Torlade D'Azambuja v. Barrozo Pereira

The opinion of the Court (Barnes, President; Hallowell, J.; and Coxe, J.) was delivered by Coxe, J. A rule upon the plaintiff to show cause of action, and why tite defendant, claiming privilege as charge d’affaires of the kingdom oí Portugal, should not be discharged from the process issued against him, having been allowed, after a hearing before a single judge, the defendant was discharged on common bail, and the remainder of the rule reserved for the determination of the court in bank. The reasons for the discharge of the defendant on common bail were expressed by the judge at the time it was ruled, and being altogether unconnected with, the question of privilege, it will be unnecessary for the court here to advert to them. The single question now to be determined is, Has the defendant established his claim of privilege as charge d’affaires of the kingdom of Portugal, so as to entitle him to be discharged from the process issued against him 1 That foreign ambassadors and other public ministers, including the grade of charge d’affaires, are invested with an inviolability of character, immunities and privileges, exempting their persons and their property from the jurisdiction and authority of the slate near which they reside, by the laws of nations and the statutes of our country, cannot be a subject of debate. Under ordinary circumstances it would appear that we have rather to determine a question of fact, viz. : is the defendant invested with the diplomatic character he alleges ; and not, whether, being charge d’affaires of a foreign government, he is privileged from arrest and suit. Many objections have been made to the claim of privilege, and we shall notice such of them as a fair discussion of the case may seem to require. Before entering upon the consideration of the testimony, it is to be remarked, that facts and papers have been referred to during the argument which the court do not consider legal evidence ; and points of law relating to evidence have been raised, which we are not called upon to determine. The constitution of the United States having — 377 — made it iba duty of the president “ to receive foreign ambassadors and other public ministers,” it would appear, and it has been judicially determined, that it has necessarily bestowed upon the executive branch of the federal government the exclusive right to judge of the credentials of the ministers so received, and (hat the other branches of the government are bound to regard them as ministers, so long as the president continues to treat them as such. United States v. Ortega, 4 Wash. C. C. Rep. 336. The power of receiving foreign ministers, delegated by the constitution to the president, might be in clanger of being interfered with by the judicial branch of the government, and unhappy collisions between the state and federal governments might arise, if the law were otherwise. Foreign ministers might in vain appeal to the laws of nations to protect them in the enjoyment of their privileges and immunities, if, after being received and recognised by the highest constitutional authority, the president of the United States, they were to be obliged to submit the legality of these credentials, thus sanctioned, to every tribunal in the country, before which they might be brought by process. In conformity with these principles, it was decided in the case of the United States v. Liddell, cited by Judge Washington in Ortega’s Case, that the certificate of the secretary of state of the United States that the person claiming to be charge d’af-faires was received and recognised as such by the executive of this government, was the best evidence which could be given of that fact ; that the only proper inquiry in cases of this sort is, Has the person claiming to be a foreign minister been received and recognised as such by. the executive ¶ Governed by these principles, we consider the facts and documents certified by Mr Van Burén, as secretary ofstate, as the only evidence before the court that the defendant was received and recognised as charge d’affaires of the kingdom of Portugal, and of the continuance or termination of his official and privileged character. [His honour here gave a statement of the facts detailed in the certificate of the secretary of state, and then proceeded as follows :] When the commission of an ambassador is at an end, when he has finished the business on which he came, is recalled, dismissed, or is obliged to go away on any account whatever, his functions cease, but. his privileges and rights do not expire at the same time; he retains them till he returns to his principal, to whom be is to make a report of his embassy. Vattel's L. N., b. 4, ch. 9, sect. 125. — 378 — It is as a returning minister only that the defendant can claim privilege. That claim of privilege appears to be resisted, substantially, on the following grounds. 1st. That he had no credentials from Don Pedro IV.; his last credentials being from Donna Isabel Maria, the regent. 2d. That if the defendant was lawfully accredited, received, and recognised, until the 18th of July 1828, Ids communication of that date, notifying our government that he ceased his diplomatic functions, connected with his subsequent declaration of the 3d of October that he continued to exercise his consular functions, deprived him of his diplomatic character from that time; and that he is not entitled to the privileges of a returning minister. 3d. That if entitled to the privileges of a returning minister from the 18th of July 1828, the delay to depart from that time until his arrest, on the 30th of October 1829, was more than necessary, was an unreasonable time, and he is not now entitled to privilege as such minister. 4th. That Don Miguel I. is the constituent of the defendant; that he is setting up his privilege against his constituent contrary to the principle on which it is founded ; that at all events the institution of this suit is a waiver of the defendant’s privilege, by the existing charge d’affaires of Portugal, which he had a right to make, if the defendant were otherwise entitled to the inviolability of a foreign minister. This is an action of trover, brought by the plaintiff in Iris recog-nised character of charge d’affaires of the kingdom of Portugal, against (lie defendant, who, in the language of his passport, “ has long resided near the government of the United States in the character of chargé d’affaires of Portugaland it appears, by the plaintiff’s affidavit of his cause of action, dated the 30th of October 1829, to have been instituted for the recovery of the archives of the diplomatic mission, and other documents of great importance to the interests of the king of Portugal and certain of his subjects, which the plaintiff asserts of right belong to him in his official capacity, and which the defendant retains in his possession, and refused, on demand, to deliver to the plaintiff. The difficulty existing between the respectable individuals who are parties to this action, grows out of the unhappy differences which have heretofore disturbed the Portuguese nation, and divided its royal family. It bas occasioned a discussion involving the rights of public — 379 — ministers, not only highly interesting to the general diplomatic corps, as affecting their independence, particularly in revolutionary times, when it is most to be desired ; but to the general jurist and statesman, as materially affecting the free and independent intercourse between sovereigns and nations. 1st point. The defendant, Mr Barrozo, appears to have been duly received and recognised by our government as charge d’affaires under the old king, John VI., of Portugal; and shortly after his death (new credentials being required by the laws of nations in case of the death of his sovereign), on the 26th of March 1826, the princess Isabel Maria appointed him “ to the same office in which he was before,” his credentials reciting the death of king John on the 10th of the same month, and the decree of the 6th constituting the regency. These new credentials were presented by the defendant on the 9th of June 1826, when he was duly recognised by the United States government. The princess regent and the nation, shortly after, recognised Don Pedro IV., by swearing to the constitution granted by him, and subsequently Don Miguel himself recog-nised that prince as his sovereign by assuming the regency in his brother’s name, and the defendant as his brother’s minister by communicating his letter through him to the president announcing the fact. The credentials of the defendant of 26th of March 1826 were, therefore, under Don Pedro IV., the sovereign acknowledged by the regent who granted them, and her successor, Don Miguel. It is, however, sufficient for us that the defendant was recognised in that character by our government, and treated with, by it, as the representative of Don Pedro. 2d and 3d points. The view of the case taken by the court, upon the 2d point, renders any discussion of the 3d unnecessary. The functions of a minister in many cases cease upon the death of his own sovereign, or of him to whom he is sent; also by the termination of his mission in consequence of his having effected its object; his recall by his own government, or dismissal by that near which he resides; the moral death of his sovereign, or of him to whom he is sent, by abdication, whether it be voluntary, or forced by revolution, by essential changes in the form of one of the two interested states ; and, when his functions do cease in any of these ways, or in any other way whatever, the minister still remains entitled to his privileges and immunities, under the laws of nations. Martin’s Manual Diplo380 matique, 133, 134, 135, ch. 7, sect. 59. “ De la maniere dont cessent les fonctions de Pagent diplomatique.” Vatlel, b. 4, sect. 125, 126, The defendant, probably, feeling himself placed in a situation in which his functions cease, by the law of nations, in consequence of the disturbances in Portugal, appears, by his letter of the 18th of July 1828, to have done no more than to have communicated the intelligence to our government, in his official character of charge d’affaires, and to have declined being the channel of communication between this government and that in Portugal, the recognition of which he regarded as alike opposed to his oath to support the constitution of his country, and his fidelity to the prince, whom he and Don Miguel bad acknowledged as their king. This step may be regarded as an evidence of frankness to our government, as it certainly was, of fidelity to Don Pedro. His subsequent explanation and communications to our government; the answers to those communications, addressed to him in his official character; the circularof the 3d of March 1828, inviting him to attend the inauguration of the present president, assigning him a place among the diplomatic corps ; the allowance of a passport, by the secretary of state, to enable him to return, describing him as having long resided near our government, as chargé d’affaires of Portugal, when the secretary certifies that from conversations with Mr Barrozo he understood it to be his intention to await the result of events at home; the decision of our government, on the recognition of the plaintiff, the present diplomatic agent of Portugal ; the demand of the passport, immediately on the occurrence of that recognition ; and the delay, and refusal in fact, to grant (he plaintiff an interview, from the time he first presented himself at the office of the secretary of state, on the 28th August 1828, to answer any communication, or to recognise him in any way, until he was verbally told, on the 1st of October 1829, that he would be received on the 2d, when he was recognised — are unequivocal acts of the defendant and of our government; showing the understanding of both parties, of the character of the communication of the 18th of July 1828, and that the defendant was, until the plaintiff’s recognition, a public minister, exempted from the jurisdiction of our courts, and that the government of the United States regarded him as a returning minister, at the date of his passport, the 8th of October 1829. Between this time and his arrest, the 30th of the same month, a reasonable time for his departure cannot be contended to have elapsed. The supreme court of the United Stales decided, in the case of — 381 — Rose v. Himely, 4 Cranch 241, and Gelston v. Hoyt, 3 Wheat. 324, that it is the exclusive right of governments to acknowledge new states arising from revolutions, and until such recognition by our government, or that of the government to which the new state belonged, courts of justice are bound to consider the ancient state of things unaltered. In analogy to those principles we must consider the ancient state of things as existing in Portugal until the 2d of October 1829, when Don Miguel was recognised as king of Portugal, by the reception of his minister. The circumstance of the defendant’s having, for the benefit of his countrymen, without injury to the right of his sovereign, or of our country, continued to exercise his consular functions while he was awaiting the pleasure of Don Pedro, the events at home, and the decision of our government with regard to the recognition of the plaintiff, is not open to the construction put upon it; and, the immediate demand of his passport upon the recognition of the plaintiff, is strong evidence of his sincerity in the reasons assigned for his continuance in this country. 4th point. The most interesting question which has been discussed is the fourth. It is one on which we enter with great delicacy, for there are many powerful reasons why it should be exclusively referred to that branch of our government, on which by the constitution is imposed the duty of receiving foreign ministers. If a sovereign or state receive under the public faith the minister of another sovereign or slate, and afterwards deem it for the interest of the country or himself to receive and recognise another as the minister of a rival sovereign or party that may have obtained possession of the government of the foreign nation ; or, if such sovereign or state think proper to assert that another government exist de facto, or de jure, in the minister’s country: is such received minister of the former recognised government or sovereign ipso facto stripped of his quality and privileges % Are his person, his property, and the archives of his mission, previously the property of his sovereign and government, subjected to the jurisdiction of the courts of justice of the country % The affirmative of these questions has been contended for, as the necessary result of the position, that the inviolability of foreign ministers is founded upon the general principle, that they represent their sovereign. It is said in the case before the court, Don Miguel being the acknowledged king of Portugal, the defendant represents him, Don Miguel, and of course cannot assert the privi382 legé against his constituent. The institution of this suit is said to be evidence that Don Miguel claims the property in question, or at all events, that he has waived the privilege of the defendant through his authorized agent the plaintiff. Supposing the rights of ambassadors to depend exclusively on the bold principle, which is certainly to be found at their root, that all foreign ministers representing more or less their constituents, usage invests them with a sanctity of character, attributes to them particular immunities and distinctions, and that all questions arising therefrom should be determined by that principle ; Marten’s Man. Dip., tit. De l'Inviolabilité 43, ch. 3, sect. 20; does not the argument carry the doctrine to a great extent, when it is contended that the recog-nised minister of Don Pedro IV., by the mere fact of the president’s receiving the plaintiff as Don Miguel’s minister, became the representative of Don Miguel, and Don Miguel became his constituent; that the recognised minister of another government or sovereign, after coming to the country under the public faith, is stripped of his privileges under the law of nations, subjected in person and property to the mercy of the triumphant rival of his king, and within the jurisdiction of the country whose courts will be bound So aid the new minister or sovereign in pursuing any claim against his person, or the public or private property in his hands 1 Principles and authority are to be found in writers upon the law of nations, (Vattel, b. 4, ch. 7, 102 ; 2 Grot. b. 2, ch. 18, 400, 408 ; United States v. Hand, 2 Wash. C. C. R. 488), which seem to indicate a recognition either of personal rights as belonging to foreign ministers independently of their characters as representatives of their constituents, or that the legal relation existing between a diplomatic representative and his constituent is dille rent from that contended for by the plaintiff, A foreign minister is not to be ill used by way of reprisal; for a prince using violence against a public minister commits a crime which is not to be revenged by an imitation of it. The Carthaginians having violated the law of nations with regard to the Roman ambassadors, some of their ambassadors were brought to Scipio; and on being asked what he would have done to them i lie replied, “ Nothing that resembles what the Carthaginians have done to us " and sent them away in safety. The frequent occasions to be found in history where such agents have been respected under the law of nations, when their constituents would have been executed as rebels or traitors, had they — 383 — been personally present, need only be suggested to strike the mind of the general reader. Vatlel gives a remarkable instance of the respect due to a public minister, which is related of St Louis, when at Acre, in which there can be found little analogy with the principle of respect due to the constituent. An ambassador from the Old Man of the Mountain, or prince of the assassins, speaking violently to Louis, the grand master of the Knights Templars told him, “ that were it not for the resped due to his character, he toould immediately cause him to be thrown into the sea.” The king allowed him to depart without insult ; yet as the prince of the assassins had violated the most sacred laws of nations, no security seemed due to his minister, but this security was founded upon the necessity of sovereigns preserving the means of reciprocally communicating their proposals, and treating with each other in peace and war. Another authority bearing a strong resemblance to the case before the court. De YVicquefort, L’ Ambassadeur, liv, 1, 946. Christine, queen of Sweden, had acknowledged the king of Portugal, entered into an alliance with him, recognised his minister, and honoured him at the ceremony of her coronation ; some days however before her abdication, she thought proper to command her master of ceremonies to go to the minister of Portugal with a sealed note, with orders not to open it but in his presence, to read it to him and bring it back to her, with liberty to give him a copy if he desired one. The purport of the note was, that the queen acknowledging no other king of Portugal but Philip IV. king of Spain, made known to the minister resident of the duke of Braganza, the pretended king of Portugal, that his employment being useless at that court, he should retire, as in future she should only regard the duke, his master, as a usurper. Nevertheless, as the minister had come to Sweden under the public faith, she would secure to him the enjoyment of the inviolable protection of the law of nations. The minister continued to reside at Stockholm, to enjoy that protection, and re-entered on the execution of his functions under Charles Gustav us. It was not, says the author, in the power of the queen to deprive him of his quality. When a civil war exists in a nation, the obligation of observing the laws of war is absolute and indispensable to both parties, and the same which the law of nations obliges all nations to observe between each other. Although foreign states will not interfere, as a general rule, in such quarrels, yet if a nation or sovereign thinks — 384 — proper to do so, there is no law to prevent it; and having received and recognised the ambassador of one parly, the same law of nations which regulates the intercourse between I he rival factions or princes may not unfairly be presumed to apply so far to the intercourse between a foreign state and one of the parties, as to protect a received minister, within the jurisdiction of the government receiving him, in the privileges secured to diplomatic agents. Vaitel, h, 3, c, 18, sect. 395. The end and design of embassies render tire privileges of ambassadors necessary ; for if they can treat with the prince to whom they are sent with full independence, they will be much better qualified to perform their duty than if subjected to a foreign jurisdiction. JBurlamaqui’s Pol. Law 252, ml. 4, eh. 7, sect. 92. If by any unforeseen event by which a minister’s functions may be suspended or cease, some of which we have enumerated, including dismissal by the government or sovereign near which he resides, he ceased to enjoy on that account the exterritoriality or inviolability due to his character, it may well be questioned whether, in cases of danger arising from revolutions, or from the perfidious character of a particular sovereign, men of high standing would be willing to submit their fortunes and their persons to the changes and dangers of war, or the caprice or perfidy of such a monarch. It has already been remarked that the court feel great delicacy in occupying the ground on which we have been treading during our discussion of the fourth point; and we have gone as far as we have, rather to show that the executive branch of our government, in granting the passport of a returning minister to the defendant, intended to do what they appear to have done by granting it, and that the probability of such intention is not contradicted by clear and established principles of the law of nations, as has been contended by the learned gentlemen of counsel for the plaintiff. The omission of our government to invite the defendant on two occasions with the diplomatic corps, may have been caused by his absence from Washington, his residence being in Philadelphia, or by his having given the government to understand, that, until they decided upon the plaintiff’s claims, he would prefer remaining in retirement upon occasions of ceremony. The grounds of the judgment of the court are briefly these. We are satisfied that the defendant was received and recognized in a diplomatic character by our government; that he continued to be — 385 — so recognised until the 2d of October 1829; that our government detained the plaintiff more than a year before he was received and recognised as the charge d’affaires of Portugal; that the executive having given defendant a passport as a returning minister, must have so regarded him ; that we have no evidence from our government that he was deprived of his privileges by Don Miguel, if that, monarch had the power to do so, nor that Don Miguel authorized this suit; that the act of the plaintiff in bringing the suit in his own name, as chargé d’affaires of Portugal, does not, ipso facto, divest the defendant of the privileges attached to him as a returning minister, recognised by the president, and protected as such by the passport issued under the authority of the United States ; and, consequently, that the defendant is entitled to his claim of privilege, under the laws of nations and the act of congress of the 30th of April 1790, and consequently to be discharged from the process issued against, him. Rule absolute, (a) Footnotes [(a)] The questions which were here involved, came up again in the circuit court of the United States for the district of Pennsylvania, on an indictment of Zalegman Philips, Esq, (the attorney who issued the writ of capias ad respondendum in the above case) under the act of April 30th, 1789, section 26. 1 Story's Laws V. S. 88. The indictment was tried before Baldwin and Hopkinson, justices, but the case was eventually sent to the supreme court of the United States, on a certificate of a division in opinion of the justices. During its pendency, by direction of the president of the United States, a nolle prosequi was entered in the circuit court, and the cause was dismissed in the supreme court. United States v. Phillips,? Peters’s S. C. Rep, 776. Previous to the nolle prosequi, the chief justice of the United States had granted a writ of ne exeat against Barrozo (on the application of Torladé), which was not executed, he having left the country.