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The Law of Nations or the Principles of Natural Law (1758)

Emmerich de Vattel

BOOK 4, CHAPTER 9
Of the Ambassador’s House and Domestics

§ 117. The ambassador’s house.1
THE independency of the ambassador would be very imperfect, and his security very precarious, if the house in which he lives were not to enjoy a perfect immunity, and to be inaccessible to the ordinary officers of justice. The ambassador might be molested under a thousand pretexts; 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 in securing the freedom of his house. In all civilized nations, this right is acknowledged as annexed to the ambassadorial character; and an ambassador’s house, at least in all the ordinary affairs of life, is, equally with his person, considered as being out of the country. Of this, a remarkable instance occurred, not many years ago, at Petersburgh. On the 3d of April, 1752, thirty soldiers, with an officer at their head, entered the house of baron Greiffenheim, the Swedish minister, and carried off two of his domestics, whom they conducted to prison, under a pretense that those two men had clandestinely sold liquors, which the imperial farm alone has the privilege of selling. The court, incensed at such a proceeding, caused the authors of this act of violence to be immediately taken into custody, and the empress ordered satisfaction to be made to the offended minister; she likewise sent to him and to all the other foreign ministers, a declaration, in which she expressed her concern and resentment at what had happened, and communicated the orders which she had given to the senate to institute a prosecution against the commissioner of the office established for the prevention of the clandestine sale of liquors, he being the chief delinquent.

The house of an ambassador ought to be safe from all outrage, being under the particular protection of the law of nations, and that of the country; to insult it, is a crime both against the state and against all other nations.

§ 118. Right of asylum.
But the immunity and freedom of the ambassador’s house is established only in favor of the minister and his household; as is evident from the very reasons upon which it is grounded. Can he take advantage of the privilege, in order to convert his house into an asylum, to afford shelter and protection to the enemies of the prince, and to malefactors of every kind, and thus screen them from the punishments which they have deserved? Such proceedings would be contrary to all the duties of an ambassador, to the spirit by which he ought to be animated, and to the lawful purposes for which he has been admitted into the country. This is what nobody will presume to deny. But I proceed further, and lay it down as a certain truth, that a sovereign is not obliged to tolerate an abuse so pernicious to his state, and so detrimental to society. I grant, indeed, that when there is question only of certain ordinary transgressions, and these committed by persons who often prove to be rather unfortunate than criminal, or whose punishment is of no great importance to the peace of society, the house of an ambassador may well serve as an asylum for such offenders: and it is better that the sovereign should suffer them to escape, than expose the ambassador to frequent molestation under pretense of a search after them, and thus involve the state in any difficulty which might arise from such proceedings. And as the house of an ambassador is independent of the ordinary jurisdiction, no magistrate, justice of the peace, or other subordinate officer, is in any case entitled to enter it by his own authority, or to send any of his people to enter it, unless on occasions of urgent necessity, when the public welfare is threatened with imminent danger which admits of no delay. Whatever concerns a point of such weight and delicacy, — whatever affects the rights and the dignity of a foreign power, — whatever may embroil the state with that power, — is to be laid immediately before the sovereign, and to be determined either by himself in person, or, under his direction, by the privy council. Thus, it belongs to the sovereign to decide, on occasion, how far the right of asylum, which an ambassador claims as belonging to his house, is to be respected: and if the question relates to an offender whose arrest or punishment is of great importance to the state, the prince is not to be withheld by the consideration of a privilege which was never granted for the detriment and ruin of states. In the year 1726, the famous duke de Ripperda having sheltered himself in the house of lord Harrington, ambassador from England, the council of Castile decided “that he might be taken out of it, even by force; since, otherwise, those regulations which had been made for the purpose of maintaining a more regular and intimate correspondence between sovereigns would, on the contrary, operate to the subversion and utter ruin of their authority; — and that, if persons who had been intrusted with the finances, the power, and the secrets of the state, were, when guilty of violating the duties of their office, allowed to take shelter under a privilege which had been granted to the houses of ambassadors in favor only of ordinary offenders, — such an extension of the right of asylum would be productive of consequences the most pernicious and detrimental to all the powers on earth, who, if the practice once became established, would be reduced to the necessity, not only of enduring the presence of every man who was plotting their destruction, but even of seeing him supported in their own court,”2 — Nothing could be said on this head with greater truth and judgment.

The abuse of the privilege has nowhere been carried to a greater extent than at Rome, where the ambassadors of crowned heads claim it for the wholeward in which their house is situated. The popes, once so formidable to sovereigns, have for above two centuries been in their turn under a necessity of observing the most delicate and cautious circumspection in their conduct towards them. It is in vain that they have endeavored to suppress, or at least to reduce within proper bounds, an abusive privilege, for which, prescription, however great its antiquity, ought not to be allowed as a sufficient plea in opposition to justice and reason.

§ 119. Exemption of an ambassador’s carriages
An ambassador’s carriages and equipages are equally privileged with his house, and for the same reasons: to insult them is an attack on the ambassador himself, and on the sovereign whom he represents. They are independent of all subordinate authority — of guards, custom-house officers, magistrates and their agents, — and must not be stopped or searched without a superior order. But in this instance, as in that of the ambassador’s house, the abuse is not to be confounded with the right. It would be absurd that a foreign minister should have the power of conveying off in his coach a criminal of consequence, — a man, in the seizure of whose person the state were highly interested; and that he should do this under the very eyes of the sovereign, who thus would see himself defied in his own kingdom and court. Where is the sovereign who would suffer this? The marquis de Fontenay, the French ambassador at Rome, sheltered the Neapolitan exiles and rebels, and at last undertook to convey them out of Rome in his own carriages: but the carriages were stopped at the city gates by some Corsicans of the pope’s guard, and the Neapolitans committed to prison. The ambassador warmly complained of the procedure: but the pope answered “that his motive had only been that of arresting men whom the ambassador had assisted in escaping from confinement; and that, since the ambassador took the liberty of harboring villains, and affording protection to every criminal in the papal territory, — at least he, who was sovereign of the state, ought to be allowed to have them retaken wherever they could be found; as the rights and privileges of ambassadors were not to be carried to such lengths.” The ambassador replied, “that it would not appear, on examination, that he had granted an asylum to any subjects of the pope, but solely to some Neapolitans, whom he might very lawfully shelter from the persecutions of the Spaniards.”3 By this answer, the minister tacitly conceded that he would not have been authorized to complain of the stoppage of his carriages, if he had employed them for the purpose of favoring the escape of any of the pope’s subjects, and aiding criminals to elude the pursuit of justice.

§ 120. of his retinue.4
The persons in an ambassador’s retinue partake of his inviolability; his independency extends to every individual of his household: so intimate a connection exists between him and all those persons, that they share the same fate with him; they immediately depend on him alone, and are exempt from the jurisdiction of the country, into which they would not have come without such reservation in their favor, The ambassador is bound to protect them; and no insult can be offered to them, which is not at the same time an insult to himself. If the domestics and household of a foreign minister were not solely dependent on him, it is evident at first sight, how easily he might be harassed, molested, and disturbed in the exercise of his functions. These maxims are at present everywhere adopted and confirmed by custom.

§ 121. of his wife and family
The ambassador’s wife is intimately united with him, and more particularly belongs to him than any other person of his household. Accordingly, she participates in his independence and inviolability; she even receives distinguished honors, which, in a certain degree, cannot be refused to her without affronting the ambassador; and for which there exists, in the generality of courts, an established ceremonial. The respect due to the ambassador extends likewise to his children, who also partake of his immunities.

§ 122. of the secretary of the embassy.
The ambassador’s secretary is one of his domestics: but the secretary of the embassy holds his commission from the sovereign himself; which makes him a kind of public minister, enjoying in his own right the protection of the law of nations, and the immunities annexed to his office, independently of the ambassador, to whose orders he is indeed but imperfectly subjected, — sometimes not at all, and always in such degree only as their common master has been pleased to ordain.

§ 123. of the ambassador’s couriers and despatches.
Couriers sent or received by an ambassador, his papers, letters, and despatches, 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 states-general of the United Provinces decided, while 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.5 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 (§ 99). 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 ambassadors (§ 98).

§ 124. The ambassador’s authority over his retinue.
The persons in a foreign minister’s retinue, being independent of the jurisdiction of the country, cannot be taken into custody or punished without his consent. It would, nevertheless, be highly improper that they should enjoy an absolute independence, and be at liberty to indulge in every kind of licentious disorder, without control or apprehension. The ambassador must necessarily be supposed to possess whatever degree of authority is requisite for keeping them in order;6 and some writers will have that authority to include even a power over life and death. When the marquis de Rony, afterwards duke De Sully, was in England as ambassador extraordinary from France, a gentleman of his retinue committed a murder, which caused a great noise among the people of London. The ambassador assembled some French noblemen who had accompanied him on his mission, tried the murderer, and sentenced him to lose his head. He then acquainted the lord mayor of London that he had pronounced sentence on the criminal, desiring that magistrate to furnish him with an executioner and proper attendants to have the punishment inflicted. But he afterwards consented to deliver up the criminal to the English, in order that they might execute justice on him as they thought proper: and Monsieur De Beaumont, the French ambassador in ordinary, prevailed on the British monarch to pardon the young man, who was related to that minister by the ties of consanguinity.7 It rests entirely at the option of the sovereign to invest his ambassador with such an extensive power over the persons of his suite; and the marquis de Rony was confidently certain of having his conduct approved by his master, who did, in fact, express his approbation of the whole transaction. In general, however, it is to be presumed that the ambassador is possessed only of a coercive power sufficient to restrain his dependents, by other punishments which are not of a capital or infamous nature. He may punish the faults committed against himself and against his master’s service, or send the delinquents to their sovereign, in order to their being punished. But should any of his people commit crimes against society, which deserve a severe punishment, the ambassador ought to make a distinction between such of his domestics as belong to his own nation, and others who are subjects of the country where he resides. The shortest and most natural way with the latter, is to dismiss them from his service, and deliver them up to justice. As to those of his own nation, if they have offended the sovereign of the country, or committed any of those atrocious crimes in whose punishment all nations are interested, and whose perpetrators are for that reason, usually surrendered by one state when demanded by another, — why should he not give them up to the nation which calls for their punishment? If the transgression be of a different kind, he is to send them to his sovereign. Finally, if the case be of a doubtful nature, it is the ambassador’s duty to keep the offender in irons till he receives orders from his court. But if he passes a capital sentence on the criminal, I do not think he can have it executed in his own house; an execution of that nature being an act of territorial superiority which belongs only to the sovereign of the country. And although the ambassador, together with his house and household, be reputed out of the country, that is nothing more than a figurative mode of speech intended to express his independency, and all the rights necessary to the lawful success of the embassy: nor can that fiction involve privileges which are reserved to the sovereign alone, — which are of too delicate and important a nature to be communicated to a foreigner, and, moreover, not necessary to the ambassador for the due discharge of his functions. If the offence has been committed against the ambassador or against the service of his master, the ambassador may send the delinquent to his sovereign. If the crime concerns the state where the minister resides, he may try the criminal, and, if he finds him worthy of death, deliver him up to the justice of the country, as did the marquis de Rony.

§ 125. When the rights of an ambassador expire.
When the commission of an ambassador is at an end, — when he has concluded the business for which he came into the country, — when he is recalled or dismissed, — in a word, when he is obliged to depart on any account whatever, his functions cease: but his privileges and rights do not immediately expire: he retains them till his return to his sovereign, to whom he is to make a report of his embassy.8 His safety, his independence, and his inviolability are not less necessary to the success of the embassy in his return, than at his coming. Accordingly, when an ambassador departs on account of a war arising between his master and the sovereign at whose court he was employed, he is allowed a sufficient time to quit the country in perfect security: and, moreover, if he was returning home by sea, and happened to be taken on his passage, he would be released without a moment’s hesitation, as not being subject to lawful capture.

§ 126. Cases when new credentials are necessary.
For the same reasons, the ambassador’s privileges still exist at those times when the activity of his ministry happens to be suspended, and he stands in need of fresh powers. Such a case occurs in consequence of the death of the prince whom the minister represents, or of the sovereign at whose court he resides. On either occasion it becomes necessary that the minister should be furnished with new credentials. The necessity, however, is less cogent in the latter than in the former case, especially if the successor of the deceased prince be the natural and necessary successor; because, while the authority whence the minister’s power emanated still subsists, it is fairly presumable that he retains his former character at the court of the new sovereign. But if his own master is no more, the minister’s powers are at an end; and he must necessarily receive fresh credentials from the new prince, before he can be authorized to speak and act in his name. In the interim, however, he still continues to be the minister of his nation, and, as such, is entitled to enjoy all the rights and honors annexed to that character.

§ 127. Conclusion.
At length, I have reached the end of my proposed career. I do not flatter myself with the idea of having given a perfect, full, and complete treatise of the law of nations; nor was that, indeed, my design; for it would have been too great a degree of confidence in my own abilities to have made such an attempt on a subject so extensive and so copious. I shall think I have done a great deal, if my principles are approved as solid, luminous, and sufficient to enable intelligent persons to give a proper solution on any minute questions that may arise in particular cases; and shall be happy if the result of my labors proves in anywise serviceable to those men in power who love mankind and respect justice, — and furnishes them with weapons for the purpose of defending the cause of right, and compelling the unjust to observe at least some measures, and to keep within the bounds of decency.


NOTES

     1.    How far exempt from a distress. see Novello v. Toogood, 1 Barn. & Cres. 554, 2 Dowl. & R. 833, S.C. Modern acts usually subject the landlord of a house tenanted by an ambassador to the payment of poor-rates and taxes. — C.
     2.    Memoirs of the Abbé De Montgon, vol. 1.
     3.    See Wicquefort’s Ambassador, book i, § 28, towards the end.
     4.    Privileged from an arrest. 7 Anne. c. 12; and see cases, Chitty’s Col. Stat. 13; 13 Price Rep. 805. — C.
     5.    Wicquefort, book i. § 27.
     6.    It is his duty to watch over their conduct, and to exert his authority in order to prevent them from transgressing the bounds of their station, and committing actions which may give just offence to the sovereign at whose court he resides, — an event which may sometimes be productive of very serious and disagreeable consequences. The French court having sent the count De Harcourt to England to mediate an accommodation between Charles I. and his parliament, several gentlemen of that minister’s suite repaired to the royal army, and fought against the parliamentarians; on which account the parliament immediately declined all further negotiation with the count De Harcourt. Duport’s Hist. of Conspir. vol. iv. p. 261. Edit. A.D. 1729.
     7.    Sully’s Memoirs, vol. vi. chap i.
     8.    “It was at that time,” says Joinville,” an established custom, as well in pagan as in Christian countries, that, when two princes were at war, if one of them happened to die, the ambassadors whom they had mutually sent to each other remained prisoners and slaves.” — p. 72, edit. A.D. 1797.