NATIONALS OF BELLIGERENT STATES [$ 450

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§ 450. Nationals of Belligerent States.

When by reason of war diplomatic relations between two States are terminated, the minister of a third State is commonly called upon to protect the interests of nationals of the one belligerent within the domain of that other to which he is accredited.1 An American diplomatic officer, when accepting such a function, acts unofficially. His duties call for the exercise of sound judgment, personal courage, and the utmost care to avoid the danger of weakening the neutral relationship of his own country towards either belligerent.2 He may be burdened with the task of securing permission for and otherwise facilitating the departure of belligerent nationals from the territory belonging to the State of his sojourn. He may render assistance also to their departing minister and his staff in quitting the country.1

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On such occasions there is also entrusted to the officer protection of the archives and other property of the belligerent State whose nationals are placed within his care. It may request him to display his national flag over the building of its embassy or legation, should the necessity or desirability of the display of such an emblem become apparent. A minister whose good offices of certain claims of Italian subjects, see Mr. Fish, Secy. of State, to Baron Blanc, Feb. 1, 1876, MS. Notes to Italy, VII, 281, Moore, Dig., IV, 591.

1 Upon the severing of diplomatic relations, even though war does not ensue, the good offices of the minister of a third State are similarly invoked. See, for example, the course followed by the United States in 1908, upon the termination of its diplomatic relations with Venezuela, For. Rel. 1908, 820– 830.

2 Mr. Gresham, Secy. of State, to Mr. Denby, Jr., Chargé at Peking, Aug. 29, 1894, For. Rel. 1894, 106, Moore, Dig., IV, 601.

Respecting the case of Japanese spies in China during the Chino-Japanese War in 1894, see documents in Moore, Dig., IV, 606-611, especially Mr. Gresham, Secy. of State, to Mr. Denby, Jr., Chargé in China, Oct. 30, 1894, For. Rel. 1894, 119.

3 Respecting the protection by the American Ambassador in Russia of Japanese interests in that Empire during the Russo-Japanese War, see For. Rel. 1904, 430–436, 714-722; id., 1905, 830.

4 Sir E. Goschen, British Ambassador at Berlin, to Sir Edward Grey, British Foreign Secretary, Aug. 8, 1914, regarding the assistance rendered the latter by his American colleague Mr. Gerard, upon the outbreak of the war in 1914, Misc. No. 8 (1914), Cd. 7445. See, also, Sir L. Mallet, British Ambassador at Constantinople, to Sir Edward Grey, British Foreign Secretary, Nov. 20, 1914, respecting the assistance rendered the latter by his American colleague, Mr. Morgenthau, Misc., No. 14 (1914), Cd. 7716.

5 See, for example, M. Cambon, French Ambassador at Washington, to Mr. Sherman, Secy. of State, April 22, 1898, respecting the protection of Spanish interests in the United States, by the French Ambassador and the Austro-Hungarian Minister during the Spanish-American War, For. Rel. 1898, 785, Moore, Dig., IV, 612.

Mr. Adee, Acting Secy. of State, to Mr. Nabuco, Brazilian Ambassador at Washington, July 10, 1908, For. Rel. 1908, 826.

are so invoked by a belligerent government may also be clothed by it with special authority to conclude in its behalf a protocol of peace. So long as a state of war continues, notwithstanding a suspension of hostilities, the belligerent State to which the minister of a neutral is accredited, may, with reason, deem it preferable that diplomatic communications with the enemy continue to be made through him rather than through a consular officer of the enemy acting as an unofficial agent.2

While it remained a neutral in the course of The World War, heavy burdens were imposed upon American diplomatic officers accredited to belligerent powers. The endeavor to safeguard and watch over the interests of nationals of belligerents at war with Germany and her allies was scrupulously and vigorously undertaken; and if American officers failed on occasion to effect restraint of ruthless conduct, the United States experienced as a nation satisfaction in the sense that the trust confided to its representatives was, in the estimation of the States which imposed it, faithfully performed.

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Miscellaneous Restrictions Imposed upon a Minister by His Own State

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§ 451. Residence and Continuance of Mission.

In numerous ways a State may restrict the conduct of its diplomatic officers for the purpose of preserving and increasing their usefulness. Its regulations may be designed both to subserve domestic policies and to facilitate the performance of obligations due to foreign States. Thus, a minister of the United States is obliged to reside at the capital of the country to which he is accredited. The statutory law declares that no diplomatic (or

"On August 12, 1898, there was signed by the Secretary of State on behalf of the United States and by the Ambassador of France at Washington on behalf of Spain a Protocol of Agreement preliminary to the final establishment of peace between the United States and Spain.' For. Rel. 1898, 800. 2 Mr. Moore, Acting Secy. of State, to M. Cambon, French Ambassador, Aug. 19, 1898, For. Rel. 1898, 803, Moore, Dig., IV, 613.

3 See, in this connection, James W. Gerard, My Four Years in Germany, New York, 1917, especially Chap. X (concerning prisoners of war); Hugh Gibson, A Journal from Our Legation in Belgium, New York, 1917 (especially 344-360, in relation to Miss Edith Cavell); Brand Whitlock, Belgium: A Personal Narrative, New York, 1919, I, 370–379, II, 81-110 (in relation to Miss Cavell).

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SPEECHES [§ 452

consular) officer shall receive salary for the time during which he may be absent from his post, by leave or otherwise, beyond the term of sixty days in any one year.1

While reliance is placed upon his judgment and discretion regarding the course to follow in case he is apprehensive of danger to his person, a minister is not expected to quit the country to which he is accredited "without the most unequivocal necessity." 2 Nor is he permitted to break off diplomatic relations maintained through his mission without the authority of his government, except possibly when subjected to grave personal indignity, and that under circumstances when he can reasonably assume that the United States will approve of his conduct.3 At the present time the ability of an American minister, under almost all circumstances, to communicate speedily with the Department of State by telegraph, obviates the necessity of his taking such summary action without specific instructions.

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§ 452. Non-Interference in Politics. Speeches. Presents. It has been said that the "plain duty of the diplomatic agents of the United States is scrupulously to abstain from interfering in the domestic policies of the countries where they reside." 4

1 Rev. Stat. § 1742, where it is added that "the time equal to that usually occupied in going to and from the United States in case of the return, on leave, of such diplomatic or consular officer to the United States may be allowed in addition to such sixty days."

See, also, Instructions to the Diplomatic and Consular Officers of the United States (1897), § 266. It is here announced that a minister is not regarded as being absent from his post, if, during periods of the year when, for example, the principal members of the government are absent from the capital, he makes a temporary residence in some other place within the State to which he is accredited, provided he keeps the office of his mission open as usual for the transaction of business by a secretary thereof, and fixes his temporary residence at a place from which he can visit the office without delay and can be reached by telegraph.

Also Mr. Bayard, Secy. of State, to Mr. Seay, Minister to Bolivia, No. 23, Jan. 21, 1887, For. Rel. 1887, 46, Moore, Dig., IV, 563; Mr. Adee, Acting Secy. of State, to Mr. Baker, Minister at Nicaragua, Sept. 7, 1893, For. Rel. 1893, 213, Moore, Dig., IV, 564.

2 Mr. Randolph, Secy. of State, to Mr. Adams, Minister to the Netherlands, Feb. 27, 1795, MS. Inst. U. S. Ministers, II, 323, Moore, Dig., IV, 565.

Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 8, 1856, MS. Inst. Austria, I, 117, Moore, Dig., IV, 565.

4 Communication of Mr. Buchanan, Secy. of State, to Mr. Shields, Aug. 7, 1848, MS. Inst. Venezuela, I, 73, Moore, Dig., IV, 573; see, also, Mr. Fish, Secy. of State, to Mr. Curtin, Minister to Russia, Nov. 16, 1871, Senate Ex. Doc. No. 5, 42 Cong., 2 Sess., 12.

"It is forbidden to diplomatic officers to participate in any manner in the political concerns of the country of their residence." Instructions to the Diplomatic Officers of the United States (1897), § 68.

The failure to respect this obligation has led to the recall or censure of American diplomatic officers; and neglect in this regard has led to the dismissal or recall of ministers accredited to the United States. If legislative or other action proposed by the State of his sojourn is deemed to be hostile to the rights of his own country, objections on the part of the minister should be confined to appropriate representations to the Secretary of State or Minister for Foreign Affairs.3

A minister may be in fact instructed by his government to participate to a degree in political affairs; and American diplomatic officers have at times been the recipients of instructions in such a sense. In such a situation the impropriety, if any, of the course of action which the minister obediently pursues is to be attributed to his government rather than to himself. The cir

1 Case of Mr. Schuyler, Moore, Dig., IV, 573-574, and documents there cited.

Rev. Stat. § 1751 prohibits an American diplomatic or consular officer, without the consent of the Secretary of State previously obtained, from recommending any person, at home or abroad, for any employment of trust or profit under the government of the country in which the officer is located. Also Instructions to the Diplomatic Officers of the United States, § 70, and in this connection the Case of the American Minister to Bolivia in 1894, For. Rel. 1894, 54-56.

Request for Recall, Dismissal, supra, § 424.

Secretary of State as Organ of Correspondence, supra, § 410.

In a communication to Mr. Beaupré, American Minister to Colombia, June 2, 1903, regarding the ratification by Colombia of a convention in relation to the Panama Canal, Mr. Hay, Secy. of State, declared in part: "You should, when the time seems opportune, in so far as you discreetly and properly may, exert your influence in favor of ratification. It is also expected that you will know what hostile influences, if any, are at work against the ratification of the treaty, and whether or not there is opposition to it from European sources. The situation is seemingly a grave one, but the Department has confidence that you will rise to the full measure of its requirements." For. Rel. 1903, 146. Also Same to Same, telegram, June 9, 1903, id., 146.

"That a government will resent attacks made upon its minister on account of his faithful execution of his instructions, see Mr. Hay, Secy. of State, to Señor Blanco, March 23, 1901, MS. Notes to Venezuelan Legation, II, 53." Moore, Dig., IV, 536.

The abrupt dismissal of Mr. Russell, American Minister at Caracas, by a note of the Venezuelan Minister for Foreign Affairs, Jan. 28, 1877, was resented by Mr. Evarts, Secy. of State, inasmuch as such action was without explanation and not preceded by any request for the recall of the Minister. Mr. Evarts announced to the Venezuelan Minister at Washington that unless a satisfactory explanation were forthcoming, "the dignity of this Government will require that your relations with it shall also terminate, and your passports will be sent to you accordingly." The note of dismissal was withdrawn and cancelled. Later Mr. Russell being advised through official channels that he was persona non grata at Caracas, resigned. It was the substance of an official despatch from Mr. Russell to the Secretary of State, later communicated to the House of Representatives in response to a resolution, and duly printed, that gave offense to the Venezuelan Government. The publication of matter necessary for Mr. Russell to communicate to the Department of State, and yet which if known at Caracas was calculated to render the writer thereafter unacceptable, rather than any impropriety of

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cumstance, however, that his action is the faithful execution of a specific instruction rather than a personal indiscretion neither authorized nor sought to be condoned, may be carefully concealed; and if it is, the minister bears the brunt of the charge of wrongdoing.

Public utterances by its own ministers have oftentimes been a source of embarrassment to the United States. Hence its present instructions wisely prohibit public addresses by American diplomatic officers save on exceptional festive occasions in the country of official residence. Upon such occasions any reference to political issues pending in the United States or elsewhere is to be carefully avoided by the speaker.1 Public expressions of opinion upon local political or other questions arising within the State of sojourn are expressly enjoined.2

The statutory law of the United States forbids a diplomatic (as well as consular) officer to correspond in regard to the public affairs of any foreign government with any private person, newspaper or other periodical, or otherwise than with the proper officers of the United States.3

The same law forbids American diplomatic officers from asking or accepting from any foreign government, for themselves or other persons, any present, emolument, pecuniary favor, office or title of any kind. Consequently the previous authority of Congress conduct on his part, served to end his usefulness as a diplomatic representative in Venezuela. Documents in Moore, Dig., IV, 535-537, and statement based thereon.

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1 Instructions to Diplomatic Officers of the United States (1897), § 69. See speeches of Mr. Bayard, Ambassador to Great Britain, in 1895, which resulted in a resolution of censure by the House of Representatives the following year. For. Rel. 1895, I, 581, Moore, Dig., IV, 575.

2 Instructions to the Diplomatic Officers of the United States (1897), § 68. 3 Act of June 17, 1874, Chap. 294, 18 Stat. 77, U. S. Comp. Stat. 1918, § 3199.

Id.; also Instructions to Diplomatic Officers of the United States (1897), $70. See the requirements of the Constitution, contained in Art. I, Section 9, paragraph 8, to the effect that "No person holding any office of profit or trust "under the United States, "shall, without the consent of the Congress, accept any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state."

See Act of July 9, 1918, Chap. 143, 40 Stat. 845, 872, permitting all members of the military forces of the United States serving in the then existing war to accept within a specified period, from the government of any of the countries engaged in war with any country with which the United States was or should be concurrently likewise engaged in war, such decorations, when tendered, as were conferred by such government upon the members of its own military forces.

Also Act of March 4, 1919, Chap. 123, 40 Stat. 1325, 1326, permitting specified persons formerly connected with the American embassy at Berlin, to accept pieces of plate presented to them by the British Government in recognition of services rendered by the embassy while in charge of British interests in Germany.