AMERICAN NATIONALITY AS OBSTACLE

[§ 425 had no alternative but to request Mr. Dumba's recall. The Austro-Hungarian Government acquiesced.

On December 4, 1915, the German Government was requested to withdraw immediately from their official connection with its embassy at Washington, Captain Boy-Ed, Naval Attaché, and Captain von Papen, Military Attaché, because there had come to the knowledge of the Government of the United States facts and circumstances as to their connection "with the illegal and questionable acts of certain persons within the United States." 2 On December 10, the German Embassy announced the recall of both officers.3

§ 425. American Nationality as Obstacle to Reception. The right of any government to decline to receive one of its own citizens as the representative of another government is generally recognized, and has been asserted on several occasions by the Government of the United States. While insisting upon the right in some instances, it has been waived without prejudice in others. Thus in 1880, Señor Comacho, a naturalized American citizen, born in Venezuela, was received by the United States as Chargé d'Affaires of Venezuela.5 This case must be deemed

1 Communication of Mr. Lansing, Secy. of State, to Mr. Penfield, Ambassador to Austria-Hungary, Sept. 8, 1915, American White Book, European War, III, 321.

See documents in Moore, Dig., IV, 488–497, in relation to early cases where the recall of American diplomatic officers was requested.

2 Mr. Lansing, Secy. of State, to the German Ambassador, Dec. 4, 1915, American White Book, European War, III, 325.

3 See Mr. Lansing, Secy. of State, to the German Ambassador, Dec. 10, 1915, complaining of the failure of the German Government to comply promptly with the request made by the United States, id., 325; also communication of same date, from the German Ambassador, announcing compliance, id., 326.

Concerning the activities of these officers see House Report, Committee on For. Rel., accompanying text of proposed declaration of war, April, 1917, Cong. Rec., LV, No. 1, 319, 320-321, J. B. Scott, Survey of Int. Relations between the United States and Germany, 1917, 505-509.

4 The language of the text is that of Mr. Adee, Acting Secy. of State, to Mr. Russell, Minister to Venezuela, June 28, 1907, citing Moore, Dig., IV, 549-553, For. Rel. 1907, II, 1092-1093. See, also, Mr. Hay, Secy. of State, to the President, Jan. 22, 1900, S. Doc. 113, 56 Cong., 1 Sess., Moore, Dig., IV, 553; Mr. Fish, Secy. of State, to Mr. Schieffelin, June 6, 1874, MS. Notes to Liberia, I, 21, Moore, Dig., IV, 551.

According to an announcement of Mr. Bacon, Acting Secy. of State, to the Diplomatic Corps at Washington, Jan. 27, 1906, it was said that future diplomatic lists would contain the names of only such officers and attachés of foreign missions in the United States as were not citizens thereof.

Mr. Evarts, Secy. of State, to Mr. Baker, Minister to Venezuela, April 27, 1880, MS. Inst. Venezuela, III, 99, Moore, Dig., IV, 552; Same to Mr.

exceptional, however, and limited as a precedent to the special circumstances connected with it. The Department of State is not averse to having dealings with American citizens appointed by foreign States as plenipotentiaries for special service such as the negotiation of treaties.1

Comacho, April 20, 1880, MS. Notes to Venezuela, I, 197, Moore, Dig., IV, 552. See, also, Mr. Adee, Acting Secy. of State, to Mr. Russell, Minister to Venezuela, June 28, 1907, For. Rel. 1907, II, 1092, 1093, in which attention was called to the fact that notwithstanding Mr. Comacho's American naturalization, he was still regarded by Venezuela, in virtue of its laws, as a citizen of that State.

1 Mr. Anson Burlingame, an American citizen, as envoy of China for the purpose of negotiating a treaty, was received by the President as a diplomatic representative in 1868, and with certain Chinese colleagues concluded a treaty with the United States the same year. Dip. Cor. 1868, I, 461-495, 601-604, Moore, Dig., IV, 550-551.

In 1902, Mr. Herbert W. Bowen, American Minister to Venezuela, was permitted by the United States to act as the representative of Venezuela in entering into negotiations for the adjustment of difficulties arising between that country and numerous other States, including the United States. Agreements with the United States concluded Feb. 7, 1903, and May 7, 1903, were signed at Washington by Mr. Bowen in behalf of Venezuela. Malloy's Treaties, II, 1870; also For. Rel. 1903, 788-805.

TITLE D

THE RIGHTS AND DUTIES OF MINISTERS

1

RIGHT TO PROTECTION

a

§ 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. 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.

4 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.

a

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, 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.R

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.

4 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, I, 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