The Senate resumed, as in Committee of the Whole, the amendment reported by the select committee to the bill to prevent the abuse of the privileges and immunities enjoyed by foreign Ministers within the United States.
Mr. Adams.—There are two points of view, Mr. President, in which it appears to me to be important that the provisions of this bill should be considered—the one as they relate to the laws of nations, and the other as they regard the Constitution of the United States. From both these sources have arisen inducements combining to produce conviction upon my mind of the propriety, and indeed the necessity of some measure similar in principle to that which I have had the honor to propose. I shall take the liberty to state them in their turns, endeavoring to keep them as distinct from each other as the great and obvious difference of their character requires, and that their combination on this occasion may appear in the striking light which may render it the most effectual.
By the laws of nations, a foreign Minister is entitled, not barely to the general security and protection which the laws of every civilized people extend to the subjects of other nations residing among them. He is indulged with many privileges of a high and uncommon nature—with many exemptions from the operation of the laws of the country where he resides, and among others, with a general exemption from the jurisdiction of the judicial courts, both civil and criminal. This immunity is, in respect to the criminal jurisdiction, without limitation; and an Ambassador, though guilty of the most aggravated crimes of which the heart of man can conceive or his hand commit, cannot be punished for them by the tribunals of the Sovereign with whom he resides. Should he conspire the destruction of the constitution or government of the State, no jury of his peers can there convict him of treason. Should he point the dagger of assassination to the heart of a citizen, he cannot be put to plead for the crime of murder. In these respects he is considered as the subject, not of the State to which he is sent, but of the State which sent him, and the only punishment which can be inflicted on his crimes is left to the justice of his master.
In a republican government, like that under which we have the happiness to live, this exemption is not enjoyed by any individual of the nation itself, however exalted in rank or station. It is our pride and glory, that all are equal in the eyes of the law; that, however adorned with dignity, or armed with power, no man owing allegiance to the majesty of the nation can screen himself from the vindictive arm of her justice; yet even the nations whose internal constitutions are founded upon this virtuous and honorable principle of equal and universal rights, have, like all the rest, submitted to this great and extraordinary exception. In order to account for so singular a deviation from principles in every other respect deemed of the highest moment and of the most universal application, we must inquire into the reasons which have induced all the nations of the civilized world to this broad departure from the fundamental maxims of their government.
The most eminent writers on the laws of nations have at different times assigned various reasons for this phenomenon in politics and morals. It has sometimes been said to rest upon fictions of law. The reasoning has been thus: every Sovereign Prince is independent of all others, and as such cannot, even when personally within the territories of another, be amenable to his jurisdiction. An ambassador represents the person of his master, and therefore must enjoy the same immunities. But this reasoning cannot be satisfactory; for, in the first place, a foreign Minister does not necessarily represent the person of his master—he represents him only in his affairs; and besides representing him he has a personal existence of his own, altogether distinct from his representative character, and for which, on the principles of common sense, he ought, like every other individual, to be responsible. At other times, another fiction of law has been alleged, in this manner; the foreign Minister is not the subject of the State to which he is sent, but of his own Sovereign: he is therefore to be considered as still residing within the territories of his master, and not in those of the Prince to whom he is accredited. But this fiction, like the other, forgets the personal existence of the Minister. It is dangerous, at all times, to derive important practical consequences from fictions of law, in direct opposition to the fact. If the principle of personal representation, or that of exterritoriality annexed to the character of a foreign Minister be admitted at all, it can in sound argument apply only to his official conduct—to his acts in the capacity of a Minister, and not to his private and individual affairs. The Minister can represent the person of the Prince, no otherwise than as any agent or factor represents the person of his principal; and it would be an ill compliment to a Sovereign Prince to consider him as personally represented by his Minister in the commission of an atrocious crime. Another objection against this wide-encroaching inference from the doctrine of personal representation, is, that it is suitable only to Monarchies. The Minister of a King may be feigned to represent in all respects the person of his master, but what person can be represented by the Ambassador of a Republic? If I am answered, the moral person of the nation, then I reply, that can be represented by no individual, being itself a fiction in law, incapable of committing any act, and having no corporeal existence susceptible of representation. I have said thus much on this subject, because I have heard in conversation these legal fictions alleged against the adoption of the bill on your table, and because they may perhaps be urged against it here.
But it is neither in the fiction of exterritoriality, nor in that of personal representation, that we are to seek for the substantial reason upon which the customary law of nations has founded the extraordinary privileges of ambassadors; it is in the nature of their office, of their duties, and of their situation.
By their office, they are intended to be the mediators of peace, of commerce, and of friendship, between nations; by their duties they are bound to maintain with firmness, though in the spirit of conciliation, the rights, the honor, and the interests of their nation, even in the midst of those who have opposing interests, who assert conflicting rights, and who are guided by an equal and adverse sense of honor; by their situation they would, without some extraordinary provision in their favor, be at the mercy of the very Prince against whom they are thus to maintain the rights, the honor, and the interest of their own. As the ministers of peace and friendship, their functions are not only of the highest and most beneficial utility, but of indispensable necessity to all nations having any mutual intercourse with each other. They are the only instruments by which the miseries of war can be averted when it approaches, or terminated when it exists. It is by their agency that the prejudices of contending nations are to be dissipated—that the violent and destructive passions of nations are to be appeased—that men, as far as their nature will admit, are to be converted from butchers of their kind, into a band of friends and brothers. It is this consideration, sir, which, by the common consent of mankind, has surrounded with sanctity the official character of Ambassadors; it is this which has enlarged their independency to such an immeasurable extent; it is this which has loosed them from all the customary ties which bind together the social compact of common rights and common obligations.
But immunities of a nature so extraordinary cannot, from the nature of mankind, be frequently conferred, without becoming liable to frequent abuse. Ambassadors are still beings subject to the passions, the vices, and infirmities of man. However exempted from the danger of punishment, they are not exempt from the commission of crimes. Besides their participation in the imperfections of humanity, they have temptations and opportunities peculiar to themselves, to transgressions of a very dangerous description, and a very aggravated character. While the functions of their office place in their hands the management of those great controversies, upon which whole nations are wont to stake their existence; while their situations afford them the means, and stimulate them to the employment of the base but powerful weapons of faction, of corruption, and of treachery, their very privileges and immunities concur in assailing their integrity by the promise of security, even in case of defeat—of impunity, even after detection.
The experience of all ages and of every nation has therefore pointed to the necessity of erecting some barrier against the abuse of those immunities and privileges, with which foreign Ministers have at all times and every where been indulged. In some aggravated instances the rulers of the State where the crime was committed have boldly broken down the wall of privilege under which the guilty stranger would fain have sheltered himself, and in defiance of the laws of nations have delivered up the criminal to the tribunals of the country for trial, sentence, and execution; at other times the popular indignation, by a process still more irregular, has, without the forms of law, wreaked its vengeance upon the perpetrators of those crimes, which otherwise must have remained unwhipped of justice. Cases have sometimes occurred when the principles of self-preservation and defence have justified the injured Government, endangered in its vital parts, in arresting the person of such a Minister during the crisis of danger, and confining him under guard until he could with safety be removed. But the practice which the reason of the case and the usage of nations has prescribed and recognized, is, (according to the aggravation of the offence,) to order the criminal to depart from the territories whose laws he has violated, or to send him home, sometimes under custody, to his Sovereign; demanding of him that justice, reparation, and punishment, which the nature of the case requires, and which he alone is entitled to dispense. This power is admitted by the concurrent testimony of all the writers on the laws of nations, and has the sanction of practice equally universal. It results, indeed, as a consequence absolutely necessary from the independence of foreign Ministers on the judicial authority, and is perfectly reconcilable with it. As respects the offended nation, it is a measure of self-defence, justified by the acknowledged destitution of every other remedy. As respects the offending Minister, it is the only means of remitting him for trial and punishment to the tribunals whose jurisdiction he cannot recuse; and as respects his Sovereign, it preserves inviolate his rights, and at the same time manifests that confidence in his justice which civilized nations living in amity are bound to place in each other.
On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the Constitution of the United States Congress are authorized to define and punish offences against the law of nations, yet this did not imply a power to innovate upon those laws. I could not be ignorant that the Legislature of one individual in the great community of nations has no right to prescribe rules of conduct which can be binding upon all; and therefore, in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path—not to vary one jot or one tittle from the prescriptions of immemorial usage and unquestioned authority.