701.05/130

The Secretary of State to the Minister in Switzerland ( Gibson )

No. 523

Sir: The Department has received your despatch No. 954 of August 7, 1926,1 relative to the imposition of a fine by the Swiss authorities on your chauffeur, who is understood to be a Swiss national, on account of his alleged violation of the speed regulations. You inform the Department that in answer to representations which you made to the Political Department you were advised by the latter that it was unable to take any action in the matter inasmuch as your chauffeur is a Swiss citizen and, therefore, “not covered by your diplomatic status”. You request the Department’s advice in the matter.

In reply you are informed that the question whether immunity should be extended to the members of a mission who are subjects of the receiving State does not appear to have been definitely settled.

Oppenheim states (Volume 1, page 544 [455])2 that it is a customary rule of international law that the receiving State must grant to all persons in the private service of the envoy and of the members of his Legation, provided such persons are not subjects of the receiving State, exemption from civil and criminal jurisdiction.

Woolsey states, on page 1421 [142]3 of his work on international law, that the reasons for the exemption from the local jurisdiction in the case of servants, especially of natives of the country, whom the foreign Minister hires, are of little cogency, since, he states, others could be speedily found to take their places, but that this exemption is tolerably well established.

Hyde (Volume 1, page 755)4 makes the following statement: [Page 757]

“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.”

As confirming the foregoing conclusions, reference may be made to the case of the German coachman of the French Embassy at Berlin who was fined sixty marks for a violation of a municipal regulation without any protest being made by the Embassy. (Revue Générale de Droit International Public, Volume 2, page 354, 1888). Reference may also be made to the case of the Italian coachman of the German Embassy in Rome, who, in 1881, was condemned to two months’ imprisonment by an Italian court, and to the case of the Italian coachman of the Colombian Legation, who was fined twenty lire by the authorities of Rome in 1894. (The same Revue, Volume 16, page 378). In the same journal there are cited two instances in which the chauffeurs of the American Embassies in London and in Rome were both held immune from the local jurisdiction, but no mention is made in the article in question to the nationality of these two domestics.

On the other hand, Hershey, on page 142 of his work on Diplomatic Agents and Immunities,5 cites the following from Halleck:6

“It was at one time contended that the subjects of the State to which a public minister is accredited do not participate in his rights of extra-territoriality, but are justifiable by the tribunals of their country. But the better opinion seems to be that, although such State may prohibit its subjects from becoming the employees or servants of a foreign minister, if it do not so prohibit them, they are, while so employed, to be considered without the limits of its jurisdiction.”

It would seem from the foregoing that it is not definitely established that as a general principle of international law a chauffeur in the employ of a foreign Minister would, in a case where the chauffeur is a citizen or subject of the country of the Minister’s sojourn, be entitled to claim immunity from the local jurisdiction. It may be observed, however, that the rule as given by Halleck appears to have been followed by this Government in the matter of according immunity to the servants of foreign diplomatic representatives in this country.

As you are doubtless aware, Section 4063 of the Revised Statutes contains a provision rendering void any writ or process directed [Page 758] against a public Minister authorized and received as such by the President, or any domestic or domestic servant of such Minister, and Section 4064 imposes a penalty upon persons suing out such writ or process. Section 4065 provides that Sections 4063 and 4064 shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States in the service of a public Minister and the process is founded upon a debt contracted before the citizen or inhabitant entered upon such service.

It will be observed from the foregoing that the provision in Section 4065 of the Revised Statutes concerning American citizens or inhabitants does not relate to offenses alleged to have been committed by them while in the actual employ of a public Minister, and that consequently an American chauffeur of a foreign diplomatic official in this country would be immune from any penalty provided by law for violation of speed regulations. In view of the lack of uniformity in the practice of States with respect to the granting of immunity from the local jurisdiction to employees of missions who are nationals of the receiving State, claim to immunity can hardly be asserted as a general principle of international law. Any representation on the subject would more properly be made on the basis of reciprocity and comity between friendly States.

You are consequently instructed to bring to the attention of the Swiss authorities the provisions of Sections 4063–4065 of the Revised Statutes of the United States, and to point out that American chauffeurs of foreign diplomatic officials in this country are not subject to penalties for the infraction of traffic regulations committed in the course of their employment; that this immunity is granted for the convenience of and as a courtesy to the foreign diplomatic missions; and that the Department considers that it is warranted in inquiring whether on the basis of reciprocity chauffeurs in the permanent employ of your mission irrespective of their nationality may not be accorded like immunity, the lack of which may greatly inconvenience the members of a diplomatic mission in their movement in the country in which they are stationed. You may add that this Government indulges the hope that, as a result of the foregoing assurances concerning the courtesies shown the Swiss Legation at this capital with respect to its employees, the Political Department will take the necessary steps to reciprocate. You will, of course, assure the Political Department that your chauffeur has strict instructions to comply at all times with the pertinent Swiss laws and regulations pertaining to automobiles.

Should the Swiss authorities find themselves unable to adopt the Department’s suggestion, the Department will give consideration to the question of removing the names of any American employees of the Swiss Legation in this capital from the List of Employees in the [Page 759] Embassies and Legations in Washington not printed in the Diplomatic List. There is appended herewith for your convenience the text of Sections 4063, 4064 and 4065 of the Revised Statutes of the United States:

  • “Section 4063. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized and received as such by the President or any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void.
  • “Section 4064. Whenever any writ or process is sued out in violation of the preceding section, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it, shall be deemed a violator of the laws of nations and a disturber of the public repose, and shall be imprisoned for not more than three years, and fined at the discretion of the court.
  • “Section 4065. The two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the preceding section apply to any case where the person against whom the process is issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the District of Columbia, who shall upon receipt thereof post the same in some public place in his office.”

I am [etc.]

For the Secretary of State:
Joseph C. Grew
  1. Not printed.
  2. L. Oppenheim, International Law, A Treatise (Longmans, Green, and Co., London, 1905).
  3. Theodore Dwight Woolsey, Introduction to the Study of International Law, 6th ed. (Charles Scribner’s Sons, New York, 1897).
  4. Charles Cheney Hyde, International Law, Chiefly as Interpreted and Applied by the United States (Boston, Little, Brown, and Company, 1922).
  5. Amos S. Hershey, Diplomatic Agents and Immunities (Washington, Government Printing Office, 1919).
  6. Sir G. Sherston Baker (ed.), Halleck’s International Law, etc., 4th ed. (London, 1908), vol. i, p. 356.