Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/528

country, any more than their sovereign; and their actions are not generally deemed subject to the control of the private law of that state, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions.^[1] The rights, the powers, the duties,

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1. 1 Black. Comm. 258; Vattel, B. 4, ch. 7, §§ 80, 81, 92, 99, 101; 1 Kent's Comm. Lect. 2, p. 37, 38, (2d edition, p. 38, 39.)—In the case of The Schooner Exchange v. M'Faddon, (7 Cranch, 116, 138,) the Supreme Court state the grounds of the immunity of foreign ministers, in a very clear manner, leaving the important question, whether that immunity can be forfeited by misconduct, open to future decision. "A second case," (says Mr. Chief Justice Marshall, in delivering the opinion of the court,) "standing on the same principles with the first, is the immunity, which all civilized nations allow to foreign ministers. Whatever may be the principle, on which this immunity is established, whether we consider him, as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign, at whose court he resides; still, the immunity itself is granted by the governing power of the nation, to which the minister is deputed. This fiction of ex-territoriality could not be erected, and supported against the will of the sovereign of the territory. He is supposed to assent to it.
   "This consent is not expressed. It is true, that, in some countries, and in this, among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege, which ho would not otherwise possess.
   "The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the considerations, that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the ob