File No. 702.4174/14
The Chargé in Bulgaria (Einstein) to the Secretary of State
[Received February 18.]
Sir: I have the honor to bring to your notice certain aspects of the Hurst incident which to the best of my knowledge are novel in international law.
The peculiar feature of the existing case lies in the fact that Mr. Hurst is a belligerent subject of a country at war with Bulgaria. At first glance this would seem to weaken his right to protection. In reality I believe it strengthens it. It has been fully admitted that he remained here with the authorization of the Bulgarian Government to look after the archives of the British Legation at Sofia. While strictly speaking he was deprived by the state of war of the diplomatic character he had previously enjoyed as attaché to the Legation, as well as vice consul, yet without such diplomatic character and immunity he would not have stayed behind after the rupture of relations, and the understanding in this respect was, to begin with, at least implied. That it later became in his case explicit as well, can be shown. The Bulgarian Government had in my opinion the right to expel him at any time with or without reason. But the fact of its allowing him, a former British official, to remain behind was a tacit recognition that he still preserved a quasi-diplomatic character and as such, was immune from arrest. That such view was held at the Bulgarian Foreign Office is apparent from the conversation related in my despatch No. 21 of December 7.1 When by the Department’s telegraphic instruction I asked for Mr. Hurst’s formal recognition as attached to this Legation and cited the precedent of Constantinople, as already reported, I was answered by the Secretary General who is in charge of diplomatic affairs, that reason existed for this at Constantinople which was here not the case, and that he personally guaranteed to me both Mr. Hurst’s absolute security and that he would in no way be molested. In other words, his opinion coincided with my own of Mr. Hurst’s diplomatic immunity. My view has been that if any charges had been brought against him, he could have been properly expelled, but not imprisoned (such expulsions took place at Constantinople in the case of officials of belligerent nations left behind and attached to the American Embassy who were charged with transmitting information). But I feel that in the absence of such charges, there was only one case in which Mr. Hurst’s arrest and detention here would have been justifiable as a reprisal, namely, if the Bulgarian official who remained behind in London in a similar capacity had been arrested by the British Government.
While modern writers are disinclined to admit the right of asylum, this tendency perhaps emanates from a natural wish to consider international practice and law in its uniform aspects and not to differentiate conditions prevailing in western Europe and the United States, from those existing in the greater part of Latin America and [Page 828] the Near and Far East (except for Japan). An illustration for the reason of such distinction is aptly found in the very event which has provided the cause for Mr. Hurst’s attempted imprisonment. The consuls of the four Central powers at Saloniki were arrested together. But while Bulgaria sought immediate reprisal, while Turkey threatened such reprisal and executed it only when it was found that the Turkish Consul would not at once be liberated, Germany and Austria have as yet taken no such steps. Moreover, that the course adopted here was illegal has been admitted by this Government privately to me when it was justified as a reply to the Saloniki illegality, and by implication in the fact that no note on the subject was addressed to the Legation until after the open telegram from the Department had been read here, directing me to make “strong representations” but not to continue to give shelter in case the Bulgarian Government insist on the arrest. Even then the note I received from the Foreign Office only asked me not to oppose the action of the police, and declined responsibility if the arrest be effected in the hotel corridor.
A further point of analogous nature in its different applications between East and West, arises over the question of protection of the interests of one nation by the representative of another. American diplomatists have been properly reminded that such duty on their part is in the nature of good offices, and that they are in no case officials of the country for whom they act. But while the extension of good offices in the stricter sense of the word is adequate in countries like England and France or Germany and Austria, the line can hardly be drawn so fine as one approaches the East where more vigorous action may become necessary. That such protection is admitted can be judged from the telegram addressed by the Prime Minister here to the American Minister at Bucharest when the consent for our assumption of British interests was first solicited. Doctor Radoslavoff in his reply to the inquiry stated that “the communication that your excellency is directed to assume the protection of British interests in Bulgaria receives the full consent of the Royal Government.”
The further novel points in this case appear to be of minor importance. The actual presence of a Legation in the hotel is a considerable disadvantage from many points of view. But as the fiction of diplomatic extraterritoriality is accepted its existence can not be limited by actual physical surroundings. A legation is as much a legation, and as such entitled to its privileges in a hotel, as in any other residence. Lastly comes the point of the hotel corridor. The arrest was first attempted by the police in the hallway on the ground that this being a common passage it could not be construed as a diplomatic violation. I have taken the view, pending instructions from the Department, that the corridor necessarily connecting the different rooms occupied by the Legation was while used for Legation purposes a part of it though at the same time possessing a dual nature, for guests of the hotel might freely employ it.
I trust that these views may meet with your approval. While appreciating the Department’s general reluctance to sanction asylum in spite of the frequent exceptions made, I have felt that a surrender on my part in the present instance would have worked to our serious detriment.
I have [etc.]
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