and in modern times difficulties are generally prevented by the exercise of tact and judgment. If the servant of a public minister commits a criminal offence, his master either dismisses him from his service, and thus puts an end at once to all claim for immunity, or hands him over to the local authorities to be dealt with according to their law. Only when the offence is a serious one, and is committed within the residence of the minister, does he, as a rule, arrest the perpetrator and send him home for trial. In civil cases he grants permission for his servants to be proceeded against in the local courts. In order to avoid misunderstandings and controversies as to the persons entitled to immunity, most states require the heads of the foreign legations to send periodically to the Secretary for Foreign Affairs a list of the members of their suites and the servants in their employ. Immunities connected with the property of the diplomatic agent. § 151. Immunities connected with Property apply first and foremost to the official residence of the ambassador, usually called his Hotel. It is generally regarded as inviolable except in cases of great extremity. The fiction of ex-territoriality is sometimes applied to it, and it is held to be a portion of the state to which its occupant belongs. But the theory is a clumsy attempt to account for what is better explained without it. If it were true, the Hotel could in no case be entered by the local authorities; whereas it is universally admitted that the extreme circumstances which justify the arrest of a diplomatic minister of a foreign power and the seizure of his papers, justify also forcible entry into his Hotel and its search by the officers of the state to which he is sent.1 Moreover it is now settled that in European countries ambassadors do not possess a right of giving asylum in their residences to criminals and refugees, though in the last century they were disposed 1 No such justification could be put forward for the attack of the Chinese troops and Boxers upon the embassies at Pekin in June and July, 1900. It was a wanton outrage which put those guilty of it outside the pale of civilization. 髻 to claim it. There appears, however, to be a binding custom in favor of harboring political refugees in the South and Central American states, and in Oriental countries. The frequent revolutions in the former group of states, and the barbarous treatment of political offenders in the latter, are held to justify a departure from the ordinary rule. The reception of Balmacedist refugees by Mr. Egan, the United States Minister, in the course of the Chilian revolution of 1891, is a case in point.1 Some states do not recognize the immunities of the ambassador's residence as existing to the extent usually claimed. France holds that the privileges of the Hotel do not extend to acts done within it affecting the inhabitants of the country in which it is situated.2 Great Britain claims the right of arresting servants of the embassy within the precincts of the Hotel. This was clearly shown by a case which occurred in 1827, when the coachman of Mr. Gallatin, the American Minister in London, was arrested in his stable by the local authorities on a charge of assault committed outside the embassy. The attention of the British Foreign Office was called informally to the subject; and in reply it was asserted that the law did not extend "to protect mere servants of ambassadors from arrest upon criminal charges," and that the premises occupied by a diplomatic minister were not entitled to inviolability. The magistrates who issued the warrant were, however, told that they ought to have informed the Minister of what they had done, in order that his convenience might be consulted as to the time and manner of making the arrest. The attitude of France and Great Britain in this matter is rather an exception to the general practice of states than an example of the enforcement of an ordinary rule. But it must be admitted 1 Correspondence accompanying President Harrison's Message of Jan. 25, 1892. 2 Hall, International Law, § 52. 8 Wharton, International Law of the United States, § 94. that the exact limits of the inviolability of the Hotel are ill-defined. The ambassador is free from the payment of taxes levied upon it, whether for purposes of state or for the maintenance of municipal government; but if the charge for such commodities as light and water takes the form of local taxation, he would be expected to meet the demands for them, just as he is expected to pay the bills for the provisions consumed by his household, though he cannot be compelled to do so, since his person is inviolate and his house and goods exempt from legal process. The other official property of the embassy shares the immunities of the Hotel. It may not be seized, distrained upon, or dealt with in any way, except in extreme cases of state necessity. Among the privileges covered by the principle of the general inviolability of the official residence of the legation one of the most important is the celebration of divine worship within it in the form desired by the ambassador, even though it is proscribed by the country in which he resides. But he may not give public notification of the services by ringing a bell or in any other way, nor may he allow subjects of the country to which he is accredited to be present, if attendance at such worship is forbidden by their law. Some writers hold that diplomatic ministers are liable to suits in the local tribunals, and other processes under the law of the country to which they are accredited, in all cases in which their private property in that country is concerned. Their transactions as traders, executors, trustees, or indeed in any capacity but their official one, are held to render them amenable to the local jurisdiction as far as those transactions are concerned. It is, of course, admitted that the person of a diplomatic agent is inviolable; and therefore the doctrine amounts to no more than an assertion that he must submit to proceedings directed against the property, in such cases as we have described. It may be 1 For example, Woolsey, International Law, §§ 92, 96; Calvo, Droit International § 592. doubted, however, how far this view is consistent with sound principle or borne out by practice. The law of the United States prohibits the service of writs upon the resident ministers of foreign states, and considers those who sue out or enforce processes against them as guilty of an indictable offence, even though they are ignorant of their diplomatic character.1 In England not only are the persons of diplomatic ministers inviolable, but all writs and processes whereby "their goods and chattels may be distrained, seized or attacked" are "utterly null and void," and all concerned in obtaining such writs or processes are subject to severe punishment.2 The law of other leading countries contains similar provisions; and though cases can be found in favor of drawing a distinction between the private and the official property of a public minister, they are not of recent date. In 1720 the Envoy of the Duke of Holstein in Holland had all his goods, except what were official in their nature, seized for debts contracted by him in the course of trade; but his treatment can hardly be quoted as a precedent to-day.3 Dana forcibly points out the inconvenience to a minister of being obliged to appear and litigate, lest judgment should go against him by default. The extension of diplomatic immunities to all property possessed by the agents of foreign countries does not leave those who might suffer in consequence of it absolutely helpless. Most states now forbid their representatives abroad to engage in trade, and, as to other matters, the remedy by diplomatic complaint or an appeal to the courts of the ambassador's own country will generally be sufficient. Goods sent from abroad for the use of an embassy are generally admitted duty free. But the privilege is granted rather as a matter of comity than of right. Precautions 1 Wharton, International Law of the United States, § 93. 8 Bynkershoek, De Foro Legatorum, Ch. XVI. may be taken against the abuse of it, and on proof that it has been used to cover a contraband trade it may be withdrawn. The treaty-making § 152. We will now pass on to consider the treaty-making power and its methods of action, in so far as they are dealt with by International Law. In each state the right power. Ratifica- of making treaties rests with those authorities tion of treaties. to whom it is confided by the political constitution. As long as there is some power in a country whose word can bind the whole body politic, other states must do their international business with it, and have no right to inquire into its nature and the circumstances of its creation. But other important matters connected with treaties are of international concern. The first of these to be discussed is The nature and necessity of ratification. Ratification is a formal ceremony whereby, some time after a treaty has been signed, solemn confirmations of it are exchanged by the contracting parties. No treaty is binding without ratification, unless there is a special agreement to the contrary. The full powers given to Plenipotentiaries must be understood as conferring a right to conclude agreements subject to the ultimate decision of the governments which they represent. Sometimes, however, it is agreed that certain preliminary engagements in a treaty shall take effect immediately, without waiting for the exchange of ratifications, as was the case with the Treaty of London of 1840 for the settlement of the Egyptian Question. A reserved protocol annexed to it stipulated that the preliminary measures mentioned in the second article should be carried out at once. But when a treaty is ratified, its legal effects are held to date from the moment of signature, unless, as 1 Holland, European Concert in the Eastern Question, pp. 90–97. |