BOOK IV. son, so as, like himself, to be reputed out of the territory. If the CHAP. VIII. 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 immoveable 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 law-suits concerning that property are to be carried 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 (201). § 116. How justice may be obtained against an ambassador. It may be seen, in Monsieur de Bynkershoek's treatise*, 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 immoveable property lying in the country, or of moveable effects which have no connection with his 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. 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 494] 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 modelled and tempered, as not to be unreasonably burthensome or injurious to private persons who have dealings with them. How then are those different interests-the service (201) See note on prior page. * On the competent Judge of Ambassadors, chap. xvi. § 6. CHAP. VIIT. of the state and the administration of justice to be reconciled? BOOK IV. CHAP IX. OF THE AMBASSADOR'S HOUSE AND DOMESTICS. СНАР. ІХ. ambassa THE independency of the ambassador would be very imperfect, $117. The and his security very precarious, if the house in which he lives dor's house were not to enjoy a perfect immunity, and to be inaccessible to the (202). 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 civilised 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 3rd of April, 1752, thirty soldiers, with an officer at their head, entered the house of baron Greiffenheim, the Swedish minister, and carried off [ 495 ] two of his domestics, whom they conducted to prison, under a pretence 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 (202) 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 ten- BOOK IV. CHAP. IX. 118. Right of asylum. 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. But the immunity and freedom of the ambassador's house is established only in favour 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 farther, 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 pretence of a search after them, and thus involve the state in any difficulties 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 direc[ 496] tion, 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 with-held 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, BOOK IV. were, when guilty of violating the duties of their office, allowed CHAP. IX. to take shelter under a privilege which had been granted to the houses of ambassadors in favour 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 court*."-Nothing could be said on this head with greater truth and judgment. The abuse of the privilege has now here been carried to a greater extent than at Rome, where the ambassadors of crowned heads claim it for the whole ward 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 endeavoured 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. sador's car An ambassador's carriages and equipages are equally privileged § 119. Exwith his house, and for the same reasons: to insult them, is an at- emption of tack on the ambassador himself, and on the sovereign whom he an ambas represents. They are independent of all subordinate authority-riages; 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 seisure 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 harbouring villians, 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 * Memoirs of the Abbé De Montgon, vol. 1. [ 497 ] BOOK IV. might very lawfully shelter from the persecutions of the SpanCHAP. IX. iards*." By this answer, the minister tacitly conceded that he would not have been authorised to complain of the stoppage of his carriages, if he had employed them for the purpose of favouring the escape of any of the pope's subjects, and aiding criminals to elude the pursuit of justice. § 120. of his retinue (203); § 121. of his wife and family; $122. of, the secre tary of the embassy; [ 498 ] § 123. of sador's cou 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 favour. 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 harrassed, molested, and disturbed in the exercise of his functions. These maxims are at present every-where adopted and confirmed by custom. 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 honours, 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. 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. Couriers sent or received by an ambassador, his papers, letters, the ambas- and dispatches, all essentially belong to the embassy, and are conriers and sequently to be held sacred; since, if they were not respected, the dispatches. 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, 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 nationst. 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 *See Wicquefort's Ambassadors, book i. § 28, towards the end. (203) Privileged from an arrest, 7 Anne, |