Part III. to which he is accredited, unless he is ordered by his own government to communicate them in extenso, or partially; or unless, in the exercise of his discretion, he deems it expedient to make such a communication (~). $219a. Communication of instructions. $ 220. Passport. $221. Duties of a public minister on arriving at his post. Some States refuse to receive communications from foreign ministers, either on all or on particular topics, unless a copy is at the same time given to their own minister. In 1825, Canning was informed that the Russian ambassador was about to read him a despatch from St. Petersburg, relating to British policy in South America, but that he would not leave him a copy. At the interview Canning declined to allow the reading of the despatch to commence if no copy would be left, on the ground that he could not, at a single hearing, take in the full bearing of the document, nor weigh its expressions sufficiently to return a suitable reply (a). A public minister, proceeding to his destined post in time of peace requires no other protection than a passport from his own government. In time of war, he must be provided with a safe conduct, or passport, from the government of the State with which his own country is in hostility, to enable him to travel securely through its territories (b). It is the duty of every public minister, on arriving at his destined post, to notify his arrival to the minister of foreign affairs. If the foreign minister is of the first class, this notification is usually communicated by a secretary of embassy or legation, or other person attached to the mission, who hands to the minister of foreign affairs a copy of the letter of credence, at the same time requesting an audience of the sovereign for his principal. Ministers of the second and third classes generally notify their arrival by letter to the minister of foreign affairs, requesting him to take the orders of the sovereign, as to the delivery of their letters of credence. Chargés d'affaires, who are not accredited to the sovereign, notify their arrival in the same manner, at the same time re (2) Manuel Diplomatique, ch. 2, § 16. (a) Calvo, Droit International (2nd ed.), vol. i. § 430, p. 550; and see "George Canning and his Times," by Stapleton, p. 429. (b) Vattel, liv. iv. ch. 7, § 85. Manuel Diplomatique, ch. 2, § 19. Flassan, Histoire de la Diplomatie Française, tom. v. p. 246. questing an audience of the minister of foreign affairs for the purpose of delivering their letters of credence. Chap. I. § 222. Audience of the sovereign, magistrate. Ambassadors, and other ministers of the first class, are entitled to a public audience of the sovereign; but this or chief ceremony is not necessary to enable them to enter on their functions, and, together with the ceremony of the solemn entry, which was formerly practised with respect to this class of ministers, is now usually dispensed with, and they are received in a private audience, in the same manner as other ministers. At this audience, the letter of credence is delivered, and the minister pronounces a complimentary discourse, to which the sovereign replies. In republican States, the foreign minister is received in a similar manner, by the chief executive magistrate or council, charged with the foreign affairs of the nation (c). etiquette. $223. The usage of civilized nations has established a certain Diplomatic etiquette, to be observed by the members of the diplomatic corps, resident at the same court, towards each other, and towards the members of the government to which they are accredited. The duties which comity requires to be observed, in this respect, belong rather to the code of manners than of laws, and can hardly be made the subject of positive sanction; but there are certain established rules in respect to them, the nonobservance of which may be attended with inconvenience in the performance of more serious and important duties. Such are the visits of etiquette, which the diplomatic ceremonial of Europe requires to be rendered and reciprocated, between public ministers resident at the same court (d). From the moment a public minister enters the territory of the State to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction, both civil and criminal. Representing the rights, interests, and dignity of the sovereign or State by whom he (c) Martens, Manuel Diplomatique, ch. 4, §§ 33-36. (d) Manuel Diplomatique, ch. 4, § 37. $224. Privileges of a public Part III. is delegated, his person is sacred and inviolable. To give a more lively idea of this complete exemption from the local jurisdiction, the fiction of extra-territoriality has been invented, by which the minister, though actually in a foreign country, is supposed still to remain within the territory of his own sovereign. He continues still subject to the laws of his own country, which govern his personal status and rights of property, whether derived from contract, inheritance, or testament. His children born abroad are considered as natives. This exemption from the local laws and jurisdiction is founded upon mutual utility, growing out of the necessity that public ministers should be entirely independent of the local authority, in order to fulfil the duties of their mission. The act of sending the minister on the one hand, and of receiving him on the other, amounts to a tacit compact between the two States that he shall be subject only to the authority of his own nation (e). § 224a. Inviolability and exterri toriality. The passports or safe conduct, granted by his own government in time of peace, or by the government to which he is sent in time of war, are sufficient evidence of his public character for this purpose (ƒ). Halleck draws a distinction between the inviolability and the exterritoriality of a public minister. He says, "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. 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 public minister, and the office cannot exist without it. International law has conferred it upon the State or sovereign which he represents, and to divest him (e) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, §§ 1-6. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Wicquefort, de l'Ambassadeur, liv. i. § 27. Bynkershoek, de Jure Competent. Legat. cap. 5, 8. Vattel, Droit des Gens, liv. iv. ch. 7, §§ 81-125. Martens, Précis, &c., liv. vii. ch. 5, §§ 214-218. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, § 203. Fœlix, Droit International Privé, § 184. Wheaton, Hist. Law of Nations, pp. 237-243. (f) Vattel, liv. iv. ch. 7, § 83. of that quality is to divest him of his office, as the two are inseparable. Not so with the fiction of exterritoriality. So far as that is not necessary to the exercise of his functions, or, in other words, to secure his inviolability, it is not an essential quality of the public minister, and therefore may be dispensed with by renouncement or otherwise" (g). The attack on the Chinese Legations and the murder of Baron von Ketteler stand happily alone of recent years as a violation of the immunity of diplomatic agents on the part of a nation claiming to be regarded as civilised. But in 1799 the French plenipotentiaries to the Congress of Rastadt were brutally murdered in cold blood by Austrian hussars (h). Chap. I. § 225. Exceptions to the general This immunity extends, not only to the person of the minister, but to his family and suite, secretaries of legation and other secretaries, his servants, moveable effects, from the local and the house in which he resides (i). exemption jurisdiction. $225a. house. The absolute exterritoriality of a minister's house was disputed in Minister's comparatively recent times by the French Government. In April, 1867, one Mickilchenkorff, a Russian subject, appeared at the Russian embassy in Paris, and made a demand, which was refused. Thereupon he assaulted one of the attachés with a dagger, wounded him, and injured two other persons who came to the rescue. The police, being applied to, entered the house and removed the culprit, who was afterwards brought before the Cour d'Assise. The Russian ambassador, who was absent when the crime was committed, on his return demanded that the prisoner should be sent to Russia, on the ground that the act having been committed in his hotel, the French courts had no jurisdiction, and the case must be tried in Russia. The French Government refused to give up the prisoner, urging that the principle of exterritoriality did not cover the case of a stranger entering the minister's house, and there committing a crime; and that even if it did, the parties themselves had in this particular case waived the privilege by summoning the local police. The Russian Government finally admitted the jurisdiction of the French court, and the prisoner was duly tried by the local law (k). The minister's person is in general entirely exempt both from the civil and criminal jurisdiction of the (9) Halleck, ch. ix. § 13, p. 210. (h) Alison, vol. iv. sect. 27, p. 228. (i) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xviii. §§ 8, 9. Bynkershoek, de Foro Competent. Legat. cap. 13, § 5; cap. 15, 20. Vattel, liv. iv. ch. 8, § 113; (k) Calvo, Droit International, vol. i. § 571. Part III. country where he resides. § 225b. Suits by and against ministers. Ministers in foreign countries. To this general exemption, there may be the following exceptions: 1. This exemption from the jurisdiction of the local tribunals and authorities does not apply to the contentious jurisdiction which may be conferred on those tribunals by the minister voluntarily making himself a party to a suit at law (1). It has been held in England that an ambassador, having no real property in the country, and having done nothing to disentitle him to the general privileges of his office, cannot, while he remains such ambassador, be sued in England against his will, although the suit may arise out of commercial transactions by him here, and although neither his person nor his goods are touched by the suit (m). But if the ambassador appears and submits to the jurisdiction, the action can then be proceeded with (n). The constitution of the United States vests the exclusive jurisdiction "of all suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls," in the courts of the United States, to the exclusion of the State courts (o). If an ambassador contracts debts which he refuses to pay, and if he also refuses to submit to the jurisdiction, creditors have no remedy but to apply to the Minister for Foreign Affairs of the ambassador's own country (p). The immunity of an ambassador from process in the English courts extends not merely to the time during which he is accredited to the Sovereign, but to such a reasonable period after he has presented his letters of recall as is necessary to enable him to wind up his official business and prepare for his return to his own country, and he is not deprived of the iminunity by reason that his successor is duly accredited before that period has elapsed (q). In 1888, an application was made to a Queen's Bench Divisional Court in England to set aside service of process which had been effected in Paris upon one General Blanco, the minister of Venezuela, accredited and received in France in that character. The court discharged the order upon other grounds, and gave no judgment on this point. Baron Huddleston, however, expressed an opinion that (1) Bynkershoek, cap. 16, §§ 13-15. (m) Magdalena Steam Navig. Co. v. (n) Taylor v. Best, 14 C. B. 521; Gladstone v. Musurus Bey, 9 Jur. N. S. 71. Halleck, ch. ix. § 17, p. 216. And see U. S. v. Hand, 2 Washington C. C. 435; Parkinson v. Potter, 16 Q. B. D. 152. (0) U. S. Revised Statutes, tit. xiii. ch. 12, sec. 711. U. S. v. Ravara, 2 Dallas, 297; Cohens V. Virginia, 6 Wheaton, 407; St. Luke's Hospital v. Barkley, 3 Blatchford, 259. (p) Calvo, Droit International, vol. i. § 575. (9) Musurus Bey v. Gadban and others, (1894) 2 Q. B. 352. |