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.5 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.

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.

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.

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

6 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.1 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.

3 See, for example, Count Bismarck to Mr. Washburne, American Minister 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.

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

b

§ 429. Couriers and Bearers of Despatches.

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

the present time by any enlightened State. It has been declared by the Department of State that it is in most capitals customary to place an official shield above the principal entrance of the diplomatic representative's residence, or the offices of the mission, when these are separate from his residence, with a short flagstaff set above the shield, on which to display the flag of the United States on occasions of special ceremony. It is stated, however, that a mission "is not under the same necessity of displaying a coat of arms and raising a flag as a consulate." 2

No local law purports to deter a foreign diplomatic officer from displaying at will the flag of his country in the territory of the United States.3

§ 431. Liberty of Worship.

b

That a foreign minister may within the precincts of his legation assert the right of worship for the benefit of himself, his staff and his fellow countrymen, irrespective of the contrasting views of the religious establishment of the State to which he is accredited, appears to be accepted doctrine. It is important, however, that religious services should be conducted in such manner as not to offend the sensibilities of the local adherents of any differing persuasion.5

In a country such as the United States, where freedom of worship is safeguarded by the Constitution, the exercise of the right accorded a foreign diplomatic officer by the law of nations meets with no obstacle."

Austria-Hungary, Sept. 8, 1915, relative to the case of Mr. Dumba, AustroHungarian Ambassador at Washington, whose recall was requested by the United States, American White Book, European War, III, 321.

1 Display of Foreign Flags, supra, § 212.

2 Instructions to Diplomatic Officers of the United States (1897), § 64.

It seems important to note that the communication of Mr. Knox, Secy. of State, to the Mexican Ambassador June 21, 1912, For. Rel. 1912, 903, had reference to the display of the American flag by American consular officers in Mexico.

3 Compare Mr. Clay, Secy. of State, to Mr. Obregon, Mexican Minister, Oct. 24, 1827, MS. Notes to Foreign Legation III, 393, Moore, Dig. IV, 554. In the Printed Personal Instructions to Diplomatic Agents of the United States (1885), § 49, Moore, Dig., IV, 555, it was declared that "if any diplomatic agent should assert the right of worship, within his legation, for himself and those of his fellow-countrymen who profess the same faith as he does, he would be upheld, within the limits of the like privilege conceded in the country of his sojourn to other foreign legations.' See, also, Religious Freedom. In General, supra, § 215.

5 Mr. Seward, Secy. of State, to Mr. Crosby, Minister to Guatemala, June 19, 1862, MS. Inst. American States, XVI, 219, Moore, Dig., IV, 554. Also Art. X, Rules of the Institute of International Law, Aug. 13, 1895, Annuaire, XIV, 242.

6 First Amendment to the Constitution.

§ 432. Transit.

The United States asserts that according to the law of nations a diplomatic officer is entitled to a right of transit to his post, by sea,1 or through the national domain, whether land 2 or water,3 of a State other than that to which he is accredited. It is not contended that this right embraces one of sojourn in such State,* or that the territorial sovereign, especially if it be engaged in war, may not prescribe the route of transit. Nor is it claimed that the officer while within the territory of a third State is entitled to such jurisdictional immunities as he may justly demand while within that of the State to which he is accredited. It is declared that on the grounds of courtesy he is usually exempt from the payment of customs duties.7

While evidence is wanting that States generally have as yet agreed to yield their right of jurisdiction over diplomatic officers. not accredited to them, it is not unreasonable to claim for such individuals freedom from petty annoyances, whether in the form of criminal prosecutions for minor offenses, or of civil suits of trivial importance.8

1 Mr. Pickering, Secy. of State, to Mr. King, Minister to England, June 17, 1796, MS. Inst. United States Ministers, III, 178, Moore, Dig., IV, 559.

See documents in Moore, Dig., IV, 557-558, concerning the Case of Mr. Soulé, American Minister to Spain, who, in 1854, was detained by France while in that country en route to his post. It may be observed that his detention was not due to any desire on the part of France to prevent an envoy of the United States from crossing French territory, but with a view to preventing the sojourn on French soil of one whose continued presence there was deemed objectionable. Declares Mr. Moore: "With regard to the action of the French Government in detaining Mr. Soulé, it should be explained that Mr. Soulé, who was a native of France and a naturalized citizen of the United States, was currently reported to have made speeches adverse to the Government of Louis Napoleon and to have held communication with some of its adversaries."

3 Mr. Seward, Secy. of State, to Mr. Webb, No. 180, Sept. 23, 1860, MS. Inst. Brazil, XVI, 153, Moore, Dig., IV, 560.

The United States made no such contention in the Soulé case.

5 Declares Hall: "Even this meagre privilege (of transit) is qualified by a right, on the part of the State through which he travels, to prescribe a route and to require that his stay shall not be unnecessarily prolonged." Higgins' 7 ed., § 99.

6 Instructions to Diplomatic Officers of the United States (1897), § 61.

1 Id. Mr. Adee, Acting Secy. of State, to Mr. Clayton, Sept. 21, 1903, For. Rel. 1903, 664, where it was stated that the Secretary of Commerce and Labor had expressed opinion "that the action of administrative officers in collecting a head tax on account of the diplomatic and consular officers of foreign countries seeking admission into the United States was in error." In this case such a tax had been imposed upon a diplomatic officer of Japan returning to his country via El Paso and San Francisco, after a residence in Mexico as Chargé d'Affaires of Japan in that State.

* Hall, Higgins' 7 ed., § 99; Oppenheim, 2 ed., I, § 398, pp. 469-471. Compare Dana's Wheaton, §§ 244-247, Moore, Dig., IV, 556; also Wilson