Cyclopædia of Political Science, Political Economy, and the Political History of the United States
EXTERRITORIALITY. By this word is understood the right which representatives of foreign powers have of living in the countries to which they are accredited under the laws of the nation which they represent. Foreign sovereigns in person, ambassadors, ministers plenipotentiary, in short, all diplomatic persons who represent their sovereign, or the state whose envoys they are near a foreign government, enjoy the privilege of exterritoriality. A sovereign, though he be temporarily on the territory of another power, is nevertheless considered, by a fiction of the modern law of the nations of Europe, to be always on his own territory, and he enjoys all the prerogatives inherent in sovereignty. This privilege does not extend to the princes and princesses of reigning houses.
—Exterritoriality is extended to ambassadors, and certain diplomatic agents, because they represent, to a certain extent, the person of the sovereign whose agents they are: they are considered, during the whole time of their mission, as not having left the state whose envoys they are, and as filling their offices outside of the territory of the power to which they are accredited. This fiction extends also to the families of the ambassador and diplomatic agent, to the members of their suite, and even to their movable property.
—One of the most important prerogatives of exterritoriality is inviolability. It commences the moment the minister puts his foot on the territory of the sovereign to whom he is sent, and makes known his official character. Inviolability brings with it exemption from the jurisdiction of the country in which he resides, and this exemption is founded, not simply on propriety or decorum, but on necessity. Indeed, if ambassadors and diplomatic agents were not protected by the principle of inviolability, their dignity, even their independence, might be compromised; we must not, however, infer impunity from inviolability. "In the practice of nations," says Martens, in case of crime committed or attempted by a foreign minister, the government generally limits itself to asking his recall; if the danger is urgent, it allows itself to seize the person of the minister till the danger is past; if not, it is satisfied with asking for his recall or removal." According to circumstances, when there is violence, or conspiracy against the safety of the state, the sovereign of the country threatened may take any measure required by the necessity of legitimate defense.
—During the exercise of his functions abroad the ambassador or minister does not cease to belong to his country; he preserves his domicile in it as if he were present.
—In France, before 1789, the prerogatives of ambassadors and foreign ministers had not been sanctioned by any written law, but were recognized by custom. The constituent assembly in France, by a decree of Dec. 11, 1789, issued in consequence of a demand addressed by the diplomatic corps to the minister of foreign affairs, declared that it desired in no case to attack by its decrees any immunity of ambassadors and foreign ministers. A decree of the convention declared subsequently that all complaints which might be made against foreign ambassadors should be brought to the committee of public safety; at present, complaints of this kind in France must be addressed to the minister of foreign affairs.
—Certain foreign codes have express provisions on this matter. The code of civil procedure in Bavaria provides that all who enjoy the right of ambassador are exempt from ordinary jurisdiction. The general code of Prussia contains also various regulations on this subject. The civil code of Austria provides that ambassadors, chargés d'affaires and persons in their employ, enjoy all the privileges established by the law of nations and public treaties. According to No. 2, chap. x., of the civil laws of Russia, no judgment can be executed in the residences of ambassadors and diplomatic envoys unless by the agency of these ministers. Most of the codes of the other countries of Europe contain similar provisions.
—BIBLIOGRAPHY. Bynkershoek, De foro legatorum, Lugd. Batav. 1730; Miruss, Europ. Gesandtschaftsrecht, 1847; Berner, Wirkungskreis des Strafges, 1853. pp. 206, etc.; von Bar, Das internationale Prie. und Strof R.: "das Recht der Exterritorialen"; Marquardsen, see words Exterritorialitat in Rotteck's Staatslexikan and Kaltenborn in Bruntschli's Staatsiorterbuch; Oppenheim, Handbuck d Konsulate aller Lander, 1854, chaps xiv. and xv., Jochmus. Handbuch fur Konsula. 1852. pp. 111, etc.
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