The Law of War and Peace (1625)
by Hugo Grotius
On The Right of Legation
I. That certain obligations, such as the right of legation, have their origin in the law of nations.
THUS far we have treated of rights for which we are indebted to the law of nature; we have added thereto only a few from the volitional law of nations, in so far as any addition had been made to the law of nature from that source.
It remains for us to discuss the obligations that the law of nations, which we call volitional, has itself introduced. In this class the subject of prime importance is the right of legation. Everywhere, in fact, we find mention of the sacred affairs of embassies, the inviolability of ambassadors,’ the law of nations which is to be observed with reference to ambassadors, divine and human law, the right of legation sacred among nations, treaties sacred with reference to nations, the alliance of the human race, and the sacredness of the persons of ambassadors. Thus in Papinius we read:
- Sacred to the nations through all time the name.
Cicero in his speech On the Response of the Soothsayers says: ‘For so I think that the rights of ambassadors have not only been fortified by the protection of men, but also guarded by divine law.’ To violate this law, therefore, is by the acknowledgement of all not only unjust but also impious,’ as Philip says in his Letter to the Athenians.
II. Among whom the right of legation is in force.
1. First, then, it should be understood that this law of nations, whatever it is, which we are going to treat, pertains to those representatives whom rulers with sovereign powers send to one another. For in addition to these there are representatives of provinces, municipalities, and others, who are not governed by the law between different nations, but by municipal law. In Livy an ambassador calls himself the public messenger of the Roman people. Elsewhere in the same Livy the Roman senate says that the right of embassy is granted to a foreigner, not to a citizen. In showing that ambassadors ought not to be sent to Antony, Cicero says: ‘For we do not have to deal with Hannibal, a public enemy, but with a citizen.’ Moreover, Virgil, as clearly as any jurist, has indicated who are to be considered foreigners:
- Every land which free is, and not subject to our rule,
I hold as foreign.
2. Consequently, peoples who are united in an unequal alliance will possess the right of legation so long as they do not cease to be their own masters; likewise also those that are in part subject, and in part not, will have the right of legation for that part in respect to which they are not subject. Nevertheless, kings who have been conquered in a formal war, and have been expelled from their kingdoms, along with their other royal possessions, have lost also the right of legation. On such grounds Publius Aemilius kept as prisoners the heralds of Perseus, whom he had conquered.
3. In civil wars, however, necessity sometimes opens the way for the exercise of this right, though in an irregular fashion. Such
a case will arise when a people has been divided into parts so nearly equal that it is doubtful which of the two sides possesses sovereignty; and again, when two persons with practically equal rights are contending for the succession to the throne. Under such circumstances a single people is considered for the time being as two peoples. Tacitus censures the followers of Vespasian for the reason that in their relations with the followers of Vitellius in the frenzy of civil strife they had violated the rights of ambassadors, which even among foreign nations were sacred.
Pirates and brigands, who do not constitute a state, cannot avail themselves of the law of nations. According to the statement of Tacitus, Tiberius was indignant when Tacfarinas had sent ambassadors to him, because a deserter and bandit was treating with him in the manner of an enemy. Sometimes, nevertheless, persons of such a character obtain the right of legation on the strength of a pledge of good faith, as in ancient times fugitives in the passes of the Pyrenees.
III. Whether an embassy ought always to be admitted.
1. Now there are two rights of ambassadors which we see are everywhere referred to the law of nations. The first is that they be admitted; the second, that they be free from violence.
On the first point there is a passage of Livy in which Hanno, a senator of Carthage, thus inveighs against Hannibal: ‘Our excellent commander has not admitted to his camp ambassadors coming from allies, and in behalf of allies. He has broken the law of nations.’ Nevertheless, this ought not to be taken so literally. The law of nations, in fact, does not enjoin that all be admitted, but it does forbid the rejection of ambassadors without cause. The cause, again, may arise in the case of the one who sends the ambassador, or in the case of the one who is sent, or in the reason for the sending
2. Melesippus, a Spartan ambassador, was dismissed from Attic’ territory by the advice of Pericles, because he was coming from an enemy in arms. So the Roman senate declared that it could not admit a Carthaginian embassy, because a Carthaginian army was in Italy.’ The Achaeans did not admit the ambassadors of Perseus,, since he was planning war against the Romans. So Justinian refused to receive the embassy of Totila, and the Goths at Urbino the representatives of Belisarius. Also Polybius relates that the ambassadors of;?the Cynethensians were everywhere expelled because they were a wicked nation.
The second cause is illustrated in the case of Theodorus, who was hailed ‘the atheist,’ whom Lysimachus was unwilling to hear, though’ Theodorus had been sent to him by Ptolemy. The same ‘thing has happened to other ambassadors by reason of personal hatred.
The third cause which we mentioned becomes operative either When the cause of the sending is suspected,’ just as the embassy of ache Assyrian Rabshaketh was by Hezekiah deservedly suspected of stirring up the people; or when the embassy is not of proper rank, or when it comes at an inopportune time. So the Romans forbade the Aetolians to send any embassy without permission of the Roman commander, and ordered that Perseus should send his embassy not o Rome but to Licinius. Further, the ambassadors of Jugurtha here ordered to depart from Italy within ten days, unless they had come to surrender their kingdom and their king. But permanent legations, such as are now customary, can be rejected with the best of right; for ancient custom, to which they were unknown, teaches how unnecessary they are.
IV. Against ambassadors, who are undertaking dangerous missions, defense is permissible, but not the exaction of a penalty.
1. The question regarding the inviolability of ambassadors is tore difficult, and has been handled in varied fashion by the distinguished minds of this generation. We need to speak of the persons of ambassadors, then of their suite and property.
As regards their persons, some think that by the law of nations +the persons of ambassadors are protected from unjust violence only; for their view is that the privileges of ambassadors are to be explained according to common law. Others hold that violence may be done o an ambassador not on all grounds, but merely if the law of nations pas been violated by him; and this is sufficiently comprehensive, or in the law of nations the law of nature is included, so that an ambassador can be punished for all crimes excepting only those which are committed against municipal law. Others restrict this right to crimes which are committed against the security of the state, or the dignity of the official to whom the ambassador is sent. There are also those who think that even this right is fraught with danger; that complaints ought to be made to the one who has sent the ambassador, and the decision entrusted to him. Some, again, think that kings and peoples that have no interest in the case ought to be brought in as advisers. This may be an evidence of prudence, but it is not required by law.
2. The reasons which the advocates of these views severally allege lead to no definite conclusion; for this law does not certainly arise from definite reasons, as the law of nature does, but takes its form according to the will of nations. Now the nations could have made provision for ambassadors either covering all cases or with certain exceptions. For on the one side lies the advantageousness of punishment of grave offenders; on the other is the usefulness of embassies, and the ease in sending embassies is best promoted by making their safety as secure as possible. The question, then, ought to be considered to what extent have nations reached an agreement? This question cannot be answered on the basis of precedents alone; for there is a sufficient number of precedents on both sides. We must, therefore, have recourse not only to the opinions of wise men, but also to the implications.
3. I have two particularly notable opinions. The one is of Livy, the other of Sallust.
The opinion of Livy relates to the ambassadors of Tarquin, who had incited a revolt at Rome: ‘Although they seemed to have committed so great an offence that they might be treated as enemies, yet the law of nations prevailed.’ Here we see that the law of nations is extended even to those who commit hostile acts.
The statement of Sallust applies to the suite of an embassy, of which I shall speak presently, not to the ambassadors themselves; but the argument will proceed naturally from the greater, that is, the less credible, to the less, that is, the more credible. Sallust speaks thus: ‘Bomilcar, his companion, who had come to Rome under a pledge of good faith on the part of the state, was brought to trial, rather in accordance with equity and justice than according to the law of nations.’ Equity and justice, that is, the pure law of nature, allow that punishment shall be inflicted when he who has committed wrong is found. But the law of nations makes an exception of ambassadors and of those who, like them, come under a pledge of public faith. Wherefore it is contrary to the law of nations that ambassadors should be brought to trial; and on that account many things, which the law of nature permits, are commonly forbidden,
4. The implications, furthermore, favor this side, for it is nearer the truth to understand special privileges in such a way that they may add something to a common right. If, now, ambassadors were protected only from unjust violence, there would be nothing great, nothing outstanding in that provision. There is the further consideration that the security of ambassadors outweighs any advantage which accrues from a punishment. For punishment can be inflicted through the one who sent the ambassador, if he so wills. If, on the contrary, he is unwilling, punishment by means of war can be exacted from him as having approved the crime. Some raise the objection that it is better that one should be punished than that many should be involved in war. Yet, if the one who sent the ambassador approves of his act, the punishment of the ambassador will not exempt us from war.
On the other hand, the safety of ambassadors is placed on an extremely precarious footing if they are under obligation to render account of their acts to any other than the one by whom they are sent. For since the views of those who send the ambassadors are generally different from the views of those who receive them, and often directly opposed, it is scarcely possible that in every case something may not be said against an ambassador which shall present the appearance of a crime. And although some things are so obvious that they do not admit of doubt, yet the universal peril is sufficient to establish the justice and advantage of the universal law.
5. My unqualified conclusion, therefore, is that the rule has been accepted by the nations that the common custom, which makes a person who lives in foreign territory subject to that country, admits of an exception in the case of ambassadors. Ambassadors as if by a kind of fiction are considered to represent those who sent them; thus of a certain ambassador Cicero says: ‘He had borne with him the majesty of the senate and the authority of the state.’ In consequences, by a similar fiction, ambassadors were held to be outside of the limits of the country to which they were accredited. For this reason they are not subject to the municipal law of the state within which they are living. If, therefore, the crime should be such that according to all appearances it can be treated lightly, it will either need to be overlooked, or the ambassador should be ordered to leave the country,’ as was the ambassador who, according to Polybius, had furnished the means of escape to hostages at Rome. In this connection it should be understood that, though at another time an ambassador of Tarentum, who had committed the same offence, was scourged, that was in consequence of the fact that the Tarentines had been conquered and had begun to be subject to Rome.’
If the crime should be particularly atrocious and bid fair to bring harm to the state, the ambassador should be sent back to the one who sent him, with the demand that he be punished or surrendered. Thus we read that the Gauls demanded that the Fabi~ be surrendered to them.
6. But, as we have several times remarked, all human laws have ( been so adjusted that in case of dire necessity they are not binding; and so the same rule will hold in regard to the law of the inviolability of ambassadors. Nevertheless, this extreme necessity does not warrant the infliction of punishment, which in other cases also is removed by the law of nations, as will appear below, when we treat of the effects of regular warfare. Such extreme necessity will be concerned still less with the place, time, and manner of inflicting punishment, but rather with guarding against serious hurt, especially to the state. Therefore that an immediately threatening peril may be met, if there is no other proper recourse, ambassadors can be detained and questioned. So the Roman consuls arrested the ambassadors s of Tarquin, taking special care, as Livy says, that none of the letters should be lost.
7. But if an ambassador should attempt armed force he can indeed be killed, not by way of penalty, but in natural defense. So the Gauls could have killed the Fabii, whom Livy calls violators of human right. And so in the Children of Hercules, by Euripides, Demophon restrained by force the herald who had been sent by Eurystheus and was trying to drag away the suppliants by force; and when the herald said:
- Do you thus dare to slay a herald hither sent?
- Unless the herald now withholds his hand from force.
Philostratus in his Life of Herod relates that the herald’s name was Copreus,’ and that he was killed by the Athenian people because he employed force.
By a not unlike distinction Cicero solves this question, whether a son ought to bring accusation against his father as a traitor to the country. Cicero thinks that he should, in order to avert imminent peril, but not in order to punish the deed after the peril has been averted.
V. That the person to whom the ambassador was not sent is not bound by the right of legation.
1. Now the law which I have mentioned concerning the inviolability of ambassadors is to be understood as binding on the one to whom the embassy was sent, and especially in case he has received it, just as if from that moment, in fact, a tacit agreement had been entered into. But warning can be given, and in such cases commonly is given, that ambassadors should not be sent; and that, if they are sent, they will be treated as enemies. Thus warning was given to the Aetolians by the Romans; previously the Romans had given warning to the ambassadors of Veii, that if they did not leave the city the Romans would do as Lars Tolumnius had done; and the Romans were warned by the Samnites that they would not go away unharmed if they visited any assembly in Samnium.
This law, then, does not apply to those through whose territory ambassadors pass without receiving a safeguard. For, if they are going to, or coming from, the enemies of this people,’ or are planning any hostile measure, they can even be killed; such was the fate allotted by the Athenians to the ambassadors between Persia and Sparta, and by the Illyrians to the ambassadors between the Issii and the Romans. And much the more can they be thrown into chains; such was the decision of Xenophon against certain ambassadors; of Alexander against those sent from Thebes and Lacedaemon to Darius; of the Romans against the ambassadors of Philip to Hannibal,’ and of the Latins against the ambassadors of the Volsci.
2. If there is no such reason, and ambassadors are mistreated, it is to be understood that not the law of nations, which we are discussing, has been violated, but the friendship and dignity either of the one who sent or of the one who received the embassy.’ Justin says of the later Philip, king of Macedonia:
After that he sent an ambassador to Hannibal in order to make an alliance with him by letter. The ambassador was captured and was brought before the (Roman) senate; he was dismissed unharmed, not out of honor to the king, but from fear that one who was still wavering might be made an undoubted enemy.
VI. That the enemy to whom an ambassador has been sent is bound by the law.
For the rest, when an embassy has been admitted it is under the protection of the law of nations even among public enemies,’ and still more among those who are merely unfriendly. Diodorus Siculus said that for heralds peace exists in the midst of war. The Lacedaemonians, who had killed the fetials of the Persians, are said on that account ‘to have violated the rights of all mankind.’ Pomponius says: ‘If any one has struck the ambassador of an enemy, it is thought that a crime has been committed against the law of nations, because ambassadors are considered sacred.’ Tacitus calls this right which we are treating’ the right of enemies and sanctity of embassy and divine law of nations.’
Cicero in his first pleading Against Verres says: ‘Ought not ambassadors to be unharmed among enemies?’ Seneca says in On Anger: ‘He violated embassies, breaking the law of nations.’ In his account of the ambassadors whom the people of Fidenae had slain, Livy says that it was a slaughter which violated the law of nations, a crime, an unspeakable act, an impious slaughter. Elsewhere he says: ‘The ambassadors had been brought into peril and not even the laws of war had been left to them.’ Curtius says ‘The heralds whom he sent to induce them to make peace, the Tyrians, in violation of the law of nations, killed and threw into the sea.’
Such expressions of opinion are justified; for not only do very many matters come up in war which cannot be handled except through ambassadors, but also peace itself is hardly to be made by any other means.
VII. That the right of retaliation cannot be claimed against ambassadors.
The question is also commonly raised, whether an ambassador can be killed or mistreated by right of retaliation, if he comes from one who has committed some such act.
There are, to be sure, sufficiently many examples of such vengeance in history; but, of course, the histories relate both just deeds and also unjust, wrathful, and violent deeds. The law of nations safeguards not only the dignity of the one who sends, but also the safety of the one who is sent; therefore there is a tacit agreement with the latter also. Accordingly a wrong is done to the one who is sent, even if no wrong is done to the one who sent him.
Consistently with the principle stated, then, when Carthaginian ambassadors had been brought before Scipio after Roman ambassadors had been ill-treated by the Carthaginians, and he was asked what ought to be done to them, he replied, not only nobly, but also in accordance with the law of nations, that no such treatment should be accorded to them as had been inflicted by the Carthaginians.’ Livy adds that ‘he said that he would do nothing unworthy of the established customs of the Roman people.’ Valerius Maximus, in a similar but more ancient case, puts this utterance into the mouths of the Roman consuls: ‘The good faith of our state, Hanno, frees you from that fear.’ For at that time also Cornelius Asina had been put in chains by the Carthaginians, contrary to the right of legation,
VIII. The right of ambassadors is also extended to the suite of an ambassador, if the ambassador has desired it.
1. The suite also, and the effects of ambassadors, in their own way are inviolate. Hence arose the expression in the ancient formula of the fetials: ‘King, do you appoint me the royal messenger of the Roman people the Quirites, and do you designate my suite and effects?’ By the Julian Law on public violence, those who have done an injury not merely to ambassadors, but also to their suites, are declared to be held guilty. But these rights are sacred as accessories and, therefore, only so far as seems good to the ambassador.’
If, now, members of the suite have committed a great crime, the demand can be made on the ambassador to surrender them; for they ought not to betaken away by force.’ When force was employed by the Achaeans in the case of certain Lacedaemonians, who were with the Roman ambassadors, the Romans cried out that the law of nations was being violated. Also the judgement of Sallust concerning Bomilcar, which we have cited above, can be referred to on this point. If, however, the ambassador is unwilling to surrender such members of his suite, the same course will need to be pursued as we just now mentioned in the case of an ambassador.
2. The question whether an ambassador has jurisdiction over his own household, and whether any one who takes refuge with him has a right of asylum in his residence, depends on the concession of him in whose domain the ambassador resides; for that right does not belong to the law of nations.
IX. The right of ambassadors is extended likewise to their movable goods.
Again, it is the better established opinion that the movable goods of an ambassador, which in consequence are considered as attached to his person, cannot be seized as security, or in payment of debt or by order of the court, or, as some claim, by the hand of the king. For an ambassador ought to be free from all compulsion such compulsion as affects things of which he has need as well a that which touches his person – in order that he may have full security. If, then, he has contracted a debt and, as ordinarily happens, possesses no landed property in the country, payment should be demanded in a friendly way from him personally; and if he refuses, then payment should be requested from the one who sent him, so that finally those methods may be employed which are customarily used in the case of debtors outside the country.
X. Examples of an obligation without the right of compulsion.
1. There is no reason for fearing that, as some think, no one can be found who would be willing to make contracts with an ambassador, if such is the ambassadorial right. For kings, who are not subject to compulsion, do not fail to have creditors; and Nicholas of Damascus informs us that among some nations it was the custom that action at law should not be granted in relation to contracts based on credit, any more than against ungrateful persons, With
the result that men were compelled to carry out their contracts at the same time, or to be contented with the bare promise of the debtor.
This is the state of affairs that Seneca desires: Would that we could persuade men to give credit only to men who wish to pay; would that no contract bound the buyer to the seller, and that compacts and agreements were not guarded by the attachment of seals; would that they might be kept rather by good faith and a mind that cherishes a sense of fairness!’ Appian says that the Persians also objected to’ taking money on loan, since that was a transaction exposed to fraud and deceit.’
2. Aelian says the same of the Indians; and Strabo supports him in the following words: ‘There are no courts except for murder or injury; for these a man cannot hinder from happening to him. Contracts, however, are within the power of every person; and so, if any one violates his pledge, this must be endured. Each one ought in advance to consider whom he should trust, and not to fill the state with lawsuits.’ Also Charondas established the rule, that one who had taken a promise in place of payment should not have the right to prosecute. This was approved by Plato.
The fact was noted also by Aristotle: ‘Among some peoples there is no right of action in these matters; for they think that men ought to be content with the pledge of good faith which they have accepted.’ Elsewhere he adds: ‘There are countries where the laws forbid action at law on account of debt, as if one ought to deal only privately with a man with whom he has made a contract, and whose good faith he has trusted.’ Opinions opposed to this view, which are derived from the Roman law, do not apply to ambassadors, but to the representatives of provinces or municipalities.
XI. Of how great importance this right of legation is.
Profane histories are full of wars undertaken on account of the ill-treatment of ambassadors.’ Also in the Scriptures s there is mention of a war which David waged against the Ammonites on that account. Cicero thinks that no other cause was more just for the war against Mithridates.