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(6) Civil Jurisdiction.
THE AMBASSADOR OF PETER THE GREAT, 1708.
(Blackstone's Commentaries, Book I., Chap. VII.)
Neither an ambassador nor any of his suite can be prosecuted for any debt or contract in the courts of the country in which they reside.
“ In respect to civil suits, all the foreign jurists agree, that neither an ambassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet Sir Edward Coke maintains, that, if an ambassador make a contract which is good jure gentium, he shall answer for it here. But the truth is, so few cases, if any, had arisen, wherein the privilege was either claimed or disputed, even with regard to civil suits that our law-books are, in general, quite silent upon it previous to the reign of Queen Anne; when an ambassador from Peter the Great, Czar of Muscovy, was actually arrested and taken out of his coach in London, for a debt of fifty pounds which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the Queen. The persons who were concerned in the arrest were examined before the privy council, of which the Lord Chief Justice Holt was at the same time sworn a member, and seventeen were committed to prison: most of them were prosecuted by information in the Court of Queen's Bench at the suit of the attorney-general, and at their trial before the Lord Chief Justice were convicted of the facts by the jury, reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges; which question was never determined. In the meantime the Czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death. But the Queen, to the amazement of that despotic court, directed her secretary to inform him that she could inflict no punishment upon any, the meanest of her subjects, unless warranted by the law of the land ; and therefore was persuaded that he would not insist upon impossibilities.' To satisfy, however, the clamors of the foreign ministers, who made it a common cause, as well as to appease the wrath of Peter, a bill was brought into parliament, and afterwards passed into a law, to prevent and punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the Queen, an ambassador extraordinary was commissioned to appear at Mos. cow, who declared that though her majesty could not inflict such a punishment as was required, because of the defect in that particular of the former established constitutions of her kingdom, yet, with the unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for the future. This humiliating step was accepted as a full satisfaction by the Czar; and the offenders, at his request, were discharged from all farther prosecution.
“ This statute recites the arrest which had been made in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which ambassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable :' wherefore it enacts that for the future all process whereby the person of any ambassador, or of his domestic or domestic servant may be arrested, or his goods distrained or seized, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader within the description of the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an ambassador's servant, unless his name be registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions that are strictly conformable to the rights of ambassadors as observed in the most civilized countries. And, in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the land, and are constantly allowed in the courts of common law."
TAYLOR v. BEST.
COMMON PLEAS, 1854.
A public minister who engages in trade, in the country to which he is accredited, does not thereby forfeit the privileges and immunities accorded to diplomatic agents. But when he voluntarily appears, in compliance with a writ, and submits himself to the jurisdiction, the court will not interfere for his relief.
This was an action brought by the plaintiff against the four defendants, to recover 2507 deposited in their hands for shares in an intended Sulphate company, of which they were directors.
A writ being issued, the plaintiff's attorney wrote to the defendant Drouet, asking the name of his solicitor to whom he should send the process for an undertaking to appear.-M. Drouet instructs his attorney to write to the plaintiff's attorney, requesting that the process be sent to him. The cause came to an issue, notice of trial was given, appearance duly entered and Drouet obtained a rule for a special jury.
Two days later Drouet took out a summons on the other parties to the suit to show why all proceedings should not be stayed, or why his name should not be struck out of the proceedings on the ground that he was protected from such a suit by reason of his being a public minister, first secretary of the Belgian legation at the court of St. James.
The defendant Drouet obtained a rule nisi.
JERVIS, C. J. :-" This case was very elaborately argued yesterday, and the importance of the subject induced the court to take time to look into the various authorities which were referred to. I am of opinion that the rule should be discharged. There is no doubt that the defendant Drouet fills the character of a public minister to which the privilege contended for is applicable: and I think it is equally clear, that, if the privilege does attach, it is not, in the case of an am. bassador or public minister, forfeited by the party's engaging in trade, as it would, by virtue of the proviso in the 7 Anne, c. 12, s. 5, in the case of an ambassador's servant. If an ambassador or public minister, during his residence in this country, violates the character in which he is accredited to our court, by engaging in commercial transactions, that may raise a question between the government of this country and that of the country by which he is sent; but he does not thereby lose the general privilege which the law of nations has conferred upon persons filling that high character,—the proviso in the statute of Anne limiting the privilege in cases of trading applying only to the servants of the embassy.
“ For this, Barbuit's Case, Cas. Temp. Talbot, 281, is an authority.
“ Admitting, then, that M. Drouet is a person entitled to the privileges and immunities which the law of England accords to ambassadors from foreign friendly courts, and that he does not forfeit them by engaging in commercial ventures,—the question is whether he is, under all the circumstances disclosed by the affidavit before us, entitled to the privilege which he claims.
" Although it is admitted that no process can be available against
the person or the goods of a foreign ambassador or minister, no case has been cited to show that an application in the present form, to stay all proceedings, is available in the courts of this country. On the contrary, in the case of ambassadors' servants, it appears that the practice has been, not to stay the proceedings altogether, but to discharge the party from custody, on entering a common appearance. The case of Crosse v. Talbot, 8 Mod. 288, recognizes that as the true principle. The motion on the part of the defendant there was to set aside the bail-bond given upon his arrest, on his filing common bail ; and the rule was discharged, on the ground that the party did not bring himself strictly within the privilege allowed to the servant of an ambassador; the court holding that, to entitle him to the privilege, he ought to be a domestic servant, and really to exercise the duties of the office, and that his being a mere nominal servant is not enough. And the reporter adds,— A great many cases have since been determined upon the same principle; but it was in these cases held, that the idea of a domestic servant was not confined to his living in a foreign minister's house, provided he was a real servant, and actually performed the service. The course, therefore, seems to have been in these cases, not to move to stay all proceedings, but to move to set aside or cancel the bail-bond, upon the defendant's filing common bail. No case has been cited of a motion to stay the proceedings, where the personal liberty of the applicant has not been interfered with. Further, I am aware of no case in which, where there are several defendants, and the action has been allowed to go on to the verge of trial, the proceedings have been stayed upon the application of one of the defendants.
“ Such a course would be obviously unjust to the other defendants, seeing that the expense they had already incurred would thereby be rendered useless. Without, however, dwelling upon that, it seems to me that this motion must fail, upon the merits.
“The action is brought against four defendants,—the writ being sued out against M. Drouet and the three others as joint-contractors. No doubt, the plaintiff was bound, at the peril of a plea in abatement, to sue all. The writ being issued, nothing is done upon it which can at all interfere with the exercise by M. Drouet of his diplomatic functions, or with his personal comfort or dignity. But, knowing that a writ has issued, or having reason to believe that it is about to issue, he causes his attorney to write to the plaintiff's attorney, desiring that the process may be sent to him for an undertaking to appear. He, therefore, voluntarily attorns and submits himself to the jurisdiction of the court. Under these circumstances, I think he cannot be permitted now to complain that the suit has been im. properly instituted against him. On the contrary, I think, that, by analogy to the doctrine cited from the learned jurists whose works have been so laboriously consulted, the action may well be maintained.
“ It is said,-and perhaps truly said, -that an ambassador or foreign minister is privileged from suit in the courts of the country to which he is accredited, or, at all events, from being proceeded against in a manner which may ultimately result in the coercion of his person, or the seizure of his personal effects necessary to his comfort and dignity; and that he cannot be compelled, in invitum, or against his will, to engage in any litigation in the courts of the country to which he is sent. But all the foreign jurists hold, that, if the suit can be founded without attacking the personal liberty of the ambassador, or interfering with his dignity or personal comfort, it may proceed. Various passages have been cited to show, that, in countries, where the Civil law prevails, and where jurisdiction can be founded by a proceeding in rem in the first instance, where there are houses or lands, which are immovable, that may be taken to found the jurisdiction, the suit may proceed. Movable goods, too, which are unconnected with the personal comfort and dignity of the ambassador, may be taken for the same purpose.
“ And when we consider the effect of the proceeding, and what may be done by the party sued, there seems to be no substantial distinction between the two modes : because, although it is true, that, in countries where the Civil law prevails, the proceeding is in rem, and the means of litigation between the parties incidentally established without any molestation or interference with the person of the defendant; yet if the defendant chooses to appear, for the purpose of protecting his goods and investigating the matter in dispute, he may convert that which was originally a proceeding in rem into a proceeding in personam. And such is commonly the course in the Scotch courts. If, therefore, as in Holland, and in some other countries, where goods may be taken for the purpose of founding jurisdiction, the defendant may come in and convert the proceeding in rem into a proceeding in personam, and so attorn or submit himself to the jurisdiction, it seems to me that there is no distinction between that case and the present, where there has been no attempt on the part of the plaintiff to disturb the comfort or interfere with the personal liberty of the foreign minister; but where there has been the mere issuing of a writ to which he has voluntarily appeareu, and thus submitted himself to the jurisdiction, I do not feel myself at all pressed by the argument urged by Mr. Willes, that the privilege in question, being the privilege of the sovereign, cannot be abandoned or waived