nity to enable him to indulge with impanity in personal controversy, or to escape liabilities to which he otherwise might be subjected. The assertion of these immunities should be reserved for more important and delicate occasions, and should never be made use of when the facts of the particular case expose the envoy to the suspicion that private interest or a desire to escape personal or pecuniary liability is the motive which induces it." Mr. Fish, Sec. of State, to Mr. Jay, Nov. 29, 1874. MSS. Inst., Austria. Moorish agents employed by United States citizens in the sea-ports of Morocco to do business in the interior, may be, since necessary to such business, placed under the protection of the United States, and granted safe conducts as such. Mr. Evarts, Sec. of State, to Mr. Mathews, May 27, 1878. MSS. Inst., Barb. St. As to whether a Spaniard, a messenger in the United States legation at Madrid, can be compelled to military service in Spain, see Mr. Evarts, Sec. of State, to Mr. Lowell, Feb. 25, 1879. MSS. Inst., Spain. The wife of a secretary of a foreign legation in this country is, while with him in his official capacity, subject, in respect to her personal. estate, to the laws of the country he represents. Mr. Frelinghuysen, Sec. of State, to Mr. Lawrence, Mar. 31, 1883, citing Wheat "Foreigners in the employ of the United States consulates and their agencies in Turkey have a right to the protection of the United States in all matters pertaining to their office and personal safety, but not in regard to their commercial affairs and private business, for protection in which they must look to the representatives of the nation of which they are citizens." Mr. Bayard, Sec. of State, to Mr. Cox, Nov. 6, 1885. MSS. Inst., Turkey. "In a recent case (Taylor v. Best) the true position and liability of a secretary of legation accredited to the court of England by a foreign sovereign, and acting in the absence of his ambassador as chargé d'affaires, were most elaborately discussed; and it was held, first, that such an official was entitled to all the privileges of an ambassador; second, that he did not forfeit his privilege by engaging in mercantile pursuits here, and third, that if a foreign minister voluntarily attorns to the jurisdiction of the courts of this country he is estopped from applying to the courts to stay proceedings on the ground of his privilege; but it seems to have been doubted, in the course of the arguments, whether the privileges of an ambassador or foreign minister extend to prevent hris being sued in the courts of this country, or only to protect him from process which may affect the sanctity of his person or his comfort or dignity. In the course of the case the question as to the liability of a domestic servant of an ambassador, when engaging in mercantile transactions, being raised, it was held that the same privilege does not extend to them as to the ambassador, for, as Mr. J. Maule said, 'the privilege is not that of the servant, but of the ambassador; it is based on the as sumption that by the arrest of any of his household retinue his personal comfort and state may be affected."" Abdy's Kent (2 ed.), 121. "A diplomatic representative possesses immunity from the criminal and civil jurisdiction of the country of his sojourn; and cannot be sued, arrested, or punished by the law of that country. Neither can he waive his privilege, for it belongs to his office, not to himself. It is not to be supposed that any representative of his country would intentionally avail himself of this right to evade just obligations incurred either by himself or the members of his mission. "A secretary of legation is, according to the admitted principles of international law, a 'public minister.' His personal privileges, immuni ties, domiciliary privileges, and exemptions are generally those of the minister of whose official household he forms a part. "The personal immunity of a diplomatic agent extends to his household, and especially to his secretaries. Generally, his servants share therein, but this does not always apply when they are citizens or subjects of the country of his sojourn. Cases have arisen where a diplomatic agent has claimed for a native servant exemption from military service. His right to do so is not clear, and in future the diplomatic agents of the United States are advised against questioning the right of the native Government to claim such service from one of its subjects in his employ. It is to be expected that the claim, if made, will be presented courteously to the chief of the mission. "It is customary for a foreign minister to furnish to the local government a list of the members of his household, including his hired serv ants, with a statement of the age and nationality of each. When this is requested it should always be given. (See as to asylum, infra, § 104.) "In most Mohammedan and Oriental countries, the rights and immunities of extraterritoriality have been secured by treaty to foreign rep resentatives, including to some extent consular officers. "Among the rights of extraterritoriality is that of criminal and civil jurisdiction, which will be specially treated under its appropriate heading." Printed Pers. Inst. Dip. Agents, 1885. (2) ILLEGALITY OF PROCESS AGAINST. § 93. The entering a public minister's house to serve an execution will either be absorbed in the arrest, as being necessarily associated with it, if that be found criminal, or, if the arrest be admissible, must be punished, if at all, under the law of nations. 1 Op., 26, Randolph, 1792. The President will not interfere with judicial proceedings between an individual and the commissioner of a foreign nation where the controversy may have a legal trial, unless the suit grew out of acts done by the commissioner in pursuance of his commission. 1 Op., 81, Lee, 1797. If a minister violate the laws of the Government to which he is accredited, or otherwise offend its sovereignty, there is no remedy except in the manner and form prescribed by international law. 7 Op., 367, Cushing, 1855. Any person who executes process on a foreign minister is to be deemed an officer under section 26 of the act of 1790 (1 Stat., 117; R. S., § 4064), and in such case scienter need not be proved, nor is submission of the minister any defense. U. S. v. Benner, Baldwin, 234. "The statutes of the United States provide severe punishments for all such violation of the diplomatic immunities of the representatives of foreign states, and the courts of the United States, acting in harmony with the principles of public law, as recognized by the Government, have in more than one instance held that the law does not make knowledge an ingredient in an offense against the diplomatic immunities of a minister, and that it is not necessary to support an indictment against a person who executes a process against such minister, that the defendant should know the person arrested to be a foreign minister." Mr. Fish, Sec. of State, to Mr. de Vaugelas, Dec. 28, 1876. MSS. Notes., France. Ignorance of the diplomatic immunities of a party arrested does not protect parties who illegally made such arrest. Mr. Fish, Sec. of State, to Mr. Washburne, Jan. 11, 1877. MSS. Inst., France. As to privileges of French consuls under treaty, see ibid. The service of legal process upon a foreign minister is an infringement of his privilege and an abuse of the process of the court. Mr. Blaine, Sec. of State, to Governor of Rhode Island, Oct. 31, 1881. MSS. Service of writs on foreign ministers is in contravention of section 4064 Revised Statutes, and may be a matter for prosecution in federal courts. Mr. Frelinghuysen, Sec. of State, to Mr. Brewster, June 28, 1883. MSS. Dom. Revised Statutes, sections 4063 and 4064, do not impose a penalty on judges hearing suits in which foreign ministers are defendants, but simply on parties suing out or enforcing writs of execution against such ministers. Mr. Frelinghuysen, Sec. of State, to Mr. Preston, July 10, 1883. MSS. Notes, As to immunity of foreign ministers from process for debt, see Mr. F. W. General Henderson, Minister from Texas to France (before the annexation of Texas), was arrested in New York, on his return from France to Texas, on an alleged debt. The court discharged him from arrest, and held that the want in his case of a passport made no difference in the case. Holbrook r. Henderson, 4 Sandf., 619. (3) EXEMPTION FROM CRIMINAL PROSECUTION. § 93a. The prevalent view, so far as concerns civil process, is that the doctrine of extraterritoriality does not apply (1) in cases where, from the nature of the case, no other jurisdiction exists than that in which the embassy holds its seat, e. g., suits for real estate; (2) in cases where the ambassador sues, and the claim against him is set up by way of setoff; (3) in cases in which the ambassador voluntarily submits to a hear ing before arbitrators, in the same sense in which a sovereign may agree to an arbitration; (4) in cases where the ambassador, with the consent of his Government, submits himself to the jurisdiction; (5) in cases where the ambassador is a citizen or subject of the state to which he is accredited, or when he is at the time in the service of such state; (6) in cases where the ambassador engages in trade, and the suit is brought in respect to such trading engagements. This extraterritoriality ordinarily protects the diplomatic agent also from prosecutions for crime; unless the crime be of a character so outrageous and conspicuous as to forfeit his privileges, or disturb the peace of the country of his resi dence. But even in this case, the better course is to send him home to his own sovereign, who alone has jurisdiction over him. The privilege of extraterritoriality no longer gives the ambassador, as was once supposed to be the case, the power to execute penal discipline upon his subordinates. Whart. Com. Am. Law., § 167. If a minister's crimes be such as to render him amenable to local jurisdiction, it must be because they forfeit the privileges annexed to his character; and the minister, by violating the conditions under which he was received as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the original assent, has ceased to be entitled to them. Exchange r. McFaddon, 7 Cranch, 116. "Ministers of the highest grade, in cases of great enormity, are subject to the penalty of the law, according to the law of nations." Mr. Monroe, Sec. of State, to Mr. Harris, Dec. 10, 1815. Early in 1816, Kosloff, the Russian consul at Philadelphia, was arrested in Philadelphia on the charge of having ravished a girl of twelve years, who was a servant in his family. He was taken before a justice of the peace in Philadelphia (who by law was not empowered to take bail in cases of that class), who (a prima facie case being shown) committed Kosloff to prison to wait trial. A writ of habeas corpus being taken out next day before the chief justice of Pennsylvania, Kosloff was bound over (bail being taken) to answer to the next court. At this court an indictment for rape was found against him by the grand jury. The district attorney of the United States for Philadelphia was instructed by the President to give his assistance as counsel to Mr. Kosloff, which was done, though the defense was managed by other counsel. A motion was then made by the defense to dismiss the indictment on the ground that the case was exclusively cognizable by Federal courts. This motion was granted for the reason given. (Com. v. Kosloff, 5 S. and R., 545.) Rape not being then an offense by a statute of the United States, the Attorney-General of the United States gave an opinion that the Federal courts had not cognizance of the offense. The Russian minister at Washington urged with great earnestness a trial on the merits. This, however, was impracticable under the circumstances. The Russian Government took umbrage at what it considered a failure of justice, and refused to receive Mr. Harris, United States chargé, until a due explanation was made. The above explanation was made in reply by Mr. Monroe, Secretary of State, in a letter to Mr. Harris, July 31, 1816, quoted infra. See further, same to same, Sept. 30, 1816; Mr. Monroe to Mr. J. Q. Adams, Nov. 2, 1816. MSS. Inst., Ministers. Mr. Daschkoff subsequently informed the Government that he had "terminated his mission to the United States by the order of his sovereign," on this account, which was regarded as the more remarkable from the fact that "the Government of Russia had admitted that a consul deserves no protection in such a case from the law of nations." Mr. Monroe, Sec. of State, to Mr. Hughes, Nov. 2, 1816; to Mr. Pinkney, Nov. 16, "How far ambassadors and public ministers themselves are exempted by the law of nations from punishment for crimes of this nature by the laws of the country in which they reside may perhaps with some be doubtful; but this is foreign to the present purpose. Consuls, it is believed, are not exempt from such punishment. This opinion is supposed to be warranted by the weight of authority in those commentators on public law whose opinions are alike respected in Europe and the United States, and by the general admission and practice of European nations. Consuls are undoubtedly entitled to great respect, as bearing the commissions of their sovereign, but their duties are of a commercial nature, and their public character subaltern; neither their persons nor their domiciles have heretofore been protected, as have those of ambassadors and other public ministers. "Instances are not wanting in which some of them have been brought within the jurisdiction of our courts. It is not known that it has ever yet laid the foundation of any charge of a breach of privilege or infringement of public law on the part of any of the Governments of Europe, whose commissions these consuls may respectively have borne. For a recapitulation of some of these instances, I beg leave to refer you to |