67. Immunity from civil Jurisdiction, enjoyed by Diplomatic Agents. Although the universal and rigorous law of nations would not except the diplomatic agent from the civil jurisdiction of the state near which he resides. yet exterritoriality founded upon the positive principles of the law of nations would effectually screen him. The only jurisdiction to which he is amenable is that issuing from the tribunals of his own government, unless

1. If the diplomatic agent have been already a subject of the government near which he resides at the time of his nomination, and have not renounced that jurisdiction.

2. If the diplomatic agent be at the same time in the service of the sovereign to whom he is sent in quality of public minister.

S. If he be able or willing to submit to the jurisdiction of a foreign power. This can take place when he pleads, and thereby submits to the legal forms. The debts contracted by a foreign minister before or during the course of his mission, even if they were incurred on the faith of Bills of Exchange, cannot authorize his arrest, or the seizure of furniture and fixtures in his possession as diplomatic agent. In many states, moreover, the laws of the country forbid expressly any act of this nature by the authorities. Martens’Manual.

68. The Immunity from Criminal Jurisdiction enjoyed by the Diplomatic Agent. The nature of acts,which are often inseparable from a criminal prosecution, and the inconveniences which thence result to the business with which the diplomatic agent is charged, forbids his subjection to the criminal jurisdiction of the state near which he is accredited.

The tribunals cannot therefore institute any process against his person or against the persons of his suite, neither can they issue a warrant or grant any judgment in the case. If however there be amongst his suit any natives of the country where he resides, who may have rendered themselves amenable to the laws, before proceeding against them it is necessary to obtain the sanction of the minister in order to their appearance before the tribunals: but judg ment cannot be followed up, without the agent's consent; unless the offender have quitted his service. ib.

69. The Ambassador is exempt from the civil Jurisdiction of the Country near which he resides. Some authors are for submitting the ambassador, in civil affairs, to the jurisdiction of the country where he resides; at least for such as have taken rise during the time of the embassy; and in support of their opinion, they allege, that this subjection does no injury to his character. However sacred, they say, a person be, his inviolability is not affected by suing him on a civil action. But is it not on account of the sacredness of their person that ambassadors cannot be sued; it is because they do not depend on the jurisdiction of the country whither they are sent; and the solid reasons for this independency may be seen above. Let us here add, that it is entirely proper, and even necessary, that an ambassador should

not be liable to any juridicial prosecution, even for a civil cause, that he may not be disturbed in the exercise of his functions.The ambassador or public minister is at present by the custom and consent of all nations independent of all jurisdiction in the country where he resides, either for civil or military cases.In the year 1657, a resident of the elector of Brandenburgh, in England, was arrested for debt. But he was set at liberty, the arrest judged contrary to law; and even the creditors and officers of justice concerned in the insult were punished. Vattel.

70. How the Exemption of the Minister extends to his Possessions. A foreign minister is independent of the jurisdiction of the country, and his personal independency as to civil cases would be of no great signification, did it not extend to every thing necessary to his living with dignity, and the quiet discharge of his functions. Besides, whatever he has brought with him, or purchased for his use, as minister, is so connected with his person as to follow its fate. From the independency in which the minister comes, it is not to be supposed that he means to subject his retinue, his baggage, and necessaries, to the jurisdiction of the country. Therefore every thing belonging to the minister's person, as a public minister, whatever is for his use, whatever serves for the subsistence of himself, and that of his household; these, I say, partake of the minister's independency, and are absolutely exempt from any jurisdiction of the country. These things, like the person to whom they belong, are considered as if they were out of the country. ib.

71. The Exemption cannot extend to Effects belonging to any Trade the Minister may carry on. But this cannot take place in effects manifestly belonging to the ambassador, under another relation than that of minister. What has no affinity with his functions and character, cannot partake of the privileges derived only from his function and character. Should then a minister as it has been often seen, engage in trade, all the effects, goods, money, and debts, active and passive, belonging to his commerce, come within the jurisdiction of the country. ib.

72. Not to Immoveables which he possesses in the Country. All estates, all immoveable goods, depend on the jurisdiction of the country, whoever be the proprietor, are they to be exempted from it only because the owner of them is appointed to be the ambassador of a foreign power? There is no reason for this. The ambassador does not hold those possessions as ambassador: they are not annexed to his person so as, like himself, to be reputed out of the territory. ib.

73. How Justice may be obtained against an Ambassador. All private. persons, citizens or strangers, who have any demands on a minister, if they cannot obtain justice, from himself, should apply to the sovereign his master who is obliged to do them justice, in a manner most agreeable to the public service. The prince is to consider whether it be fit to recall his minister,

to appoint a tribunal before which he may be sued, or to order delays, &c. In a word, the good of the state does not allow that any person whatever, should disturb the minister in his functions, or divert him from them, without the sovereign's leave; and the sovereign, his supreme duty being obliged to do justice to all, ought not to countenance his minister in refusing it, or wearying out his adversaries, by unjust delays. Vattel.

74. Ambassador's House and Domestics. The independency of the ambassador would be very imperfect, and his security weakly founded, did not the house in which he lives enjoy entire exemption, so as to be inaccessible to the ordinary officers of justice. The ambassador might be disturbed under a thousand pretences; his secrets might be discovered by searching his papers, and his person exposed to insults. Thus all the reasons which establish his independence and inviolability, concur likewise to secure the freedom of his house. The right of the character is generally acknowledged in all civilized nations: an ambassador's house is, at least in all the common cases of life, like his person, considered as out of the country. ib. 75. There are various grades of public ministers, from ambassadors (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained in the law and usages of nations. But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own country, any more than their sovereign; and their actions are not generally deemed subject to the control of the private law of that state, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nations wherein they are to exercise their functions. The rights, the powers, the duties, and the privi

In the case of the Schooner Exchange v. M'Faddon, [7 Cranch, 116, 158] the Supreme Court state the grounds of the immunity of foreign ministers, in a very clear manner, leaving the important question, whether that immunity can be forfeited by misconduct, open to future decision. "A second case," [says Mr. Chief Justice Marshall, in delivering the opinion of the court,] "standing on the same principles with the first, is the immunity, which all civilized nations allow to foreign ministers. Whatever may be the principle, on which this immunity is established, whether we consider him, as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign, at whose court he resides; still, the immunity itself is granted by the governing power of the nation, to which the minister is deputed. This fiction of exterritoriality could not be erected, and supported against the will of the sovereign of the territory. He is supposed to assent to it.

"This consent is not expressed. It is true, that, in some countries, and in this, among

leges of public ministers are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states. What these rights, powers, duties, and privileges are, are inquiries belonging to a treatise on the law of nations, and need not be discussed here. But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than the highest jndicature of the nation. Story's

Commentaries.

76. It is most fit, that this judicature should, in the first instance, have original jurisdiction of such cases, so that, if it should not be exclusive, it might at least be directly resorted to, when the delays of a procrastinated controversy in inferior tribunals might endanger the repose, or the interests of the government. It is well known, that an arrest of the Russian ambassador* in a civil suit in England, in the reign of Queen Anne, was well nigh bringing the two countries into open hostilities; and was atoned for only by measures, which have been deemed, by her own writers, humiliating. On that occasion, an act of parliament was passed, which made it highly penal to arrest any ambassador, or his domestic servants, or to seize or distrain his goods; and this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, was sent by an ambassador extraordinary, to propitiate the offended czar. And a statute to the like effect exists in

others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege, which he would not otherwise possess.

"The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the considerations, that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign commiting the interest of his nation with a foreign power to the care of à person, whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him, implies a consent, that he shall possess those privileges, which his principal intended he should retain-privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.

"In what cases a minister, by infracting the laws of the country in which he resides, may subject himself to other punishment, than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such, as to render him amenable to the local jurisdiction, it must be because they forfeited the privileges annexed to his character; and the minister, by violating the conditions, under which he was received, as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or according to the true meaning of the orginal assent, has ceased to be entitled to them."

See case in Note [marked 1.] under the present head.

the criminal code established by the first congress, under the constitution of the United States. Story's Commentaries.

77. It has been made a question, whether this clause, extending jurisdiction to all cases affecting ambassadors, ministers, and consuls, includes cases of indictments found against persons for offering violence to them, contrary to the statute of the United States, punishing such offence. And it has been held, that it does not. Such indictments are mere public prosecutions, to which the United States and the offender only are parties; and which are conducted by the United States, for the purpose of vindicating their own laws, and the law of nations. They are strictly, therefore, cases affecting the United States; and the minister himself, who has been injured by the offence, has no concern in the event of the prosecution, or the costs attending it. Indeed, it seems difficult to conceive, how there can be a case affecting an ambassador, in the sense of the constitution, unless he is a party to the suit on record, or is directly affected, and bound by the judg ment. Story's Commentaries.

78. The language of the constitution is perhaps broad enough to cover cases, where he is not a party; but may yet be affected in interest. This peculiarity in the language has been taken notice of, in a recent case, by the Supreme Court: "If a suit be brought against a foreign minister," (said Mr. Chief Justice Marshall, in delivering the opinion of the court)" the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought, which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different. This court can take cognizance of all cases affecting foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. Story's Commentaries.

79. Jurisdiction over the Retinue of a Minister. The retinue of the minister, being exempt from the jurisdiction of the state, ought to be subject to the jurisdiction of their master, or of his and their sovereign. It belongs to the two sovereigns to fix on the degree of jurisdiction that the minister shall exercise over his retinue; for this point is very far from being so generally settled as not to admit of further contestations. A minister is never refused a more extensive authority over his servants, than that of a father over his family. Ambassadors claim a sort of civil voluntary jurisdiction over their retinue, and which is very often granted them; but, with respect

[Of the Federal Constitution.]