Papers Relating to the Foreign Relations of the United States, 1920, Volume III
701.6111/505
The Secretary of State to the Attorney General ( Palmer )
Sir: Referring to the informal request of Mr. Hoover, that this Department prepare a statement regarding diplomatic immunity as applied to the case of Mr. L. C. A. K. Martens, I have the honor to enclose, herewith for your information, a copy of a memorandum upon the subject, embodying the views of this Department regarding Mr. Marten’s diplomatic status, and the diplomatic immunity to be accorded him.
I have [etc.]
Under Secretary
Memorandum Regarding the Diplomatic Status of Mr. L. Martens
Every independent and full sovereign member of the family of nations possesses the right of legation, which is the right of a State to send and receive diplomatic envoys. This right has been accorded at times in a restricted form to Part-Sovereign and Semi-Sovereign States, the exact restrictions upon the diplomatic activity of each [Page 458] being determined by the instrument defining their international position.
The Department has adopted and prescribed the seven rules of the Congress of Vienna, found in the protocol of the session of March 9, 1915 [1815], and the supplementary or eighth rule of the Congress of Aix-la-Chapelle of November 21, 1918 [1818].
Article I is as follows:
“Diplomatic agents are divided into three classes: That of ambassadors, legates or nuncios; that of envoys, ministers, or other persons accredited to sovereigns; that of chargés d’affaires accredited to ministers for foreign affairs.”
A diplomatic agent when accredited to a particular State is ordinarily furnished with letters of credence, which specify his name and rank, bespeak credit for his communications, and imply an authority to transact all such business as falls legitimately within the scope of his mission. He is also generally provided with a passport attesting his name and character, and with such instructions from his Government as may be necessary.
It appears that although the right of legation is accorded full Sovereign States and may be, in a limited sense, accorded Semi-Sovereign States, that a deposed Sovereign or a community recognized as a belligerent can act only through political agents, who are not entitled to diplomatic privileges. Oppenheim, in his Treatise on International Law, pages 442 and 443, states as follows:
“It may, however, in consequence of revolutionary movements, be doubtful who the real head of a State is, and in such cases it remains in the discretion of foreign States to make their choice. But it is impossible for foreign States to receive diplomatic envoys from both claimants to the headship of the same State, or to send diplomatic envoys to both of them. And as soon as a State has recognized the head of a State who came into his position through a revolution, it can no longer keep up diplomatic relations with the former head. It should be mentioned that a revolutionary party which is recognized as a belligerent Power has nevertheless no right of legation, although foreign States may negotiate with such party in an informal way through political agents without diplomatic character, to provide for the temporal security of the persons and property of their subjects within the territory under the actual sway of such party. Such revolutionary party as is recognized as a belligerent Power is in some points only treated as though it were a subject of International Law; but it is not a State, and there is no reason why International Law should give it the right to send and receive diplomatic envoys.”
Other authorities to the same effect are: Pitt Cobbett, Leading Cases on International Law, p. 300: Phillimore, Vol. II, Sec. 126, 133.
[Page 459]In the crisis of relations between the United States and France growing out of the conclusion of the ratification of the Jay Treaty, Mr. Monroe was recalled from the position of Minister to France and in his place was sent Mr. Pinckney. He arrived in Paris early in December, 1796, but just as the arrangements made by Mr. Monroe for his reception seemed to be complete, the Minister of Foreign Affairs informed Mr. Monroe that the Executive Directory had decided that it would no longer recognize or receive a Minister from the United States until after the redress of the grievance of France against the American Government. At that time no foreigner could remain in France without police permission and the French Government, besides refusing to recognize Pinckney as minister, declined to give him such permission and informed him that by remaining in France he made himself liable to arrest. Accordingly, he obtained his passports and retired to Amsterdam to await developments.
“A person coming into the United States as a diplomatic representative of a foreign State with credentials from Governing Powers not recognized by this Government, is accorded diplomatic privileges merely of transit and it is of courtesy, not of right, and such privileges may be withdrawn whenever there shall be cause to believe that he is engaged in or contemplates any act not consonant with the law[s], peace and public honor of the United States.” (Moore’s International Law Digest, Volume 4, p. 557).
In Opinions of the Attorneys General, Vol. VIII, page 473, Attorney General Cushing, states in a letter addressed to the United States District Attorney in New York:
“I have received your letter of the 26th instant, in which you state that a warrant has been issued against Parker H. French, claiming to be diplomatic representative of the State of Nicaragua, for an offence against the laws of the United States, charged to have been committed by said French recently and since he assumed such character; and as to which you request to be informed whether the said warrant shall be executed.
In reply, the President directs me, in the first place, to refer you to the following paragraphs of my letter of the 24th instant, namely:
‘You will perceive that Mr. French is entitled to diplomatic privilege in the United States only in a very qualified degree. He is not an accredited minister, but simply a person coming to this country to present himself as such, and not received, by reason of its failing to appear that he represents any lawful government.
‘Under such circumstances, any diplomatic privilege accorded to him is of mere transit, and of courtesy, not of right; and that courtesy will be withdrawn from him so soon as there shall be cause to believe that he is engaged in here, or contemplates, any act not consistent with the laws, the peace, or the public honor of the United States.’
He directs me to say, in the second place, that, proceeding in the spirit of the fullest consideration for the diplomatic character, he [Page 460] desires you to notify Mr. French of the present charge, and to inform him that no process in behalf of the United States will be served upon him, provided he shall not become chargeable with any further offence, and shall depart from the country within a reasonable time.”
In February, 1886, the Minister of Foreign Affairs of Honduras transmitted to Mr. J. Baiz, a citizen of the United States, then holding the office of Honduran Consul General at New York, the appointment as Chargé d’Affaires of the Republic to the Government of the United States, The Secretary of State refused to receive Mr. Baiz in the latter capacity. A suit was brought against Mr. Baiz in New York by a private individual. The Department of State declined to certify that he was at the time the suit was brought, invested with a diplomatic character.
In Hollander vs. Baiz, Consul General, 41 Fed. 735, the court stated:
“It is equally important that such high immunities should not rest upon any doubtful claim or be attached to any equivocal position. These immunities are not a mere transit privilege; they are attached to the office as representing the foreign Sovereignty. Without the office, therefore, they do not exist; nor can a foreign State justly claim that a person represents its Sovereignty or is entitled to the immunity of such representation unless he is duly accredited and received as such.”
The case was carried from the District Court to the Supreme Court of the United States, and that Court, in an opinion to be found in 135 U.S. p. 403, sustained the ruling of the District Court.
On page 432 of the opinion of the Supreme Court, the following appears:
“We ought to add that while we have not cared to dispose of this case upon the mere absence of technical evidence, we do not assume to sit in judgment upon the decision of the Executive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Department that a party is or is not a privileged person and cannot properly be asked to proceed upon regulative [argumentative] or collateral proof.”
In this connection, it may be pertinent to state that it belongs to the political department of the Government to determine when a so-called foreign Government shall be recognized and its action must be accepted according to the terms and intention expressed.
In the case of Rose vs. Hymely (4 Cranch, 239 [241], et seq.) Mr. Marshall stated:
“It is for governments to decide whether they will consider St. Domingo as an independent nation and until such decision shall be [Page 461] made, or France shall relinquish her claim, courts of justice must consider the known [ancient] state of things as remaining unaltered and the sovereign power of France over that colony as still subsisting.”
This Government has recognized the Provisional Government of Russia, and has received and continues to recognize Mr. Bakhmeteff as its duly accredited ambassador, and, in addition, has declined to recognize the so-called Soviet Government of Russia and has refused to receive or recognize Mr. Martens as its representative.
It would seem since it is within the jurisdiction of the political department of this Government to recognize or refuse to recognize the existence of a foreign State, which recognition, when it is accorded or refused, is binding upon the other co-ordinate branches of this Government and cannot be controverted by argument or collateral proof, that Mr. Martens is not an accredited official of a foreign Government and is not entitled by right to those diplomatic privileges recognized by International Law.