Page:The Green Bag (1889–1914), Volume 16.pdf/824

 Rh The law knows no such maxim as qui lachrimat per alium lachrimat per se. Every lawyer has the constitutional right to cry for him self, and the presence of the official CourtCrier does not curtail his unquestioned priv ilege of giving vent, if he so desires, to a veritable lachrymal storm. THE recent arrest and fining in Massa chusetts of an attache of the British Embassy is treated in an eminently fair manner by the English legal journals. For example, the Lau1 Times says: The arrest and imposition of fines for fu rious motor driving on Mr. Gurney, the third secretary of the British Legation at Washington, and for contempt of court in refusing to plead, by a magistrate at the po lice court at Lenox, Massachusetts, on Mon day in last week, were clear violations of in ternational amenities, and the fines have, ac cordingly, been remitted and a suitable apol ogy offered. The fiction of exterritoriality has, however, been established by the con sensus of nations with a view to the securing of a. free and fearless discharge of diplomatic functions, unrestrained by obedience to the local jurisdiction, for ambassadors and the members of their suites possessing a diplo matic character, among whom are included secretaries of embassies, who, like the am bassador himself, hold commissions from the Sovereign. While the privilege based on the fiction of exterritoriality continues it exempts its possessors from local jurisdiction. It is, however, a privilege which might well be waived in an ordinary police case, and Mr. Gurney would probably have been more discreet, and have acted more in the spirit of international comity, if he had paid the fine for furious motoring without invok ing his diplomatic character as a plea to the magisterial jurisdiction— a course which Mr. J. Mortimer, who, when an attaché of the American Legation at St. Petersburg in 1859, on his arrest by a policeman for violating the law prohibiting smoking in the streets of St. Petersburg, writes to the Press that he followed, "paying the fine and carefully ab staining from informing the magistrate that

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he was a member of the Corps Diploma tique." In ordinary cases of a violation by a diplomatic agent of the local criminal law, the correct and usual course is to ask his recall. And in the same admirable spirit is the Lau* Journal's comment : There is distinct authority that in the United States a diplomatic functionary is not amenable civilly or criminally {Ex parte Cabrera, i Washington, U. S. 231). In this country exemption from civil process is un doubtedly secured by the Diplomatic Im munities Act of 1708, but there is no case of authority declaring that absolute immunity from criminal process exists. The famous case of Pantaleone da Sa, in Cromwell's time, is the other way. A member of the Portuguese Embassy was tried and executed for a murder in the Royal Exchange, and the protests of Portugal were treated as un founded in law. But in modern times it seems to have been uniformly admitted that diplomatic personages are here exempt from criminal proceedings. Attempts to hold in quests on deceased members of 'the Chinese Embassy have been defeated, and process for bilking cabmen, keeping fowls so as to be a public nuisance, and for park offences have failed on the ground of privilege. The jurists are not agreed as to the basis and true limits of diplomatic immunities, nor on the question whether they are to depend on the fiction of extraterritoriality or on some other more reasonable principle. But, as suming the existence of the privilege, its abuse may lead to serious consequences, and we doubt whether the British diplomatic ser vice will gain much by possessing a person who claims the diplomatic privilege to break the police regulations of the country to which he is accredited or to scorch over its surface to the danger of its citizens. It seems, however, that even American of ficials abroad are sometimes guilty of break ing speed rules, as witness the following item from the "Irish Notes" in the same issue of the /,«7ir Times from which is taken the ex tract quoted above concerning Mr. Gurney: The campaign against furious motor driv