right of the territorial sovereign to do so, that gives rise to controversy.1

The personal immunity of a diplomatic representative extends generally to the secretaries of his legation and others belonging to the first of the above named classes.2 A State may, however, not unreasonably decline to yield immunity to a secretary who is one of its own nationals, save on such terms as it prescribes.3

His wife, children, parents and other members of his family, such as his brothers and nieces, and possibly also his household guests, share the minister's exemption while they live with him; and likewise persons similarly connected with a secretary of the mission, share, under similar circumstances, the immunity accorded him upon whom they depend.4

The extent to which persons of the third class- those in the private service of a minister - receive the benefit of his immunity is not as yet fully disclosed by existing practice. It is not unreasonable for a State to decline to yield exemptions to a servant who is one of its own nationals. It may also make the enjoyment

1 Mr. Bayard, Secy. of State, to Mr. Straus, Minister to Turkey, March 17, 1888, For. Rel. 1888, II, 1568, Moore, Dig., IV, 661.

2 Instructions to Diplomatic Officers of the United States (1897), § 53, citing Rev. Stats. §§ 4063 and 4064, Moore, Dig., IV, 648. Also Art. XII, Rules of the Institute of International Law, Aug. 13, 1895, Annuaire, XIV, 243.

Rev. Stats. § 4065. See, also, in this connection, Opinion of Mr. Wirt, Atty.-Gen., to Mr. Adams, Secy. of State, March 17, 1818, MS. Misc. Let., respecting the Case of Sarmiento, Moore, Dig., IV, 654.

Art. XII, Rules of the Institute of International Law, Aug. 13, 1895, Annuaire, XIV, 243. Also communication of R. Robin, in Rev. Gen., XIV, 159, respecting the Case of Carlos Waddington, son of the Chargé d'Affaires of Chile at Brussels, who on Feb. 24, 1906, killed in that city the Secretary of the Chilean Legation. The father surrendered the son, who had taken refuge in the Legation, to the Belgian authorities, who withheld action until the Chilean Government also announced its consent to the waiver of any claim to immunity in behalf of the son. The latter was thereupon tried and acquitted. See, also, respecting this case, Oppenheim, 2 ed., I, § 404. Compare the early Case of Don Pantaleon Sa, Ward, Hist., II, 322–328.

"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." Moore, Dig., IV, 652, citing Mr. Frelinghuysen, Secy. of State, to Mr. Lawrence, March 31, 1883, 146 MS. Dom. Let. 287, based upon Wheat., Int. Law, 300-1, Dana's ed., and 4 Phillimore, Int. Law, 122-123.

5 In the Instructions to Diplomatic Officers of the United States (1897), it is declared that while the servants of a minister generally share his exemption "this does not always apply when they are citizens or subjects of the country of his sojourn.' § 53, citing Rev. Stats. § 4065.

See, also, Mr. Bayard, Secy. of State, to Mr. Straus, Minister to Turkey. March 17, 1888, For. Rel. 1888, II, 1568, Moore, Dig., IV, 661; Case of Herrmann Tolk, For. Rel. 1907, I, 527-530; Mr. Evarts, Secy. of State, to Mr. Lowell, Minister to Spain, No. 132, Feb. 25, 1879, MS. Inst. Spain, XVIII, 370, Moore, Dig., IV, 660; par. 3, Art. I and Art XV, Rules of the Institute of International Law, Aug. 13, 1895, Annuaire, XIV, 240 and 244; Case of the Chauffeur of the Secretary of the American Embassy at London, 1906, Rev.

PERSONS OTHER THAN HEADS OF MISSIONS [§ 438

of immunity by a person attached to the unofficial staff of the minister dependent upon compliance with conditions which it prescribes.1 If, however, it withholds the privilege, it should exercise care to assert the right of jurisdiction in a manner such as to cause the least possible embarrassment to the minister. The State should consult his convenience as to the time and place of the service of process. Its officers should not be permitted to invade his house.3

A servant, or other member of the unofficial staff of a mission who is not a national of the State of sojourn, appears to be increasingly regarded as sharing his master's immunity throughout the period of service; yet upon his discharge therefrom, to be subjected to the local law, and punishable, if need be, for criminal acts committed during the course of his employment. This practice indicates that whenever interference with the minister is eliminated, the reason for the exemption ceases, and so justifies the assertion of jurisdiction by the territorial sovereign.

Gén., XVI, 377, citing Law Times, 1906, p. 319; also F. Pujia, “Immunità di Giurisdizione dello Chauffeur al Servizio di un Agente diplomatico", in Rivista di Diritto Internazionale, 1 ser., III, 343.

Compare Claim of the United States in 1905, respecting the immunity of the Dragoman of the American Legation at Constantinople, For. Rel. 1905, 881-882.

Declares Hall: "It is no doubt generally held that they [the servants of a minister] cannot be arrested on a criminal charge and that a civil suit cannot be brought against them, without the leave of their master, and that it rests in his discretion whether he will allow them to be dealt with by the local authorities, or whether he will reserve the case or action for trial in his own country. But in England, at any rate, this extent of immunity is not recognised. Under the statute of Anne, the privilege of exemption from being sued, possessed by the servant of an ambassador, is lost by the circumstance of trading'; and when the coachman of Mr. Gallatin, the United States minister in London, committed an assault outside the house occupied by the mission the local authorities claimed to exercise jurisdiction in the case. The English practice is exceptional; but it is not unreasonable." Higgins' 7 ed., § 51. Respecting the Case of Mr. Gallatin's coachman, see Moore, Dig., IV, 656– 657, quoting Lawrence's Wheaton (ed. 1863), 1006, 1007.

1 § 4065, Rev. Stat.

2 Mr. Clay, Secy. of State, to Mr. Ringgold, Marshal, Oct. 30 and Nov. 2, 1825, 21 MS. Dom. Let. 180, 181, Moore, Dig., IV, 656; Mr. Forsyth, Secy. of State, to Mr. Calderon de la Barca, Spanish Minister, Sept. 18, 1838, MS. Notes to Spanish Legation, VI, 34, Moore, Dig., IV, 658; Mr. Cass, Secy. of State, to Mr. Zegarra, Peruvian Minister, June 13, 1860, MS. Inst. Peru, I, 213, Moore, Dig., IV, 660; Mr. Root, Secy. of State, to Mr. Garrett, American Chargé at Berlin, June 10, 1908, For. Rel. 1907, I, 529.

3 Mr. Brent, Chief Clerk, to Mr. Ringgold, U. S. Marshal, Dec. 10, 1825, 21 MS. Dom. Let. 210, Moore, Dig., IV, 656; Opinion of Mr. Randolph, Atty.-Gen., June 26, 1792, 1 Ops. Attys.-Gen. 26, Moore, Dig., IV, 653; Opinion of Mr. Lincoln, Atty-Gen., 1804, 1 Ops. Attys.-Gen., 141, Moore, Dig., IV, 652. Also Dana's Wheaton, Dana's Note No. 129.

Case of French servant of the Spanish Ambassador at Berlin, who was charged with assault upon a fellow servant, who was a German, and mentioned in a communication of Mr. Jackson, Chargé at Berlin, to Mr. Hay, Secy. of State, July 5, 1899, For. Rel. 1899, 318, Moore, Dig., IV, 652.

f

$439. Ministers Recalled or Not Received.

Neither his diplomatic immunity nor his right to protection are withdrawn from a minister by the bare suspension or termination of his mission. They continue for a reasonable time thereafter, pending his departure from the State to which he is accredited. It is common, in time of peace, to extend to a minister a liberal interval within which to quit the country. If, however, he abuses the privilege by an undue lingering after his official functions are at an end, the State of his sojourn is justified in regarding his immunities as forfeited.3

2

Even though the termination of his mission is occasioned by war between his own State and that to which he is accredited, it is the duty of the latter to employ the means at its disposal to accord the minister and his retinue complete protection from every form of violence, as well as from marks of official discourtesy, and also, to facilitate their departure from its territory by reasonable processes.4

When a minister is not received by reason of its failing to appear that he represents any lawful government of the State from which he comes, it has been declared that diplomatic privileges, if any, are accorded him as of courtesy rather than of right. It may be doubted, therefore, whether he is entitled to claim exemption from the local jurisdiction, should occasion for its exercise in respect to him arise.

1 Mr. Root, Secy. of State, to Mr. Russell, Minister to Venezuela, April 2, 1906, For. Rel. 1906, II, 1456; Dr. Paúl, Venezuelan Minister of Foreign Affairs, to Mr. Sleeper, American Chargé, June 20, 1908, For. Rel. 1908, 823; Mr. Adee, Acting Secy. of State, to Mr. Nabuco, Brazilian Ambassador, July 23, 1908, id., 828. See, also, earlier cases of M. Pichon (1805), Moore, Dig., IV, 662, citing Dupont v. Pichon, 4 Dall. 321; and that of Mr. Barrozo, Portuguese Chargé at Washington (1829-1830), Moore, Dig., IV, 664-667. 2 Mr. Adams, Secy of State, to Mr. d'Anduaga, Nov. 2, 1821, MS. Notes to For. Legs., III, 29, Moore, Dig., IV, 664.

3 Mr. Fish, Secy. of State, to Gen. Gorloff, Dec. 1, 1871, S. Ex. Doc. 5, 42 Cong., 2 Sess., 26-27, Moore, Dig., IV, 667.

4 Sir E. Goschen, British Ambassador at Berlin, to Sir Edward Grey, British Foreign Secretary, Aug. 8, 1914, respecting the efforts of the German Government to protect the former while en route to the Dutch frontier after the outbreak of war, Misc. No. 8 (1914), Cd. 7445. Compare report of M. Cambon, French Ambassador at Berlin, to M. Doumergue, French Minister for Foreign Affairs, Aug. 6, 1914, narrating annoyances to which the former was subjected by German authorities in the course of his departure from Germany, upon the outbreak of the war, Misc. No. 15 (1914), p. 142, Cd. 7717. 5 Mr. Cushing, Atty.-Gen., to Mr. McKeon, Dec. 24, 1855, H. Ex. Doc. 103, 34 Cong., 1 Sess., 13; Same to Same, Dec. 27, 1855, id., 14, Moore, Dig., IV, 668-669.

CUSTOMS DUTIES

[§ 441

g

§ 440. Taxation.

The rule observed by the United States with respect to the taxation of property owned by a foreign government, and occupied as its mission, is to accord reciprocity in regard to exemptions from general taxation, but not to exempt specially such property from local assessments, such as water rent and the like, unless it is definitely understood that such taxes are also exempted by the foreign government upon property belonging to the United States, and used for a like purpose by an American minister.1 The policy to relieve from taxation property so owned and employed, is not applied to premises rented and occupied as dwellings by foreign diplomatic officials subordinate to the head of a mission.2

It is not believed that a foreign minister may be justly subjected to the payment of a personal tax by the State to which he is accredited. The levy thereof would directly interfere with the free exercise of his functions. The extent to which members of his retinue, of the several classes heretofore described, share his exemption may be fairly ascertained by reference to the effect of the levy and the mode of collection upon the minister himself. If remote and indirect, as in the case of a person in his private service, and not subjected to local process within the precincts of the legation, no ground for objection would be apparent.1

§ 441. Customs Duties.

h

According to existing regulations of the Treasury Department, the privilege of free entry and exemption from examination is

1 The language of the text is substantially that of Mr. Bayard, Secy. of State, to Mr. Woolsey, April 15, 1886, who declared also: "When a foreign legation occupies rented property in this country, the owner of the premises is not exempted from the payment of all lawful taxes." 159 MS. Dom. Let. 622, Moore, Dig., IV, 670. Also Mr. Fish, Secy. of State, to Mr. Stumm, May 28, 1873, MS. Notes to Prussian Legation, VIII, 484, Moore, Dig., IV, 669; Mr. Seward, Secy. of State, to Mr. Wallach, July 5, 1867, MS. Dom. Let. 432, Moore, Dig., IV, 669.

2 Mr. Gresham, Secy. of State, to Mr. Bayard, Ambassador to Great Britain, No. 2, May 29, 1893, MS. Inst. Great Britain, XXX, 250, Moore, Dig., IV, 671.

3 Oppenheim, 2 ed., I, § 394, p. 467.

Mr. Jackson, Chargé at Berlin, to Mr. Hay, Secy. of State, April 13, 1901, For. Rel. 1901, 172, citing despatches of Mr. Coleman, Chargé, No. 182, of Oct. 7, 1890, and Mr. Phelps, Minister to Germany, No. 220, of Jan. 13, 1891, Moore, Dig., IV, 672.

See Macartney v. Garbutt, L. R. 24 Q. B. 368, to the effect that a British subject, accredited to Great Britain by a foreign government as a member of its embassy, is, unless received by the British Government upon the ex

extended to the baggage and effects of the following officers, their families and suites: foreign ambassadors, ministers and chargés d'affaires, and also to those secretaries, and naval, military and other attachés at embassies and legations, accredited to the United States, whose governments grant reciprocal privileges of free entry to American officers of like grade accredited thereto.1

It is doubtless a common usage of international intercourse that to the head of a mission shall be conceded the privilege of importation of effects for his personal or official use, or for that of his immediate family, without payment of customs duties thereon.2 In 1911, it was announced by the Department of State that the United States not only admits the baggage and personal effects of all diplomatic officers from the heads of the missions down to and including attachés upon their first arrival in the country, but also accords to each and every one of such officers the privilege of free importation of goods at any time. Such a

press condition that he should be subject thereto, exempt from the local jurisdiction of his own country, and, therefore, where this condition has not been imposed on him at the time of his reception, his household furniture is privileged from seizure for non-payment of parochial rates.

1 "High commissioners and consular officers" accredited to the United States are also included in the list. Instructions of Mr. Curtis, Assist. Secy. of the Treasury to Collectors of Customs, Oct. 19, 1911, T. D. 31934, Treasury Decisions, XXI, No. 17, p. 7. Compare Mr. Spaulding, Acting Secy. of the Treasury, No. 141, Dec. 22, 1902, Moore, Dig., IV, 675

See Rev. Gén., XV, 448-449, respecting a circular note of the Norwegian Government, Oct. 25, 1907, extending the exemptions from customs duties to diplomatic agents other than heads of missions.

2 Instructions to Diplomatic Officers of the United States (1897), §§ 5861, Moore, Dig., IV, 675-676.

3 Circular Instructions of Mr. Wilson, Acting Secy. of State, to American Diplomatic and Consular Officers, Sept. 12, 1911.

The following provisions are contained in the Treasury Department Regulations of 1915:

"Art. 376. Baggage. The privilege of free entry and exemption from examination is extended to the baggage and other effects of the following officials, their families, suites and servants:

"Foreign ambassadors, ministers, chargés d'affaires.

'Secretaries, and naval, military, and other attachés at embassies and legations, high commissioners, and consular officers accredited to this Govern ment or en route to and from other countries to which accredited and whose governments grant reciprocal privileges to American officials of like grade accredited thereto.

"Similar representatives of this Government abroad, including consular officers, returning from their missions.

"Other high officials of this and foreign governments.

"Applications should be made to the Department of State for the free entry of the baggage of, and extension of courtesy to, all foreign ambassadors and other foreign officers. Application should also be made through the Department of State in the case of diplomatic and consular officers of the United States returning from their missions. Other high officials of this Government may, however, make application direct to the Treasury Department for the extension of courtesies.

"In the absence of special authorization from the Department prior to the arrival of any of the persons above referred to, collectors of customs may ac