as a plaintiff, and thus submitting himself to the defendant's

Immunity of am

bassador's hotel

and goods.

§ 92 b.

B. The immunity from local jurisdiction granted to a foreign minister extends to his hotel and goods. His house is a sanctuary, except in case of gross crime, for himself and his retinue; and that whether it belongs to his own government, or is hired, or is given to him for his use by the state to which he is sent. 2 His goods also, or all that is necessary for the comfort of himself and his family, together with his equipage, enjoy the same exemption. His papers relating to the business of his embassy are inviolate. These exemptions are plainly as essential for the discharge of his duties in his office, as is his personal exemption from foreign jurisdiction.

It is to be observed, however, that if he chance to possess real property in the foreign country, or personal property, aside from that which pertains to him as an ambassador (§ 92 e), it is subject to the local laws.

His privileges do not include the right of asylum for persons His hotel no asy- outside of his household. If the fiction of exterrilum for criminals. toriality explained the privileges of ambassadors, the right of asylum would be fairly deducible from it, and a criminal taking refuge in such a sanctuary would be given up, if at all, by a process of extradition. But it so happens that the house of an ambassador has ceased to be an asylum, since the notion of exterritoriality has been most current. The right was attached in the middle ages to many religious places, and was conceded after this analogy, on account of their sacredness, in some countries, to the hotels of ambassadors; but the usage, if we are not deceived, was never general throughout Europe, and even where it obtained, as in Rome and Madrid, was sometimes opposed and violated by the government. Similar to this right, if not an extension of it, was the freedom or privilege (jus quarteriorum) of the quarter of the city where the ambassador resided, and which was indicated by the arms of his sovereign. This right (or wrong rather) prevailed in a number of places, as at Venice,

1 Compare De Martens, § 216; Wheaton, El. iii. 1, § 15. Bynkersh. De For. Leg. 16. It does not appear that the ambassador has a right to do this without leave of his own government, for it may prevent the due exercise of his functions.

2 Sometimes extraordinary ambassadors have quarters provided for them by the state to which they are sent, their stay being ordinarily short. In 1814, Austria and England purchased houses for their foreign ministers in Paris, and in 1817, Prussia in Paris and Petersburg. Klüber, § 192, note. Houses for the reception of foreign ambassadors were in use in the empire of Charlemagne. A capitulary of A.D. 850 (Perz, iii. 407) speaks of publicæ domus, in singulis civitatibus-antiquitus constructæ, nostris usibus et externarum gentium legationibus satis congruæ. The Romans also sometimes entertained foreign legates in public villas outside of the walls at the public charge.

Rome, Madrid, and during the meetings for the choice and coronation of an emperor, at Frankfort-on-the-Main. At Rome, in the sixteenth and seventeenth centuries, the harbouring of criminals, under plea of exercising this right, gave occasion to more than one dispute between the Papal and the French governments.

It is now admitted that if a transgressor, not of the ambassador's train, takes refuge in his premises, he can be demanded by the local authorities, and, if not delivered up, can be searched for and seized within the hotel, for which purpose such force, in breaking doors open and the like, may be used as is necessary for his apprehension. For as Bynkershoek (De For. Leg.' § 21) asks, legati, ut latrones recipiant, mittuntur ? vel, sine receptione commode legationi vacare non possunt?'

It is also a freedom commonly allowed to ambassadors, but rather by national comity than as a fair deduction Freedom from from theory, that the personal effects of an ambas- imposts, &c. sador are exempt from taxation, and that duties are remitted on articles from abroad which he needs for himself and his family. His importations, however, before they reach his hotel, are liable to the search of custom-house officers, and if he has sent for contraband goods, they may be confiscated. As for the rest, he is obliged to pay taxes (even on his hotel, if it belongs to him or to his government), tolls and postages, but is exempt from the quartering of troops. (Note 5.)

1

§ 92 c.

This ship.

C. The liberty of worship in a foreign land is now conceded by the law and usage of Christian nations to ambas- Ambassador's sadors of every rank, even when their religion or liberty of worsect is not tolerated by the laws of the land. liberty might be deduced from the rule of exterritoriality, as in the parallel case of a ship of war in a foreign port, or still better from the consideration that, religion being a prime necessity of man's nature, an earnest nation could have no diplomatic intercourse with another nation, within whose territory its religion was prohibited But the argument which would support this liberty of worship by natural justice and the rights of conscience, has here no application, since a great part of the nations of Christendom have always assumed the right of allowing or prohibiting outward worship at their pleasure.

This freedom of worship extends to the household of the ambassador, and sometimes, by comity or connivance, if not by treaty, to his countrymen who may be residing at the same capital. It is not limited by his presence, but when he is on a journey, or during the intervals between two legations, it may 1 De Martens, §§ 227-229; Wheaton's El. iii. 1, § 18.

still be kept up. But his household, and even his wife, it is held, if of another religion than his own, have no separate right of worship. It is held, also, that if there be religious rites publicly allowed, of the same sect to which the ambassador belongs and where he is residing, he may be forbidden to have a chapel and services of his own, which now are no longer necessary. Thus, when the Emperor Joseph II. granted toleration at Vienna to the adherents of the Augsburg confession, it was declared that domestic worship at the hotel of Lutheran ambassadors would no more be permitted. But in Constantinople, where the Greek church is tolerated, as the Czar does not own the authority of the patriarch there, his minister has a special place of worship.

This worship may be such in the fullest sense, that is, there may be a chaplain or chaplains and whatever other persons are necessary for the services of religion, due administration of the sacraments, and the like. But it must be strictly house-worship, in a room fit for the purpose, yet without bell, organ, or other sign, indicating to passengers in the street that a chapel is near by. And it is held that natives of the country cannot, without leave from the government, partake in the services; nor has the chaplain a right to appear abroad in his canonicals. A French ambassador at Stockholm, Chanut, claimed the right of admitting Swedes to his Catholic chapel, at services not tolerated in the country, which amounted to a claim of power to suspend the laws. When, in 1661, the Dutch imprisoned the French ambassador's chaplain for performing mass, their reason was that the ambassador had left the country. Most preposterous was the claim of Philip II. of Spain that the trains of ambassadors at Madrid should go to mass.

It is held that the ambassador may not set up worship as his own affair, but by leave of his government. Where freedom of worship, as with us, is unlimited, all these restrictions are inapplicable, unless imposed by way of reciprocity; and the necessity for separate worship in general ceases. Treaty sometimes gives greater liberty than is here laid down.'

§ 92 d.

D. The same exemption from local jurisdiction, which the Privileges of his ambassador himself enjoys, is granted by the law family and train. of nations to his family and train, as to his chaplain, physician, private secretary and secretary of legation, and to his domestic servants. Dr. Wheaton remarks, in regard to the latter, that the laws and usages of most countries call upon

1 Compare Klüber, § 215; Heffter, § 213; De Martens, §§ 222-226.

ambassadors to furnish official lists of their servants, that they may be entitled to their exemption. The secretaries are peculiarly protected, as being necessary to carry on the business of the embassy; and above all, the secretary of legation, as a responsible person entrusted by the ambassador's government with more or less of his power during his absence or at his death, and by virtue of his appointment a public officer.

The reasons for this exemption in the case of servants, especially of natives of the country whom the foreign minister hires, are of little cogency, since others could be speedily found to take their places; but the exemption is well established. Should it, however, appear that a criminal was taken into an ambassador's service in order to protect him, it is doubtful whether this would be endured-at least it would be a ground of complaint against the employer; and if any of his servants while in his employment carries on a traffic in which he incurs debts, such person loses his privileges; he is considered to sustain two characters, one of which will not shield him from the

consequences of acts done in the other.2 An ambassador may also give up his control over domestics hired within the foreign country, but perhaps cannot do this in regard to those whom he has brought with him.3 At several congresses, as at Münster and Nymwegen, the assembled envoys, in order to check the riotous conduct of their herd of domestics, gave the police over them into the hands of the magistrates of the town.

suite.

E. From the rule of exterritoriality strictly carried out, and from the necessity of some government over an An ambassador's ambassador's train, it might be argued that jurisdic- power over his tion over them, criminal as well as civil, ought to be lodged in him. If, however, such power pertained to him, it could only be by the laws of his own country. But then a foreign government cannot be expected to permit a stranger to perform the highest acts of criminal justice within its territory, unless it be for the purpose of carrying out military law on a vessel of war, or in an army passing through the land. Hence the jurisdiction of ambassadors in modern times over their trains is actually confined to subordinate measures. In criminal cases a follower of his, committing a crime outside of the hotel, is delivered up to him; he gathers and prepares the evidence, and

1 This had become obsolete for a while before Bynkershoek wrote his work De Foro Legatorum. In chap. 16 he says, ' optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum, sed pessimo exemplo id nunc ubique gentium negligitur.'

2 Bynkershoek asks whether those who follow in an ambassador's train, 'unice ut lucro suo consulant, institores forte et mercatores,' are his companions, and decides in the negative. De For. Leg. § 15, ad calc.

3 Heffter, § 221; Vattel, iv. 9, § 124.

sends the accused home for trial. He exercises voluntary jurisdiction, as far as his suite, and, if permitted by the foreign and his own country, as far as his countrymen sojourning near him are concerned, in receiving and legalising testaments, authenticating contracts, affixing his seal, and the like.1 'But the right of contentious jurisdiction,' says Heffter, is 'nowhere, within my knowledge, conceded to ambassadors at Christian courts, even for the purpose of their suite; but they here simply execute requisitions directed to them, especially in regard to the hearing of witnesses, and all this according to the laws of their own country.'

When a crime is committed by a native servant belonging to the foreign minister's household, or when persons attached to the trains of two ambassadors break the public peace by quarrels, the only convenient way of proceeding is to deliver them over to the courts of the country to be tried.

Formerly ambassadors sometimes exercised the power of blood over their retinue. The most noted case of this kind occurred at London in 1603, when Sully, then Marquis of Rosny, was ambassador there. One of his people having killed an Englishman with whom he had a quarrel at a brothel, Sully assembled a council or jury of Frenchmen, condemned the man to death, and delivered him up to the English authorities for execution. He was pardoned by James I., whereupon the French claimed that, as he was judged by his own tribunal, the pardon was unauthorised. 1

Limits of the

privileges of an ambassador.

§ 92 e.

An ambassador can claim exemption only for the property which he holds in the foreign country as an official person. If he has another character, as that of a merchant or trustee, his property so held is subject to the laws of the land. Formerly it was not uncommon for merchants to represent the minor princes of Europe at the smaller courts. Bynkershoek says that in his time they made great gains by importing goods free of duty, on the pretence that these were necessary for their own use, and then selling them. But to appoint merchants as ministers in countries where they do business is believed to have become almost obsolete, and this source of gain is cut off by better regulations. (§ 92 b.) There is now a very general uniformity both of opinion and practice, that ambassadors committing grave crimes, whether against the state or against moral order, must be remanded home to their sovereign for judgment, and that only self-defence will allow the killing of such a 2 Ward, ii. 527.

Ambassadors committing crimes.

1 Heffter, § 216.