr York, who had applied for permission to accept the French Legion of Honour, was the basis of a memorandum of 20 April 1855 considering the need to limit the conditions under which acceptance of foreign Orders could be approved. York is reported to have said that the Order had been conferred upon him 'by the Emperor in approbation of the manner in which, as contractor, he has directed & completed the works of the "Palais de l'Industrie"'. The author of the memorandum argued that such work was not in the '"actual employment in the service of a foreign Sovereign". If this were the case, we should have all the English Railway Engineers & contractors covered with Foreign orders. Even a tradesman who made an article for a Foreign Sovereign would come within such an interpretation' (FO 83/688).

After the Regulations were gazetted, a circular was issued by the Foreign Office, enclosing a copy of the regulations and stating that 'I have to desire that you will take these Regulations for your guidance … The conditions therein prescribed will be strictly and impartially enforced; and one principal object in communicating them to you is that you may be enabled to discourage applications in cases which are not admissible. Her Majesty's Government will be compelled to refuse such applications if made, and they would be glad to be spared the necessity of doing so' (FO 83/688).

Requests such as M's were, however, regularly made from many Colonies, and the Colonial Office later issued a circular pointing out that ‘British Subjects are not entitled to wear such Decorations without Her Majesty’s special permission, and that such permission is only granted in cases where the Foreign Order shall have been conferred in consequence of active and distinguished service which had been performed before the enemy, either at Sea or in the Field; or in cases in which the Recipient shall have been actually and entirely employed beyond Her Majesty’s Dominions, in the service of the Foreign Sovereign by whom the Order is conferred’ (Circular, 5 September 1867, CO 854/8).

The status of the regulation was controversial, in Britain as well as in the colonies. It was interpreted by some as having no legal force except for staff of the Foreign Office, but the Monarch’s prerogative to stipulate what may be worn at Court was rarely disputed; see Lucas (2013a), especially p. 21).

Foreign governments also attempted to analyse the regulation as written to understand the distinction between a foreigner requiring permission to wear the insignia of an Order, but apparently not being prohibited from accepting its conferral; see L. Turban to Friedrich I of Baden, 30 September 1879 (in this edition as M79-09-30).

See note 9 below.
A copy of the despatch is in the National Archives, London, CO 854/7.

The circular also stated that in order that the limitation of the citizenship granted 'be distinctly understood by the persons naturalized, it is advisable that all Certificates of Colonial Naturalization should bear on their face an unequivocal announcement of their purely local character'.

For these terms of naturalization, which were in force when M took the oath of allegiance in Victoria on 29 October 1857, see n. 2 to M to H. Barkly, 9 September 1857.

The back of ff. 80 and 79 are annotated by an official:

Sir F Rogers

A copy of this must be sent to the Foreign Office for consideration & decision. But it would be an odd state of things if Dr. Mueller shd. be allowed to wear his decorations at Sydney & Brisbane, but be obliged to take them off when he was at Melbourne & Adelaide [illegible initials] 23/4.

A response is written below this minute on the back of f. 79:

It seems to me that people must submit to rules. If Dr, M is not a British Subject he does not require H.M. permission to wear orders—if he is he cannot have it. To F.O requesting to be informed what ans. shd. be returned. FH 24/4.

The Foreign Office's response (9 May 1864, the National Archive, CO 309/70, f. 98, p. 2) stated that

a foreigner, whether naturalized as a British Subject, or employed in the British Service, for the Royal Permission to accept and wear a foreign Decoration, must be governed by the same rules which would govern the case of a British Subject — Dr. Müller's case does not fall within those Rules, either as to the nature of his services, or to the Channel through which the application on his behalf has been received.

The response concluded 'Lord Russell desires me to add that Dr. Müller is entirely mistaken in supposing that the Rules in question have been relaxed in favour of Sir William Hooker or any other person'. However, in the list of those appointed to the Legion of Honour 'in consideration of services rendered as members of the International Jury' of the Paris Exposition, Hooker's name is included as a Knight, for 'important services rendered to natural Sciences' (Spectator, 17 November 1855, p. 1182).

Please cite as “FVM-M64-02-22,” in Correspondence of Ferdinand von Mueller, edited by R.W. Home, Thomas A. Darragh, A.M. Lucas, Sara Maroske, D.M. Sinkora, J.H. Voigt and Monika Wells accessed on 28 November 2022, https://epsilon.ac.uk/view/vonmueller/letters/M64-02-22