CHAPTER II

DIPLOMATIC ENVOYS

I

THE INSTITUTION OF LEGATION

Phillimore, II. §§ 143-153--Taylor, § 274--Twiss, § 199--Geffcken

in Holtzendorff, III. pp. 605-618--Nys, II. pp. 335-339--Rivier,

I. § 35--Ullmann, § 44--Martens, II. § 6--Gentilis, "De

legationibus libri III." (1585)--Wicquefort, "L'Ambassadeur et ses

fonctions" (1680)--Bynkershoek, "De foro legatorum"

(1721)--Garden, "Traité complet de diplomatie" (3 vols.

1833)--Mirus, "Das europäische Gesandtschaftsrecht" (2 vols.

1847)--Charles de Martens, "Le guide diplomatique" (2 vols. 1832;

6th ed. by Geffcken, 1866)--Montague Bernard, "Four Lectures on

Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd

Lecture)--Alt, "Handbuch des Europäischen Gesandtschaftsrechts"

(1870)--Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd

ed. 1899)--Krauske, "Die Entwickelung der ständigen Diplomatie,"

&c. (1885)--Lehr, "Manuel théorique et pratique des agents

diplomatiques" (1888)--Hill, "History of Diplomacy in the

International Development of Europe," vol. I. (1905), vol. II.

(1906; the other vols. have not yet appeared).

[Sidenote: Development of Legations.]

§ 358. Legation as an institution for the purpose of negotiating between

different States is as old as history, whose records are full of

examples of legations sent and received by the oldest nations. And it is

remarkable that even in antiquity, where no such law as the modern

International Law was known, ambassadors enjoyed everywhere a special

protection and certain privileges, although not by law but by religion,

ambassadors being looked upon as sacrosanct. Yet permanent legations

were unknown till very late in the Middle Ages. The fact that the Popes

had permanent representatives--so-called _apocrisiarii_ or

_responsales_--at the Court of the Frankish Kings and at Constantinople

until the final separation of the Eastern from the Western Church,

ought not to be considered as the first example of permanent legations,

as the task of these papal representatives had nothing to do with

international affairs, but with those of the Church only. It was not

until the thirteenth century that the first permanent legations made

their appearance. The Italian Republics, and Venice in especial, created

the example[713] by keeping representatives stationed at one another's

capitals for the better negotiation of their international affairs. And

in the fifteenth century these Republics began to keep permanent

representatives in Spain, Germany, France, and England. Other States

followed the example. Special treaties were often concluded stipulating

permanent legations, such as in 1520, for instance, between the King of

England and the Emperor of Germany. From the end of the fifteenth

century England, France, Spain, and Germany kept up permanent legations

at one another's Courts. But it was not until the second half of the

seventeenth century that permanent legations became a general

institution, the Powers following the example of France under Louis XIV.

and Richelieu. It ought to be specially mentioned that Grotius[714]

thought permanent legations to be wholly unnecessary. The course of

events has, however, shown that Grotius's views as regards permanent

legations were short-sighted. Nowadays the Family of Nations could not

exist without them, as they are the channel through which nearly the

whole, and certainly all important, official intercourse of the States

flows.

[Footnote 713: See Nys, "Les Origines du droit international" (1894), p.

295.]

[Footnote 714: "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem

jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus

cum non sit opus, docet mos antiquus, cui illae ignoratae."]

[Sidenote: Diplomacy.]

§ 359. The rise of permanent legations created the necessity for a new

class of State officials, the so-called diplomatists; yet it was not

until the end of the eighteenth century that the terms "diplomatist"

and "diplomacy" came into general use. And although the art of diplomacy

is as old as official intercourse between States, such a special class

of officials as are now called diplomatists did not and could not exist

until permanent legations had become a general institution. In this as

in other cases the office has created the class of men necessary for it.

International Law has nothing to do with the education and general

character of these officials. Every State is naturally competent to

create its own rules, if any, as regards these points. Nor has

International Law anything to do with _diplomatic usages_, although

these are more or less of importance, as they may occasionally grow into

customary rules of International Law. But I would notice one of these

usages--namely, that as regards the _language_ which is in use in

diplomatic intercourse. This language was formerly Latin, but through

the political ascendency of France under Louis XIV. it became French.

However, this is a usage of diplomacy only, and not a rule of

International Law.[715] Each State can use its own language in all

official communications to other States, and States which have the same

language regularly do so in their intercourse with each other. But

between States of different tongues and, further, at Conferences and

Congresses, it is convenient to make use of a language which is

generally known. This is nowadays French, but nothing could prevent

diplomatists from dropping French at any moment and adopting another

language instead.

[Footnote 715: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§

266-268.]

II

RIGHT OF LEGATION

Grotius, II. c. 18--Vattel, IV. §§ 55-68--Hall, § 98--Phillimore,

II. §§ 115-139--Taylor, §§ 285-288--Twiss, §§ 201-202--Wheaton, §§

206-209--Bluntschli, §§ 159-165--Heffter, § 200--Geffcken in

Holtzendorff, III. pp 620-631--Ullmann, § 45--Rivier, I. §

35--Nys, II. p. 339--Bonfils, Nos. 658-667--Pradier-Fodéré, II.

Nos. 1225-1256--Fiore, II. Nos. 1112-1117--Calvo, III. §§

1321-1325--Martens, II. §§ 7-8.

[Sidenote: Conception of Right of Legation.]

§ 360. Right of legation is the right of a State to send and receive

diplomatic envoys. The right to send such envoys is termed _active_

right of legation, in contradistinction to the _passive_ right of

legation, as the right to receive such envoys is termed. Some

writers[716] on International Law assert that no right but a mere

competence to send and receive diplomatic envoys exists according to

International Law, maintaining that no State is bound by International

Law to send or receive such envoys. But this is certainly wrong in its

generality. Obviously a State is not bound to send diplomatic envoys or

to receive _permanent_ envoys. But, on the other hand, the very

existence[717] of the Family of Nations makes it necessary for the

members or some of the members to negotiate occasionally on certain

points. Such negotiation would be impossible in case one member could

always and under all circumstances refuse to receive an envoy from the

other members. The duty of every member to listen, under ordinary

circumstances, to a message from another brought by a diplomatic envoy

is, therefore, an outcome of its very membership of the Family of

Nations, and this duty corresponds to the right of every member to send

such envoys. But the exercise of the active right of legation is

discretionary. No State need send diplomatic envoys at all, although

practically all States do at least occasionally send such envoys, and

most States send permanent envoys to many other States. The passive

right of legation is discretionary as regards the reception of

_permanent_ envoys only.

[Footnote 716: See, for instance, Wheaton, § 207; Heilborn, "System," p.

182.]

[Footnote 717: See above, § 141.]

[Sidenote: What States possess the Right of Legation.]

§ 361. Not every State, however, possesses the right of legation. Such

right pertains chiefly to full-Sovereign States,[718] for other States

possess this right under certain conditions only.

[Footnote 718: It should be emphasised that the Holy See, which is in

some respects treated as though an International Person, can send and

receive envoys, who must in every respect be considered as though they

were diplomatic envoys. That they are actually not diplomatic envoys,

although so treated, becomes apparent from the fact that they are not

agents for international affairs of States, but exclusively for affairs

of the Roman Catholic Church. (See above, § 106.)]

(1) Half-Sovereign States, such as States under the suzerainty or the

protectorate of another State, can as a rule neither send nor receive

diplomatic envoys. Thus, Crete and Egypt are destitute of such right,

and the Powers are represented in these States only by consuls or agents

without diplomatic character. But there may be exceptions to this rule.

Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia

and Turkey, the two half-Sovereign principalities of Moldavia and

Wallachia had the right of sending Chargés d'Affaires to foreign Powers.

Thus, further, the late South African Republic, which was a State under

British suzerainty in the opinion of Great Britain, used to keep

permanent diplomatic envoys in several foreign States.

(2) Part-Sovereign member-States of a Federal State may or may not have

the right of legation besides the Federal State. It is the constitution

of the Federal State which regulates this point. Thus, the member-States

of Switzerland and of the United States of America have no right of

legation, but those of the German Empire certainly have. Bavaria, for

example, sends and receives several diplomatic envoys.

[Sidenote: Right of Legation by whom exercised.]

§ 362. As, according to International Law, a State is represented in its

international relations by its head, it is he who acts in the exercise

of his State's right of legation. But Municipal Law may, just as it

designates the person who is the head of the State, impose certain

conditions and restrictions upon the head as regards the exercise of

such right. And the head himself may, provided that it is sanctioned by

the Municipal Law of his State, delegate[719] the exercise of such right

to any representative he chooses.

[Footnote 719: See Phillimore, II. §§ 126-133, where several interesting

cases of such delegation are discussed.]

It may, however, in consequence of revolutionary movements, be doubtful

who the real head of a State is, and in such cases it remains in the

discretion of foreign States to make their choice. But it is impossible

for foreign States to receive diplomatic envoys from both claimants to

the headship of the same State, or to send diplomatic envoys to both of

them. And as soon as a State has recognised the head of a State who came

into his position through a revolution, it can no longer keep up

diplomatic relations with the former head.

It should be mentioned that a revolutionary party which is recognised as

a belligerent Power has nevertheless no right of legation, although

foreign States may negotiate with such party in an informal way through

political agents without diplomatic character, to provide for the

temporal security of the persons and property of their subjects within

the territory under the actual sway of such party. Such revolutionary

party as is recognised as a belligerent Power is in some points only

treated as though it were a subject of International Law; but it is not

a State, and there is no reason why International Law should give it the

right to send and receive diplomatic envoys.

It should further be mentioned that neither an abdicated nor a deposed

head has a right to send and receive diplomatic envoys.[720]

[Footnote 720: See Phillimore, II. §§ 124-125, where the case of Bishop

Ross, ambassador of Mary Queen of Scots, is discussed.]

III

KINDS AND CLASSES OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 69-75--Phillimore, II. §§ 211-224--Twiss, I. §§

204-209--Moore, IV. § 624--Heffter, § 208--Geffcken in

Holtzendorff, III. pp. 635-646--Calvo, III. §§ 1326-1336--Bonfils,

Nos. 668-676--Pradier-Fodéré, III. §§ 1277-1290--Rivier, I. pp.

443-453--Nys, II. pp. 342-352.

[Sidenote: Envoys Ceremonial and Political.]

§ 363. Two different kinds of diplomatic envoys are to be

distinguished--namely, such as are sent for political negotiations and

such as are sent for the purpose of ceremonial function or notification

of changes in the headship. For States very often send special envoys to

one another on occasion of coronations, weddings, funerals, jubilees,

and the like; and it is also usual to send envoys to announce a fresh

accession to the throne. Such envoys ceremonial have the same standing

as envoys political for real State negotiations. Among the envoys

political, again, two kinds are to be distinguished--namely, first, such

as are permanently or temporarily accredited to a State for the purpose

of negotiating with such State, and, second, such as are sent to

represent the sending State at a Congress or Conference. The latter are

not, or need not be, accredited to the State on whose territory the

Congress or Conference takes place, but they are nevertheless diplomatic

envoys and enjoy all the privileges of such envoys as regards

exterritoriality and the like which concern the inviolability and safety

of their persons and the members of their suites.

[Sidenote: Classes of Diplomatic Envoys.]

§ 364. Diplomatic envoys accredited to a State differ in class. These

classes did not exist in the early stages of International Law. But

during the sixteenth century a distinction between two classes of

diplomatic envoys gradually arose, and at about the middle of the

seventeenth century, after permanent legations had come into general

vogue, two such classes became generally recognised--namely,

extraordinary envoys, called Ambassadors, and ordinary envoys, called

Residents; Ambassadors being received with higher honours and taking

precedence of the other envoys. Disputes arose frequently regarding

precedence, and the States tried in vain to avoid them by introducing

during the eighteenth century another class--namely, the so-called

Ministers Plenipotentiary. At last the Powers assembled at the Vienna

Congress came to the conclusion that the matter ought to be settled by

an international understanding, and they agreed, therefore, on March 19,

1815, upon the establishment of three different classes--namely, first,

Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary;

third, Chargés d'Affaires. And the five Powers assembled at the Congress

of Aix-la-Chapelle in 1818 agreed upon a fourth class--namely, Ministers

Resident, to rank between Ministers Plenipotentiary and Chargés

d'Affaires. All the other States either expressly or tacitly accepted

these arrangements, so that nowadays the four classes are an established

order. Although their privileges are materially the same, they differ in

rank and honours, and they must therefore be treated separately.

[Sidenote: Ambassadors.]

§ 365. Ambassadors form the first class. Only States enjoying royal

honours[721] are entitled to send and to receive Ambassadors, as also is

the Holy See, whose first-class envoys are called _Nuncios_, or _Legati

a latere_ or _de latere_. Ambassadors are considered to be personal

representatives of the heads of their States and enjoy for this reason

special honours. Their chief privilege--namely, that of negotiating with

the head of the State personally--has, however, little value nowadays,

as almost all States have to a certain extent constitutional government,

which necessitates that all the important business should go through the

hands of a Foreign Secretary.

[Footnote 721: See above, § 117, No. 1.]

[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.]

§ 366. The second class, the Ministers Plenipotentiary and Envoys

Extraordinary, to which also belong the Papal Internuncios, are not

considered to be personal representatives of the heads of their States.

Therefore they do not enjoy all the special honours of the Ambassadors,

and have not the privilege of treating with the head of the State

personally. But otherwise there is no difference between these two

classes.

[Sidenote: Ministers Resident.]

§ 367. The third class, the Ministers Resident, enjoy fewer honours and

rank below the Ministers Plenipotentiary. But beyond the fact that

Ministers Resident do not enjoy the title "Excellency," there is no

difference between them and the Ministers Plenipotentiary.

[Sidenote: Chargés d'Affaires.]

§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one

point from the first, second, and third class--namely, in so far as its

members are accredited from Foreign Office to Foreign Office, whereas

the members of the other classes are accredited from head of State to

head of State. Chargés d'Affaires do not enjoy, therefore, so many

honours as other diplomatic envoys. And it must be specially mentioned

that a distinction ought to be made between a Chargé d'Affaires who is

the head of a Legation, and who, therefore, is accredited from Foreign

Office to Foreign Office, and a Chargé d'Affaires _ad interim_. The

latter is a member of a Legation whom the head of the Legation delegates

for the purpose of taking his place during absence on leave. Such Chargé

d'Affaires _ad interim_, who had better be called a Chargé des

Affaires,[722] ranks below the ordinary Chargé d'Affaires; he is not

accredited from Foreign Office to Foreign Office, but is simply a

delegate of the absent head of the Legation.

[Footnote 722: See Rivier, II. pp. 451-452.]

[Sidenote: The Diplomatic Corps.]

§ 369. All the Diplomatic Envoys accredited to the same State form,

according to a diplomatic usage, a body which is styled the "Diplomatic

Corps." The head of this body, the so-called "Doyen," is the Papal

Nuncio, or, in case there is no Nuncio accredited, the oldest

Ambassador, or, failing Ambassadors, the oldest Minister

Plenipotentiary, and so on. As the Diplomatic Corps is not a body

legally constituted, it performs no legal functions, but it is

nevertheless of great importance, as it watches over the privileges and

honours due to diplomatic envoys.

IV

APPOINTMENT OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 76-77--Phillimore, II. §§ 227-231--Twiss, I. §§

212-214--Ullmann, § 48--Calvo, III. §§ 1343-1345--Bonfils, Nos.

677-680--Wheaton, §§ 217-220--Moore, IV. §§ 632-635.

[Sidenote: Person and Qualification of the Envoy.]

§ 370. International Law has no rules as regards the qualification of

the individuals whom a State can appoint as diplomatic envoys, States

being naturally competent to act according to discretion, although of

course there are many qualifications a diplomatic envoy must possess to

fill his office successfully. The Municipal Laws of many States

comprise, therefore, many details as regards the knowledge and training

which a candidate for a permanent diplomatic post must possess, whereas,

regarding envoys ceremonial even the Municipal Laws have no provisions

at all. The question is sometimes discussed whether females[723] might

be appointed envoys. History relates a few cases of female diplomatists.

Thus, for example, Louis XIV. of France accredited in 1646 Madame de

Guébriant ambassador to the Court of Poland. During the last two

centuries, however, no such case has to my knowledge occurred, although

I doubt not that International Law does not prevent a State from sending

a female as diplomatic envoy. But under the present circumstances many

States would refuse to receive her.

[Footnote 723: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§

127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici

dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico"

(1909).]

[Sidenote: Letter of Credence, Full Powers, Passports.]

§ 371. The appointment of an individual as a diplomatic envoy is

announced to the State to which he is accredited in certain official

papers to be handed in by the envoy to the receiving State. _Letter of

Credence_ (_lettre de créance_) is the designation of the document in

which the head of the State accredits a permanent ambassador or minister

to a foreign State. Every such envoy receives a sealed Letter of

Credence and an open copy. As soon as the envoy arrives at his

destination, he sends the copy to the Foreign Office in order to make

his arrival officially known. The sealed original, however, is handed in

personally by the envoy to the head of the State to whom he is

accredited. Chargés d'Affaires receive a Letter of Credence too, but as

they are accredited from Foreign Office to Foreign Office, their Letter

of Credence is signed, not by the head of their home State, but by its

Foreign Office. Now a permanent diplomatic envoy needs no other

empowering document in case he is not entrusted with any task outside

the limits of the ordinary business of a permanent legation. But in case

he is entrusted with any such task, as, for instance, if any special

treaty or convention is to be negotiated, he requires a special

empowering document--namely, the so-called _Full Powers_ (_Pleins

Pouvoirs_). They are given in Letters Patent signed by the head of the

State, and they are either limited or unlimited Full Powers, according

to the requirements of the case. Such diplomatic envoys as are sent,

not to represent their home State permanently, but on an extraordinary

mission such as representation at a Congress, negotiation of a special

treaty, and other transactions, receive full Powers only, and no Letter

of Credence. Every permanent or other diplomatic envoy is also furnished

with so-called _Instructions_ for the guidance of his conduct as regards

the objects of his mission. But such Instructions are a matter between

the Envoy and his home State exclusively, and they have therefore,

although they may otherwise be very important, no importance for

International Law. Every permanent diplomatic envoy receives, lastly,

_Passports_ for himself and his suite specially made out by the Foreign

Office. These Passports the envoy after his arrival deposits at the

Foreign Office of the State to which he is accredited, where they remain

until he himself asks for them because he desires to leave his post, or

until they are returned to him on his dismissal.

[Sidenote: Combined Legations.]

§ 372. As a rule, a State appoints different individuals as permanent

diplomatic envoys to different States, but sometimes a State appoints

the same individual as permanent diplomatic envoy to several States. As

a rule, further, a diplomatic envoy represents one State only. But

occasionally several States appoint the same individual as their envoy,

so that one envoy represents several States.

[Sidenote: Appointment of several Envoys.]

§ 373. In former times States used frequently[724] to appoint more than

one permanent diplomatic envoy as their representative in a foreign

State. Although this would hardly occur nowadays, there is no rule

against such a possibility. And even now it happens frequently that

States appoint several envoys for the purpose of representing them at

Congresses and Conferences. In such cases one of the several envoys is

appointed senior, to whom the others are subordinate.

[Footnote 724: See Mirus, op. cit. I. §§ 117-119.]

V

RECEPTION OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 65-67--Hall, § 98--Phillimore, II. §§

133-139--Twiss, I. §§ 202-203--Taylor, §§ 285-290--Moore, IV. §§

635, 637-638--Martens, II. § 8--Calvo, III. §§

1353-1356--Pradier-Fodéré, III. §§ 1253-1260--Fiore, II. Nos.

1118-1120--Rivier, I. pp. 455-457.

[Sidenote: Duty to receive Diplomatic Envoys.]

§ 374. Every member of the Family of Nations that possesses the passive

right of legation is under ordinary circumstances bound to receive

diplomatic envoys accredited to itself from other States for the purpose

of negotiation. But the duty extends neither to the reception of

permanent envoys nor to the reception of temporary envoys under all

circumstances.

(1) As regards permanent envoys, it is a generally recognised fact that

a State is as little bound to receive them as it is to send them.

Practically, however, every full-Sovereign State which desires its voice

to be heard among the States receives and sends permanent envoys, as

without such it would, under present circumstances, be impossible for a

State to have any influence whatever in international affairs. It is for

this reason that Switzerland, which in former times abstained entirely

from sending permanent envoys, has abandoned her former practice and

nowadays sends and receives several. The insignificant Principality of

Lichtenstein is, as far as I know, the only full-Sovereign State which

neither sends nor receives one single permanent legation.

But a State may receive a permanent legation from one State and refuse

to do so from another. Thus the Protestant States never _received_ a

permanent legation from the Popes, even when the latter were heads of a

State, and they still observe this rule, although one or another of

them, such as Prussia for example, keeps a permanent legation at the

Vatican.

(2) As regards temporary envoys, it is likewise a generally recognised

fact among those writers who assert the duty of a State to receive

under ordinary circumstances temporary envoys that there are exceptions

to that rule. Thus, for example, a State which knows beforehand the

object of a mission and does not wish to negotiate thereon can refuse to

receive the mission. Thus, further, a belligerent can refuse[725] to

receive a legation from the other belligerent, as war involves the

rupture of all peaceable relations.

[Footnote 725: But this is not generally recognised. See Vattel, IV. §

67; Phillimore, II. § 138; and Pradier-Fodéré, III. No. 1255.]

[Sidenote: Refusal to receive a certain Individual.]

§ 375. But the refusal to receive an envoy must not be confounded with

the refusal to receive a certain individual as envoy. A State may be

ready to receive a permanent or temporary envoy, but may object to the

individual selected for that purpose. International Law gives no right

to a State to insist upon the reception of an individual appointed by it

as diplomatic envoy. Every State can refuse to receive as envoy a person

objectionable to itself. And a State refusing an individual envoy is

neither compelled to specify what kind of objection it has, nor to

justify its objection. Thus, for example, most States refuse to receive

one of their own subjects as an envoy from a foreign State.[726] Thus,

again, the King of Hanover refused in 1847 to receive a minister

appointed by Prussia, because the individual was of the Roman Catholic

faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the

United States of America because he had in 1871 protested against the

annexation of the Papal States. And when the United States sent the

same gentleman as ambassador to Austria, the latter refused him

reception on the ground that his wife was said to be a Jewess. Although,

as is apparent from these examples, no State has a right to insist upon

the reception of a certain individual as envoy, in practice States are

often offended when reception is refused. Thus, in 1832 England did not

cancel for three years the appointment of Sir Stratford Canning as

ambassador to Russia, although the latter refused reception, and the

post was practically vacant. In 1885, when, as above mentioned, Austria

refused reception to Mr. Keiley as ambassador of the United States, the

latter did not appoint another, although Mr. Keiley resigned, and the

legation was for several years left to the care of a Chargé

d'Affaires.[727] To avoid such conflicts it is a good practice of many

States never to appoint an individual as envoy without having

ascertained beforehand whether the individual would be _persona grata_.

And it is a customary rule of International Law that a State which does

not object to the appointment of a certain individual, when its opinion

has been asked beforehand, is bound to receive such individual.[728]

[Footnote 726: In case a State receives one of its own subjects as

diplomatic envoy of a foreign State, it has to grant him all the

privileges of such envoys, including exterritoriality. Thus in the case

of Macartney _v._ Garbutt and others (1890, L.R. 24 Q.B. 368) it was

decided that a British subject accredited to Great Britain by the

Chinese Government as a Secretary of its embassy and received by Great

Britain in that capacity without an express condition that he should

remain subject to British jurisdiction, was exempt from British

jurisdiction. See, however, article 15 of the Règlement sur les

Immunités Diplomatiques, adopted in 1895 by the Institute of

International Law (see Annuaire, XIV. p. 244), which denies to such an

individual exemption from jurisdiction. See also Phillimore, II. § 135,

and Twiss, I. § 203.]

[Footnote 727: See Moore, IV. § 638, p. 480.]

[Footnote 728: The question is of interest whether the privileges due to

diplomatists must be granted on his journey home to an individual to

whom reception as an envoy is refused. I think the question ought to be

answered in the affirmative; see, however, Moore, IV. § 666, p. 668.]

[Sidenote: Mode and Solemnity of Reception.]

§ 376. In case a State does not object to the reception of a person as

diplomatic envoy accredited to itself, his actual reception takes place

as soon as he has arrived at the place of his designation. But the mode

of reception differs according to the class to which the envoy belongs.

If he be one of the first, second, or third class, it is the duty of the

head of the State to receive him solemnly in a so-called public audience

with all the usual ceremonies. For that purpose the envoy sends a copy

of his credentials to the Foreign Office, which arranges a special

audience with the head of the State for the envoy, when he delivers in

person his sealed credentials.[729] If the envoy be a Chargé d'Affaires

only, he is received in audience by the Secretary of Foreign Affairs, to

whom he hands his credentials. Through the formal reception the envoy

becomes officially recognised and can officially commence to exercise

his functions. But such of his privileges as exterritoriality and the

like, which concern the safety and inviolability of his person, must be

granted even before his official reception, as his character as

diplomatic envoy is considered to date, not from the time of his

official reception, but from the time when his credentials were handed

to him on leaving his home State, his passports furnishing sufficient

proof of his diplomatic character.

[Footnote 729: Details concerning reception of envoys are given by

Twiss, I. § 215, and Rivier, I. p. 467.]

[Sidenote: Reception of Envoys to Congresses and Conferences.]

§ 377. It must be specially observed that all these details regarding

the reception of diplomatic envoys accredited to a State do not apply to

the reception of envoys sent to represent the several States at a

Congress or Conference. As such envoys are not accredited to the State

on whose territory the Congress or Conference takes place, such State

has no competence to refuse the reception of the appointed envoys, and

no formal and official reception of the latter by the head of the State

need take place. The appointing States merely notify the appointment of

their envoys to the Foreign Office of the State on whose territory the

transactions take place, the envoys call upon the Foreign Secretary

after their arrival to introduce themselves, and they are courteously

received by him. They do not, however, hand in to him their Full Powers,

but reserve them for the first meeting of the Congress or Conference,

where they produce them in exchange with one another.

VI

FUNCTIONS OF DIPLOMATIC ENVOYS

Rivier, I. § 37--Ullmann, § 49--Bonfils, Nos.

681-683--Pradier-Fodéré, III. §§ 1346-1376.

[Sidenote: On Diplomatic Functions in general.]

§ 378. A distinction must be made between functions of permanent envoys

and of envoys for temporary purposes. The functions of the latter, who

are either envoys ceremonial or such envoys political as are only

temporarily accredited for the purpose of some definite negotiations or

as representatives at Congresses and Conferences, are clearly

demonstrated by the very purpose of their appointment. But the functions

of the permanent envoys demand a closer consideration. These regular

functions may be grouped together under the heads of negotiation,

observation, and protection. But besides these regular functions a

diplomatic envoy may be charged with other and more miscellaneous

functions.

[Sidenote: Negotiation.]

§ 379. A permanent ambassador or other envoy represents his home State

in the totality of its international relations not only with the State

to which he is accredited, but also with other States. He is the

mouthpiece of the head of his home State and its Foreign Secretary as

regards communications to be made to the State to which he is

accredited. He likewise receives communications from the latter and

reports them to his home State. In this way not only are international

relations between these two States fostered and negotiated upon, but

such international affairs of other States as are of general interest to

all or a part of the members of the Family of Nations are also

discussed. Owing to the fact that all the more important Powers keep

permanent legations accredited to one another, a constant exchange of

views in regard to affairs international is taking place between them.

[Sidenote: Observation.]

§ 380. But these are not all the functions of permanent diplomatic

envoys. Their task is, further, to observe attentively every occurrence

which might affect the interest of their home States, and to report such

observations to their Governments. It is through these reports that

every member of the Family of Nations is kept well informed in regard to

the army and navy, the finances, the public opinion, the commerce and

industry of foreign countries. And it must be specially observed that no

State that receives diplomatic envoys has a right to prevent them from

exercising their function of observation.

[Sidenote: Protection.]

§ 381. A third task of diplomatic envoys is the protection of the

persons, property, and interests of such subjects of their home States

as are within the boundaries of the State to which they are accredited.

If such subjects are wronged without being able to find redress in the

ordinary way of justice, and ask the help of the diplomatic envoy of

their home State, he must be allowed to afford them protection. It is,

however, for the Municipal Law and regulations of his home State, and

not for International Law, to prescribe to an envoy the limits within

which he has to afford protection to his compatriots.

[Sidenote: Miscellaneous Functions.]

§ 382. Negotiation, observation, and protection are tasks common to all

diplomatic envoys of every State. But a State may order its permanent

envoys to perform other tasks, such as the registration of deaths,

births, and marriages of subjects of the home State, legalisation of

their signatures, making out of passports for them, and the like. But in

doing this a State must be careful not to order its envoys to perform

such tasks as are by the law of the receiving State exclusively reserved

to its own officials. Thus, for instance, a State whose laws compel

persons who intend marriage to conclude it in presence of its

registrars, need not allow a foreign envoy to legalise a marriage of

compatriots before its registration by the official registrar. So, too,

a State need not allow a foreign envoy to perform an act which is

reserved for its jurisdiction, as, for instance, the examination of

witnesses on oath.

[Sidenote: Envoys not to interfere in Internal Politics.]

§ 383. But it must be specially emphasised that envoys must not

interfere with the internal political life of the State to which they

are accredited. It certainly belongs to their functions to watch the

political events and the political parties with a vigilant eye and to

report their observations to their home States. But they have no right

whatever to take part in that political life itself, to encourage a

certain political party, or to threaten another. If nevertheless they do

so, they abuse their position. And it matters not whether an envoy acts

thus on his own account or on instructions from his home State. No

strong self-respecting State will allow a foreign envoy to exercise such

interference, but will either request his home State to recall him and

appoint another individual in his place or, in case his interference is

very flagrant, hand him his passports and therewith dismiss him. History

records many instances of this kind,[730] although in many cases it is

doubtful whether the envoy concerned really abused his office for the

purpose of interfering with internal politics.

[Footnote 730: See Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640),

who discuss a number of cases, especially that of Lord Sackville, who

received his passports in 1888 from the United States of America for an

alleged interference in the Presidential election.]

VII

POSITION OF DIPLOMATIC ENVOYS

[Sidenote: Diplomatic Envoys objects of International Law.]

§ 384. Diplomatic envoys are just as little subjects of International

Law as are heads of States; and the arguments regarding the position of

such heads[731] must also be applied to the position of diplomatic

envoys, which is given to them by International Law not as individuals

but as representative agents of their States. It is derived, not from

personal rights, but from rights and duties of their home States and the

receiving States. All the privileges which according to International

Law are possessed by diplomatic envoys are not rights given to them by

International Law, but rights given by the Municipal Law of the

receiving States in compliance with an international right of their home

States. For International Law gives a right to every State to demand for

its diplomatic envoys certain privileges from the Municipal Law of a

foreign State. Thus, a diplomatic envoy is not a subject but an object

of International Law, and is in this regard like any other individual.

[Footnote 731: See above, § 344.]

[Sidenote: Privileges due to Diplomatic Envoys.]

§ 385. Privileges due to diplomatic envoys, apart from ceremonial

honours, have reference to their inviolability and to their so-called

exterritoriality. The reasons why these privileges must be granted are

that diplomatic envoys are representatives of States and of their

dignity,[732] and, further, that they could not exercise their functions

perfectly unless they enjoyed such privileges. For it is obvious that,

were they liable to ordinary legal and political interference like other

individuals and thus more or less dependent on the good-will of the

Government, they might be influenced by personal considerations of

safety and comfort to such a degree as would materially hamper the

exercise of their functions. It is equally clear that liability to

interference with their full and free intercourse with their home States

through letters, telegrams, and couriers would wholly nullify their

_raison d'être_. In this case it would be impossible for them to send

independent and secret reports to or receive similar instructions from

their home States. From the consideration of these and various cognate

reasons their privileges seem to be inseparable attributes of the very

existence of diplomatic envoys.[733]

[Footnote 732: See above, § 121.]

[Footnote 733: The Institute of International Law, at its meeting at

Cambridge in 1895, discussed the privileges of diplomatic envoys, and

drafted a body of seventeen rules in regard thereto; see Annuaire, XIV.

p. 240.]

VIII

INVIOLABILITY OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 80-107--Hall, §§ 50, 98*--Phillimore, II. §§

154-175--Twiss, I. §§ 216-217--Moore, IV. §§ 657-659--Ullmann, §

50--Geffcken in Holtzendorff, III. pp. 648-654--Rivier, I. §

38--Nys, II. pp. 372-374--Bonfils, Nos. 684-699--Pradier-Fodéré,

III. §§ 1382-1393--Mérignhac, II. pp. 264-273--Fiore, II. Nos.

1127-1143--Calvo, III. §§ 1480-1498--Martens, II. § 11--Crouzet,

"De l'inviolabilité ... des agents diplomatiques" (1875).

[Sidenote: Protection due to Diplomatic Envoys.]

§ 386. Diplomatic envoys are just as sacrosanct as heads of States. They

must, therefore, on the one hand, be afforded special protection as

regards the safety of their persons, and, on the other hand, they must

be exempted from every kind of criminal jurisdiction of the receiving

States. Now the protection due to diplomatic envoys must find its

expression not only in the necessary police measures for the prevention

of offences, but also in specially severe punishments to be inflicted on

offenders. Thus, according to English Criminal Law,[734] every one is

guilty of a misdemeanour who, by force or personal restraint, violates

any privilege conferred upon the diplomatic representatives of foreign

countries, or who[735] sets forth or prosecutes or executes any writ or

process whereby the person of any diplomatic representative of a

foreign country or the person of a servant of any such representative

is arrested or imprisoned. The protection of diplomatic envoys is not

restricted to their own person, but must be extended to the members of

their family and suite, to their official residence, their furniture,

carriages, papers, and likewise to their intercourse with their home

States by letters, telegrams, and special messengers. Even after a

diplomatic mission has come to an end, the archives of an Embassy must

not be touched, provided they have been put under seal and confided to

the protection of another envoy.[736]

[Footnote 734: See Stephen's Digest, articles 96-97.]

[Footnote 735: 7 Anne, c. 12, sect. 3-6. This statute, which was passed

in 1708 in consequence of the Russian Ambassador in London having been

arrested for a debt of £50, has always been considered as declaratory of

the existing law in England, and not as creating new law.]

[Footnote 736: See above, § 106 (case of Montagnini), and below, § 411.]

[Sidenote: Exemption from Criminal Jurisdiction.]

§ 387. As regards the exemption of diplomatic envoys from criminal

jurisdiction, theory and practice of International Law agree

nowadays[737] upon the fact that the receiving States have no right,

under any circumstances whatever, to prosecute and punish diplomatic

envoys. But among writers on International Law the question is not

settled whether the commands and injunctions of the laws of the

receiving States concern diplomatic envoys at all, so that the latter

have to comply with such commands and injunctions, although the fact is

established that they can never be prosecuted and punished for any

breach.[738] This question ought to be decided in the negative, for a

diplomatic envoy must in no point be considered under the legal

authority of the receiving State. But this does not mean that a

diplomatic envoy must have a right to do what he likes. The

presupposition of the privileges he enjoys is that he acts and behaves

in such a manner as harmonises with the internal order of the receiving

State. He is therefore expected voluntarily to comply with all such

commands and injunctions of the Municipal Law as do not restrict him in

the effective exercise of his functions. In case he acts and behaves

otherwise, and disturbs thereby the internal order of the State, the

latter will certainly request his recall or send him back at once.

[Footnote 737: In former times there was no unanimity amongst

publicists. See Phillimore, II. § 154.]

[Footnote 738: The point is thoroughly discussed by Beling, "Die

strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.]

History records many cases of diplomatic envoys who have conspired

against the receiving States, but have nevertheless not been prosecuted.

Thus, in 1584, the Spanish Ambassador Mendoza in England plotted to

depose Queen Elizabeth; he was ordered to leave the country. In 1586 the

French Ambassador in England, L'Aubespine, conspired against the life of

Queen Elizabeth; he was simply warned not to commit a similar act again.

In 1654 the French Ambassador in England, De Bass, conspired against the

life of Cromwell; he was ordered to leave the country within twenty-four

hours.[739]

[Footnote 739: These and other cases are discussed by Phillimore, II. §§

160-165.]

[Sidenote: Limitation of Inviolability.]

§ 388. As diplomatic envoys are sacrosanct, the principle of their

inviolability is generally recognised. But there is one exception. For

if a diplomatic envoy commits an act of violence which disturbs the

internal order of the receiving State in such a manner as makes it

necessary to put him under restraint for the purpose of preventing

similar acts, or in case he conspires against the receiving State and

the conspiracy can be made futile only by putting him under restraint,

he may be arrested for the time being, although he must in due time be

safely sent home. Thus in 1717 the Swedish Ambassador Gyllenburg in

London, who was an accomplice in a plot against King George I., was

arrested and his papers were searched. In 1718 the Spanish Ambassador

Prince Cellamare in France was placed in custody because he organised a

conspiracy against the French Government.[740] And it must be emphasised

that a diplomatic envoy cannot make it a point of complaint if injured

in consequence of his own unjustifiable behaviour, as for instance in

attacking an individual who in self-defence retaliates, or in

unreasonably or wilfully placing himself in dangerous or awkward

positions, such as in a disorderly crowd.[741]

[Footnote 740: Details regarding these cases are given by Phillimore,

II. §§ 166 and 170.]

[Footnote 741: See article 6 of the rules regarding diplomatic

immunities adopted by the Institute of International Law at its meeting

at Cambridge in 1895 (Annuaire, XIV. p. 240).]

IX

EXTERRITORIALITY OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 80-119--Hall, §§ 50, 52, 53--Westlake, I. pp.

263-273--Phillimore, II. §§ 176-210--Taylor, §§ 299-315--Twiss, I.

§§ 217-221--Moore, II. §§ 291-304 and IV. §§ 660-669--Ullmann, §

50--Geffcken in Holtzendorff, III. pp. 654-659--Nys, II. pp.

353-385--Rivier, I. 38--Bonfils, Nos. 700-721--Pradier-Fodéré,

III. §§ 1396-1495--Mérignhac, II. pp. 249-293--Fiore, II. Nos.

1145-1163--Calvo, III. §§ 1499-1531--Martens, II. §§

12-14--Gottschalck, "Die Exterritorialität der Gesandten"

(1878)--Heyking, "L'exterritorialité" (1889)--Odier, "Des

privilèges et immunités des agents diplomatiques"

(1890)--Vercamer, "Des franchises diplomatiques et spécialement de

l'exterritorialité" (1891)--Droin, "L'exterritorialité des agents

diplomatiques" (1895)--Mirre, "Die Stellung der völkerrechtlichen

Literatur zur Lehre von den sogenannten Nebenrechten der

gesandschaftlichen Functionäre" (1904).

[Sidenote: Reason and Fictional Character of Exterritoriality.]

§ 389. The exterritoriality which must be granted to diplomatic envoys

by the Municipal Laws of all the members of the Family of Nations is

not, as in the case of sovereign heads of States, based on the principle

_par in parem non habet imperium_, but on the necessity that envoys

must, for the purpose of fulfilling their duties, be independent of the

jurisdiction, the control, and the like, of the receiving States.

Exterritoriality, in this as in every other case, is a fiction only, for

diplomatic envoys are in reality not without, but within, the

territories of the receiving States. The term "Exterritoriality" is

nevertheless valuable, because it demonstrates clearly the fact that

envoys must in most points be treated as though they were not within

the territory of the receiving States.[742] And the so-called

exterritoriality of envoys is actualised by a body of privileges which

must be severally discussed.

[Footnote 742: With a few exceptions (see Droin, "L'exterritorialité des

agents diplomatiques" (1895), pp. 32-43), all publicists accept the term

and the fiction of exterritoriality.]

[Sidenote: Immunity of Domicile.]

§ 390. The first of these privileges is immunity of domicile, the

so-called _Franchise de l'hôtel_. The present immunity of domicile has

developed from the former condition of things, when the official

residences of envoys were in every point considered to be outside the

territory of the receiving States, and when this exterritoriality was in

many cases even extended to the whole quarter of the town in which such

a residence was situated. One used then to speak of a _Franchise du

quartier_ or the _Jus quarteriorum_. And an inference from this

_Franchise du quartier_ was the so-called right of asylum, envoys

claiming the right to grant asylum within the boundaries of their

residential quarters to every individual who took refuge there.[743] But

already in the seventeenth century most States opposed this _Franchise

du quartier_, and it totally disappeared in the eighteenth century,

leaving behind, however, the claim of envoys to grant asylum within

their official residences. Thus, when in 1726 the Duke of Ripperda,

first Minister to Philip V. of Spain, who was accused of high treason

and had taken refuge in the residence of the English Ambassador in

Madrid, was forcibly arrested there by order of the Spanish Government,

the British Government complained of this act as a violation of

International Law.[744] Twenty-one years later, in 1747, a similar case

occurred in Sweden. A merchant named Springer was accused of high

treason and took refuge in the house of the English Ambassador at

Stockholm. On the refusal of the English envoy to surrender Springer,

the Swedish Government surrounded the embassy with troops and ordered

the carriage of the envoy, when leaving the embassy, to be followed by

mounted soldiers. At last Springer was handed over to the Swedish

Government under protest, but England complained and called back her

ambassador, as Sweden refused to make the required reparation.[745] As

these two examples show, the right of asylum, although claimed and often

conceded, was nevertheless not universally recognised. During the

nineteenth century all remains of it vanished, and when in 1867 the

French envoy in Lima claimed it, the Peruvian Government refused to

concede it.[746]

[Footnote 743: Although this right of asylum was certainly recognised by

the States in former centuries, it is of interest to note that Grotius

did not consider it postulated by International Law, for he says of this

right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit.

Istud enim juris gentium non est." See also Bynkershoek, "De foro

legat." c. 21.]

[Footnote 744: See Martens, "Causes Célèbres," I. p. 178.]

[Footnote 745: See Martens, "Causes Célèbres," II. p. 52.]

[Footnote 746: The South American States, Chili excepted, still grant

the right to foreign envoys to afford asylum to political refugees in

time of revolution. It is, however, acknowledged that this right is not

based upon a rule of International Law, but merely upon _local_ usage.

See Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in

A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508;

Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That

actually in times of revolution and of persecution of certain classes of

the population asylum is occasionally granted to refugees and respected

by the local authorities, there is no doubt, but this occasional

practice does not shake the validity of the general rule of

International Law according to which there is no obligation on the part

of the receiving State to grant to envoys the right of affording asylum

to individuals not belonging to their suites. See, however, Moore, II.

§ 293.]

Nowadays the official residences of envoys are _in a sense and in some

respects only_ considered as though they were outside the territory of

the receiving States. For the immunity of domicile granted to diplomatic

envoys comprises the inaccessibility of these residences to officers of

justice, police, or revenue, and the like, of the receiving States

without the special consent of the respective envoys. Therefore, no act

of jurisdiction or administration of the receiving Governments can take

place within these residences, except by special permission of the

envoys. And the stables and carriages of envoys are considered to be

parts of their residences. But such immunity of domicile is granted

only in so far as it is necessary for the independence and inviolability

of envoys and the inviolability of their official documents and

archives. If an envoy abuses this immunity, the receiving Government

need not bear it passively. There is, therefore, no obligation on the

part of the receiving State to grant an envoy the right of affording

asylum to criminals or to other individuals not belonging to his suite.

Of course, an envoy need not deny entrance to criminals who want to take

refuge in the embassy. But he must surrender them to the prosecuting

Government at its request, and, if he refuses, any measures may be taken

to induce him to do so, apart from such as would involve an attack on

his person. Thus, the embassy may be surrounded by soldiers, and

eventually the criminal may even forcibly be taken out of the embassy.

But such measures of force are justifiable only if the case is an urgent

one, and after the envoy has in vain been required to surrender the

criminal. Further, if a crime is committed inside the house of an envoy

by an individual who does not enjoy personally the privilege of

exterritoriality, the criminal must be surrendered to the local

Government. The case of Nikitschenkow, which occurred in Paris in 1867,

is an instance thereof. Nikitschenkow, a Russian subject not belonging

to the Russian Legation, made an attempt on and wounded a member of that

legation within the precincts of the embassy. The French police were

called in and arrested the criminal. The Russian Government required his

extradition, maintaining that, as the crime was committed inside the

Russian Embassy, it fell exclusively under Russian jurisdiction; but the

French Government refused extradition and Russia dropped her claim.

Again, an envoy has no right to seize a subject of his home State who is

within the boundaries of the receiving State and keep him under arrest

inside the embassy with the intention of bringing him away into the

power of his home State. An instance thereof is the case of the Chinaman

Sun Yat Sen which occurred in London in 1896. This was a political

refugee from China living in London. He was induced to enter the house

of the Chinese Legation and kept under arrest there in order to be

conveyed forcibly to China, the Chinese envoy contending that, as the

house of the legation was Chinese territory, the English Government had

no right to interfere. But the latter did interfere, and Sun Yat Sen was

released after several days.

As a contrast to this case may be mentioned that of Kalkstein which

occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian

subject, had fled to Poland for political reasons since he was accused

of high treason against the Prussian Government. Now Frederic William,

the great Elector of Brandenburg, ordered his diplomatic envoy at

Warsaw, the capital of Poland, to obtain possession of the person of

Kalkstein. On November 28, 1670, this order was carried out. Kalkstein

was secretly seized, and, wrapped up in a carpet, was carried across the

frontier. He was afterwards executed at Memel.

[Sidenote: Exemption from Criminal and Civil Jurisdiction.]

§ 391. The second privilege of envoys in reference to their

exterritoriality is their exemption from criminal and civil

jurisdiction. As their exemption from criminal jurisdiction is also a

consequence of their inviolability, it has already been discussed,[747]

and we have here to deal with their exemption from civil jurisdiction

only. No civil action of any kind as regards debts and the like can be

brought against them in the Civil Courts of the receiving States. They

cannot be arrested for debts, nor can their furniture, their carriages,

their horses, and the like, be seized for debts. They cannot be

prevented from leaving the country for not having paid their debts, nor

can their passports be refused to them on the same account. Thus, when

in 1772 the French Government refused the passports to Baron de Wrech,

the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid

his debts, all the other envoys in Paris complained of this act of the

French Government as a violation of International Law.[748] But the rule

that an envoy is exempt from civil jurisdiction has certain exceptions.

If an envoy enters an appearance to an action against himself, or if he

himself brings an action under the jurisdiction of the receiving State,

the courts of the latter have civil jurisdiction in such cases over him.

And the same is valid as regards real property held within the

boundaries of the receiving State by an envoy, not in his official

character, but as a private individual, and as regards mercantile[749]

ventures in which he might engage on the territory of the receiving

State.

[Footnote 747: See above, §§ 387-388.]

[Footnote 748: See Martens, "Causes Célèbres," II. p. 282.]

[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of

diplomatic envoys from English jurisdiction is based, does not exclude

such envoy as embarks on mercantile ventures from the benefit of the

Act, and the practice of the English Courts grants, therefore, to

foreign envoys even in such cases exemption from local jurisdiction; see

the case (1859) of Magdalena Steam Navigation Co. _v._ Martin, 2 Ellis

and Ellis 94, overruling the case of Taylor _v._ Best, 14 C.B. 487. See

also Westlake, I. p. 267.]

[Sidenote: Exemption from Subpoena as witness.]

§ 392. The third privilege of envoys in reference to their

exterritoriality is exemption from subpoena as witnesses. No envoy

can be obliged, or even required, to appear as a witness in a civil or

criminal or administrative Court, nor is an envoy obliged to give

evidence before a Commissioner sent to his house. If, however, an envoy

chooses for himself to appear as a witness or to give evidence of any

kind, the Courts can make use of such evidence. A remarkable case of

this kind is that of the Dutch envoy Dubois in Washington, which

happened in 1856. A case of homicide occurred in the presence of M.

Dubois, and, as his evidence was absolutely necessary for the trial, the

Foreign Secretary of the United States asked Dubois to appear before the

Court as a witness, recognising the fact that Dubois had no duty to do

so. When Dubois, on the advice of all the other diplomatic envoys in

Washington, refused to comply with this desire, the United States

brought the matter before the Dutch Government. The latter, however,

approved of Dubois' refusal, but authorised him to give evidence under

oath before the American Foreign Secretary. As, however, such evidence

would have had no value at all according to the local law, Dubois'

evidence was not taken, and the Government of the United States asked

the Dutch Government to recall him.[750]

[Footnote 750: See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. §

1520.]

[Sidenote: Exemption from Police.]

§ 393. The fourth privilege of envoys in reference to their

exterritoriality is exemption from the police of the receiving States.

Orders and regulations of the police do in no way bind them. On the

other hand, this exemption from police does not contain the privilege of

an envoy to do what he likes as regards matters which are regulated by

the police. Although such regulations can in no way bind him, an envoy

enjoys the privilege of exemption from police under the presupposition

that he acts and behaves in such a manner as harmonises with the

internal order of the receiving State. He is, therefore, expected to

comply voluntarily with all such commands and injunctions of the local

police as, on the one hand, do not restrict him in the effective

exercise of his duties, and, on the other hand, are of importance for

the general order and safety of the community. Of course, he cannot be

punished if he acts otherwise, but the receiving Government may request

his recall or even be justified in other measures of such a kind as do

not injure his inviolability. Thus, for instance, if in time of plague

an envoy were not voluntarily to comply with important sanitary

arrangements of the local police, and if there were great danger in

delay, a case of necessity would be created and the receiving Government

would be justified in the exercise of reasonable pressure upon the

envoy.

[Sidenote: Exemption from Taxes and the like.]

§ 394. The fifth privilege of envoys in reference to their

exterritoriality is exemption from taxes and the like. As an envoy,

through his exterritoriality, is considered not to be subjected to the

territorial supremacy of the receiving State, he must be exempt from all

direct personal taxation and therefore need not pay either income-tax or

other direct taxes. As regards rates, it is necessary to draw a

distinction. Payment of rates imposed for local objects from which an

envoy himself derives benefit, such as sewerage, lighting, water,

night-watch, and the like, can be required of the envoy, although this

is often[751] not done. Other rates, however, such as poor-rates and the

like, he cannot be requested to pay. As regards customs duties,

International Law does not claim the exemption of envoys therefrom.

Practically and by courtesy, however, the Municipal Laws of many States

allow diplomatic envoys within certain limits the entry free of duty of

goods intended for their own private use. If the house of an envoy is

the property of his home State or his own property, the house need not

be exempt from property tax, although it is often so by the courtesy of

the receiving State. Such property tax is not a personal and direct, but

an indirect tax.

[Footnote 751: As, for instance, in England where the payment of local

rates cannot be enforced by suit or distress against a member of a

legation; see Parkinson _v._ Potter, 16 Q.B. 152, and Macartney _v._

Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.]

[Sidenote: Right of Chapel.]

§ 395. A sixth privilege of envoys in reference to their

exterritoriality is the so-called Right of Chapel (_Droit de chapelle_

or _Droit du culte_). This is the privilege of having a private chapel

for the practice of his own religion, which must be granted to an envoy

by the Municipal Law of the receiving State. A privilege of great worth

in former times, when freedom of religious worship was unknown in most

States, it has at present an historical value only. But it has not

disappeared, and might become again of actual importance in case a State

should in the future give way to reactionary intolerance. It must,

however, be emphasised that the right of chapel must only comprise the

privilege of religious worship in a private chapel inside the official

residence of the envoy. No right of having and tolling bells need be

granted. The privilege includes the office of a chaplain, who must be

allowed to perform every religious ceremony within the chapel, such as

baptism and the like. It further includes permission to all the

compatriots of the envoy, even if they do not belong to his retinue, to

take part in the service. But the receiving State need not allow its own

subjects to take part therein.

[Sidenote: Self-jurisdiction.]

§ 396. The seventh and last privilege of envoys in reference to their

exterritoriality is self-jurisdiction within certain limits. As the

members of his retinue are considered exterritorial, the receiving State

has no jurisdiction over them, and the home State may therefore delegate

such civil and criminal jurisdiction to the envoy. But no receiving

State is required to grant self-jurisdiction to an ambassador beyond a

certain reasonable limit. Thus, an envoy must have jurisdiction over his

retinue in matters of discipline, he must be able to order the arrest of

a member of his retinue who has committed a crime and is to be sent home

for his trial, and the like. But no civilised State would nowadays allow

an envoy himself to try a member of his retinue. This was done in former

centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on

a special mission to England, called together a French jury in London

and had a member of his retinue condemned to death for murder. The

convicted man was handed over for execution to the English authorities,

but James I. reprieved him.[752]

[Footnote 752: See Martens, "Causes Célèbres," I. p. 391. See also the

two cases reported by Calvo, III. § 1545.]

X

POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES

Vattel, IV. §§ 84-86--Hall, §§ 99-101--Phillimore, II. §§

172-175--Taylor, §§ 293-295--Moore, IV. §§ 643-644--Twiss, I. §

222--Wheaton, §§ 242-247--Ullmann, § 52--Geffcken in Holtzendorff,

III. pp. 665-668--Heffter, § 207--Rivier, § 39--Nys, II. p.

390--Pradier-Fodéré, III. § 1394--Fiore, II. Nos.

1143-1144--Calvo, III. §§ 1532-1539.

[Sidenote: Possible Cases.]

§ 397. Although, when an individual is accredited as diplomatic envoy by

one State to another, these two States only are directly concerned in

his appointment, the question must be discussed, what position such

envoy has as regards third States in those cases in which he comes in

contact with them. Several such cases are possible. An envoy may, first,

travel through the territory of a third State to reach the territory of

the receiving State. Or, an envoy accredited to a belligerent State and

living on the latter's territory may be found there by the other

belligerent who militarily occupies such territory. And, lastly, an

envoy accredited to a certain State might interfere with the affairs of

a third State.

[Sidenote: Envoy travelling through Territory of third State.]

§ 398. If an envoy travels through the territory of a third State

incognito or for his pleasure only, there is no doubt that he cannot

claim any special privileges whatever. He is in exactly the same

position as any other foreign individual travelling on this territory,

although by courtesy he might be treated with particular attention. But

matters are different when an envoy on his way from his own State to

the State of his destination travels through the territory of a third

State. If the sending and the receiving States are not neighbours, the

envoy probably has to travel through the territory of a third State.

Now, as the institution of legation is a necessary one for the

intercourse of States and is firmly established by International Law,

there ought to be no doubt whatever that such third State must grant the

right of innocent passage (_jus transitus innoxii_) to the envoy,

provided that it is not at war with the sending or the receiving State.

But no other privileges,[753] especially those of inviolability and

exterritoriality need be granted to the envoy. And the right of innocent

passage does not include the right to stop on the territory longer than

is necessary for the passage. Thus, in 1854, Soulé, the envoy of the

United States of America at Madrid, who had landed at Calais, intending

to return to Madrid _via_ Paris, was provisionally stopped at Calais for

the purpose of ascertaining whether he intended to make a stay in Paris,

which the French Government wanted to prevent, because he was a French

refugee naturalised in America and was reported to have made speeches

against the Emperor Napoleon. Soulé at once left Calais, and the French

Government declared, during the correspondence with the United States in

the matter, that there was no objection to Soulé's traversing France on

his way to Madrid, but they would not allow him to make a sojourn in

Paris or anywhere else in France.[754]

[Footnote 753: The matter, which has always been disputed, is fully

discussed by Twiss, I. § 222, who also quotes the opinion of Grotius,

Bynkershoek, and Vattel.]

[Footnote 754: See Wharton, I. § 97, and Moore, IV. § 643.]

It must be specially remarked that no right of passage need be granted

if the third State is at war with the sending or receiving State. The

envoy of a belligerent, who travels through the territory of the other

belligerent to reach the place of his destination, may be seized and

treated as a prisoner of war. Thus, in 1744, when the French Ambassador,

Maréchal de Belle-Isle, on his way to Berlin, passed through the

territory of Hanover, which country was then, together with England, at

war with France, he was made a prisoner of war and sent to England.

[Sidenote: Envoy found by Belligerent on occupied Enemy Territory.]

§ 399. When in time of war a belligerent occupies the capital of an

enemy State and finds there envoys of other States, these envoys do not

lose their diplomatic privileges as long as the State to which they are

accredited is in existence. As military occupation does not extinguish a

State subjected thereto, such envoys do not cease to be envoys. On the

other hand, they are not accredited to the belligerent who has taken

possession of the territory by military force, and the question is not

yet settled by International Law how far the occupying belligerent has

to respect the inviolability and exterritoriality granted to such envoys

by the law of the land in compliance with a demand of International Law.

It may safely be maintained that he must grant them the right to leave

the occupied territory. But must he likewise grant them the right to

stay? Has he to respect their immunity of domicile and their other

privileges in reference to their exterritoriality? Neither customary

rules nor international conventions exist as regards these questions,

which must, therefore, be treated as open. The only case which occurred

concerning this problem is that of Mr. Washburne, ambassador of the

United States in Paris during the siege of that town in 1870 by the

Germans. This ambassador claimed the right of sending a messenger with

despatches to London in a sealed bag through the German lines. But the

Germans refused to grant that right, and did not alter their decision

although the Government of the United States protested.[755]

[Footnote 755: See below, vol. II. § 157, and Wharton, I. § 97.]

[Sidenote: Envoy interfering with affairs of a third State.]

§ 400. There is no doubt that an envoy must not interfere with affairs

concerning the State to which he is accredited and a third State. If

nevertheless he does interfere, he enjoys no privileges whatever against

such third State. Thus, in 1734, the Marquis de Monti, the French envoy

in Poland, who took an active part in the war between Poland and Russia,

was made a prisoner of war by the latter and not released till 1736,

although France protested.[756]

[Footnote 756: See Martens, "Causes Célèbres," I. p. 207.]

XI

THE RETINUE OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 120-124--Hall, § 51--Phillimore, II. §§

186-193--Twiss, I. § 218--Moore, IV. §§ 664-665--Ullmann, §§ 47

and 51--Geffcken in Holtzendorff, III. pp. 660-661--Heffter, §

221--Rivier, I. pp. 458-461--Nys, II. pp. 386-390--Pradier-Fodéré,

III. §§ 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. §§

1348-1350--Martens, II. § 16--Roederer, "De l'application des

immunités de l'ambassadeur au personnel de l'ambassade" (1904),

pp. 22-84.

[Sidenote: Different Classes of Members of Retinue.]

§ 401. The individuals accompanying an envoy officially, or in his

private service, or as members of his family, or as couriers, compose

his retinue. The members of the retinue belong, therefore, to four

different classes. All those individuals who are officially attached to

an envoy are members of the legation and are appointed by the home State

of the envoy. To this first class belong the Councillors, Attachés,

Secretaries of the Legation; the Chancellor of the Legation and his

assistants; the interpreters, and the like; the chaplain, the doctor,

and the legal advisers, provided that they are appointed by the home

State and sent specially as members of the legation. A list of these

members of legation is handed over by the envoy to the Secretary for

Foreign Affairs of the receiving State and is revised from time to time.

The Councillors and Secretaries of Legation are personally presented to

the Secretary for Foreign Affairs, and very often also to the head of

the receiving State. The second class comprises all those individuals

who are in the private service of the envoy and of the members of

legation, such as servants of all kinds, the private secretary of the

envoy, the tutor and the governess of his children. The third class

consists of the members of the family of the envoy--namely, his wife,

children, and such of his other near relatives as live within his family

and under his roof. And, lastly, the fourth class consists of the

so-called couriers. They are the bearers of despatches sent by the envoy

to his home State, who on their way back also bear despatches from the

home State to the envoy. Such couriers are attached to most legations

for the guarantee of the safety and secrecy of the despatches.

[Sidenote: Privileges of Members of Legation.]

§ 402. It is a universally recognised[757] rule of International Law

that all members of a legation are as inviolable and exterritorial as

the envoy himself. They must, therefore, be granted by the receiving

State exemption from criminal and civil jurisdiction, exemption from

police,[758] subpoena as witnesses, and taxes. They are considered,

like the envoy himself, to retain their domicile within their home

State. Children born to them during their stay within the receiving

State are considered born on the territory of the home State. And it

must be emphasised that it is not within the envoy's power to waive

these privileges of members of legation, although the home State itself

can waive these privileges. Thus when, in 1909, Wilhelm Beckert, the

Chancellor of the German Legation in Santiago de Chili, murdered the

porter of this legation, a Chilian subject, and then set fire to the

Chancery in order to conceal his embezzlements of money belonging to the

legation, the German Government consented to his being prosecuted in

Chili; he was tried, found guilty, and executed at Santiago on July 5,

1910.

[Footnote 757: Some authors, however, plead for an abrogation of this

rule. See Martens, II. § 16.]

[Footnote 758: A case of this kind occurred in 1904 in the United

States. Mr. Gurney, Secretary of the British Legation at Washington, was

fined by the police magistrate of Lee, in Massachusetts, for furiously

driving a motor-car. But the judgment was afterwards annulled, and the

fine imposed remitted.]

[Sidenote: Privileges of Private Servants.]

§ 403. It is a customary rule of International Law that the receiving

State must grant to all persons in the private service of the envoy and

of the members of his legation, provided such persons are not subjects

of the receiving State, exemption from civil and criminal

jurisdiction.[759] But the envoy can disclaim these exemptions, and

these persons cannot then claim exemption from police, immunity of

domicile, and exemption from taxes. Thus, for instance, if such a

private servant commits a crime outside the residence of his employer,

the police can arrest him; he must, however, be at once released if the

envoy does not waive the exemption from criminal jurisdiction.

[Footnote 759: This rule seems to be everywhere recognised except in

Great Britain. When, in 1827, a coachman of Mr. Gallatin, the American

Minister in London, committed an assault outside the embassy, he was

arrested in the stable of the embassy and charged before a local

magistrate, and the British Foreign Office refused to recognise the

exemption of the coachman from the local jurisdiction. See Wharton, I. §

94, and Hall, § 50.]

[Sidenote: Privileges of Family of Envoy.]

§ 404. Although the wife of the envoy, his children, and such of his

near relatives as live within his family and under his roof belong to

his retinue, there is a distinction to be made as regards their

privileges. His wife must certainly be granted all his privileges in so

far as they concern inviolability and exterritoriality. As regards,

however, his children and other relatives, no general rule of

International Law can safely be said to be generally recognised, but

that they must be granted exemption from civil and criminal

jurisdiction. But even this rule was formerly not generally recognised.

Thus, when in 1653 Don Pantaleon Sà, the brother of the Portuguese

Ambassador in London and a member of his suite, killed an Englishman

named Greenway, he was arrested, tried in England, found guilty, and

executed.[760] Nowadays the exemption from civil and criminal

jurisdiction of such members of an envoy's family as live under his roof

is always granted. Thus, when in 1906 Carlo Waddington,[761] the son of

the Chilian envoy at Brussels, murdered the secretary of the Chilian

Legation, the Belgian authorities did not take any step to arrest him.

Two days afterwards, however, the Chilian envoy waived the privilege of

the immunity of his son, and on March 2 the Chilian Government likewise

agreed to the murderer being prosecuted in Belgium. The trial took place

in July 1907, but Waddington was acquitted by the Belgian jury.

[Footnote 760: The case is discussed by Phillimore, II. § 169.]

[Footnote 761: See R.G. XIV. (1907), pp. 159-165.]

[Sidenote: Privileges of Couriers of Envoy.]

§ 405. To insure the safety and secrecy of the diplomatic despatches

they bear, couriers must be granted exemption from civil and criminal

jurisdiction and afforded special protection during the exercise of

their office. It is particularly important to observe that they must

have the right of innocent passage through _third_ States, and that,

according to general usage, those parts of their luggage which contain

diplomatic despatches and are sealed with the official seal must not be

opened and searched. It is usual to provide couriers with special

passports for the purpose of their legitimation.

XII

TERMINATION OF DIPLOMATIC MISSION

Vattel, IV. §§ 125-126--Hall, § 98**--Phillimore, II. §§

237-241--Moore, IV. §§ 636, 639, 640, 666--Taylor, §§

320-323--Wheaton, §§ 250-251--Ullmann, § 53--Heffter, §§

223-226--Rivier, I. § 40--Nys, II. p. 392--Bonfils, Nos.

730-732--Pradier-Fodéré, III. §§ 1515-1535--Fiore, II. Nos.

1169-1175--Calvo, III. §§ 1363-1367--Martens, II. § 17.

[Sidenote: Termination in contradistinction to Suspension.]

§ 406. A diplomatic mission may come to an end from eleven different

causes--namely, accomplishment of the object for which the mission was

sent; expiration of such Letters of Credence as were given to an envoy

for a specific time only; recall of the envoy by the sending State; his

promotion to a higher class; the delivery of passports to him by the

receiving State; request of the envoy for his passports on account of

ill-treatment; war between the sending and the receiving State;

constitutional changes in the headship of the sending or receiving

State; revolutionary change of government of the sending or receiving

State; extinction of the sending or receiving State; and, lastly, death

of the envoy. These events must be treated singly on account of their

peculiarities. But the termination of diplomatic missions must not be

confounded with their suspension. Whereas from the foregoing eleven

causes a mission comes actually to an end, and new Letters of Credence

are necessary, a suspension does not put an end to the mission, but

creates an interval during which the envoy, although he remains in

office, cannot exercise his office. Suspension may be the result of

various causes, as, for instance, a revolution within the sending or

receiving State. Whatever the cause may be, an envoy enjoys all his

privileges during the duration of the suspension.

[Sidenote: Accomplishment of Object of Mission.]

§ 407. A mission comes to an end through the fulfilment of its objects

in all cases of missions for special purposes. Such cases may be

ceremonial functions like representations at weddings, funerals,

coronations; or notification of changes in the headship of a State, or

representation of a State at Conferences and Congresses; and other

cases. Although the mission is terminated through the accomplishment of

its object, the envoys enjoy all their privileges on their way home.

[Sidenote: Expiration of Letter of Credence.]

§ 408. If a Letter of Credence for a specified time only is given to an

envoy, his mission terminates with the expiration of such time. A

temporary Letter of Credence may, for instance, be given to an

individual for the purpose of representing a State diplomatically during

the interval between the recall of an ambassador and the appointment of

his successor.

[Sidenote: Recall.]

§ 409. The mission of an envoy, be he permanently or only temporarily

appointed, terminates through his recall by the sending State. If this

recall is not caused by unfriendly acts of the receiving State but by

other circumstances, the envoy receives a Letter of Recall from the

head, or, in case he is only a Chargé d'Affaires, from the Foreign

Secretary of his home State, and he[762] hands this letter over to the

head of the receiving State in a solemn audience, or in the case of a

Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter

of Recall the envoy receives his passports and a so-called _Lettre de

récréance_, a letter in which the head of the receiving State (or the

Foreign Secretary) acknowledges the Letter of Recall. Although therewith

his mission ends, he enjoys nevertheless all his privileges on his home

journey.[763] A recall may be caused by the resignation of the envoy, by

his transference to another post, and the like. It may, secondly, be

caused by the outbreak of a conflict between the sending and the

receiving State which leads to a rupture of diplomatic intercourse, and

under these circumstances the sending State may order its envoy to ask

for his passports and depart at once without handing in a Letter of

Recall. And, thirdly, a recall may result from a request of the

receiving State by reason of real or alleged misconduct of the envoy.

Such request of recall[764] may lead to a rupture of diplomatic

intercourse, if the receiving State insists upon the recall, although

the sending State does not recognise the act of its envoy as misconduct.

[Footnote 762: But sometimes his successor presents the letter recalling

his predecessor to the head of the receiving State, or to the Foreign

Secretary in the case of Chargés d'Affaires.]

[Footnote 763: See the interesting cases discussed by Moore, IV. § 666.]

[Footnote 764: Notable cases of request of recall of envoys are reported

by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.]

[Sidenote: Promotion to a higher Class.]

§ 410. When an envoy remains at his post, but is promoted to a higher

class--for instance, when a Chargé d'Affaires is created a Minister

Resident or a Minister Plenipotentiary is created an Ambassador--his

original mission technically ends, and he receives therefore a new

Letter of Credence.

[Sidenote: Delivery of Passports.]

§ 411. A mission may terminate, further, through the delivery of his

passports to an envoy by the receiving State. The reason for such

dismissal of an envoy may be either gross misconduct on his part or a

quarrel between the sending and the receiving State which leads to a

rupture of diplomatic intercourse. Whenever such rupture takes place,

diplomatic relations between the two States come to an end and all

diplomatic privileges cease with the envoy's departing and crossing the

frontier. If the archives of the legations are not removed, they must be

put under seal by the departing envoy and confided to the

protection[765] of some other foreign legation.

[Footnote 765: As regards the case of Montagnini, see above, §§ 106 and

386.]

[Sidenote: Request for Passports.]

§ 412. Without being recalled, an envoy may on his own account ask for

his passports and depart in consequence of ill-treatment by the

receiving State. This may or may not lead to a rupture of diplomatic

intercourse.

[Sidenote: Outbreak of War.]

§ 413. When war breaks out between the sending and the receiving State

before their envoys accredited to each other are recalled, their mission

nevertheless comes to an end. They receive their passports, but

nevertheless they must be granted their privileges[766] on their way

home.

[Footnote 766: See below, vol. II. § 98.]

[Sidenote: Constitutional Changes.]

§ 414. If the head of the sending or receiving State is a Sovereign, his

death or abdication terminates the missions sent and received by him,

and all envoys remaining at their posts must receive new Letters of

Credence. But if they receive new Letters of Credence, no change in

seniority is considered to have taken place from the order in force

before the change. And during the time between the termination of the

missions and the arrival of new Letters of Credence they enjoy

nevertheless all the privileges of diplomatic envoys.

As regards the influence of constitutional changes in the headship of

republics on the missions sent or received, no certain rule exists.[767]

Everything depends, therefore, upon the merits of the special case.

[Footnote 767: Writers on International Law differ concerning this

point. See, for instance, Ullmann, § 53, in contradistinction to Rivier,

I. p. 517.]

[Sidenote: Revolutionary Changes of Government.]

§ 415. A revolutionary movement in the sending or receiving State which

creates a new government, changing, for example, a republic into a

monarchy or a monarchy into a republic, or deposing a Sovereign and

enthroning another, terminates the missions. All envoys remaining at

their posts must receive new Letters of Credence, but no change in

seniority takes place if they receive them. It happens that in cases of

revolutionary changes of government foreign States for some time neither

send new Letters of Credence to their envoys nor recall them, watching

the course of events in the meantime and waiting for more proof of a

real settlement. In such cases the envoys are, according to an

international usage, granted all privileges of diplomatic envoys,

although in strict law they have ceased to be such. In cases of recall

subsequent to revolutionary changes, the protection of subjects of the

recalling States remains in the hands of their consuls, since the

consular office[768] does not come to an end through constitutional or

revolutionary changes in the headship of a State.

[Footnote 768: See below, § 438.]

[Sidenote: Extinction of sending or receiving State.]

§ 416. If the sending or receiving State of a mission is extinguished by

voluntary merger into another State or through annexation in consequence

of conquest, the mission terminates _ipso facto_. In case of annexation

of the receiving State, there can be no doubt that, although the

annexing State will not consider the envoys received by the annexed

State as accredited to itself, it must grant those envoys the right to

leave the territory of the annexed State unmolested and to take their

archives away with them. In case of annexation of the sending State, the

question arises what becomes of the archives and legational property of

the missions of the annexed State accredited to foreign States. This

question is one on the so-called succession[769] of States. The annexing

State acquires, _ipso facto_, by the annexation the property in those

archives and other legational goods, such as the hotels, furniture, and

the like. But as long as the annexation is not notified and recognised,

the receiving States have no duty to interfere.

[Footnote 769: See above, § 82.]

[Sidenote: Death of Envoy.]

§ 417. A mission ends, lastly, by the death of the envoy. As soon as an

envoy is dead, his effects, and especially his papers, must be sealed.

This is done by a member of the dead envoy's legation, or, if there be

no such members, by a member of another legation accredited to the same

State. The local Government must not interfere, unless at the special

request by the home State of the deceased envoy.

Although the mission and therefore the privileges of the envoy come to

an end by his death, the members of his family who resided under his

roof and the members of his suite enjoy their privileges until they

leave the country. But a certain time may be fixed for them to depart,

and on its expiration they lose their privilege of exterritoriality. It

must be specially mentioned that the Courts of the receiving State have

no jurisdiction whatever over the goods and effects of the deceased

envoy, and that no death duties can be demanded.

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