The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the right of ambassadors.
I. AT remains now for us to say something of ambassadors, and of the privileges, which the law of nations grants them. The subject naturally leads us to it, since it is by means of these ministers, that treaties are generally negotiated and concluded.
II. Nothing is more common than the maxim, which establishes that the persons of ambassadors are sacred and inviolable, and that they are under the protection of the law of nations. We cannot doubt that it is of the utmost importance to mankind in general, and to nations in particular, not only to put an end to wars and disputes, but also to establish and maintain commerce and friendship with each other. Now as ambassadors are necessary to procure these advantages, it follows that God, who certainly commands every thing, that contributes to the preservation and happiness of society, cannot but forbid the doing any injury to those persons; but, on the contrary, he orders we should grant them all the security and privileges, which the design and nature of their employment require.
III. Before we enter into the application of the privileges, which the law of nations grants to ambassadors, we must observe with Grotius, that they belong only to ambassadors sent by sovereign powers to each other. For as to deputies sent by cities or provinces to their own sovereigns, it is not by the law of nations, that we must judge of their privileges, but by the civil law of the country. In a word, the privileges of ambassadors regard only foreigners; that is to say such, as have no dependence on us.
Nothing then hinders an inferior ally from having a right to send ambassadors to a superior ally; for in the case of an unequal alliance, the inferior does not cease to be independent.
It is a question, whether a king, vanquished in war and stript of his kingdom, has a right of sending ambassadors? But indeed this question is useless with respect to the conqueror, who will not even so much as think, whether he ought to receive ambassadors from a person, whom he has deprived of his kingdom. With regard to other powers, if the conqueror has entered into the war for reasons manifestly unjust, they ought still to acknowledge that person for the true king, who really is so, so long as they can do it without some great inconveniency; consequently they cannot refuse to receive his ambassadors.
But in civil wars the case is extraordinary; for then necessity sometimes makes way for this right, so as to receive ambassadors on both sides. The same nation, in that case, is for a time accounted two distinct bodies of people. But pirates and robbers, that do not constitute a settled government, can have no right of nations belonging to them, nor consequently that of sending ambassadors, unless they have obtained it by a treaty, which has sometimes happened.
IV. The ancients did not distinguish different sorts of persons sent by one power to another; the Romans called them all legati or oratores. At present there are various titles given to these public ministers. But the employment is in the main the same; and the several distinctions are founded rather on the greater or less splendor, with which they support their dignity, and on the greatness or smallness of their salary, than on any other reason derived from their character.
V. The most common distinction of ambassadors, at present, is into extraordinary and ordinary. This difference was entirely unkown to the ancients. With them all ambassadors were extraordinary, that is to say, charged with only a particular negotiation; whereas the ordinary ambassadors are those, who reside among foreign nations, to transact all kinds of political concerns, and even to observe what passes in the respective courts.
The situation of things in Europe, since the destruction of the Roman empire, the different sovereignties and republics, that have been erected, together with the increase of trade, have rendered those ordinary ambassadors necessary. Hence several historians justly observe, that the Turks, who keep no ministers in foreign countries, act very impoliticly; for as they receive their news only by Jewish or Armenian merchants, they do not generally hear of things till very late, or their informations are bad, which often makes them take imprudent measures.
VI. Grotius observes, that there are two principal maxims of the law of nations, concerning ambassadors. The first, that we ought to admit them; the second, that their persons are sacred and inviolable.
VII. With regard to the first of these maxims, we must observe, that the obligation of admitting ambassadors is founded in general on the principles of humanity; for, as all nations form a kind of society among themselves, and consequently ought to assist each other by a mutual intercourse of good offices, the use of ambassadors becomes necessary between them for that very reason. It is therefore a rule of the law of nations, that we ought to admit ambassadors, and to reject none without a just cause.
VIII. But though we are obliged to admit ambassadors, it is only a bare duty of humanity, which produces but an imperfect obligation. So that a simple refusal cannot be regarded as an injurious act, sufficient to lay a just foundation for a war. Besides, the obligation to admit ambassadors regards as well those, sent to us by an enemy, as those who come from an allied power. It is the duty of princes, who are at war, to seek the means of reestablishing a just and reasonable peace; and they cannot obtain it, unless they are disposed to listen to the proposals, that may be made on each side; which cannot be so well negotiated, as by employing ambassadors or ministers. The same duty of humanity also obliges neutral, or indifferent princes, to afford a passage through their territories to ambassadors sent by other powers.
IX. I mentioned, that we ought not, without a just cause, refuse admittance to an ambassador; for it is possible that we may have very good reasons to reject him; for example, if his master has already imposed upon us under pretext of an embassy, and we have just reason to suspect the like fraud; if the prince, by whom the ambassador is sent, has been guilty of treachery, or of some other heinous crime against us; or, in fine, if we are sure that, under the pretext of negotiating, the ambassador is sent only as a spy, to pry into our affairs, and to sow the seeds of sedition.
Thus, in the retreat of the ten thousand, the history of which has been written by Xenophon, the generals resolved, that, so long as they were in the enemy’s country, they would receive no heralds; and what moved them to this resolution was their having found, that the persons, who had been sent among them, under the pretence of embassy, came really to spy into their affairs and to corrupt the soldiers.
It may also be a just reason for refusing admittance to an ambassador, or envoy from an allied power, that, by admitting him, we are likely to give distrust to some other power, with whom it is proper we should maintain a good understanding.
Lastly, the person or character of the ambassador himself may furnish just reasons for our not admitting him. This is sufficient concerning the maxim relating to the admittance of ambassadors.
X. With regard to the other rule of the law of nations, which directs that the persons of ambassadors be looked upon as sacred and inviolable, it is a little more difficult to decide the several questions relating to it.
1. When we say that the law of nations forbids any violence to ambassadors, either by word or action, we do not by this give any particular privilege to those ministers; for this is no more than what every man has a right to by the law of nature; a right, that his life, his honor, and his property, be perfectly secure.
2. But when we add, that the persons of ambassadors are sacred and inviolable by the law of nations, we attribute some prerogatives and privileges to them, which are not due to private persons, etc.
3. When we say that the person of an ambassador is sacred, this signifies no more, than that we inflict a severer punishment on those, who offer violence to an ambassador, than on such, as commit an injury or insult to private persons; and the character of ambassadors is the reason of our inflicting so different a punishment for the same kind of offence.
4. Lastly, the reason, why we call the persons of ambassadors sacred, is because they are not subject to the jurisdiction of the sovereign, to whom they are deputed, either in their persons, their retinue, or effects; so that we cannot proceed against them, according to the ordinary course of justice; and it is in this that their privileges chiefly consist.
XI. The foundation of these privileges, which the law of nations grants to ambassadors, is, that, as an ambassador represents the person of his master, he ought of course to enjoy all the privileges and rights, which his master himself, as a sovereign, would have, were he to come into the states of another prince, in order to transact his own affairs, to negotiate, for instance, or conclude a treaty, or an alliance; to regulate some branch of commerce, and other things of a similar nature, etc. Now when a sovereign goes into a foreign country, we cannot imagine, that he loses his character and independence, and that he becomes subject to the prince, whose territories he visits. On the contrary, he ought to continue as he was before, equal and Independent of the jurisdiction of the prince, whose territories he enters; and the latter receives him on the same footing, as he would choose to be received himself, if he went into the other’s dominions. Now we must grant the ambassador the same prerogative and immunities, in consequence of his representative character.
The very end and design of embassies render these privileges of ambassadors necessary; for it is certain, that, if an ambassador can treat with the prince, to whom he is sent, with a full independence, he will be much better qualified to perform his duty, and serve his master effectually, than if he were subject to a foreign jurisdiction, or if he and his retinue could be consigned over to justice, and his goods arrested and seized, etc. Hence it is, that all nations have, in favor of ambassadors, made a very just exception to the general custom, which requires, that people, who reside in a foreign prince’s dominions, shall be subject to that prince’s laws.
XII. These principles being supposed, I affirm,
1. That there is no difficulty with respect to ambassadors, who are deputed to a power, with whom their master is at peace, and have injured no man. The most evident maxims of the law of nature require they should be perfectly secure. So that, if we affront or insult such a minister, in any manner whatsoever, we give his master just reason for declaring war. Of this king David furnishes us with an example.1
2. With regard to ambassadors, who come from an enemy, and have done no harm before they are admitted, their safety depends entirely on the laws of humanity; for an enemy, as such, has a right to annoy his enemy. Thus, so long as there is no particular agreement upon this article, we are obliged to spare the ambassador of an enemy, only in virtue of the laws of humanity, which we ought always to respect, and which oblige us to have a regard for every thing tending to the preservation of order and tranquillity.
3. But when we have promised to admit, or have actually admitted the ambassador of an enemy, we have thereby manifestly engaged to procure him intire security, so long as he behaves well. We must not even except heralds, who are sent to declare war, provided they do it in an inoffensive manner.
4. With regard to ambassadors, who have rendered themselves culpable, either they have done the injury of their own head, or by their master’s order.
If they have done it of their own head, they forfeit their right to security, and to the enjoyment of their privileges, when their crime is manifest and heinous; for no ambassador whatever can pretend to more privileges, than his master would have in the same case; now such a crime would not be pardoned in the master.
By heinous crimes we here mean such, as tend to disturb the state, or to destroy the subjects of the prince, to whom the ambassador is deputed, or to do them some considerable prejudice.
When the crime directly affects the state, whether the ambassador has actually used violence or not, that is to say, whether he has stirred up the subjects to sedition, or conspired himself against the government, or favored the plot; or whether he has taken arms with the rebels or the enemy, or engaged his attendants so to do, etc. we may be revenged on him, even by killing him, not as a subject, but as an enemy; for his master himself would have no reason to expect better treatment. And the end of embassies, instituted no doubt for the general good of nations, does not require that we should grant to an ambassador, who first violates the law of nations, the privileges, which that law allows to foreign ministers. If such an ambassador makes his escape, his master is obliged to deliver him up, when demanded.
But if the crime, however heinous or manifest, affects only a private person, the ambassador is not for that alone to be reputed an enemy to the prince or state. Suppose his master had committed a crime of the same nature, we ought to demand satisfaction of him, and not take up arms against him till he has refused it; so the same reason of equity directs, that the prince, at whose court the ambassador has committed such a crime, should send him back to his master, desiring him either to deliver him up, or to punish him; for to keep him in prison till his master shall recal him, in order to punish him, or declare that he has abandoned him, would be to testify some distrust of the justice of his master, and by that means affront him in some measure, because he is still represented by the ambassador.
5. But if the crime be committed by the master’s order, it would certainly be imprudence to send the ambassador back; since there is just reason to believe, that the prince, who ordered the commission of the crime, will hardly surrender, or punish the criminal. We may therefore, in this case, secure the person of the ambassador, till the master shall repair the injury done both by his ambassador, and himself. In regard to those, who do not represent the person of the prince, such as common messengers, trumpets, etc. we may kill them on the spot, if they come to insult a prince by order of their master.
But nothing is more absurd than what some maintain, namely, that all the evil done by ambassadors, by order of their master, ought to be imputed entirely to the latter. Were it so, ambassadors would have more privilege in the territories of another prince, than their master himself, should he appear there; and on the the other hand, the sovereign of the country would have less power in his own dominions, than a master of a family has in his own house.
In a word, the security of ambassadors ought to be understood in such a manner, as to imply nothing contrary to the security of the powers to whom they are sent, and who neither would, nor could receive them upon other terms. Now it is plain, that ambassadors will be less bold in undertaking any thing against the sovereign, or against the members of a foreign state, if they are apprehensive, that in case of treason, or some other heinous crimes, the government of that country can call them to an account for it, than if they had nothing to apprehend but correction from their master.
6. When the ambassador himself has committed a crime, it is not lawful to use him ill, or to kill him by the law of retaliation or reprisals; for by admitting him under that character, we have renounced our right to any such revenge.
In vain would it be to object a great many instances of this kind of revenge, which are mentioned in history; for historians not only relate just and lawful actions, but also divers things done contrary to justice in the heat of anger, by the influence of some irregular and tumultuous passion.
7. What has been hitherto said of the rights of ambassadors, ought to be applied to their domestics, and all their retinue. If any of the ambassador’s domestics has done an injury, we may desire his master to deliver him up. If he does not comply, he makes himself accessary to his crime, and in this case we have a right to proceed against him in the same manner, as if he had committed the act himself.
An ambassador however cannot punish his own domestics; for as this is not conducive to the end of his employment, there is no reason to presume, that his master has given it him.
8. With respect to the effects of a foreign minister, we can neither seize them for payment, nor for security, in the way of justice; for this would suppose, that he was subject to the jurisdiction of the sovereign, at whose court he resides. But if he refuses to pay his debts, we ought, after giving him notice, to apply to his master, and if the latter refuses to do us justice, we may seize the effects of the ambassador.
9. Lastly, as to the right of asylums and protections, it is by no means a consequence of the nature and end of embassies. However, if it is once granted to the ambassadors of a certain power, nothing but the welfare of the state, authorizes us to revoke it.
Neither ought we, without good reasons, to refuse ambassadors the other sorts of rights and privileges, which are established by the common consent of sovereigns; for this would be a kind of affront to them.
END OF THE FOURTH AND LAST PART.
1. 2 Sam. chap. x.