Mr. Everett to Mr. Evarts.
Berlin, May 5, 1879.
Sir: Referring to my dispatch No. 105 of the 23d April, concerning the case of Wilhelm Knoth, the legation messenger, taken away from the legation for military service, I have now the honor to inclose (inclosure [Page 376] 1) the answer, with a memorial of his excellency Mr. von Bülow, of the 29th ultimo, to my note to his excellency of the 23d ultimo, as also a note from his excellency of 3d instant on the same subject (inclosure 2), with translations.
It will be seen that the memorial denies the justness of the claim of ex-territoriality advanced by me on behalf William Knoth on the following grounds:
- That the Prussian Government had, as long ago as 1821, requested of the various legations in Berlin that German citizens in their service might be allowed to perform military service. If such a request has ever been to the American legation, it is at present not to be found on our files. The point might also be conceded as a favor in answer to a request, without necessarily conceding it as a right in answer to a demand.
- That no objection had hitherto been raised by foreign missions against this principle. In reply to this I can only say that it does not coincide with the information I have obtained from my colleagues, who tell me that they have repeatedly tried in vain to have their servants freed from military service, and they have encouraged me in protesting against the forcible removal of my own.
- That the Prussian legislation is not contrary to international law, and that “there is a lack in international law of positively generally recognized principles concerning personages of a legation who are subjects of the state to which they are accredited.”
In reply to this argument I beg leave to quote those passages from well-known international law writers which led me to think that I was correct in my view.
Wheaton’s International Law, 8th edition, 1866:
- § 224.
- From the moment a public minister enters the territory of the state to which he is sent, during the time of his residence and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction both civil and criminal.
- § 225.
- This immunity extends not only to the person of the minister, but to his family and suite, secretaries of legation and other secretaries, his servants, movable effects, and the house in which he resides.
- § 226.
- The wife and family, servants, and suite of the minister participate in the inviolability attached to his public character.
- § 241.
- The privilege of exterritoriality consists in the right of the diplomatic agent to be exempt from all dependence on the sovereign power of the country near the government to which he is accredited.
Phillimore’s International Law, 2d edition, 1871, vol. ii, p. 193:
- § 153.
- Thirdly, the right of inviolability applies to whatever is necessary for the discharge of ambassadorial functions, “nam omnis coactio abesse a legato debet, tarn quae res ei necessarias, quam quae personam tangit, quo plena ei sit securitas.” (Grotius II, c. xviii, § iv.)
- § 186.
- p. 218. With these exceptions all civilized nations unanimously accord to ambassadors complete exemption from the civil jurisdiction of the country in which they resie. These exterritorial privileges are also extended by positive international la w, as much as the rights of inviolability to the family, and especially to the wife of the ambassador; his suite and train (comites) are also entitled to these privileges, a violation of which in their persons affects the honor, though in a less degree, of their chief.
- § 188.
- * * * Difficulties have arisen from persons perhaps not subjects of the state from which the embassy is sent, claiming without sufficient warranty to belong to it. It has therefore been enacted by the municipal laws of some countries, and it ought to be the usage of all to require a list of the persons composing the suite, to be delivered to the minister for foreign affairs, or other proper officers.
(This was done in the case of William Knoth.)
- § 190.
- * * * The servant need not lie in the house, although he must do some service there. He must be a real and not a nominal servant.
- § 194.
- Provisions in England.
- § 195.
- Provisions in the United States.
- § 196.
- Provisions in Prance.
- § 197.
- Provisions in Spain.
- § 198.
- Provisions in Portugal.
- § 199.
- Provisions in Russia.
- § 200.
- Provisions in Austria, Bavaria, and Prussia.
The Prussian code enacts that all persons belonging to the embassy shall be entitled to those immunities which international law and existing treaties have conferred on them. (See Allgemeines Landrecht für die preussischen Staaten Einleitung, §§ 36, 37, 38, 39.)
Heffter: Das europaische Yolkerrecht der Gegenwart, 6 Ausgabe, Berlin, 1873:
- § 42.
- Exterritoriality is in general the exemption by international law of certain persons and things connected with them from the state authority in that territory within which they are bodily present.
- § 221.
- Among those persons who belong to the entourage of a minister, and thereby participate in certain rights and privileges, and especially in those of personal inviolability and exterritoriality, the following are the chief: a, ——; b, ——: c, ——; d, ——; e, ——; f, the liveried servants and domestics of the minister.
It is now undoubted that all the above-named persons, even if they were subjects of the foreign state, are themselves included in the exterritoriality of the minister, and therefore in particular exempted in like manner from the criminal and civil jurisdiction of this foreign state, and hence subject to the jurisdiction of the accrediting state in case such jurisdiction has not been delegated to the minister himself.
[Note 3 to the above.]
Modern state practice in general in its adhesion to this principle * * * as well as the authority of the chief publicists, * * * as regards Prussia, see General Judicial Ordn., part I, title 2, §§ 63, 67, and following. See, also, United States Revised Statutes, 4062–66; as regards England, act of Parliament of 1709.
Bluntschli: Das modern Volkerrecht der civilizunten Staaten, 3 edition, 1878:
- § 145.
- The exemption from local state authority extends also to the family officials, suite, and servants of the exterritorial personage.
- § 212.
- Immunity from the penal authority of the state to which the minister is accredited, and subjection to the penal authority of the accrediting state, extends also to such servants of foreign ministers as are subjects of the former state.
Alt. Handbuch des europäischen Gesandtschaftsrecht, &c., Berlin, 1870:
- § 130.
- To the private servants, who may be divided into three classes, belong firstly the minister’s own private physician, his private secretary, his house teachers, then his house officers (officiers de la maison), and finally his liveried servants (gens à livrée). By the term house officials are meant butlers, stable-masters, cellar-masters, equerries, valets, swiss; and among liveried servants are reckoned runners, cooks, coachmen, postillions, stablemen, chasseurs, lackeys, heiducken. All these stand, as already mentioned, under the particular protection of international law and enjoy the privilege of exterritoriality.
Mirus: Das europäische Gesandtschaftsrecht, Leipsic, 1847:
- § 239.
- p. 264. All persons in the private service of a minister, including liveried servants, &c., stand like the rest of the suite under the particular protection of international law, and are not subject to the authority of the state in which the minister is accredited.
Vattel: Droit des Gens (Ed. Pradier Foderé, Paris, 1863), vol. iii livre iv, chapter ix:
- § 120.
- De la suite de l’Ambassadeur. La inviolabilité de l’Ambassadeur se communique aux gens de sa suite, et son independance s’etend à tout ce qui forme sa maison. [Page 378] Toutes ces personnes lui sont tenement attachés qu’elles suivent son sort. Elles dépendent de lui seul immediatement et sont exemptes de la juridiction du pays oil elles ne se trouyent qu’avec cette reserve L’Ambassadeur doit les protéger, et on ne pent les instilter sans l’insulter lui-même.
- Si les domestiques et route la maison d’un ministre étranger ne dependaient pas de lui uniquement, on sent avec quelle facilité il pourrait être moleste, inquiété et troublé dans l’exereice de ces fonctions. Ces maximes sont reconnues partout aujourdhui, et confirmées par l’usage.
These authorities might be multiplied but seem sufficient to show that a servant, even when a subject of the country to which the minister is accredited, is exempt from the jurisdiction of that country. As regards the case of taxation, cited by Mr. von Bülow, in the United States, as evidence against me it appears to me that something is left out. The Revised Statutes, §§ 4062–4066, appear to agree with my claim as far as they go.
The servant in question, William Knoth, has now returned from his twelve days’ military service, and is not liable to be called on again except in case of war, and therefore the immediate consequences of the incident cease. I leave it for the Department to decide whether any answer shall be sent to the note of his excellency Mr. von Bülow of the 29th April, embodying the above authorities for the protest which I thought it my duty to make.
I have, &c.,