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road; but if they went out of the highway they were to forfeit their rights. A very wise reservation, that spies might not be sent, under the name of ambassadors. Thus, at the famous congress of Westphalia, whilst peace was negociating amidst the dangers of war and the noise of arms, the routs of the several couriers sent or received by the plenipotentiaries were marked, and out of such limits their passports were of no protection. ib.

61. Independence of foreign Ministers. The inviolability of a public minister, or the safety due to him, more sacredly and more particularly than to any other person, whether foreigner or native, is not his only privilege; he is further, by the universal practice of nations, to enjoy an entire independency from the jurisdiction and authority of the state where he resides. Some authors pretend that this independency is merely positive among nations, and will have it referred to the arbitrary law of nations, which owes its origin to the manners, the customs, or particular conventions: they deny it to be grounded on the natural law of nations. Indeed, the law of nature gives men a right of punishing those who do them wrong, and consequently impowers a sovereign to punish a foreigner who disturbs the public tranquillity, offends themselves, or maltreats their subjects: it authorises them to compel this foreigner to conform himself to the laws, and to behave properly towards the citizens. But it is no less true, that the same natural law imposes on all sovereigns the obligation of consenting to those things without which nations could not cultivate the society nature has established among them, correspond together, negociate their affairs, or adjust their differences. Now, ambassadors and other public ministers are instruments necessary to the support of this general society, of this mutual correspondence of nations. But their ministry cannot attain its designed end, unless invested with all the prerogatives which may secure the lawful success of it; and which are necessary for the free, faithful, and safe discharge of it. The same law of nations whereby they are obliged to admit foreign ministers, manifestly obliges them likewise to admit those ministers, with all the rights necessary to them, and all the privileges relative to the exercise of their functions. It is easy to conceive that independency must be one of these privileges; without it, that privilege so necessary to a public minister, would be precarious and fluctuating. He might be molested, injured, and maltreated, under a thousand pretences. A minister is often charged with a commission disagreeable to the prince to whom he is sent.— If this prince has any power over him, and especially if his authority be sovereign, how is it to be expected that the minister can execute his master's orders with a proper freedom of mind, fidelity, and firmness? It is necessary he should have no snares to fear, that he cannot be diverted from his functions by any chicanery. He must have nothing to hope, and nothing to fear, from the sovereign to whom he is sent. Therefore, in order to the

success of his ministry, he must be independent of the sovereign's authority, and of the jurisdiction of the country, both civil and criminal. To this it may be added, that the nobility, and persons of great eminence, will be averse from taking on themselves an embassy, if by this commission they were to be subjected to a sovereign authority, and often among nations of no very friendly dispositions to that which they represent, where they must support disagreeable claims, and enter into discussions naturally productive of acrimony. In fine, if an ambassador could be indicted for common trespasses, be criminally prosecuted, taken into custody, punished if he might be sued in civil cases, the consequence will often be, that he will want the power, leisure, or freedom of mind, which his master's affairs require. How will the dignity of the representation be supported in such a subjection? From all these reasons it is impossible to conceive, that the prince, in sending an ambassador, or any other minister, intends to submit him to the authority of a foreign power. This is a fresh reason, which fixes the independency of a public minister. If it cannot be reasonably presumed that his master means to submit him to the authority of the sovereign, to whom he is sent, this sovereign, in receiving the minister, consents to admit him on the footing of independency. And thus there subsists between the two princes a passive convention, giving a new force to the natural obligation. ib.

62. The question of which we have been treating [Immunities of Public Ministers] has been debated in England and France, on two famous occasions. In London, on account of John Lesly, bishop of Ross, ambasador from Mary, queen of Scotland. This minister was continually intriguing

*NOTE. In Ward's Law of Nations the case is thus stated

In the year 1567, Leslie Bishop of Ross, came to the Court of England, in behalf of his mistress the unfortunate Queen of Scots; who, although she was detained prisoner by the English, was allowed to send him, to plead before the Commissioners appointed to examine into her cause. Nothing was determined by the commission; but Leslie continued at Court, and exercised the office of Ambassador of MARY for the space of oue year, when being concerned in raising a rebellion against the English government he was committed to the custody of the Bishop of London. From this he was soon liberated, and returning to his funetion of Ambassador, continued to preserve it near two years longer. At that time, being detected in the attempt to raise a serious conspiracy in favor of MARY against ELIZABETH, he was once more committed; and the following questions concerning him, as appears from Lord Burleigh's State Papers, were propounded to David Lewis, Valentine Dale, William Drury, William Aubrey, and Henry Jones, learned civil lawyers.

I. "Whither an Embassador procuring an insurrection or rebellion in the Prince's cowntrey, towarde whome he is Embassador, is to enjoye the priviledge of an Embassador?” II. "Whither he may not, jure gentium et civili Romanorum, be ponished as an enemy, traitor, or conspirator, ageinst, that Prince, notwithstandinge he be an Embassador?"

"To these two questions they answered: Touchinge these two questions, we are of opynnyon, that an Embassador procuringe an insurrection, or rebellion, in the Prince's cowntrey towards whome he is Embassador, ought not, jure gentium, et civili Romanorum, to enjoye the privileges, otherwise dew to an Embassador; but that he maye, notwithstandinge, be ponished for the same." 33

III. "

Whither, if the Prince be deposed by the comen Aucthoritie of the Realme, and

against queen Elizabeth, and the tranquillity of the state, forming conspiracies, and exciting the subjects to rebellion. Five of the most able civilians

an other elected and invested of that Crowne; the solicitor, or doer of his causes, and for his ayde, (although the other Prynce do suffer such one to be in his Realme) is to be accompted an Embassador?"

To this they answered "We doe thinke, that the sollicitor of a Prince lawfully deposed, and an other being invested in his place, cannot have the privilege of an Embassador, for that none but Prynces, and such other as have Soverayntye, may have Embassadors."

IV." Whither a Prynce, cómynge into an other Realme, and remayning there under custodye and garde, ought, or may have there his sollicitor of his causes, &c. yf he havé, whither he is to be cownted an Embassador?"

To this they answered, "We doe thinke that a Prynce comynge iuto an other Prynce's Realm, and being there under guarde, and custodye, and remayning till a Prynce, may have a solicitor there; but whither he be to be accompted an Embassador, that dependeth on the nature of his comyssion.

V. "Whither if such a solicitor be so appointed by a Prynce so flyenge, or comynge into an other Prynce's Realm; if the Prynce in whose Realm, the Prynce so in grade, and his solicitor is, shall denownee, or cause to be denownced, to such a Solicitor, or to such a Prynce under custodie, that his said solicitor shall hereafter be taken for no Embassador; whither then such sollicitor or agent can justly clay me the priviledge of Embassador?”

To this they answere', "We doe thincke that the Prynce to whom any person is sent in message of Embassador, may for causes forbidd him to enter into his lands, or when he hath receyved him, comaunde him to departe; yet so long as he doth remayne in the Realme, and not excede the bounds of an Embassador, he may clay me his privilege as Embassador, or sollicitor, according to the qualitie of his commission.

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VI." Whither, if an Embassador be confederacy, or be ayder, or comforter of any traytor, knowinge his treason towarde that Prynce, towarde whome, and in whose Realme he pretendeth to be Embassador: ys not punishable by the Prynce in whose Realme and ageinst whom such treason is committed, or confederacy for treason conspired?”

And to this they answered, "We doe thineke that an Embassador aydinge and comfor tinge any traytor in his treason towarde the Prynce with whom he pretendeth to be Embassador in his Realme, knowinge the same treason is punishable by the same Prynce ageinst whome suche treason is comytted."

These answers of the Civilians were supposed to be so decisive in favour of the intentions of the Court, that the Bishop was sent for from his confinement in the Isle of Ely, and after being sharply rebuked, was told he should no longer be considered as an Ainbassador, but but severely punished as one who well deserved it. He, however, answered with much firmness and apparent knowledge of the law of natious, that he was the Ambassador of an absolute Queen, and of one who was unjustly deposed, and had, according to his duty, carefully endeavoure-t to effectuate the delivery of his Princess, and the safety of both kingdoms. That he came into England, with the full authority of an Ambassador, upon public warrandise, or safe conduct, which he had produced; and that the sacred privileges of Amb.ssadors were by no means to be violated. Burleigh in return, observed that no privilege or public warrandise could protect Ambassadors that offend against the public Majesty of a Prince, but they are liable to penul actions for the same; otherwise lewed Ambassadors might attempt the life of princes without any punishment. The Bishop persisted in his positions and maintained that the privileges of Ambassadors had never been violated via juris fed via facti, not by regular form of trial, but by violence. This boldness, or the true view which he seems to have taken of this nice subject, appears so far to have weighed with the Ministers of Elizabeth, that they did not dare to put him to death, with the Duke of Norfolk and other conspirators, but after detaining him for some time in prison, banished him the country in 1573.

being consulted by the privy council, gave it as their opinion, That an ambassador raising a rebellion against the prince at whose court he resides, forfeits the privileges of his character, and is subject to the punishment of the law. They should rather have said, that he should be treated as an enemy. But the council only caused the bishop to be taken into custody, and after keeping him prisoner in the Tower two years, when nothing more was to be feared from his intrigues he was set at liberty, and obliged to leave the kingdom. This instance may confirm the principles here laid down; and the like may be said of the following: Brenau, secretary to the Spanish ambas. sador in France, was surprised treating with Mairargues in a profound peace, to engage him to deliver up Marseilles to the Spaniards. On this he was im prisoned, and the parliament at the trial of Mairargues, likewise interrogated Brenau; but instead of proceeding to condemn him sent him to the king, who ordered him to return to his master, and immediately to depart the kingdom. The ambassador warmly complained of the detention of his secretary: but Henry IV. very judiciously answered, That the law of nations does not forbid putting a public minister under an arrest, in order to hinder him from doing mischief. Vattel.

63. If a foreign ambassador, being prorex, committeth here, any crime, which is contra jus gentium, as treason, felony, adultery, or any other crime, which is against the law of nations, he loseth the privilege and dignity of an Ambassador, as unworthy of so high a place; and may be punished here, as any other private alien, and not to be remanded to his sovereigne but of courtesie. And so of contracts, that be good, jure gentium; he must answer here. But if any thing be malum prohibitum, by an act of parliament, private law, or custom of this realm, which is not malum in sc, jure gentium, nor contra jus gentium, an ambassador residing here shall not be bound by any of them. Lord Coke.

64. Rights and Prerogatives enjoyed by Diplomatic Agents. All Diplomatic Agents, representing more or less the constituent power, usage has attached to them a sacred character, and attributed peculiar distinctions and immunities. These attributes are founded on the nature of their functions, and it is, on this principle, that we must judge of all the pretensions which they impart.

Although the public character of Diplomatic Agents sent to a foreign court, is not developed in all its extent, nor secures to the agent the enjoyment of all his rights, until after he has forwarded his credentials, and been recognised and admitted in his character of Envoy, by the government near which he is to reside, it is recognised as a principle now by all the powers of Europe, that the court being once apprised of his mission the public minister, of whatever rank he may be, is entitled to perfect inviolability from the moment he touches the territory of the state to which he is accredited, to that in which he quits it.

It is in accordance with this principle that the government, when it hath once recognised a foreign minister in his quality of representative of his sover. eign is held, not only to abstain itself from every act contrary to this inviolability attached to the person of the minister, but also to punish severely, and even as a crime of state, every offence committed against the person of the diplomatic agent; it being always supposed, however, that the offender may have known the person against whom he has committed an act of violence, that he be subject to the jurisdiction of the country, and that the minister have not himself provoked the act of violence committed on his person.

This inviolability due to every diplomatic agent is not annulled by any misunderstanding which may have taken place between the two governments, and least of all, when in case of rupture hostilities have already commenced. Martens' Manual.

65. Exterritoriality. The dignity of the state represented by the dip. lomatic agent, as well as the reciprocal interests of the powers amongst themselves, require that their representatives enjoy, with regard to the affairs entrusted to them, an entire independence: the universal law of nations recognises now as a principle, that they ought enjoy exterritoriality, by which they are considered as not having quitted the realms of their sovereign, but as continuing to live out of the territory in which they really reside. The positive law of nations extends the idea of this exterritoriality much farther, since it not only regards the minister as to his person, but even all the people in his retinue, his house, and even his carriages, as being in a foreign territory. The extension of this exterritoriality, granted to diplo matic agents, being connected, as it has been explained, with the positive law of nations, inasmuch as it is founded upon treaties or consecrated by usage, is susceptible of many modifications, which indeed it experiences in many cases. It would be therefore wrong to pretend, in all cases, to the rights of exterritoriality, ib.

66. Independence. As the Independence enjoyed by the minister of a foreign power is a right granted to him only in his diplomatic capacity, he cannot therefore disclaim it wholly, or in part, without the consent of his constituent. This is the reason also why a foreign minister cannot accept any employ, or title, from the sovereign near whom he resides, without the express permission of his constituent.

When a foreign minister is the subject of the state near which he is accredited, and his constituent consents that he may be considered as such, he stands amenable to the laws of that state, in all matters not connected with his ministry as diplomatic agent. Nevertheless, it should be remarked that every public minister, altho' before a subject of the state near which he is to be accredited, enjoys an entire independence during the whole time of his mission, unless the state to which he is sent refuse to receive him, except under the express condition of being regarded as a subject. ib.

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