from the local juris

The minister's person is in general entirely exempt both exemption from the civil and criminal jurisdiction of the country where he resides. To this general exemption, there may be the fol- diction. lowing exceptions:

1. This exemption from the jurisdiction of the local tribunals and authorities does not apply to the contentious jurisdiction which may be conferred on those tribunals by the minister voluntarily making himself a party to a suit at law.26

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.27

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.28

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. 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

ch. 9, §§ 117-123. Martens, Précis, &c. liv. vii. ch. 5, §§ 215-227; ch. 9, §§ 234-237.

26 Bynkershoek, cap. 16, §§ 13--15. Vattel, liv. iv. ch. 8, § 111. Martens, Précis, &c. liv. vii. ch. 5, § 216.

27 Bynkershoek, cap. 11. Vattel, liv. iv. ch. 8, § 112.

28 Martens, Manuel Diplomatique, ch. 3, § 23.

§ 17. Personal

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 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 endeavouring to resist it.29

The wife and family, servants and suite, of the minister, exemption participate in the inviolability attached to his public character. extending The secretaries of embassy and legation are especially entily, secreta- tled, as official persons, to the privileges of the diplomatic corps in respect to their exemption from the local jurisdic

to his fami

ries, servants, &c.

tion.30

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.3

31

It follows from the principle of the extra-territoriality of

29 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 4. Rutherforth'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, vol. ii. ch. 17, pp. 291— 334.

30 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.

31 Blackstone's Commentaries, vol. i. ch. 7. LL. of the United States, vol i. ch. 9, § 26.

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, 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. 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."

32

house and

property.

The personal effects or moveables belonging to the minister, § 18. Exempwithin the territory of the state where he resides, are entirely tion of the exempt from the local jurisdiction; so also of his dwelling- minister's house; but any other real property, or immoveables, of which he 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 carrying on trade, or in a fiduciary character as an executor, &c., exempt from the operation of the local laws.33

may

His person and personal effects are not liable to taxation. He is exempt from the payment of duties on the importation of articles for his own personal use and that of his family. But this latter exemption is, at present, by the usage of most nations, limited to a fixed sum during the continuance of the mission. He is liable to the payment of tolls and postages. The hotel in which he resides, though exempt from the quar

32 Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch, 9, § 124. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Kluber, pt. ii. tit. 2, §§ 212-214.

33 Vattel, liv. iv. ch. 8, §§ 113-115. Martens, Précis, &c. liv. vii. ch. 8, § 217. Kluber, pt. ii. tit, 2, ch. 3, § 210.

$ 19. Duties and taxes.

§ 20. Messengers and couriers.

§ 21. Freedom

tering of troops, is subject to taxation in common with the other real property of the country, whether it belongs to him or to his government. And though, in general, his house is inviolable, and cannot be entered without his permission by police, custom-house, or excise officers, yet the abuse of this privilege, by which it was converted in some countries into an asylum for fugitives from justice, has caused it to be very much restrained by the recent usage of nations.34

The practice of nations has also extended the inviolability of public ministers to the messengers and couriers sent with despatches to or from the legations established in different countries. They are exempt from every species of visitation and search in passing through the territories of those powers with whom their own government is in amity. For the purpose of giving effect to this exemption, they must be provided with passports from their own government, attesting their official character; and in the case of despatches sent by sea, the vessel or aviso must also be provided with a commission or pass. In time of war, a special arrangement, by means of a cartel or flag of truce, furnished with passports, not only from their own government, but from its enemy, is necessary for the purpose of securing these despatch vessels from interruption, as between the belligerent powers. But an ambassador or other public minister, resident in a neutral country for the purpose of preserving the relations of peace and amity between the neutral state and his own government, has a right freely to send his despatches in a neutral vessel, which cannot lawfully be interrupted by the cruisers of a power at war with his own country.35

A minister resident in a foreign country is entitled to the privilege of religious worship in his own private chapel, acof religious worship. cording to the peculiar forms of his national faith, although

34 Vattel, liv. iv. ch. 9, §§ 117, 118. Martens, Précis, &c, liv. vii. ch. 5, § 220. Manuel Diplomatique, ch. 3, §§ 30, 31.

35 Vattel, liv. iv. ch. 9, § 123. Martens, Précis, &c. liv. vii. ch. 13, § 250. Robinson's Adm. Rep. vol. vi. p. 466. The Caroline.

it may not be generally tolerated by the laws of the state where he resides. Ever since the epoch of the Reformation, this privilege has been secured by convention or usage between the Catholic and Protestant nations of Europe. It is also enjoyed by the public ministers and consuls from the Christian powers in Turkey and the Barbary States. The increasing spirit of religious freedom and liberality has gradually extended this privilege to the establishment, in most countries, of public chapels attached to the different foreign embassies, in which not only foreigners of the same nation, but even natives of the country of the same religion, are allowed the free exercise of their peculiar worship. This does not, in general, extend to public processions, the use of bells, or other external rites celebrated beyond the walls of the chapel.36

Consuls,

ministers,

Consuls are not public ministers. Whatever protection § 22. they may be entitled to in the discharge of their official du- not entities, and whatever special privileges may be conferred upon tled to the peculiar them by the local laws and usages, or by international com- privileges pact, they are not entitled by the general law of nations to of public the peculiar immunities of ambassadors. No state is bound to permit the residence of foreign consuls, unless it has stipu lated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur, which is granted them, withdrawn, and may be punished by the laws of the state where they reside, or sent back to their own country, at the discretion of the government which they have offended. In civil and criminal cases, they are subject to the local law in the same manner with other foreign residents owing a temporary allegiance to the state.37

36 Vattel, liv. iv. ch. 7, § 104. Martens, Précis, &c. liv. vii. ch. 6, §§ 222 -226. Kluber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, ch. 3, §§ 215-216.

37 Wicquefort, de l'Ambassadeur, liv. i. § 5. Bynkershoek, cap. 10. Martens, Précis, &c. liv. iv. ch. 3, § 148. Kent's Comment. on American Law, vol. i. pp. 43-45. 2nd Edit.