## Facts

- A foreign public minister was residing in the United States and maintained a household that included a domestic servant employed in the minister’s service.
- Local authorities arrested the minister’s domestic servant for alleged criminal conduct.
- The alleged conduct was described as punishable under domestic criminal law and as conduct condemned by principles associated with the law of nations.
- Federal executive officials submitted the matter to Attorney General Edmund Randolph for an opinion on whether the arrest and any further criminal process were lawful given diplomatic privileges recognized in the United States.
- The question arose in the early federal period, when national officials were applying the law of nations and early federal legislation protecting foreign ministers and their households from interference by local authorities.

## Issues

1. Whether, under the law of nations and applicable federal law, a domestic servant in the household and service of a foreign public minister is exempt from arrest by U.S. authorities.
2. If the servant is exempt from arrest, what course the United States should take when the servant is accused of criminal conduct.

## Decision

- Randolph advised that the United States recognizes the law of nations concerning the security and inviolability of foreign public ministers, except where changed by valid domestic law.
- He concluded that protection from arrest extends beyond the minister personally to certain persons attached to the mission and household, including a domestic servant who is truly in the minister’s service and part of the minister’s household.
- He treated the protection as an exemption from arrest, meaning local officers could not lawfully detain the servant through ordinary criminal process while the servant remained within the protected category.
- He advised that the receiving state’s remedy for alleged misconduct by such a servant is not local arrest and prosecution, but action through diplomatic means—communication with the minister and, as appropriate, with the minister’s government (including requesting that the servant be removed or otherwise dealt with by the sending state).
- He indicated that the Executive Branch should take steps to prevent or end violations of these immunities when they occur, including securing the servant’s release if the servant is within the protected diplomatic household.

## Legal Principles

- The law of nations concerning diplomatic immunities is part of the legal rules U.S. officials apply in matters involving foreign ministers, unless superseded by controlling federal law.
- A foreign public minister is personally inviolable and exempt from arrest or detention by the receiving state.
- Persons belonging to the minister’s household and employed in the minister’s service, including domestic servants, may share an immunity from arrest because interference with them is treated as interference with the minister’s mission and dignity.
- The immunity turns on the servant’s connection to the minister’s household and service; it applies to those who are genuinely attached to the minister in that capacity, not to persons with only a casual or unrelated connection.
- When a protected member of a diplomatic household is accused of wrongdoing, the receiving state’s lawful options center on diplomatic engagement—requesting the minister’s cooperation, removal of the servant, or recall—rather than local criminal detention.
- Early federal enactments protecting foreign ministers and their households reinforced these law-of-nations rules and supported executive intervention to prevent arrests that violate diplomatic protections.

## Conclusion

In *Opinion of Attorney General Randolph* (1792), Randolph addressed the arrest of a foreign public minister’s domestic servant for alleged crimes and advised that, under the law of nations as recognized in the United States and supported by federal law, a domestic servant who is part of the minister’s household and service is exempt from arrest; when misconduct is alleged, the United States must respond through diplomatic communication and executive action to stop improper detention rather than through ordinary local prosecution.


Opinion of Attorney General Randolph, 1792