Immunities of the Public § 142. From the status of inviolability of the minister (Gesandte) result several personal immunities of which we quote in the first place the exemption from all criminal proceedings and freedom from arrest in all civil suits. With regard to the question whether the inviolability of the minister (Gesandte) shields him from responsibility with regard to the criminal law of the State to which he is delegated, Sir Robert Phillimore gives the following opinion.. "With respect to criminal offences against the Private Law, these may be of two classes, i. e. against the property, or against the life of individuals. With respect to the former, the reason of the thing and the nature of the ambassador's function unquestionably demand his exemption from the criminal tribunals of the country. The sovereign may, according to the gravity of the offence, signify, in various ways, his displeasure, or demand his recall; but he can neither be punished nor arrested." "In 1763, the Ambassador of Holland at the Court of the Landgrave of Hesse-Cassel was accused of mal-administration of a testamentary trust. The Government of Cassel called upon him to render an account, which he refused to do, whereupon he was arrested with a view to to obtain from him the necessary documents connected with the trust. But the Landgrave was obliged to send a special embassy to Holland to make apology and reparation for this infraction of International Law." "With respect to graver offences against the Criminal Law, such as murder, the question is more difficult; but the true proposition of International Law upon this subject is, as laid down by Grotius, namely, that the guilty person cannot be tried by the foreign tribunals. This doctrine is also supported by Wicquefort, Zouch, Bynkershoek, and Vattel. Great authorities in the English law, Coke, Comyns, Hale, Foster, held a contrary doctrine; but Blackstone correctly states that, whatever may have formerly been the opinion, this country follows, as others do, the opinion of Grotius. With respect to crimes against the majesty of the State, such as conspiracies against the Government or the sovereign thereof, it appears to be now the clear law that no judicial process in the State against which the offence has been committed can be put in motion against the representative of a foreign sovereign. Such appears to be the best and most generally received opinion. There are not, however, wanting writers who draw a distinction between the commission of mala prohibita and mala in se, and between privata and publica delicta. But the reasons of exemption apply to both cases; namely first, because the nature of the ambassador's functions demands the most absolute freedom in every case that may arise, securitas legatorum utilitate quæ ex pœna est præponderat. Secondly because the ambassador represents the person of another, and is recognized in that capacity by the tacit compact by which he is admitted into the country; it has been nobly said: ils sont la parole du Prince qui les envoie, et cette parole doit être libre." "It is not meant, however, to convey the impression, either that the ambassador is to escape without punishment, or that the State in which he is discharching his functions is powerless to resist his open violence, or to stay his secret machinations against her public safety, or to redress the rights of a subject whom he may have criminally injured. It is the duty and the right of the injured State, under these circum Right of Exterritoriality. Droit d'Asile. Opinion. . XXI 143 stances, to oppose force to force, and in the event of secret machinations, to secure the person of the ambassador and remove him from her borders, and in the case of the privatum delictum, to insist upon his being tried by the tribunals, or the proper authorities, of his own country. "It has been held by high judicial authority, says Sir Robert Phillimore further, that if a foreign minister commit an assault, he is so far deprived of his privilege that battery committed on him, by way of self-defence, is legal, though even such conduct on the part of a foreign minister will not justify an arrest on process." "It is clear that Courts of Justice cannot inquire whether a person recognized by the Government as a foreign minister was duly appointed as such or not. The recognition of the Government is conclusive upon the judicial tribunal. Courts of Law have considered that the reasons which necessitate the inviolability of the person of the foreign minister apply to those of his train or suite, and therefore, that an assault upon, and that threats used towards, a secretary of legation are punishable as a criminal violation of International Law." † § 143. The right of exterritoriality (described under $46) of the public minister is merely anProf. Lorimer's other aspect of the status of inviolability. The right of exterritoriality involves the exemption, to a certain extent, of his house or legation buildings from the operations of territorial jurisdiction. * GROTIUS. Liv. II. Chapt. XVIII. 4, 5, 7. MONTESQUIEU. De l'Esprit des Lois. Part II. Chapt. XXVI. § 21. WARD. Vol. II. pp. 515-16. ZOUCH. Solut. Quest. De Leg. del Ind. Comp. BYNKERSHOEK. De Fore Leg. Ch. 17, 18, 19. VATTEL. Liv. II. §§ 94-96. † KLUBER. $211. STEPHENS.' (Blackstone's) Comm. Edit. 1858. II. p. 498. BYNKERSHOEK. De Foro Leg. Chapt. VI. WICKEFORT, L'Ambassadeur et ses functions. Liv. I. Chapt. XXVII. PHILLIMORE, Common International Law, Vol. II, pp. 202-214. Prof. Lorimer gives the following opinion on this head. "Amongst the conditions which experience has indicated as inseparable from the right of legation in the existing conditions of society, and which thus become subsidiary rights in themselves, the most peculiar is the right of the international agent to exemption from the municipal jurisdiction of the State in which he resides, or through which he passes. A sharp distinction is here rightly drawn between his character as an international agent and as an individual foreigner. In the former character, and in it alone, he is held to carry the municipal laws of his own State along with him. An English ambassador, with his family and his suite, whilst abroad in the public service, is domiciled in England and his house is English ground. Beyond the necessities of self-protection, the State in which he resides can deal with him only diplomatically, even in the event of his transgressing its laws, i. e. it must call on his own State to deal with him through its agent there resident; and debts, incurred in his public capacity, must be sued for in England. In his character of a private individual, on the other hand, if that character be deliberately assumed by him, for example, by entering into private speculations, or by purchasing property in the country of his residence, that country deals with him as a private foreigner, the exterritorial gives way to the territorial jurisdiction. It was towards tracing this line that the work of Bynkershoek, De foro legatorum, offered such important contributions. But even in Bynkershoek's hands it was found scarcely to admit of definition; and its necessity has been evaded by the prohibition which most States impose on their diplomatic and even their higher consular agents to enter into private transactions in the States in which they reside." "The right of exterritoriality extends not only to the person of the international agent but to his house and his suite. It cannot be entered and they cannot be arrested." "The privileges accorded to ambassadors led to many scandalous abuses in former times, none of them greater than those which arose out of the inviolability of their residences, or what was technically known as the franchise de l'hôtel. Whole quarters of populous cities-Rome, Venice, Madrid, and Frankfurt, during the assembly for the election of the emperor-were taken possession of by foreign ministers under this guise. By the simple expedient of placing the arms of their sovereigns over the doors of as many houses as they thought proper to hire, and letting them out as asylums for offenders against the laws of the countries in which they dwelt, enormous profits were realised. Even Callières, who was not scrupulous, was shocked at the practice. 'It is impossible,' he says, 'sufficiently to blame foreign ministers who abuse the right of asylum by sheltering criminals and bandits condemned to death for atrocius crimes, and make a shameful traffic of the protection they afford them.'"* "Grotius declares that the droit d'asile has no warrant in International Law, and Bynkershoek limits it to the person, the family, and the suite of the minister. Such, in recent times, has come to be the universal rule, with this additional proviso, that the ambassador is required to furnish to the minister for foreign affairs a list of the names of the persons in favour of whom he claims the privilege. Even as regards his own domes* Page 161. |