him, and insulting him with improper language, is not an offense within the act of the 30th of April, 1790, which prescribes the punishment "for any infraction of the law of nations, by offering violence to the person of an ambassador or other public minister." 1 Op., 41, Bradford, 1794. The immunities of the domicil do not extend to an annexed garden. 1 Op., 141, Lincoln, 1804. An indictment charging one with offering violence to the person of a public minister, contrary to the law of nations and the act of Congress in such case provided, is not a case "affecting ambassadors, other public ministers, and consuls," within section 2, Article III, of the Constitution. U. S. v. Ortega, 11 Wheat., 467. The clause in the Constitution (second section, third article) that the judicial power of the United States extends to all cases affecting ambassadors, other public ministers, and consuls, confers a public, not a personal, privilege, and is not waived by an omission to plead it in a State court of the first instance. Davis v. Packard, 7 Pet., 276. The immunity of diplomatic representatives abroad is sanctioned by public law. Mr. Fish, Sec. of State, to Mr. Partridge, Dec. 31, 1869. MSS. Inst., Venez. XVIII. AND FROM PERSONAL INDIGNITY. § 94. By the municipal law, as well as the law of nations, a foreign minister is peculiarly protected not only from violence, but also from insult, such as a libel. 1 Op., 52, Bradford, 1794. See 7 John Adams's Works, 421, 495; 10 ibid., 33. An ambassador or other representative of one foreign nation residing in another is entitled to be treated with respect so long as he is permitted to continue in the country to which he is sent, and especially ought not to be libeled by any of the citizens. If he commits any offense, it belongs, in our country, to the President to take notice of it, and not to any individual citizen. The President may dismiss him or desire his recall, or complain to his sovereign and require satisfaction. 1 Op., 71, Lee, 1797. An affront to an ambassador is just cause for national displeasure, and, if offered by an individual citizen, satisfaction is demandable of his nation. It is not usual for nations to take serious notice of publications in one nation containing injurious and defamatory observa tions upon the other, but it is usual to complain of insults to their embassadors, and to require the parties to be brought to punishment. Ibid. The entry into a minister's garden by the agent of the owner of a slave, and there seizing and carrying away to the owner such slave, is not such a violation of the domicile of the minister as constitutes a punishable offense under the crimes act of 1790 (1 Stat., 118; R. S., § 4064). 1 Op., 141, Lincoln, 1804. For injuries done by private persons to foreign ministers, redress is to be had through the regular judicial tribunals. 9 Op., 7, Black, 1857. An indictment under the act of 1790 (1 Stat., 118; R. S., § 4062) for offering violence to the person of a public minister is not a case “affecting ambassadors or other public ministers and consuls," within the second section of the third article of the Constitution." U. S. v. Ortega, 11 Wheat., 467. See in this case note by Mr. Wheaton on the general question of jurisdiction over foreign ministers. The tearing down, in a riot in the city of Philadelphia, in 1802, of the flag of the Spanish minister, "with the most aggravating insults," was held to be cognizable in the State court of Pennsylvania. Mr. Madison, Sec. of State, to Governor McKean, May 11, 1802. MSS. Dom. For an account of the trial of Wm. Cobbett for libel on the Spanish minister As to other proceedings of Yrujo, see infra, § 106. Supra, § 84. The indignities alleged to have been offered in 1809, to Mr. Jackson, British minister at Washington, are discussed in detail in another section, (infra, § 107,) and it is shown that the pretence of such indignities, set up by that officer, is not sustained in point of fact. The circumstances of Mr. Jackson's dismissal are noticed. (Supra, § 84.) "During Mr. Gallatin's mission at London, in 1827, an incident occurred involving a question of diplomatic privileges, which led to an exposition of the British views on the rights of embassy. His coachman was arrested in his stable on a charge of assault, by a warrant from a magistrate. The subject having been informally brought to the notice of the foreign office, a communication was addressed to the secretary of the American legation by the under secretary of state, Mr. Backhouse, May 18, 1827, in which he informed Mr. Lawrence of the result of a reference made by order of Lord Dudley, to the law officers of the Crown. In it it is said that the statute of the 7th Anne, chap. 16, has been considered in all but the penal parts of it nothing more than a declaration of the law of nations; and it is held that neither that law, nor any construction that can properly be put upon the statute, extends to protect the mere servants of ambassadors from arrest upon criminal charges, although the ambassador himself, and probably those who may be named in his mission are, by the best opinions, though not by the uniform practice of this country, exempt from every sort of prosecution, criminal and civil. His lordship will take care that the mag istrates are apprised, through the proper channel, of the disapprobation of His Majesty's Government of the mode in which the warrant was executed in the present instance, and are further informed of the expectation of His Majesty's Government that, whenever the servant of a foreign minister is charged with a misdemeanor, the magistrate shall take proper measures for apprising the minister, either by personal communication with him or through the foreign office, of the fact of a warrant being issued, before any attempt is made to execute it, in order that the minister's convenience may be consulted as to the time and manner in which such warrant shall be put in execution.' "An official character was given to the preceding communication by a note from Earl Dudley, secretary of state for foreign affairs, June 2, 1827, in which he says that it is only necessary for him to 'confirm the statement contained in the private note of Mr. Backhouse, referred to by Mr. Gallatin, as to the law and practice of this country upon the ques tions of privilege arising out of the arrest of Mr. Gallatin's coachman, and to supply an omission in that statement, with respect to the question of the supposed inviolability of the premises occupied by a foreign minister. He is not aware of any instance, since the abolition of sanctuary in England, where it has been held that the premises occupied by an ambassador are entitled to such a privilege by the law of nations.' "He adds that courtesy requires that their houses should not be entered without permission being first solicited in cases where no urgent nécessity presses for the immediate capture of an offender." Lawrence's Wheaton (ed. 1863), 1006, 1007. "In the case of all offenses against the law, committed in this country, no arrest can be made, nor can any judicial proceedings be instituted, except upon complaint sustained by the oath of a credible witness. The mere allegations in notes of a diplomatic representative, although they may command the entire confidence of the executive branch of the Government, are not such proof as the law requires or as the judicial tribunals of the country can recognize." Mr. Fish, Sec. of State, to Mr. Mantilla, Sept. 27, 1875. MSS. Notes, Spain. retary of the Navy, Feb. 11, 1869, House Ex. Doc. No. 79, 40th Cong., 3d That the Federal courts have no common-law jurisdiction of libels on foreign ministers, but that such libels may be prosecuted in State courts, see supra, § 56. XIX. AND FROM TAXES AND IMPOSTS. § 95. "All applications to this Department for free entry of articles imported for the use of ministers and chargés d'affaires, and which they desire shall be delivered free of duty, must be made through the Department of State, accompanied by a bill of lading and by a statement of the number of packages, and their marks and numbers, with a general description of their contents, naming the vessel or other vehicle in which the same were imported, and the person to whom they wish the delivery to be made. When the request of the minister or chargé, with the bill of lading and statement aforesaid shall have been communicated to this Department by the Secretary of State, instructions will be given to the collector of the customs to deliver, free of duty, such packages as may be found to correspond with the bill of lading and statement aforesaid." Treasury Regulations of 1857, Art. 247, quoted in Mr. Trescot, Acting See. of The right of exemption from custom-house duties of articles required for personal use is restricted to the person who is the head of a foreign mission. Mr. Fish, Sec. of State, to Mr. Yano, Jan. 9, 1874. MSS. Notes, Japan. Residences of foreign ministers in Berlin not being taxed, there should be a similar exemption of taxation of residences of German ministers at Washington, though the better opinion is that such exemption is limited to heads of missions. Mr. Fish, Sec. of State, to Mr. Stumm, May 28, 1873. MSS. Notes, Prussia. "The general usage of nations is to accord the franchise of immunity from customs duties to all heads of missions, temporary or permanent, of whatever rank, and that while in some countries, Spain, for instance, the extent of the privilege is limited (although even there very gener ously bestowed), it (the Department) can find no case of its denial to any chief diplomatic officer save in Russia." Mr. F. W. Seward, Acting Sec. of State, to Mr. Hoffman, Aug. 21, 1879. MSS. "There is no law on the statute-book prescribing or regulating the free entry of articles imported by foreign diplomatic officers. That is entirely a subject within the discretion of the Secretary of the Treasury, and rests merely on the ascertained fact of reciprocity." Mr. Brown, Chief Clerk, to Mr. Willamov, June 9, 1880. MSS. Notes, Russia. "In reply to your letter of the 23d ultimo, I have to say that the rule observed by this Government with respect to the taxation of property owned by a foreign Government and occupied as its legation, is to accord reciprocity in regard to general taxation but not to specially exempt it from local assessments, such as water rent and the like, unless it were definitely understood that these taxes would also be exempted by the foreign Government upon a piece of property belonging to the United States and used for a like purpose by our minister. Our diplomatic representatives either personally contract for the premises occupied by them and are granted a maximum allowance for rent for that portion of the premises actually set apart for legation purposes, or else they rent a piece of property to be used exclusively for official business, charging therefor in their contingent quarterly accounts as allowed by the Department. "When a foreign legation occupies rented property in this country, the owner of the premises is not exempted from all lawful taxes. "It is of course impracticable to do more than state the general and equitable usage prevailing in such matters. The Government of the United States is not the owner of real estate abroad except at Tangier, Africa, which is a specially donated property, and the only differences to be noted in the way of leasing or renting property from the general rule stated above are to be found in China and Japan. In those countries contracts for legation premises are authorized by act of Congress." Mr. Bayard, Sec. of State, to Mr. Woolsey, Apr. 15, 1886. MSS. Dom. Let. "A diplomatic representative possesses immunity from the criminal and civil jurisdiction of the country of his sojourn, and cannot be sued, arrested, or punished by the law of that country. Neither can he waive his privilege, for it belongs to his office, not to himself. It is not to be supposed that any representative of his country would intentionally avail himself of this right to evade just obligations, incurred either by himself or the members of his mission. "If, however, a diplomatic agent holds, in such foreign country, real or personal property, aside from that which pertains to him as a minister, it is subject to the local laws. "It is the custom of international intercourse that to a diplomatic agent shall be conceded the privilege of importation of effects for his personal or official use, or for the use of his immediate family, without payment of duties thereon. The application of this privilege varies in different countries, but as a rule is restricted to the head of the mission. It is the duty of the agent to acquaint himself with the formalities prescribed in such case by the local law or regulations, and to conform therewith. The privilege is one of usage and tradition, rather than an inherent right, and is one which the Government of the United States gives to the foreign representatives it receives. Where the agent has ground to believe that a full measure of reciprocal courtesy is limited or denied to him abroad, he should refrain from questioning the local rule on the subject, but await such instructions as the Department of State may give him after receiving full information as to the circum stances. "The diplomatic privilege of importing goods for personal use is not accorded to a foreign secretary of legation in the United States or in any foreign country, so far as is known. "In most countries the franchise of importation is accorded to a chargé d'affaires ad interim. Where the exception exists the fact should not be made the occasion of remonstrance or argument with the local Government without the express directions of the Department of State. "Transit free of customs dues is usually conceded by a third state through whose territories a diplomatic officer passes on his way to or from his post." Printed Pers. Inst., Dip. Agents, 1885. As to status in third country see infra, §97. |