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AGO 1950 No. 400 - December 12, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

FRIENDLY ALIEN SOLDIERS ‑- IMMUNITY FROM ARREST

Canadian soldiers training at Fort Lewis are not immune from process in our Federal or state courts.  Law enforcement authorities, as a matter of comity, should release offenders to the Canadian Military for trial and punishment.

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                                                               December 12, 1950

Honorable Patrick M. Steele
Prosecuting Attorney
Pierce County
Tacoma, Washington                                                                                                              Cite as:  AGO 49-51 No. 400

Attention:  !ttCharles W. Billinghurst
            Deputy

Dear Sir:

            Your letter of November 22, 1950, is acknowledged in which you ask whether the Canadian soldiers training at Fort Lewis are immune from arrest by our civil authorities.  Apparently there have been instances where Canadian soldiers while on leave in Tacoma and in other cities adjoining Fort Lewis have been arrested for various violations.

                                                                     ANALYSIS

            As a strict matter of law, there would seem to be no question but that immunities are extended only to ministers and ambassadors and does not include members of the military forces of foreign countries.  Title XXII, section 252, (U.S.C.A.) provides:

            "Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by the President, or any  [[Orig. Op. Page 2]] domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void."

            The above statute has not been interpreted very many times, and our search has produced no cases in which the question concerned was its applicability to the military forces of a foreign nation.  The statute has been very strictly construed and limits immunity only to ministers and ambassadors.  Trost v. Tompkins, 44 A. (2d) 226.  Immunity is not extended to consuls of foreign nations.  Carrera v. Carrera, CAD [[Canadian Annual Digest?]]1949, 174 F. (2d) 496. nations.  Carrera v. Carrera, CAD 1949, 174 F. (2d) 496.

            In addition, a search of the Federal statutes pertaining to the United Nations produced no provisions granting immunities to military forces of foreign nations.

            This would seem to resolve the solution to one of comity and I strongly urge that the precedent set in World War II be followed in Tacoma and elsewhere in the State of Washington.  I witnessed its operation in England in my military capacity with The Judge Advocate General's Department.  No courts have more jealously guarded their judicial prerogatives than the English courts.  This extends back hundreds of years throughout the entire history of the evolution of the common law of England, which has been adopted as the basis of our own jurisprudence generally.

            During the last war, the courts in England sanctioned the practice of British police authorities apprehending American soldiers for infractions of their laws and surrendering the prisoners to the U. S. military authorities to mete out appropriate degrees of punishment if found guilty by military tribunals.  I knew of two instances where the offenses were such the U.S. Military felt the ends of justice would be served best by the accused being tried in English courts.  These were grievous offenses against the Crown and it was deemed only right and proper that the English courts proceed with the jurisdiction it always retained yet withheld out of deference to the comity arrangement between the British law enforcement authorities and the U.S. Military.  Nevertheless, the British authorities first surrendered the offenders to the U. S. military agencies, even in extreme cases because of the mutuality and trust engendered through the satisfactory operation of this reciprocal arrangement.

            In actual practice, better law enforcement is achieved, for it is only natural that a trial tribunal would look upon a violation of a sovereign host's laws as an even more grievous offense than one committed against the laws of the offender's own citizenry, although the degree might be categorized the same, and would so impress the violator.

             [[Orig. Op. Page 3]]

            Hence, I strongly recommend the institution of the comity system I have described in handling any tortious or criminal infractions which may be committed by subjects of the Canadian government who are on military missions in the State of Washington while our two nations are alerted by the United Nations.  We would look favorably upon such treatment accorded our military personnel in Canada.  The Canadian military authorities stationed at Fort Lewis have evidenced their desire to cooperate fully, and I am confident the practice of such comity, with its realistic approach to the problem, would have the sanction of the departments of state of our respective sovereigns should the matter ever reach that echelon of constituted authority.

Very truly yours,

SMITH TROY
Attorney General

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