Questions of Public Law (1737)
Cornelius van Bynkershoek
Who May Be Sent as Ambassadors
JUST as some have not the right of legation, so there are some who have not the right to serve as ambassadors, for as Grotius truly says, ‘The Law of Nations does not prescribe that all ambassadors are to be admitted, but they are not to be excluded without cause.’ He lays down three possible reasons for rejection: one, because of him who sends, a second, because of him who is sent, and a third, because of the matter for which he is sent. We are here dealing with the second class of cases, and it was for reasons of this kind that Lysimachus rejected Theodorus the Atheist, as Grotius, quoting Diogenes Laertius, narrates. But just as powers usually endeavour to choose men who will prove agreeable to the princes to whom they are sent, thinking it profitable to themselves, so the recipients usually accept whosoever comes, even men lacking in worth and dignity, assuming this course to be advantageous. And this they do, not only to avoid offending the princes who sent them, but also in order that the dignities and influence of the ambassador may not obstruct business. However, a prince will not receive men of low degree if he supposes that such have been sent by way of insult.
At this point I find that the question is raised whether the customs and laws of envoys apply to an exile if he be sent as ambassador; that is to say an exile who is sent to the very prince that banished him, and upon whom penalty of death or otherwise has been pronounced if he attempts to return within a certain period, or at all. The prince may of course restore his exile when he has served his sentence, and he may use an exile of a foreign power in his own service, and in either case he may employ them as ambassadors, examples of which are at hand in Paschal. But we are rather discussing those who return as ambassadors to the prince by whom they have been proscribed with a penalty fixed against their return. Old jurists seem to attribute the rights and privileges of envoys even to exiles of this class, as I gather from Bertachinus, and this opinion a certain Coke defends according to Zouche. But my stomach is too weak to digest such a mess, nor could Alberico Gentili, nor Zouche accept this view. It is at least agreed among those who have written on embassies that a prince is not obliged to receive any and every ambassador. Now what juster course could there be for rejecting an ambassador than if one were sent who, once a subject, had perhaps committed a treasonable act? What greater insult than to send a man who had been proscribed for a criminal act against the prince or his subjects? Shall such a man sit in the presence of his prince, and discuss with him and his council affairs of greatest moment to both states? Be more discreet, and do not impose a law so unfair upon another prince in his own domain. So then, the prince will keep an exile of this kind out of his boundaries, or if one has entered, he will order him to depart as soon as possible. He will hardly apply to him the penalty set against his return, for considerations of honour and good faith which should abound between princes would hardly permit. I would, in fact, disapprove of this on the ground that it is still an unsettled matter among jurists, and that in cases of uncertainty no harsh action should be taken against a non-subject. However, I should not venture to condemn a prince who chose to exert his rights to the full. The Romans in fact deservedly were praised for clemency by Tacitus for sparing the envoy Segimundus, who had formerly deserted to the enemy. Here is a case of a clash between justice and equity.
A man who had been in the service of the East India Company, and while in India, had been condemned to have his tongue pierced, fled to England. He was sent hither by the King of England to settle some disputes that had arisen between the King and the East India Company. As soon as he reached The Hague in 1636 he was imprisoned at the request of the Company, but was soon released. This was indeed at a time when the King was already much offended, and it was of some importance to the republic that he should not be more so. In our own day, 1697, an ambassador of the King of England to France acted with more prudence, for before he went to France he gained the permission of the French King to take in his train certain men who had left France for religious reasons. Had he not asked and obtained permission, the French King might perhaps have treated them as returned exiles.
There is also the question whether it is right and legal to employ women as ambassadors. Zouche treats this question in his De Jure Feciali, giving the opinion of Kirchner who denies, and of Paschal who affirms that they may, and he also cites the reasons of both. He, as is his custom, makes no explicit rule. Indeed, what he applies to this question from the Roman law is of little value, for instance, that women have not the right to plead in the courts, and that those who have not the right to plead cannot perform the services of envoys, and the more general rule that women are prohibited all civil and public offices. For after all the Roman emperors made decisions at pleasure for their own subjects, but these do not apply to others. As regards this matter, I have proved with sufficient fullness in my Liber Singularis De Foro Legatorum, Chapter VI, that whatever is extant in the Roman law concerning provincial and municipal envoys which are the only ones discussed there cannot rightly be applied to envoys that various independent princes employ at present. For the status of these does not depend upon the civil law, but solely upon the law of nations. Accordingly also, other decrees of the Roman law that prohibit women or others from public offices have no bearing upon these. For example, according to Ulpian no one at Rome was eligible for public office before his twenty-fifth year of age. But who would to-day prohibit a prince from employing a minor as ambassador? The considerations of the Roman law do not always obtain here; if all women were admitted to the bar, we would often have lawyers like Caia Afrania, but a prince will take good care not to employ such as ambassadors.
As in every argument arising from the law of nations, so here, reason and custom present different aspects. Surely reason does not prohibit women from serving as envoys, for you will find in them the qualifications that are demanded by law for envoys. I do not, to be sure, like Plato, consider women the equals of men in all respects, for I know that men and women have certain qualities peculiar to each, certain common to both. One would not with good success have women bear arms, for there is not to be found in women as often as in men the invincible courage that provides the greatest protection in time of war. The peculiar qualities of women are tenderness, mercy, pity, virtues which even in a most successful war are oftentimes dangerous. Men are peculiarly qualified for the application of vigour and force. However, on embassies one does not apply force, but rather intelligence, diligence, alertness, threats, and flattery, of which women are capable, sometimes even to greater degree than men. Learning is, to be sure, a special honour of men, but who requires this of ambassadors? In days past, as well as at present, men have served as ambassadors who have not been skilled in the use of Latin, the vernacular of scholars, who have not taken part in political affairs or anything else than war or perhaps amusements. Tell me pray in what respects men are superior to women in the very qualities that are required in an ambassador? Intelligence and diligence and the other qualities that I have just mentioned are shared in common by both men and women.
It would be a mistake to think that men alone possess wisdom. Plutarch writes that among the Celts women took part in the councils of war and peace; and this, as one might expect, was true among the Germans also, for Tacitus says that the Germans ‘scorned not the counsels and soothsayings of their women’. Connan praises the many excellent counsels given and deeds performed by women in political matters.. But I shall not say more lest I encourage the vanity of women, a failing to which they are usually prone; I ask rather, since you permit persons in private station to act through whatsoever agents they choose, by what right you would deny princes this privilege? You will say that it is unseemly for women to serve as ambassadors and thus to mingle in the society of men. To be sure, but I ask whether it is more seemly for women to rule kingdoms, and, if you permit this, as many nations do, why should you not also permit a woman to serve as ambassador to a queen? It is hardly a reasonable rule, therefore, to exclude women from serving as ambassadors.
But if considerations of reason do not hinder women from serving, perhaps custom does, for the law of nations must also be considered from the point of view of usage. However, it does not. I shall not repeat the instances which Paschal has collected on this point, which fully prove that among the Greeks and Romans, surely civilized peoples, the right of embassy was granted to women. I shall rather add that the mothers of the Argives who fell at Thebes went to Thebes with Adrastus as envoys to secure the burial of their children, as Euripides relates. And if Amazons ever existed, what envoys are we to suppose that they sent? Since this was lawful in days past without endangering the modesty of the sex, I can think of no reason why it should not be permitted now. I even recall that in 1700 the King of Denmark appointed a woman, a widow of Amsterdam, and her son to act in his interests at Amsterdam, under the title of ‘agents’, usually applied to envoys of minor rank. But there is no reason why a practice should not obtain among envoys of greater dignity which obtains among lesser ones. It is evident that women do not frequently serve as ambassadors, and just as evident that this was true in former days. But whether it be or has been a more or less frequent practice, the rights of the prince do not prohibit it, and so his will is even in this matter the supreme law.