*

ter. "The persons in an ambassador's retinue," says Vattel, "partake of his inviolability; his independency extends to all his household; these persons are so connected with him, that they follow his fate. They depend immediately on him only, and are exempt from the jurisdiction of the country, into which they would not have come, but with this reserve. The ambassador is to protect them, and whenever they are insulted, it is an insult to himself. * * The ambassador's consort is intimately united to him, and more particularly belongs to him than any other person of his household. Accordingly, she shares his independency, and inviolability; even distinguished honors are paid her, which in some measure could not be denied her without affronting the ambassador. For these, most courts have a fixed ceremonial. The regard due to the ambassador, communicates itself likewise to his children, who also partake of his immunities." This question will be further considered in section thirty-five. (Vattel, Droit des Gens, liv. 4, ch. 9, §§ 120, 121; Martens, Precis, du Droit des Gens, §§ 219, 234; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 18, § 8; Foelix, Droit International Privé, § 184; Horne, On Diplomacy, sec. 4, §§ 35, Martens, Guide Diplomatique, §§ 48, 50; Wicquefort, l' Ambassadeur et ses Funcions, liv. 1, § 28; Garden, De Diplomatie, liv. 5, §§ 5, 6; Toucey, Opinions U. S. Att'ys Genl., vol. 5, p. Heffter, Droit International, § 221; Riquelme, Derecho Pub. Int., lib. 2, cap. Ad., 1, 2; Merlin, Repertoire, verb. Ministre Public, sec. 6.)

36;

69;

§ 10. "The practice of nations," says Wheaton, “has also extended the inviolability of public ministers to the messengers and couriers sent with dispatches to or from the lega tions 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 case of dispatches sent by sea, the vessel, or aviso, must also be provided with a commission or pass. In time of war, a special agreement, by means of a cartel or flag of truce, with passports, not only from their own government, but

from its enemy, is necessary for the purpose of securing these dispatch 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 dispatches in a neutral vessel, which cannot lawfully be interrupted by the cruisers of a power at war with his own country." On this subject Vattel very justly remarks: "Couriers sent or received by an ambassador, his papers, letters, and dispatches, all essentially belong to the embassy, and are consequently to be held sacred; since, if they were not respected, the legitimate objects of the embassy could not be attained, nor would the ambassador be able to discharge his functions with the necessary degree of security. The statesgeneral of the United Provinces decided, whilst the president, Jeannin, resided with them as ambassador from France, that, to open the letters of a public minister, is a breach of the law of nations. Other instances may be seen in Wicquefort. That privilege, however, does not, on certain momentous occasions, when the ambassador himself has violated the law of nations by forming or countenancing plots or conspiracies against the state, deprive us of the liberty to seize his papers for the purpose of discovering the whole secret and detecting his accomplices; since, in such an emergency, the ambassador himself may lawfully be arrested and interrogated. An example is furnished us in the conduct of the Roman government, who seized the letters which a treasonable junto had committed to the hands of Tarquin's ambassador. (Horne, On Diplomacy, sec. 4, § 37; Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 19; Vattel, Droit des Gens, liv, 4. ch. 9, § 123; Martens, Precis du Droit des Gens, § 250; The Caroline, 6 Rob. Rep., p. 466; The Atalanta, 6 Rob. Rep., p. 441; Martens, Guide Diplomatique, § 51; Heffter, Droit International, § 222; Riquelme, Derecho Pub. Int., lib. 2, caps. Ad., 1, 2; Merlin, Repertoire, verb. Ministre Public, sec 6.)

§ 11. The domestics and servants of a minister also participate in the inviolability attached to his public character. "Did not the domestics," says Vattel, "and household of a foreign minister solely depend on him, it is known how very

easily he might be molested and disturbed in the exercise of his functions." But as this exemption of persons of this class sometimes leads to difficulties with the local police, the municipal laws of some states, and the usage of most nations, now 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 any of the privileges or exemptions pertaining to them by virtue of their being dependents of a foreign embassy or legation. It was at one time contended that the subjects of the state to which a public minister is accredited, do not participate in his rights of exterritoriality, but are justiciable by the tribunals of their country. But the better opinion seems to be that, although such state may very properly prohibit its subjects from becoming the employés or servants of a foreign minister, if it do not so prohibit them, they are, while so employed, to be considered without the limits of its jurisdiction.

It must be observed that the minister himself can afford no "protection;" it is the law which gives a public character to his family, domestics and servants. Hence, a mere appointment by a minister of any person as a member of his household, is, in itself, no protection to such person. It must be shown that he is bona fide the officer or servant of such household, and that he performs the duties corresponding to the position or office which he pretends to hold. A court will inquire if his appointment is a fair bona fide transaction, and if not, the privilege claimed will not be allowed. The same may be said of the goods of persons claiming such privilege; if they are not bona fide members of such household, or are engaged in other business or trade, their goods are not exempt from process for debts, rent, etc. Ministers have not unfrequently attempted to protect the persons and property of their friends from arrest or attachment, or execution, by pretended appointments to positions in their household, but the courts have very properly refused to give any countenance to such frauds. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 16; Vattel, Droit des Gens, liv. 4, ch. 9, § 121; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 18, §8; Bynhershoek, de Foro Legat., caps. 15, et seq.; Martens, Precis du Droit des Gens, § 219; Foelix, Droit International Privé, § 184; Fontinier

v. Heyle, 3 Burr. Rep., p. 1731; Lockwood v. Coysgarne, 3 Burr. Rep., p. 1678; Delvalle v. Plomer, 3 Campbell Rep., p. 47; Heathfield v. Chilton, 4 Burr. Rep., p. 2016; Triquet v. Bath, 3 Burr. Rep., p. 1478; 1 W. Blackstone Rep., 471; Novello v. Toogood, 1 Barn. and Cress. Rep., 554; Martens, Guide Diplomatique, 849; Heffter, Droit International, § 221; Merlin, Repertoire, verb. Ministre Public, sec. 6.)

§ 12. The act of sending a minister by the one, and of receiv ing him by the other, amounts to a tacit compact between the two states, that he shall be subject only to the authority of his own government. The inviolability of the minister is founded upon mutual utility, growing out of the necessity that such officers and agents should be entirely independent of the local authority, in order to properly fulfil the duties of their mission. Hence, the fiction of ex-territoriality has been invented, by which the minister, though actually in a foreign country, is considered still to remain within the territory of his own state. He continues subject to the laws of his own country, both with respect to his personal status, and his rights of property; and his children, though born in a foreign country, are considered as natives. "A respect due to sovereigns," says Vattel, "should reflect on their representatives, and chiefly on their ambassadors, as representing their master's person in the first degree. Whoever affronts or injures a public minister, commits a crime the more deserving a severe punishment, as thereby the sovereign and his country might be brought into great difficulties and trouble. It is just that he should be punished for his fault, and that the state should, at the expense of the delinquent, give a full satisfaction to the sovereign affronted in the person of his minister. If a foreign minister offends a citizen, the latter may oppose him without departing from the respect due to the character, and give him a lesson which shall both efface the stain of the outrage, and expose the author of it. The person offended may further prefer a complaint to his sovereign, who will demand of the minister's master a just satisfaction. The great concerns of the state forbid the citizen, on such occasions, to entertain those thoughts of revenge which the point of honor might suggest, though otherwise allowable. Even, according to the maxims of the world, a

gentleman receives no disgrace by an affront for which it is not in his power, of himself, to procure satisfaction. The necessity and right of embassies being established, the inviolability of ambassadors and other public ministers is a certain consequence of it; for if their person be not protected from violence of every kind, the right of embassies becomes precarious, and the success very uncertain. A right to the end, is the right to the necessary means. Embassies, then, being of such great importance in the universal society of nations, and so necessary to their common well-being, the person of ministers charged with this embassy is to be sacred and inviolable among all nations." (Vattel, Droit des Gens, liv. 4, ch. 9, § 81-125; Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 14; Grotius, de Jur. Bel. ac Pac., liv. 2, cap. 18, §§ 1-6; Rutherforth, Institutes, b. 2, ch. 9, § 20; Wicquefort, de l'Ambas., liv. 1, § 27; Martens, Precis du Droit des Gens., §§ 214–218; Kluber, Droit des Gens Mod., pt. 2, tit. 2, § 203; Foelix, Droit Int. Privé., § 209; Horne, On Diplomacy, sec. 3, §§ 20-22; Phillimore, On Int. Law, vol. 2, §§ 154, et seq.; Wildman, Int. Law, vol. 1, chap. 3; Martens, Guide Diplomatique, §§ 23, 24; Garden, De Diplomatie, liv. 5, § 18; Riquelme, Derecho Pub. Int., lib- 2, cap. Ad., 2; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 15.)

§ 13. It is proper to distinguish between the inviolability of the public minister and the legal fiction of his ex-territoriality. The former is not a consequence of the latter, but the latter was invented for the purpose of giving security to the former. The mere fact of a public minister being regarded as a foreigner, resident in a foreign country, would not, of itself, necessarily exempt him from local jurisdiction. Article fourteen of the code Napoleon provides for bringing before the French tribunals a foreigner resident in a foreign country, even for engagements contracted in a foreign country with a Frenchmen. If, therefore, the exemption of the minister depended upon his ex-territoriality, or implied foreign residence, he might still be subject to local jurisdiction. The true basis of all diplomatic privilege consists in the idea of inviolability which international jurisprudence attaches to his person and his office, and from which it cannot be severed. This idea of inviolability is an inherent and essential quality of the