is necessary in order to enable such an officer to accept any presents, orders or other testimonials in acknowledgment of services rendered to a foreign State or its nationals.1

§ 453. Marriages.

(3)

The laws of the United States do not confer on diplomatic officers any power to celebrate marriages, to act as official witnesses at the ceremony of marriage, or to grant certificates of marriage.2 It is not unusual for Americans abroad to ask permission to have a marriage ceremony performed in the embassy or legation and in the presence of their diplomatic representative. While there is no reason generally why such a request should be denied, the Department of State declares that the parties making the application should be informed that in its opinion, the ceremony of marriage, performed within the precincts of the legation, should, with certain limitations, comply with the requirements of the laws of the country within which the legation is situated. Upon application for the use of a legation for such a purpose, it is made the duty of the American diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps

1 Instructions to the Diplomatic Officers of the United States (1897), § 71; For. Rel. 1907, II, 1016–1018, concerning decorations conferred on American citizens prior to their receiving appointments in the diplomatic service; also For. Rel. 1909, 541.

ENGAGING IN BUSINESS: PRACTICE OF LAW. According to § 7, Chap. 23, Act of Feb. 5, 1915, 38 Stat. 807, U. S. Comp. Stat. 1918, § 3130d: "No ambassador, minister, minister resident, diplomatic agent, or secretary in the Diplomatic Service of any grade or class shall, while he holds his office, be interested in or transact any business as a merchant, factor, broker, or other trader, or as an agent for any such person to, from, or within the country or countries to which he or the chief of his mission, as the case may be, is accredited, either in his own name or in the name or through the agency of any other person, nor shall he, in such country or countries, practice as a lawyer for compensation or be interested in the fees or compensation of any lawyer so practicing.'

2 The language of the text is that contained in Instructions to American Diplomatic Officers (1897), § 177, Moore, Dig., II, 514. See, also, documents in Moore, Dig., II, 506-514; also Mr. Knox, Secy. of State, to Mr. Ide, Minister to Spain, Feb. 24, 1910, For. Rel. 1910, 855; Consuls, Miscellaneous Duties, infra, § 488.

3 Instructions to American Diplomatic Officers (1897), § 182, Moore, Dig., II, 514.

The Department of State has found it necessary, however, to instruct American diplomatic and consular officers in China to refrain from permitting the use of their offices for the performance of marriage ceremonies unless satisfied that they are bona fide, and not employed as a cloak or means to foster a nefarious traffic. See instructions to the American Diplomatic and Consular Representatives in China, June 16, 1905.

MARRIAGES

[§ 453 have been taken to enable the marriage ceremony to be legally performed according to such laws. If either of such inquiries is answered in the negative, and the case does not fall within one of the exceptions stated in the Instructions (to American Diplomatic Officers, section 179), it is said to be the duty of the diplomatic representative to inform the applicant that the former cannot permit the ceremony to be performed at the legation, as there may be grave doubts respecting its validity.1

American diplomatic as well as consular officers are deemed to be incompetent to certify as to the legal requisites of marriage in the United States, because no such power is conferred upon them either by the laws of the United States or by international law. Although such an officer may possess private knowledge respecting the laws of marriage, he is not authorized to certify them upon that knowledge; for it is not a question of individual knowledge, but of official competency.2

1 Instructions to Diplomatic Officers of the United States (1897), § 183, Moore, Dig., II, 514. Also Mr. Uhl, Acting Secy. of State, to Mr. Baker, Minister to Nicaragua, Feb. 24, 1894, For. Rel. 1894, 447, Moore, Dig., II, 513.

For. Rel. 1907, I, 519-526, and id., 1908, 360-365, concerning the marriage of American citizens in Germany and on German territory.

2 The language in the text is substantially that of Mr. Olney, Secy. of State, to Mr. Runyon, American Ambassador to Germany, Dec. 9, 1895, For. Rel. 1895, I, 538, Moore, Dig., II, 535. See, also, Mr. Bayard, Secy. of State, Circular to Diplomatic and Consular officers, Feb. 8, 1887, to which was appended the following order: "It is not competent, without the special authority of this Department, for diplomatic agents, consuls, or consular agents, to certify officially as to the status of persons domiciled in the United States and proposing to be married abroad, or as to the law in the United States, or in any part thereof, relating to the solemnization of marriages." For. Rel. 1887, 1133, Moore, Dig., II, 526, 527.

TITLE E

OFFICIAL NEGOTIATIONS

1

§ 454. The Diplomatic Channel.

In negotiations between States, official correspondence should doubtless be confined on both sides to the diplomatic channel.1 In 1815, Secretary Monroe declared that the Department of State can receive no communication from subjects of another country on international matters, except through the minister of such country.2 Conversely, it has been announced that "no officer, civil, military, or naval, can properly carry on an official correspondence with a foreign government, except through the Department of State, or its diplomatic representative at the seat of such government.

"3

While the Department of State has declared that "all usage and precedent make it entirely competent and proper" for a government to present a diplomatic claim against another, either through the ambassador thereof or through the ambassador of the former at the capital of the latter, at least one European State has announced that as a matter of principle and according to prevailing practice, it "receives complaints or suggestions from friendly governments only when they are presented by the diplomatic representatives of such governments accredited to it." 4

1 See The Secretary of State as Organ of Correspondence, supra, § 410, with special reference to occasions when the President of the United States holds direct communication with the heads of foreign States or with the ambassadors thereof. Also Ambassadorial Privileges, infra, § 459; Communications through Non-Governmental Channels, supra, § 409.

2 The language of the text is that contained in Moore, Dig., IV, 693, citing Mr. Monroe, Secy. of State, to Admiral Cochrane, April 5, 1815, MS. Notes to Foreign Legations, II, 80.

3 Communication of Mr. Fish, Secy. of State, to Mr. Wines, Jan. 25, 1872, 92 MS. Dom. Let. 299, Moore, Dig., IV, 691. Also Mr. Olney, Secy. of State, to the Secy. of the Navy, Jan. 2, 1896, respecting certain letters from Admiral Selfridge, U. S. N., to local Turkish officials, For. Rel. 1895, II, 1440, Moore, Dig., IV, 620; Mr. Hill, Act. Secy. of State, to Mr. Finch, Minister to Uruguay, No. 180, Jan. 7, 1901, MS. Inst. Uruguay, II, 71, Moore, Dig., IV, 622.

Mr. Olney, Secy. of State, to Baron von Thielmann, German Ambassador, Oct. 7, 1895, For. Rel. 1895, I, 480, 481; Baron von Thielmann to Mr. Olney, Oct. 14, 1895, id., I, 486, Moore, Dig., IV, 692–693.

LANGUAGE.

TONE

[§ 455

It may be observed that the diplomatic agencies of the United States are not open for the presentation of memorials of its citizens to foreign governments, especially when such documents deal with questions of national or international policy not affecting the United States, and even in cases when the rights or interests of American citizens are concerned.1

§ 455. Language. Tone.

2

It is the custom of diplomatic intercourse for an agent of a State, whether himself a minister for foreign affairs or a diplomatic officer, to address communications in his own tongue to the foreign government or representative thereof with which he corresponds.2 Accordingly the United States directs its diplomatic officers to employ the English language.3 They are instructed, however, that in countries of the East, English diplomatic communications to the local government are generally expected to be accompanied by translations into the language of the country; but such officers are cautioned against omitting the English text, to which alone, in any event, resort should be had in ascertainment of their precise intentions should any question arise.5

That the tone of diplomatic correspondence should always be courteous must be obvious. Discourteous expressions betraying truculence or couched in arrogant terms necessarily arouse the sensibilities of governments to which they are addressed, and hence serve to foment disputes which, as Secretary Bayard once declared, "it is the prerogative and aim of diplomacy to avert." Thus

"6

1 Mr. Gresham, Secy. of State, to Mr. Garrett, April 2, 1895, 201 MS. Dom. Let. 361, citing Instruction to Mr. Runyon, American Ambassador at Berlin, Nov. 22, 1893, Moore, Dig., IV, 694. In the latter it was declared that, "It is a very general rule among governments that the individual's privilege to memorialize the crown is to be availed of directly, not through a diplomatic channel, and a tender through the latter course may be and frequently is declined."

See, also, Mr. Fish, Secy. of State, to Mr. Bassett, Minister to Haiti, Nov. 20, 1875, MS. Inst. Haiti, II, 66, Moore, Dig., IV, 692.

2 Mr. Frelinghuysen, Secy. of State, to Mr. Robeson, Feb. 28, 1882, MS. Inst. Barbary Powers, XVI, 80, Moore, Dig., IV, 705.

3 Instructions to the Diplomatic Officers of the United States (1897), § 94. 4 Id., § 95. In the same section it is also declared that: "In European and American countries urgent need of hastening a negotiation may sometimes require that a translation accompany a note; but recourse to such an expedient should be unusual and occur only when there is reasonable certainty that the translation will be faithful and correct in style."

'Id., § 96; also documents in Moore, Dig., IV, 704–705.

Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, July 31, 1885, MS. Inst. Mexico, XXI, 347, Moore, Dig., IV, 708.

the sincerity of the opposing party should not be called in question, nor its integrity impeached,1 unless it becomes apparent that failure to do so may be construed as attributable to improper motives. Nothing, however, need ever deter a government or its representative from evincing entire candor in diplomatic discussion, or from setting forth and protesting against national grievances with absolute frankness. Nevertheless, in so doing, the careful maintenance of a conciliatory attitude is none the less valuable as a means either of preventing a suspension of negotiations or of obtaining redress desired.

456. Publication.

3

A State may not unreasonably publish correspondence with diplomatic or other agents abroad without deferring to the judgment of any foreign country the affairs of which form the subject of discussion. In so doing care should be taken, however, to guard from publication such expression of personal views of a minister as might, if known, expose him to criticism in the country of his official residence. Reflections upon the commercial operations or character of the inhabitants of a foreign State should not be given circulation.4

In one sense the propriety of making public an instruction to a minister intended for communication to a foreign government, and prior to its receipt by the latter, may be questioned, especially when the document embodies a complaint in relation to the conduct of such government. It may be doubted, however, whether any rule of international law forbids publication at such a time. In 1895, the Department of State announced in a communication to the German Ambassador, that the Government "was fully aware of the practice to submit to foreign governments

1 Mr. Forsyth, Secy. of State, to Mr. Livingston, Minister to France, March 5, 1835, Brit. and For. State Pap., XXIII, 1319, Moore, Dig., IV, 707.

2 Mr. Adee, Acting Secy. of State, to Baron von Thielmann, German Ambassador, No. 27, Aug. 14, 1895, MS. Notes to Germany, XÍ, 483, Moore, Dig., IV, 724; Mr. Seward, Secy. of State, to Mr. Adams, Minister to Great Britain, No. 859, March 23, 1864, MS. Inst. Great Britain, XIX, 214, Moore, Dig., IV, 718.

Mr. Davis, Acting Secy. of State, to Mr. Sargent, May 23, 1883, MS. Inst. Germany, XVII, 269, Moore, Dig., IV, 721.

4 Mr. Blaine, Secy. of State, to Mr. Snowden, Minister to Greece, No. 26, March 8, 1890, For. Rel. 1889, 483, Moore, Dig., IV, 722.

Declared Mr. Adee, Acting Secy. of State, in a communication to Baron von Thielmann, German Ambassador, No. 27, Aug. 14, 1895: "I am indisposed to question the propriety of excluding, as your note seems to contemplate, from official publications of this character statements or criticisms