of government, he cannot be injured or obstructed without a violation of international law, if he announces his official character; and should a government to which he is sent refuse to receive him, he must be free to withdraw without receiving marks of disrespect. If he is recalled, free exit and passports, where they are necessary, must be granted to him; but if he remain in the country after that a sufficient time for removal, denoted in his passports, has elapsed, he takes the jural relation of any traveller from his native land.

The more essential immunities conceded to the ambassador grow out of the consideration that he cannot do the business intrusted to him well, unless his person be safe, and he be independent of the control of the foreign government; and comity adds to these other less important privileges, as marks of respect to the representative of a foreign sovereignty. These immunities have been arranged under the heads of inviolability and exterritoriality. Such for instance, is Klüber's classification. But to this it may be objected that exterritoriality may be taken in a narrower and a more extended sense. The term stands, as we have already explained it, for that legal fiction which regards the agents of a government in a foreign land as being outside of the country where they discharge their functions, or as carrying with them into another territory almost as entire an exemption from its laws as if they were at home. But there is no such complete exemption, and hence it will be best, if we arrange the rights of ambassadors under these heads, to define what immunities are allowed; otherwise the term, by its vagueness, will lead us astray. De Martens remarks (§ 215), that the "extension of exterritoriality pertains only to the positive law of nations, to treaties or usage, and is susceptible of modifications, which in fact it undergoes; whence it is not enough always to appeal to exterritoriality, in order to enjoy those rights which may be derived from the extended notion given to the word."

*

* This fiction was known to Grotius, who says (II. 18, § 4, 5) that as legates “fictione quadam habentur pro personis mittentium, ita etiam simili fictione constituuntur quasi extra territorium.”

ambassadors.

1. When we speak of the inviolability of an ambassador, we mean that neither public authority nor private 1. Inviolability of persons can use any force, or do any violence to him, without offending against the law of nations. It is not, however, intended that he may not be repelled by force, if he attempts to injure other individuals or to violate the laws. The right of self-defence cannot cease on his account, nor can he enter places closed to the public, nor do a great variety of illegal acts without having passive resistance at least used against him. The state within whose bounds he resides, is bound to protect him against aggressions from its (ubjects, by law and penalty, and by troops or a police force, wien necessary. In one case only, apart from the necessities of self-defence, can active force be exerted upon his person, and that is when, after committing some great crime, and being ordered home, he refuses to go, when he may be removed without personal injury.

2. Inviolability of person could not stand alone, without protection to the house, furniture, equipage, and, in fact, the people of the ambassador. We shall arrange these with other immunities under the head of exterritoriality, and

shall consider first,

2. Exterritoriality.

A. his immunity from the jurisdiction of the country of his sojourn, both criminal and civil.

from criminal ju

If the ambassador were subject to the criminal jurisdiction of the foreign country, his person could not be in- (a.) As immunity violate, as he would be liable to arrest, imprison- risdiction, ment, and punishment; nor would the nature of the acts inseparable from the processes of criminal laws, be consistent with his freedom as a negotiator. This immunity is therefore conceded to ambassadors by all the nations of Christendom, and, although some of the earlier writers had some scruples in admitting it, or even contended against it, the modern writers are believed to be unanimous in regarding it as a part of international law. For the exceptions to this immunity which have occurred in extreme cases, see § 92 e.

In the case of a native of the country still owing allegiance, but representing a foreign sovereign, it has been questioned

whether jurisdiction, civil or criminal, is suspended during the discharge of his functions. The most noted case in which such a person felt the severity of the law, was that of Wicquefort, a native of Amsterdam, who, while he held an office under the States-general, became the Duke of Lüneburg's resident at the Hague, and while in the service of this prince, in 1675, was accused of betraying state secrets to foreigners, was tried, convicted, and sentenced to imprisonment for life with confiscation of goods.* In this case it might with justice be maintained that he held an office of responsibility, and could not be released from penal liabilities as long as it lasted; if he took on him duties to a new sovereign, he was still accountable to the old one. He betrayed secrets to which in his office he had access, and ought therefore to suffer. But if a private citizen of a country is acknowledged by its government as an ambassador from another state, it is fairly to be inferred that all the immunities are conceded to him, which are considered to belong to that class of persons, and without which he could not freely discharge its duties. His sovereign had a right (§ 90) to refuse to recognize him in that relation to another sovereign: in so recognizing him he gives up jurisdiction over him for the time being.t

Opinions have been divided in regard to an ambassador's (b.) and from civil exemption from civil jurisdiction. Entire exempjurisdiction. tion in this respect cannot be argued from the nature of his functions, and yet every where this exemption is allowed, so far as it can be derived from the notion of exterritoriality. At the least, according to Heffter, no step can be taken towards an ambassador which cannot be taken towards an absent stranger. No measures involving force can be used against his person, or the effects which he has with him.

Hence the private person, to whom an ambassador owes money, has no remedy against him except through his sover* Comp. Bynkersh. de for. leg. 11, and 18, and Wheaton's Hist., p. 234. + So substantially Wheaton, El. III. 1, § 15. Heffter says the right of punishing is scarcely taken away from such an ambassador's sovereign. § 214. Bynkersh. u. s., holds the same opinion: “subditos nostros, quamvis alterius Principis legationem acceperint, subditos nostros esse non desinere." So others.

eign, or by suit in the ambassador's native courts after his return home. Such, at least, is the understanding and practice in most countries. Prussia appears to claim somewhat more of jurisdiction.* In a case, the discussion of which is given at great length by Dr. Wheaton, the owner of a house at Berlin, rented to the American ambassador, claimed under the Prussian civil code to detain the minister's goods found there at the expiration of the lease, on the ground that damages were due for injuries done to the house during his occupation of it. The government of Prussia sustained the claimant, but the discussion shows that while a pledge given by an ambassador for the security of a debt could have been detained by the lender, the goods in the house could not be kept from their owner without a violation of international law. The laws of the United States, accordingly, "include distress for rent among other legal remedies which are denied to the creditors of a foreign minister."

An ambassador is bound to observe the police laws in regard to public security and order within and without his hotel, but cannot be called to account for transgression of them, any more than for his pecuniary obligations.

One or two exceptions to this exemption are laid down by the writers beside that derived from the ambassador's acting in a capacity other than his official one, which we shall consider by itself. (§ 92 e.)

They are, (1.) when he is the subject of the state where he acts;·(2.) when he is in its service; (3.) when he voluntarily recognizes the jurisdiction of the courts by appearing before them as a plaintiff, and thus submitting himself to the defendant's court.+

§ 92 b.

B. The immunity from local jurisdiction granted to a foreign minister extends to his hotel and goods. Immunity of amHis house is a sanctuary, except in case of gross and goods. crime, for himself and his retinue; and that whether it belongs

bassador's hotel

* Comp. Wheaton, El. III. 1, § 17, 274–287, and Vergé on de Martens, § 216. + Comp. de Martens, § 216; Wheaton, El. III. 1. § 15; Bynkersh. de for. leg.

to his own government, or is hired, or is given to him for his use by the state to which he is sent.* His goods also, or all that is necessary for the comfort of himself and his family, together with his equipage, enjoy the same exemption. His papers relating to the business of his embassy are inviolate. These exemptions are plainly as essential for the discharge of his duties in his office, as is his personal exemption from foreign jurisdiction.

It is to be observed, however, that if he chance to possess real property in the foreign country, or personal property, aside from that which pertains to him as an ambassador, (§ 92 e), it is subject to the local laws.

His hotel no asy

His privileges do not include the right of asylum for persons outside of his household. If the fiction of exterlum for criminals. ritoriality explained the privileges of ambassadors, the right of asylum would be fairly deducible from it, and a criminal taking refuge in such a sanctuary would be given up, if at all, by a process of extradition. But it so happens that the house of an ambassador has ceased to be an asylum, since the notion of exterritoriality has been most current. The right was attached in the middle ages to many religious places, and was conceded after this analogy, on account of their sacredness, in some countries, to the hotels of ambassadors; but the usage, if we are not deceived, was never general throughout Europe, and even where it obtained, as in Rome and Madrid, was sometimes opposed and violated by the government. Similar to this right, if not an extension of it, was the freedom or privilege (jus quarteriorum) of the quarter of the city 16. It does not appear that the ambassador has a right to do this without leave of his own government, for it may prevent the due exercise of his functions.

* Sometimes extraordinary ambassadors have quarters provided for them by the state to which they are sent, their stay being ordinarily short. In 1814, Austria and England purchased houses for their foreign ministers in Paris, and in 1817, Prussia, in Paris and Petersburg. Klüber, § 192, note. Houses for the reception of foreign ambassadors were in use in the empire of Charlemagne. A capitulary of a. D. 850 (Perz, III, 407) speaks of publicæ domus, in singulis civitatibus-antiquitus constructæ, nostris usibus et externarum gentium legationibus satis congruæ. The Romans also sometimes entertained foreign legates in public villas outside of the walls at the public charge.