sacred and inviolable. To give a more lively idea of this complete exemption from the local jurisdiction, the fiction of extra-territoriality has been invented, by which the minister, though actually in a foreign country, is supposed still to remain within the territory of his own sovereign. He continues still subject to the laws of his own country, which govern his personal status and rights of property, whether derived from contract, inheritance, or testament. His children born abroad are considered as natives. This exemption from the local laws and jurisdiction is founded upon mutual utility, growing out of the necessity that public ministers should be entirely independent of the local authority, in order to fulfil the duties of their mission. The act of sending the minister on the one hand, and of receiving him on the other, amounts to a tacit compact between the two States that he shall be subject only to the authority of his own nation. (a)

The passports or safe-conduct, granted by his own government in time of peace, or by the government to which he is sent in time of war, are sufficient evidence of his public character for this purpose. (b)

Excep

tion from the local

§ 225. This immunity extends, not only to the person tions to the of the minister, but to his family and suite, secretaries of general rule of exemp- legation and other secretaries, his servants, movable effects, and the house in which he resides. (a) jurisdiction. The minister's person is, in general, entirely exempt both from the civil and criminal jurisdiction of the country where he resides. To this general exemption there may be the following exceptions:

1. This exemption from the jurisdiction of the local tribunals and authorities does not apply to the contentious jurisdiction, which

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 1-6. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Wicquefort, de l'Ambassadeur, liv. i. § 27. Bynkershoek, de Foro Legatorum, cap. 5, 8. Vattel, Droit des Gens, liv. iv. ch. 7, §§ 81-125. Martens, Précis, &c., liv. vii. ch. 5, §§ 214-218. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, p. 203. Fölix, Droit International Privé, § 184. Wheaton's Hist. Law of Nations, 237-243.

(b) Vattel, liv. iv. ch. 7, § 83.

(a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, §§ 8, 9. Bynkershoek, de Foro Legatorum, cap. 13, § 5; cap. 15, 20. Vattel, liv. iv. ch. 8, § 113; ch. 9, §§ 117123. Martens, Précis, &c., liv. vii. ch. 5, §§ 215-227; ch. 9, §§ 234-237. Fölix, §§ 184-186.

may be conferred on those tribunals by the minister voluntarily making himself a party to a suit at law. (b)12:

2. If he is a citizen or subject of the country to which he is sent, and that country has not renounced its authority over him, he remains still subject to its jurisdiction. But it may be questionable whether his reception as a minister from another power, without any express reservation as to his previous allegiance, ought not to be considered as a renunciation of this claim, since such reception implies a tacit convention between the two States that he shall be entirely exempt from the local jurisdiction. (c)

3. If he is at the same time in the service of the power who receives him as a minister, as sometimes happens among the German courts, he continues still subject to the local jurisdiction. (d)

4. In case of offences committed by public ministers, affecting the existence and safety of the State where they reside, if the danger is urgent, their persons and papers may be seized, and they may be sent out of the country.126 In all other cases, it appears to be the established usage of nations to request their recall by their own sovereign, which, if unreasonably refused by him, would unquestionably authorize the offended State to send away the offender. There may be other cases which might, under circumstances of sufficient aggravation, warrant the State thus offended in proceeding against an ambassador as a public enemy, or in inflicting punishment upon his. person, if justice should be refused by his own sovereign. But the circumstances which would authorize such a proceeding are hardly capable of precise

(b) Bynkershoek, cap. 16, §§ 13–15. Vattel, liv. iv. ch. 8, § 111. Martens, Précis, &c., liv. vii. ch. 5, § 216. Merlin, Répertoire, tit. Ministre Publique, sect. v. § 4, No. 10.

[125 In the trial of Herbert for murder, at Washington, in 1856, the Minister of the Netherlands, who was an important witness to the transaction, refused to appear in court at the request of the United States Government, who admitted his right to decline; and his own government refused to instruct him to appear as a witness, although requested to do so by the government of the United States. His objection was, that, by appearing, he subjected himself to cross-examination and to rules which justice to the respective parties might require the court to enforce. Ex. Doc. Senate, No. 21, 34th Cong. 3d Sess. See note 129, infrà, on Diplomatic Immunity, for fuller examination of the doctrine of waiving the privilege of exemption.] — D.

(c) Bynkershoek, cap. 11. Vattel, liv. iv. ch. 8, § 112.

(d) Martens, Manuel Diplomatique, ch. 3, § 23.

[126 For instances of the enforcement of this rule, see Lord Stanhope's Hist. of England, i. 388, 484.] —D.

definition, nor can any general rule be collected from the examples to be found in the history of nations, where public ministers have thrown off their public character, and plotted against the safety of the State to which they were accredited. These anomalous exceptions to the general rule resolve themselves into the paramount right of self-preservation and necessity. Grotius distinguishes here between what may be done in the way of self-defence and what may be done in the way of punishment. Though the law of nations will not allow an ambassador's life to be taken away as a punishment for a crime after it has been committed, yet this law does not oblige the State to suffer him to use violence without endeavoring to resist it. (e) 127

Personal

exemption extending to his family, secretaries, servants, &c.

§ 226. The wife and family, servants and suite, of the minister, participate in the inviolability attached to his public character. The secretaries of embassy and legation are especially entitled, as official persons, to the privileges of the diplomatic corps, in respect to their exemption from the local jurisdiction. (a)

The municipal laws of some, and the usages of most nations, require an official list of the domestic servants of foreign ministers to be communicated to the secretary or minister of foreign affairs, in order to entitle them to the benefit of this exemption. (b)

It follows from the principle of the extra-territoriality of the minister, his family, and other persons attached to the legation, or belonging to his suite, and their exemption from the local laws and jurisdiction of the country where they reside, that the civil and criminal jurisdiction over these persons rests with the minister, to be exercised according to the laws and usages of his own country. In respect to civil jurisdiction, both contentious and voluntary, this rule is, with some exceptions, followed in the practice of nations. But in respect to criminal offences committed by his domestics,

(e) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 4. Rutherford's Inst. vol. ii. b. ii. ch. 9, § 20. Bynkershoek, de Foro Competent. Legat. cap. 17, 18, 19. Vattel, liv. iv. ch. 7, §§ 94-102. Martens, Précis, &c., liv. vii. ch. 5, § 218. Ward's Hist. of the Law of Nations, ii. ch. 17, 291-334. Wheaton's Hist. Law of Nations, 250-254.

[127 See note 129, infrà, on Diplomatic Immunity.]—D.

(a) Grotius, lib. ii. cap. 18, § 8. Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 120-123. Martens, Précis, &c., liv. vii. ch. 5, § 219; ch. 9, §§ 234-237. Fölix, § 184, (§ 209, 3me edit.)

(b) Blackstone's Comm. i. ch. 7. U. S. Laws, i. §§ 24-28.

although in strictness the minister has a right to try and punish them, the modern usage merely authorizes him to arrest and send them for trial to their own country.128 He may, also, in the exercise of his discretion, discharge them from his service, or deliver them up for trial under the laws of the State where he resides; as he may renounce any other privilege to which he is entitled by the public law. (c) 129

[128 Heffter says that a minister in a Christian country has no authority to inflict penalties upon his suite, and no jurisdiction to decide controversies of legal rights among them, and between his fellow-citizens residing in the country. (Europ. Völker. § 216.) De Martens, § 215. Mr. Cass, Secretary of State, in a letter to Mr. Fay, the United States Minister at Berne, of Nov. 12, 1860, takes the ground, that a minister of the United States has no civil or criminal jurisdiction among his fellowcountrymen or over his suite; and that what is called the extra-territoriality of the embassy relates only to what is necessary to the proper discharge of diplomatic functions, and does not make the place of the minister's residence a portion of the United States in such a sense that private persons, by presenting themselves there for purposes of private contracts, whether of marriage or of business, can give to their acts exemption from the law of that country, or the sanction of the law of their own country. If the latter effect is produced, it must be by force of statute law. (U. S. Laws, xii. 72, Act 1860, ch. 179.) Dr. Woolsey states the law to be that the authorization of his own State, and the consent of the State in which he resides, are both necessary to the exercise by the ambassador of any criminal jurisdiction over his suite, servants, or fellow-countrymen. If one of the suite commits a crime without the limits of the hotel, he is to be delivered to the ambassador to be dealt with. In modern times, the ambassador does no more than secure and send home the accused for trial, and prepare the evidence. His authority in civil matters is confined to authenticating and solemnizing testaments, contracts, and marriages, when empowered thereto by his own government. (Woolsey's Introd. § 92 d.) In the case of the coachman of Mr. Gallatin, the United States Minister in London, the British Government claimed the right to arrest him on a criminal charge, for an assault committed outside the residence, and to make the arrest within its limits; admitting, however, the propriety of first giving notice to the minister, that he might deliver him up, or make arrangements with the police as to the time and manner of their entering to search and seize. See note 129, infrà, on Diplomatic Immunity.]—D.

(e) Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 124. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Klüber, Part II. tit. 2, §§ 212-214. Merlin, Répertoire, tit. Ministre Publique, sect. vi.

[129 Diplomatic Immunity in a Foreign State. — The subject of diplomatic immunity of person and place has been obscured by the use of the phrase "extra-territoriality." Treating this figure of speech as a fact, and reasoning logically from it, have led to results of an unsatisfactory and impracticable character. If the hotel were, as the phrase supposes, absolutely out of the sovereign's territory, it would follow that he has no jurisdiction over an act done there, whatever its character and by whomsoever committed, unless he would have had such jurisdiction had the act been done on the soil of the ambassador's country. Thus, if a British subject committed an offence against another British subject within the limits of the hotel of the French Minister, neither being connected with the embassy, and was afterwards arrested in the streets,

Exemption of the

minister's

house and

property.

§ 227. The personal effects or movables belonging to the minister, within the territory of the State where he resides, are entirely exempt from the local jurisdiction; so, also, of his dwelling-house; but any other real

the British court could not take cognizance of the crime, unless it could do so had it been actually committed in France. So, too, no process, civil or criminal, for any purpose, could be served within the hotel, although the person on whom it was to be served had no connection with the mission, and had only sought asylum there. Every such case would be one for international extradition.

A clear understanding of these questions requires that the phrase should be treated as a figure of speech, and not a fact from which inferences can be drawn. The true test is one lying behind and clear of that illustration. The whole subject depends upon this principle, the convenience of nations. Nations necessarily agree that the functions of the ambassador must be performed with freedom. The ultimate test is, whether the exercise of the municipal authority in question is an unreasonable interference with that freedom. The questions in detail are, what persons and places must have immunity, and what degree of immunity, in order to the securing of this object.

I. JURISDICTION OVER THE RESIDENCE OF THE AMBASSADOR, CALLED, FOR CONVENIENCE, THE HOTEL, WHICH INCLUDES THE GROUNDS AND OUTBUILDINGS. If the fiction of extra-territoriality were a fact, the question would admit but of one solution. But, the test being the convenience of nations, no reason is seen why the fact, that an act was done within the hotel, should of itself be a bar to jurisdiction. If a British subject commits an offence within the hotel of the French Minister against another British subject, neither having any connection with the mission, and is afterwards arrested in the street, there seems no reason connected with the convenience or dignity of diplomacy why he should not be tried by the British courts, and every reason why he should not be exempt from their jurisdiction, and either lege solutus, or amenable only to French laws and procedure. In short, the mere fact that either a contract was made or a wrong done within the hotel, if not involving any privilege of the persons concerned, or of the place of arrest, seems to present no ground for ousting the sovereign of his jurisdiction.

II. IMMUNITY OF THE RESIDENCE OF THE AMBASSADOR.

It is conceded, that, in the extreme case of an emergency affecting the existence of the nation, as in case of an insurrection in which the ambassador is implicated, if any diplomatic immunity of person or place is disregarded, in good faith and from necessity, it furnishes no just ground for international complaint. This exception, applicable alike to local and personal immunity, being once stated, may be dismissed from further consideration in this note.

Neither the opinions of text-writers nor the practice of nations is settled as to this general immunity. The British Government, it has been seen, has claimed the right to enter and make arrests, admitting only the propriety of giving notice. It seems, however, to be the fair result of reasoning on principle and of a comparison of authorities, that the hotel should enjoy (with the exception of the exigency stated) an absolute immunity from the service of compulsory process within its limits. Distinctions between civil and criminal processes, and between citizens and foreigners, and persons connected or not connected with the embassy, are complex and troublesome, and do not solve the difficulty. If the convenience of nations requires that the hotel be free from forcible entry and forcible process, it is best to have