As a contrast to this case may be mentioned that of Kalkstein which occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian subject, had fled to Poland for political reasons since he was accused of high treason against the Prussian Government. Now Frederic William, the great Elector of Brandenburg, ordered his diplomatic envoy at Warsaw, the capital of Poland, to obtain possession of the person of Kalkstein. On November 28, 1670, this order was carried out. Kalkstein was secretly seized, and, wrapped up in a carpet, was carried across the frontier. He was afterwards executed at Memel.
Exemption from Criminal and Civil Jurisdiction.
§ 391. The second privilege of envoys in reference to their exterritoriality is their exemption from criminal and civil jurisdiction. As their exemption from criminal jurisdiction is also a consequence of their inviolability, it has already been discussed,[747] and we have here to deal with their exemption from civil jurisdiction only. No civil action of any kind as regards debts and the like can be brought against them in the Civil Courts of the receiving States. They cannot be arrested for debts, nor can their furniture, their carriages, their horses, and the like, be seized for debts. They cannot be prevented from leaving the country for not having paid their debts, nor can their passports be refused to them on the same account. Thus, when in 1772 the French Government refused the passports to Baron de Wrech, the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid his debts, all the other envoys in Paris complained of this act of the French Government as a violation of International Law.[748] But the rule that an envoy is exempt from civil jurisdiction has certain exceptions. If an envoy enters an appearance to an action against himself, or if he himself brings an action under the jurisdiction of the receiving State, the courts of the latter have civil jurisdiction in such cases over him. And the same is valid as regards real property held within the boundaries of the receiving State by an envoy, not in his official character, but as a private individual, and as regards mercantile[749] ventures in which he might engage on the territory of the receiving State.
[747] See above, §§ [387]-388.
[748] See Martens, "Causes Célèbres," II. p. 282.
[749] The statute of 7 Anne, c. 12, on which the exemption of diplomatic envoys from English jurisdiction is based, does not exclude such envoy as embarks on mercantile ventures from the benefit of the Act, and the practice of the English Courts grants, therefore, to foreign envoys even in such cases exemption from local jurisdiction; see the case (1859) of Magdalena Steam Navigation Co. v. Martin, 2 Ellis and Ellis 94, overruling the case of Taylor v. Best, 14 C.B. 487. See also Westlake, I. p. 267.
Exemption from Subpœna as witness.
§ 392. The third privilege of envoys in reference to their exterritoriality is exemption from subpœna as witnesses. No envoy can be obliged, or even required, to appear as a witness in a civil or criminal or administrative Court, nor is an envoy obliged to give evidence before a Commissioner sent to his house. If, however, an envoy chooses for himself to appear as a witness or to give evidence of any kind, the Courts can make use of such evidence. A remarkable case of this kind is that of the Dutch envoy Dubois in Washington, which happened in 1856. A case of homicide occurred in the presence of M. Dubois, and, as his evidence was absolutely necessary for the trial, the Foreign Secretary of the United States asked Dubois to appear before the Court as a witness, recognising the fact that Dubois had no duty to do so. When Dubois, on the advice of all the other diplomatic envoys in Washington, refused to comply with this desire, the United States brought the matter before the Dutch Government. The latter, however, approved of Dubois' refusal, but authorised him to give evidence under oath before the American Foreign Secretary. As, however, such evidence would have had no value at all according to the local law, Dubois' evidence was not taken, and the Government of the United States asked the Dutch Government to recall him.[750]
[750] See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § 1520.
Exemption from Police.