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

§ 226. The wife and family, servants and suite, of the exemption minister, participate in the inviolability attached to his extending to his fami- public character. The secretaries of embassy and legaly, secretation are especially entitled, as official persons, to the ries, servants, &c. 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 authori zation 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.

(c) 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.

[123 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 Jake 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

property, or immovables, of which he may be possessed within the foreign territory, is subject to its laws and jurisdiction. Nor is the personal property of which he may be possessed as a merchant a simple and avowed rule. Little practical inconvenience can arise from it. If, on demand, the ambassador refuses to deliver up the person sought, it becomes a diplomatic question between him and the sovereign to whom he is accredited, or between the two nations; and the sovereign has the usual remedy of dismissing the ambassador, and, if that is not enough, of refusing to receive another in his place, or to grant rights of diplomatic hotel, as well as other international remedies. It can hardly be supposed that an ambassador would fail to protect his hotel against being made an asylum for offenders, by having it understood that they would be at once delivered up. This immunity of the hotel from invasion is, of course, a local immunity, and is irrespective of the character or nationality of the person sought to be arrested, the nature of the offence, or place where it was committed. The duty of the ambassador to make delivery of any such person, on demand, is of course absolute in all cases where he does not claim an exclusive jurisdiction of his own country over the person or the offence; and, in that case, it is his duty to send the person home for trial, unless the laws of his own country give him jurisdiction to try the cause, and the sovereign to whom he is accredited assents to his exercise of such jurisdiction within his realm.

III. WHAT PERSONS ARE ENTITLED TO DIPLOMATIC IMMUNITY FROM CONSTRAINT.

It is agreed that the ambassador himself, and his family and suite, are entitled to immunity. The question is, who are comprehended within the terms “family and suite." The test must be, again, its effect upon the convenience of nations. It is reasonable that the immunity should be extended to the wife and children of the minister, and to such other persons as, in good faith, are permanent members of his family; and that it should not extend to mere visitors. It is impossible to make, in advance, a classification applicable to all cases. If a case arises respecting persons in a doubtful position between mere visitors and permanent members of the family, it must be settled on its own circumstances.

As to the suite, all writers and all practice agree that the official suite are protected; and by "official suite" is meant persons employed directly in diplomatic duties, appointed or recognized by the ambassador's government as diplomatic functionaries. But doubts, it has been seen, are thrown out whether the immunity extends further. But surely the convenient discharge of his duties, according to the customs of society,, requires that the ambassador shall have the necessary services, about his hotel and his person, of people usually employed in those capacities. If he is an invalid or temporarily ill, a nurse or body-servant is a necessity; and a right to free transportation, according to the customs and necessities of society, in his private carriage, and to the performance of offices in his household by proper persons, is reasonable. Although it may be that high officials, in their own country, have no such general immunity for their servants and residences, still, in the case of a sole representative of his nation, under foreign and not necessarily friendly jurisdiction, the dignity and convenience of nations is best secured by a rule which shall give large protection, leaving the concessions and accommodations to comity and good faith in cases as they may arise. Here, again, a classification, in advance, of what shall in all cases be the personal suite of an ambassador entitled to exemption, is not practicable. The doubtful cases must rest on their circumstances. A mode sometimes adopted is for the minister to transmit to the Foreign Office a list of his official and personal suite; and, if the

carrying on trade, or in a fiduciary character, as an executor, &c., exempt from the operation of the local laws. (a)

Foreign Office thinks it an unreasonable one, objection can be made and the matter settled at the time.

IV. THE EXTENT OF THE PERSONAL IMMUNITY OF THE AMBASSADOR AND HIS

SUITE.

It is agreed that the ambassador must be exempt from all constraint upon his person and his movements and the employment of his time. He cannot, of course, be arrested. It seems to be settled, that he cannot be required to attend as a witness in court; as this would involve an authority over his time and movements, to be exercised at the discretion of the local tribunals, and with reference to the convenience or rights of other parties or of the court. The same objections exist to his being obliged to give a deposition, in the sense of the common law, where he is examined by a magistrate and subject to cross-examination. (See note 125, ante.) With greater force it applies to his being compelled to attend court as a defendant. Even if rules are made by which ambassadors are exempt from a levy of execution on their persons or property, from committal for contempt, and by which their convenience is consulted, still the fact remains that their convenience and freedom would be at the discretion of the authorities of the nation, legislative or judicial, or both; and, if an ambassador should decline to attend court, and to comply with such rules as the authorities chose to enforce, a decree might be rendered against him which would conclude his rights.

The question has been a good deal discussed, whether the ambassador can proceed in the courts, as a plaintiff. It has been stated in many text-books that he can do so, by waiving his personal privilege. If all that is meant by that is, that, if he does waive the privilege, and invokes the jurisdiction of the court as a plaintiff, it is competent for the court to try the case, and the doing so will furnish no just ground of offence, it may be true. But, if it is meant, that, as between himself and his own sovereign, it is his right to waive the exemption and go into court as a plaintiff, it is enough, perhaps, to say, that that is not a question of international law, but of the direct relation between a sovereign and his agent. If it is appropriate to say any thing on that point, it may be suggested, that, without the assent of his own sovereign, no ambassador ought, by voluntarily appearing in court, either as plaintiff or as defendant, to place himself in a situation by which he may forfeit his right to exemption from control over his time or movements. As far as the courts are concerned, it would seem, that, if the ambassador invokes their jurisdiction as plaintiff, they may take cognizance of the case; and no just cause of international complaint can arise, if they withhold direct process on his person or property, and do not refuse to consult his reasonable convenience as far as the rights of others and the public business permit. In case a suit is filed against an ambassador, no nation allows the issue of a compulsory process against his person or property to secure his appearance; and it would seem to be equally a violation of principle to serve a notice upon him, and proceed to render a conclusive judgment against him in his absence, if he should decline to appear. The practice of France has been to send notice to the ambassador through the Foreign Office; but then, if he decline to appear, no further proceedings are had.

These rules and the reasons for them, in the case of the ambassador, are applicable to all persons having the diplomatic immunity. The loss or waiver of the privilege may be of little consequence in the case of many of them, but the rule must be uniform. It has been contended, that, if the ambassador or one of his suite engage in (a) Vattel, liv. iv. ch. 8, §§ 113-115. Martens, Précis, &c., liv. vii. ch. 8, § 217. Klüber, Pt. II. tit. 2, ch. 3, § 210. Merlin, sect. v. § iv. No. 6.