The Judge of Ambassadors

§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides.
SOME authors will have an ambassador to be subject, in civil cases, to the jurisdiction of the country where he resides. — at least in such cases as have arisen during the time of his embassy; and, in support of their opinion, they allege that this subjection is by no means derogatory to the ambassadorial character: “for,” say they, “however sacred a person may be, his inviolability is not affected by suing him in a civil action.” But it is not on account of the sacredness of their person that ambassadors cannot be sued: it is because they are independent of the jurisdiction of the country to which they are sent; and the substantial reasons on which that independency is grounded may be seen in a preceding part of this work (§ 92). Let us here add, that it is in every respect highly proper, and even necessary, that an ambassador should be exempt from judicial prosecution even in civil causes, in order that he may be free from molestation in the exercise of his functions. For a similar reason, it was not allowed, among the Romans, to summon a priest while he was employed in his sacred offices:¹ but at other times he was open to the law. The reason which we have here alleged for the exemption is also assigned in the Roman law: “Ideo enim non datur actio (adversus legatum) ne ab officio suscepto legationis avocetur,² ne impediatur legatio.”³ But there was an exception as to those transactions which had taken place during the embassy. This was reasonable with regard to those legati, or ministers, of whom the Roman law here speaks, who, being sent only by nations subject to the empire, could not lay claim to the independency enjoyed by a foreign minister. As they were subjects of the state, the legislature was at liberty to establish whatever regulations it thought most proper respecting them: but a sovereign has not the like power of obliging the minister of another sovereign to submit to his jurisdiction: and even if such power was vested in him by convention, or otherwise, the exercise of it would be highly improper: because, under that pretext, the ambassador might be often molested in his ministry, and the state involved in very disagreeable quarrels, for the trifling concerns of some private individuals, who might and ought to have taken better precautions for their own security. It is therefore, only in conformity to the mutual duties which states owe to each other, and in accordance with the grand principles of the law of nations, that an ambassador or public minister is at present, by the universal custom and consent of nations, independent of all jurisdiction in the country where he resides, either in civil or criminal cases. I know there have occurred some instances to the contrary: but a few facts do not establish a custom: on the contrary, those to which I allude, only contribute, by the censure passed on them, to prove the custom such as I have asserted it to be. In the year 1668, the Portuguese resident at the Hague was, by an order of the court of justice, arrested and imprisoned for debt. But an illustrious member of the same court⁴ very justly thinks that the procedure was unjustifiable, and contrary to the law of nations. In the year 1657, a resident of the elector of Brandenburg was also arrested for debt in England. But he was set at liberty, as having been illegally arrested; and even the creditors and officers of justice who had offered him that insult were punished.⁵

§ 111. How he may voluntarily subject himself to it.
But if an ambassador chooses to renounce a part of his independency, and to subject himself in civil affairs to the jurisdiction of the country, he is undoubtedly at liberty to do so, provided it be done with his master’s consent. Without such consent, the ambassador has no right to renounce privileges in which the dignity and service of his sovereign are concerned, — which are founded on the master’s rights, and instituted for his advantage, not for that of the minister. It is true, indeed, that the ambassador, without waiting for his sovereign’s permission, acknowledges the jurisdiction of the country when he commences a suit as plaintiff in a court of justice. But the consequence, in that case, is inevitable; and besides, in a civil cause, on a point of private interest, no inconvenience attends it; since the ambassador has it at all times in his power to avoid commencing a suit, or may, if such a step be necessary, intrust the prosecution of his cause to an attorney or lawyer.

Let us here add, by the way, that an ambassador ought never to institute a prosecution on a criminal charge. If he has been insulted, he should make his complaint to the sovereign; and the delinquent is to be prosecuted by the public.

§ 112. A minister who is a subject of the state where he is employed.
It may happen that the minister of a foreign power is at the same time a subject of the state where he is employed; and in this case, as a subject, he is unquestionably under the jurisdiction of the country in every thing which does not directly relate to his ministry. But the question is, to determine in what cases those two characters, of subject and foreign minister, are united in the same person. To produce such union, it is not sufficient that the minister was born a subject of the state to which he is sent; for unless the laws expressly prohibit every citizen to leave his country, he may legally have renounced his country, and placed himself in subjection to a new master. He may, likewise, without renouncing his country for ever, become independent of it during the whole time that he spends in the service of a foreign prince; and the presumption is certainly in favor of such independency: for the state and functions of a public minister naturally require that he should depend only on his master (§ 92), on the prince who has intrusted him with the management of his affairs. Whenever, therefore, there does not exist any circumstance which furnishes a proof or indication to the contrary, a foreign minister, though antecedently a subject of the state, is reputed to be absolutely independent of it during the whole time of his commission. If his former sovereign does not choose to allow him such independency in his dominions, he may refuse to admit him in the character of a foreign minister, as is the practice in France, where, according to Monsieur De Callieres, “the king no longer receives any of his own subjects as ministers of foreign princes.”⁶

But a subject of the state may still continue its subject, notwithstanding his acceptance of a commission from a foreign prince. His subjection is expressly established when the sovereign acknowledges him as minister only, with a reserve that he shall remain a subject of the state. The states-general of the United Provinces, in a decree of the 19th of June, 1681, declare, “That no subject of the state shall be received as ambassador or minister of another power, but on condition that he shall not divest himself of his character or subject, even with regard to jurisdiction both in civil and criminal affairs, — and that whoever, in making himself known as ambassador or minister, has not mentioned his quality of subject of the state, shall not enjoy those rights or privileges which peculiarly belong to the ministers of foreign powers.”⁷

Such a minister may likewise retain his former subjection tacitly: and then, by a natural consequence, drawn from his actions, state, and whole behavior, it is known that he continues a subject. Thus, independent of the declaration above mentioned, those Dutch merchants who obtain the title of residents of certain foreign princes, and nevertheless continue to carry on their commerce, thereby sufficiently denote that they remain subjects. Whatever inconveniences may attend the subjection of a minister to the sovereign with whom he resides, if the foreign prince chooses to acquiesce in such a state of things, and is content to have a minister on that footing, it is his own concern; and should his minister, on any ignominious occasion, be treated as a subject, he has no cause of complaint.

It may likewise happen that a foreign minister shall become a subject of the sovereign to whom he is sent, by accepting of a post under him: and in this case he cannot lay claim to independence, except in such things alone as directly relate to his ministry. The prince by whom he is delegated, in allowing of this voluntary subjection, agrees to risk the inconveniences that attend it. Thus, in the last century, the baron De Charnacé and the count D’Estrades were ambassadors from France to the States General, and at the same time officers in their high mightinesses’ army.

§ 113. Immunity of the minister extends to his property.
The independency of a public minister is the true reason of his exemption from the jurisdiction of the country in which he resides. No legal process can be directly issued against him, because he is not subject to the authority of the prince or the magistrates. But it is asked whether that exemption of his person extends indiscriminately to all his property? In order to solve this question, we must consider by what circumstances property may be subjected to, and by what others it may be exempted from, the jurisdiction of a country. In general, whatever lies within the extent of a country, is subject to the authority and jurisdiction of the sovereign (Book I. § 205, and Book II. §§ 83, 84). If any dispute arises concerning effects or goods within or passing through the country, it is to be decided by the judge of the place. In virtue of this dependence, the mode of stoppage or seizure has been established in many countries, for the purpose of compelling a foreigner to repair to the spot where the seizure has been made, and there to answer questions that are to be put to him, though not directly relating to the effects seized. But a foreign minister, as we have already shown, is independent of the jurisdiction of the country; and his personal independence in civil cases would be of little avail, unless it extended to every thing which he finds necessary in order to enable him to live with dignity, and quietly to attend to the discharge of his functions. Besides, whatever he has brought with him, or purchased for his own use as minister, is so connected with his person as to partake of the same fate with it. Since the minister entered the territory on the footing of independence, he could not have it in contemplation to subject his retinue, his baggage, or his necessaries, to the jurisdiction of the country. Every thing, therefore, which directly belongs to his person in the character of a public minister, — every thing which is intended for his use, or which serves for his own maintenance and that of his household, — every thing of that kind, I say, partakes of the minister’s independency, and is absolutely exempt from all jurisdiction in the country. Those things, together with the person to whom they belong, are considered as being out of the country.

§ 114. The exemption cannot extend to effects belonging to any trade the minister may carry on;
But this exemption cannot extend to such property as evidently belongs to the ambassador under any other relation than that of minister. What has no affinity with his functions and character cannot partake of the privileges which are solely derived from his functions and character. Should a minister, therefore, (as it has often been the case,) embark in any branch of commerce, all the effects, goods, money, and debts, active and passive, which are connected with his mercantile concerns, — and likewise all contests and lawsuits to which they may give rise, — fall under the jurisdiction of the country. And although, in consequence of the minister’s independency, no legal process can, in those lawsuits, be directly issued against his person, he is, nevertheless, by the seizure of the effects belonging to his commerce, indirectly compelled to plead in his own defense. The abuses which would arise from a contrary practice are evident. What could be expected from a merchant vested with a privilege to commit every kind of injustice in a foreign country? There exists not a shadow of reason for extending the ministerial immunity to things of that nature. If the sovereign who sends a minister is apprehensive of any inconvenience from the indirect dependency in which his servant thus becomes involved, he has only to lay on him his injunctions against engaging in commerce, — an occupation, indeed, which ill accords with the dignity of the ministerial character.

To what we have said, let us add two illustrations: — 1. In doubtful cases, the respect due to the ministerial character requires that things should always be explained to the advantage of that character. I mean that, when there is room for doubt whether a thing be really intended for the use of the minister and his household, or whether it belongs to his commerce, the decision must be given in favor of the minister: otherwise there would be a risk of violating his privileges. 2. When I say that we may seize such of the minister’s effects as have no relation to his public character, particularly those that belong to his commercial concerns, this is to be understood only on the supposition that the seizure be not made for any cause arising from his transaction in quality of minister, as, for instance, articles supplied for the use of his family, house-rent, etc., because any claims which may lie against him in that relation cannot be decided in the country, and consequently cannot be subjected to its jurisdiction by the indirect mode of seizure.

§ 115. nor to immovable property which he possesses in the country.
All landed estates, all immovable property, by whomsoever possessed, are subject to the jurisdiction of the country (Book I. § 205, and Book II. §§ 83, 84). Are they to be exempted from it on the single ground that their owner has been appointed ambassador by a foreign power? There can exist no reason for the exemption in such case. It is not in his public character that the ambassador possesses that property; nor is it attached to his person, so as, like himself, to be reputed out of the territory. If the foreign prince apprehends any ill consequences from that state of dependency in which his minister may stand on account of some of his possessions, he may make choice of another person to fill the office. Let us conclude, therefore, that immovable property possessed by a foreign minister does not change its nature in consequence of the character conferred on the owner, but continues subject to the jurisdiction of the state in which it lies. All contests and lawsuits concerning that property are to be earned before the tribunals of the country; and those same tribunals may decree its seizure in order to satisfy any legal claim. It is, however, easily conceived, that, if the ambassador lives in a house, of his own, that house is excepted from the rule, as actually serving for his immediate use; — it is excepted, I mean, in whatever may affect the present use which the ambassador makes of it.⁸

It may be seen, in Monsieur de Bynkershoek’s treatise,⁹ that custom coincides with the principles laid down in this and the preceding sections. In suing an ambassador in either of the two cases just mentioned, — that is to say, on the subject of any immovable property lying in the country, or of movable effects which have no connection with the embassy, — the ambassador is to be summoned in the same manner as an absent person, since he is reputed to be out of the country, and his independency does not permit any immediate address to his person in an authoritative manner, such as sending an officer of a court of justice to him.

§ 116. How justice may be obtained against an ambassador.
By what mode, then, may satisfaction be obtained of an ambassador who refuses to do justice to those who have dealings with him? It is asserted by many that he must be sued before the tribunal to whose jurisdiction he was subject antecedently to his appointment as ambassador. In this there appears to me an impropriety. If the necessity and importance of his functions set him above all prosecution in the foreign country where he resides, shall any man be allowed to molest him in the performance of his ministerial duties by summoning him to appear before the tribunals of his own country? The interest of the public service forbids such a procedure. It is absolutely necessary that the minister should solely depend on his sovereign, to whom he belongs in a peculiar manner. He is an instrument in the hand of the conductor of the nation; and no circumstance whatever ought to be permitted to divert or obstruct his services. Neither would it be just that the absence of a person who is intrusted with the interests of the sovereign and the nation should prove detrimental to him in his private concerns. In all countries, those who are absent on the service of the state enjoy privileges which secure them from the inconveniences attendant on the state of absentees. But these privileges of the ministers of the state should, as far as possible, be so modeled and tempered as not to be unreasonably burdensome or injurious to private persons who have dealings with them. How then are those different interests — the service of the state and the administration of justice — to be reconciled? All private persons, whether citizens or foreigners, who have any demands against a minister — if they cannot obtain satisfaction from himself — should apply to his master, who is obliged to do them justice in such manner as may be most consistent with the public service. It rests with the prince to determine whether it be most proper to recall his minister, to appoint a tribunal before which he may be sued, or to order an adjournment of the cause, etc. In a word, the good of the state does not allow that any person whatever should have it in his power to disturb the minister in his functions, or to divert his attention from them without the sovereign’s permission; and the sovereign, whose duty it is to distribute impartial and universal justice, ought not to countenance his minister in refusing it or wearying out his adversaries by unjust delays.