diction 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 1 ventures in which he might engage on the territory of the receiving State. But although in these cases the local courts may exercise jurisdiction over him, their judgments cannot be enforced if he refuses to comply with them, because no force can be applied against an envoy. 2 tion from as Wit nesses. §392. The third privilege of envoys in reference to Exemp their exterritoriality is exemption from subpoena as Subpoena 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. 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 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 1 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 of 2 See In re Francisco Suarez, local law, Dubois' evidence was not taken, and the Government of the United States asked the Dutch Government to recall him.1. Although an envoy cannot be compelled to give evidence, if he chooses for himself to appear as a witness, the courts can make use of his evidence. Thus in 1881, at the trial of Guiteau for the murder of President Garfield, the Venezuelan envoy, Señor Comancho, who was present when the crime was committed, appeared as a witness for the prosecution, the Venezuelan Government having authorised him to do so.2 § 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 not in any way bind them. On the other hand this exemption from police does not carry with it any privilege for 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 taking 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 made by the local police, and if there were 1 See Wharton, i. § 98; Moore, iv. § 662; and Calvo, iii. § 1520. 2 See Moore, iv. § 662. 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. tion from § 394. The fifth privilege of envoys in reference to Exemp their exterritoriality is exemption from taxes and the Taxes and like. As an envoy, through his exterritoriality, is con- the like. sidered not to be subject 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, nightwatch, and the like, can be required of the envoy, although often 1 this is 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. In practice, and by courtesy, however, the Municipal Laws of many States allow diplomatic envoys, within certain limits, to receive free of duty 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. § 395. A sixth privilege of envoys in reference to Right of Chapel. 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 1 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, (1885) 16 Q.B. D. of great worth in former times, when freedom of religious worship was unknown in most States, it has at present a historical value only. But it has not disappeared, and might become again of practical importance in case a State should in the future give way to reactionary intolerance. It must, however, be emphasised that the right of chapel need 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. Self-juris- $396. The seventh and last privilege of envoys in diction. reference to their exterritoriality is self-jurisdiction within certain limits. As the members of an envoy's retinue are considered exterritorial, the receiving State has no jurisdiction over them, and the home State may therefore delegate 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, as the following case proves: The Duc de Sully, then Marquis de Rosny, was sent in 1603 by Henri IV. of France on a special mission to England, as a ceremonial envoy to congratulate James 1. upon his accession to the throne. On the very day of his arrival, some members of his retinue fell into a brawl with some Englishmen, and one of the latter was killed. Sully had the murderer seized, and called together a jury of some Frenchmen who had accompanied him to London. This jury condemned the culprit to death for murder, and he was handed over to the Mayor of London to be executed. However, the Count of Beaumont-Harley, the permanent French ambassador in London, obtained from James I. a pardon for the convicted man.1 X POSITION OF DIPLOMATIC ENVOYS AS REGARDS Grotius, ii. c. 18, § 5-Vattel, iv. §§ 84-86-Hall, $$ 99-101-Phillimore, ii. §§ 172-175-Taylor, §§ 293-295-Moore, iv. §§ 643-644-Twiss, i. § 222Hershey, No. 272-Wheaton, $$ 244-247-Ullmann, § 52-Geffcken in Holtzendorf, iii. pp. 665-668-Heffter, § 207-Rivier, i. § 39-Nys, ii. p. 445-Pradier-Fodéré, iii. § 1394-Fiore, ii. Nos. 1143-1144-Calvo, iii. §§ 1532-1539-Praag, No. 227-Satow, Diplomatic Practice, i. $$ 348-367. Cases. § 397. Although, when an individual is accredited Possible as diplomatic envoy by one State to another, these two States alone are directly concerned in his appointment, yet the position of an envoy must be considered in those cases in which he comes in contact with third States. Several such cases are possible. An envoy may travel through the territory of a third State to reach the territory of the receiving State. Or again, an envoy accredited to a belligerent State and living on the territory of the latter may be found there by the other belligerent who militarily occupies such territory. 1 See Martens, Causes célèbres, i. p. 331. See also the two cases reported by Calvo, iii. § 1545. |