TITLE D

THE RIGHTS AND DUTIES OF MINISTERS

1

RIGHT TO PROTECTION

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426. Of Person and Reputation.

Respect for the State which he represents demands that a minister shall at all times enjoy the right to fulfill his diplomatic function without hindrance or molestation. To that end it is essential that his person be afforded complete protection.1 Accordingly, the statutory law of the United States subjects to grave penalties any one who in any manner "offers violence to the person of a public minister, in violation of the law of nations." 2 Pro

1 Declared McKean, C. J., in Respublica v. De Longchamps: "The person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world." 1 Dall. 111, 116, Moore, Dig., IV, 622.

See, also, President Fillmore, second Annual Message, Dec. 2, 1851, Richardson's Messages, V, 118; Ministers Recalled or Not Received, infra, § 439. See Charles Noble Gregory, "The Privileges of Ambassadors and Foreign Ministers", Michigan Law Rev., III, 173.

2 Rev. Stat. § 4062. On Jan. 6, 1915, one E. R. S. was indicted at Tacoma, Washington, for a violation of this statute, for having assaulted and offered violence to the person of Count von Bernstorff, the Imperial German Ambassador to the United States. To this indictment the defendant pleaded guilty, Jan. 15, 1915, and was sentenced without further proceedings. There was no written or published opinion in the case. For the facts concerning it, the author is indebted to Hon. Edward E. Cushman, U. S. District Judge, Western District of Washington, before whom the case arose. See, also, United States v. Ortega, 11 Wheat. 467.

See Arts. Ia and Ib of final protocol of agreement between China and the Powers, Sept. 7, 1901, respecting the appointment of Prince Tschun as Ambassador to convey to the Emperor of Germany an expression of regret for the assassination of Baron von Ketteler, the German Minister to China, in 1900, and the erection on the spot of the assassination of a commemorative monument worthy of the rank of the deceased, For. Rel. 1901, Append. 313, Moore, Dig., V, 518. Respecting the expiatory mission of Prince Tschun, see For. Rel. 1901, 187.

See For. Rel. 1912, 268-276, concerning an assault upon Mr. Gibson, American Chargé d'Affaires at Habana, Aug. 27, 1912, and the prosecution and conviction of the offender.

ceedings against the aggressor must be instituted on complaint under oath of the person assaulted, or of a witness to the assault.1

A foreign minister is entitled to the same degree of protection for his reputation as for his person, and for like reasons. Hence it behooves the State to which he is accredited to shield him from insult as well as personal violence, and to prosecute with vigor him who attempts to defame him.2

According to the existing law, whoever within the jurisdiction of the United States falsely assumes or pretends to be a diplomatic or consular (or other) official of a foreign government, duly accredited as such to the Government of the United States, with intent to defraud such Government or any person, and takes upon himself to act as such, or in such pretended character demands or obtains, or attempts to obtain from any person or from such foreign government or from any officer thereof, any money, paper, document or other thing of value, subjects himself to fine or imprisonment, or both.3

b

427. Of Domicile and Property.

All the reasons which establish the independence and inviolability of the person of a minister, apply likewise to secure the immunities of his house. It is to be defended from all outrage; it is under a peculiar protection of the laws; to invade its freedom is a crime. against the State and all other nations.1

An attack upon the house of a minister is equivalent to an attack upon his person.5 Prior to or simultaneously with the outbreak of war, when the public mind is inflamed against a foreign State which is generally regarded as a probable enemy, it becomes necessary to take special precautions to guard the legation or embassy

1 Mr. Frelinghuysen, Secy. of State, to Mr. Preston, Haitian Minister, July 10, 1883, MS. Notes to Haiti, I, 301, Moore, Dig., IV, 625.

2 Opinion of Mr. Bradford, Atty.-Gen., 1 Ops. Attys.-Gen., 52, Moore, Dig., IV, 629; opinion of Mr. Lee, Atty.-Gen., 1 Ops. Attys.-Gen., 71, Moore, Dig., IV, 630; Count Vinci, Italian Chargé, to Mr. Hay, Secy. of State, June 20, 1899, For. Rel. 1899, 413, Moore, Dig., IV, 630.

3 Act of June 15, 1917, Chap. 30, Title VIII, § 2, 40 Stat. 226.

The language of the paragraph in the text is that of McKean, C. J., in Respublica v. De Longchamps, 1 Dall. 111, 117.

5 United States v. Hand, 2 Wash. C. C. 435, Moore, Dig., IV, 627, respecting an attack upon the house of the Russian Chargé in Philadelphia in 1810, and the indictment of a participant for assault upon the Chargé. See, also, Mr. Madison, Secy. of State, to Governor McKean, May 11, 1802, 14 MS. Dom. Let. 18, Moore, Dig., IV, 627.

of that State from outrage. If it is subjected to violence, the duty of the territorial sovereign to make apology seems obvious.1

2

RIGHT OF OFFICIAL COMMUNICATION

$428. In General.

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For the proper discharge of his duties and hence as a necessary incident of the right of legation, a diplomatic officer is entitled to correspond freely with his own government or with officials thereof in the State to which he is accredited.2 To that end he may avail himself of the usual modes of communication, such as the telegraph,3 or the mails or personal messengers. Howsoever transmitted, his communications when so desired may be in cipher. In time of war a belligerent State may, however, not unreasonably restrict the use of cipher by a foreign diplomatic officer to messages passing between his mission and his government.6

The Department of State has asserted that the right of correspondence should be available to an American diplomatic officer at his post in a State engaged in war to which the United States is not a party, and that, whether he is in a besieged place, or in one

1 Sir E. Goschen, British Ambassador in Berlin, to Sir Edward Grey, Secretary of State for Foreign Affairs, Aug. 8, 1914, with respect to the mob violence directed against the British Embassy at Berlin, Aug. 4, 1914, and indicating the assurances of regret expressed by Herr von Jagow, German Secretary for Foreign Affairs, at what had occurred. Misc. No. 8 (1914), Cd. 7445.

2 Mr. Fish, Secy. of State, to Baron Gerolt, Nov. 21, 1870, For. Rel. 1870, 196, Moore, Dig., IV, 699; Mr. Bayard, Secy. of State, to Mr. Peralta, Salvadorean Minister, April 25, 1885, MS. Notes to Costa Rica, II, 34, Moore, Dig., IV, 701; Mr. Hay, Secy. of State, to Mr. Goodnow, Consul at Shanghai, telegram, Aug. 1, 1900, For. Rel. 1900, 260, Moore, Dig., IV, 703.

3 Mr. Hay, Secy. of State, to Mr. Merry, Minister to Nicaragua, May 6, 1899, For. Rel. 1899, 579, Moore, Dig., IV, 703.

Declared Mr. Seward, Secy. of State, in a communication to Mr. Burton, Minister to Colombia, No. 1, May 29, 1861: "The right to send despatches of a minister, secured by the law of nations, certainly involves the right to designate the messenger and the inviolability of his person when executing the commission." MS. Inst. Colombia, XVI, 1, Moore, Dig., IV., 695.

'Mr. Fish, Secy. of State, to Mr. Bancroft, Minister to Prussia, No. 264, Nov. 11, 1870, For. Rel. 1870, 195, Moore, Dig., IV, 697.

Mr. W. H. Page, American Ambassador to Great Britain, to Secy. of State, telegram, Aug. 27, 1914, American White Book, European War, II, 72; Same to Same, Dec. 29, 1914, id., II, 86; Acting Secy. of State, to Mr. Reinsch, American Minister to China, telegram, Jan. 2, 1915, id., II, 86.

See discussion between the United States and the North German Union

rendered generally inaccessible by blockade. A minister should, however, under such circumstances have unfailing regard for the safety of the State of his residence. He should be scrupulous to ascertain that in the exercise of his rights, he is not also unwittingly opening a forbidden and unlawful channel of communication to outsiders. Persistent abuse of his privileges would justify their curtailment.4

Incidental to the right of official communication between a State and its representatives abroad, is the right to demand the inviolability of official correspondence.5 The United States, when itself a belligerent as well as when a neutral, has steadfastly urged recognition of this principle. In November, 1914, the Department of State initiated a proposal for the establishment of uniform regulations for the transmission of correspondence of American diplomatic and consular officers in belligerent territory. The plan, which proved acceptable to Austria-Hungary as well as to certain other Powers then at war, provided in part that official correspondence under seal of office between the Department and such officers should not be molested."

respecting the correspondence of Mr. Washburne, American Minister at Paris, during the siege of that city in 1870, Moore, Dig., IV, 696-699. See, also, For. Rel. 1900, 259-264, respecting communication with the American Minister at Peking during the siege of the legations in that city in 1900, Moore, Dig., IV, 703-704.

Mr. Fish, Secy. of State, to Mr. Kirk, No. 3, June 17, 1869, MS. Inst. Argentine Republic, XV, 317, Moore, Dig., IV, 696.

2 Mr. Seward, Secy. of State, to Mr. Burton, Minister to Colombia, No. 1, May 29, 1861, MS. Inst. Colombia, XVI, 1, Moore, Dig., IV, 695.

See, for example, Count Bismarck to Mr. Washburne, American Min

ister at Paris, Jan. 28, 1871, For. Rel. 1871, 136, Moore, Dig., IV, 699.

4 This was virtually admitted by Mr. Fish, Secy. of State, in a communication to Mr. Bancroft, Minister to Prussia, No. 264, Nov. 11, 1870, For. Rel. 1870, 195, Moore, Dig., IV, 697-698.

With respect to the impropriety of conduct on the part of the Swedish Legation at Buenos Aires in sending, in 1917, as its own official messages addressed to its own Government, secret despatches of the German Chargé d'Affaires at Buenos Aires for transmission to his Government, and pertaining to the ruthless policy of Germany as a belligerent with respect to submarine warfare, see David Jayne Hill, "The Luxburg Secret Correspondence", Am. J., XII, 135.

5 Mr. Seward, Secy. of State, to Lord Lyons, British Minister, April 5, 1862, Dip. Cor. 1862, 258, 259, Moore, Dig., IV, 712; Mr. Quincy, Acting Secy. of State, to Mr. Thompson, No. 56, March 25, 1893, For. Rel. 1893, 623; Mr. Gresham, Secy. of State, to Mr. Thompson, Minister to Turkey, No. 54, March 17, 1893, id., 620, Moore, Dig., IV, 712.

Instructions issued by the Secy. of the Navy, Aug. 18, 1862, to American Naval Officers, Moore, Dig., IV, 712. These instructions were attached as Appendix I to a communication of Mr. Lansing, Secy. of State, to Mr. W. H. Page, Ambassador to Great Britain, Oct. 21, 1915, American White Book, European War, III, 25, 38.

Concerning the details of the arrangement, see Consuls, Correspondence with Governmental Agencies of the Consul's State, infra, § 468.

DISPLAY OF NATIONAL FLAG

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§ 429. Couriers and Bearers of Despatches.

[§ 430

A government, or its ministers abroad, may employ couriers or bearers of despatches for the transmission of official correspondence.1 American diplomatic representatives are permitted to do so in case the mails are obstructed, or by reason of other urgent necessity.2 Individuals so employed are declared to be privileged persons, as far as it is necessary for their particular service, whether in the State to which the diplomatic representative is accredited, or in the territories of a third State with which the government they serve is at peace. They are immune from arrest. Under normal circumstances the right of a diplomatic officer to choose a person to act as a bearer of despatches is doubtless unlimited.5 In time of war, however, a diplomatic officer representing a belligerent power in a neutral State would subject himself to grave criticism should he employ as a secret bearer of official despatches through the lines of the enemy, a national of that State and one protected by its passport."

3

MISCELLANEOUS PRIVILEGES

a

§ 430. Display of National Flag.

The right of a public minister to display the flag of his country from his official residence would probably not be challenged at

1 Mr. Gresham, Secy. of State, to Mr. Thompson, telegram, April 1, 1893, For. Rel. 1893, 624, Moore, Dig., IV, 713; Mr. Bryan, Secy. of State, to Mr. Penfield, Ambassador to Austria-Hungary, Nov. 25, 1914, American White Book, European War, II, 67.

2 Instructions to Diplomatic Officers of the United States (1897), § 132. Also id., §§ 130 and 131.

3 Id., § 57. § 133 declares that: "When a bearer of despatches is employed as above, a special passport may be given to him by the diplomatic representative, setting forth his name and the duty he is to perform. Such a passport is to be furnished without charge and is only good for the journey for which it is issued."

Dana's Wheaton, § 243, Moore, Dig., IV, 713; Mr. Fish, Secy. of State, to Mr. Brent, Oct. 19, 1870, citing Calvo, 1868 ed., paragraph 240, page 350, For. Rel. 1870, 519, Moore, Dig., IV, 714; Oppenheim, 2 ed. 1, § 405.

Mr. Fish, Secy. of State, to Mr. Freyre, Dec. 17, 1870, MS. Notes to Peru, I, 411, in which it was said, "No appointment in a foreign country of a person as courier under arrest, or liable to arrest, would be approved by this Department, especially if such appointment was in any way intended to screen the appointee from his liabilities under the municipal law." Moore, Dig., IV, 715, 716.

Mr. Lansing, Secy. of State, to Mr. Penfield, American Ambassador to