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on this territory, although by courtesy he might be treated with particular attention. But matters are different when an envoy on his way from his own. State to the State of his destination travels through the territory of a third State. If the sending and the receiving States are not neighbours, the envoy probably has to travel through the territory of a third State. Now, as the institution of legation is a necessary one for the intercourse of States and is firmly established by International Law, there ought to be no doubt whatever that such third State must grant the right of innocent passage (jus transitus innoxii) to the envoy, provided that it is not at war with the sending or the receiving State. But no other privi leges, especially those of inviolability and exterritoriality need be granted to the envoy. And the right of innocent passage does not include the right to stop on the territory longer than is necessary for the passage. Thus, in 1854, the French Government" did not allow the United States envoy, Soulié, who had landed at Calais on his way to Madrid, to stop in France, because he was a French refugee naturalised in the United States. And it must be specially remarked that no right of passage need be granted if the third State is at war with the sending or receiving State. The envoy of a belligerent, who travels through the territory of the other belligerent to reach the place of his destination, may be seized and treated as a prisoner of war. Thus, in 1744, when the French Ambassador, Maréchal de Belle-Isle, on his way to Berlin, passed through the territory of Hanover, which country was then, together with

The matter, which has always been disputed, is fully discussed by Twiss, I. § 222, who also

quotes the opinion of Grotius, Bynkershoek, and Vattel.

See Wharton, I. § 97.

Envoy

Belligerent on

Enemy

England, at war with France, he was made a prisoner of war and sent to England.

$399. When in time of war a belligerent occupies found by the capital of an enemy State and finds there envoys of other States, these envoys do not lose their diplomatic Occupied privileges as long as the State to which they are acTerritory. credited is in existence. As military occupation does not extinguish a State subjected thereto, such envoys do not cease to be envoys. On the other hand, they are not accredited to the belligerent who has taken possession of the territory by military force, and the question is not settled yet by International Law how far the occupying belligerent has to respect the inviolability and exterritoriality granted to such envoys by the law of the land in compliance with a demand of International Law. It may safely be maintained that he must grant them the right to leave the occupied territory. But must he likewise grant them the right to stay? Has he to respect their immunity of domicile and their other privileges in reference to their exterritoriality? Neither customary rules nor international conventions exist as regards these questions, which must, therefore, be treated as open. The only case which occurred concerning this problem is that of Mr. Washburne, ambassador of the United States in Paris during the siege of that town in 1870 by the Germans. This ambassador claimed the right of sending a messenger with despatches to London in a sealed bag through the German lines. But the Germans refused to grant that right, and did not alter their decision although the Government of the United States protested.1

$400. There is no doubt that an envoy must not

1 See Wharton, I. § 97.

interfer

a third

interfere with the affairs of the State to which he is Envoy accredited and a third State. If he nevertheless does ing with interfere, he enjoys no privileges whatever against affairs of such third State. Thus, in 1734, the Marquis de State. Monti, the French envoy in Poland, who took an active part in the war between Poland and Russia, was made a prisoner of war by the latter and not released till 1736, although France protested.1

XI

THE RETINUE OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 120-124-Hall, § 51-Phillimore, II. §§ 186-193 --
Twiss, I. § 218—Ullmann, §§ 37, 41-Geffcken in Holtzendorff,
III. pp. 660-661-Heffter, § 221-Rivier, I. pp. 458-461-Pradier-
Fodéré, III. §§ 1472-1486—Fiore, II. Nos. 1164–1168—Calvo, III.
S$ 1348-1350-Martens, II. § 16.

Classes of

§ 401. The individuals accompanying an envoy Different officially, or in his private service, or as members of Members his family, or as couriers, compose his retinue. The of Retinue. members of the retinue belong, therefore, to four different classes. All those individuals who are officially attached to an envoy are members of the legation and are appointed by the home State of the envoy. To this first class belong the Councillors, Attachés, Secretaries of the Legation; the Chancellor of the Legation and his assistants; the interpreters, and the like; the chaplain, the doctor, and the legal advisers, provided that they are appointed by the home State and sent specially as members of the legation. A list of these members of legation is handed over by the envoy to the Secretary for

1 See Martens, Causes Célebres, I. p. 207.

Privileges of Mem

bers of

Foreign Affairs of the receiving State and is revised from time to time. The Councillors and Secretaries of Legation are personally presented to the Secretary for Foreign Affairs, and very often also to the head of the receiving State. The second class comprises all those individuals who are in the private service of the envoy and of the members of legation, such as servants of all kinds, the private secretary of the envoy, the tutor and the governess of his children. The third class consists of the members of the family of the envoy-namely, his wife, children, and such of his other near relatives as live within his family and under his roof. And, lastly, the fourth class consists of the so-called couriers. They are the bearers of despatches sent by the envoy to his home State, who on their way back also bear despatches from the home State to the envoy. Such couriers are attached to most legations for the guarantee of the safety and secrecy of the despatches.

$402. It is a generally recognised 1 rule of International Law that the members of a legation are as Legation. inviolable and exterritorial as the envoy himself. They must, therefore, be granted by the receiving State exemption from criminal and civil jurisdiction, exemption from police,2 subpoena as witness, and taxes. They are considered, like the envoy himself, to retain their domicile within their home State. Children born to them during their stay within the receiving State are considered born on the territory of the home State. And it must be emphasised that it is

1 Some authors, however, plead for an abrogation of this rule (See Martens, II. § 16.)

2 A case of this kind occurred in 1904 in the United States. Mr. Gurney, Secretary of the British

Legation at Washington, was fined by the police magistrate of Lee, in Massachusetts, for furiously driv ing a motor-car. But the judgment was afterwards annulled, and the fine imposed remitted.

not within the envoy's power to waive these privileges of the members of legation.

of Private

§ 403. It is a customary rule of International Law Privileges that the receiving State must grant to all persons in Servants. the private service of the envoy and of the members of his legation, provided such persons are subjects of the receiving State, exemption from civil and criminal jurisdiction. But the envoy can disclaim these exemptions, and these persons cannot then claim exemption from police, immunity of domicile, and exemption from taxes. Thus, for instance, if such a private servant commits a crime outside the residence of his employer, the police can arrest him; he must, however, be at once released if the envoy does not waive the exemption from criminal jurisdiction.

of Family

§ 404. Although the wife of the envoy, his children, Privileges and such of his near relatives as live within his family of Envoy. and under his roof belong to his retinue, there is a distinction to be made as regards their privileges. His wife must certainly be granted all his privileges] in so far as they concern inviolability and exterritoriality. As regards, however, his children and other relatives, no general rule of International Law can safely be said to be generally recognised, but that they must be granted exemption from civil and criminal jurisdiction. But even this rule was formerly not generally recognised. Thus, when in 1653 Don Pantaleon Sà, the brother of the Portuguese ambassador in London and a member of his

1 This rule seems to be every. where recognised except in this country. When, in 1827, a coach. man of Mr. Gallatin, the American Minister in London, committed an assault outside the embassy, he was arrested in the stable of

the embassy and charged before a
local magistrate, and the British
Foreign Office refused to recognise
the exemption of the coachman
from the local jurisdiction. (See
Wharton, I. § 94, and Hall, § 50.)

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