The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of the Rights, Privileges, and Immunities of Ambassadors and Other Public Ministers
§ 80. Respect due to public ministers.2
THE respect which is due to sovereigns should redound to their representatives, and especially their ambassadors as representing their master’s person in the first degree. Whoever offends and insults a public minister commits a crime the more deserving of severe punishment, as he might thereby involve his country and his sovereign in very serious difficulties and trouble. It is just that he should be punished for his fault, and that the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister. If the foreign minister is himself the aggressor, and offends a citizen, the latter may oppose him without departing from the respect due to the character which the offender bears, and give him a lesson which shall both efface the slain of the outrage, and make the author of it blush for his misconduct. The person offended may further prefer a complaint to his own sovereign, who will demand for him an adequate satisfaction for the minister’s master. The great concerns of the state forbid a citizen, on such occasions, to entertain those thoughts of revenge which the point of honor might suggest, although they should in other respects be deemed allowable. Even according to the maxims of the world, a gentleman is not disgraced by an affront for which it is not in his own power to procure satisfaction.
§ 81. Their persons sacred and inviolable.3
The necessity and right of embassies being established (see Chap. V. of this Book), the perfect security and inviolability of ambassadors, and other ministers, is a certain consequence of it: for, if their persons be not protected from violence of every kind, the right of embassy becomes precarious, and the success very uncertain. A right to the end inseparably involves a right to the necessary means. Embassies, then, being of such great importance in the universal society of nations, and so necessary to their common well-being, the persons of ministers charged with those embassies are to be held sacred and inviolable among all nations. (See Book II. § 218.) Whoever offers violence to an ambassador, or to any other public minister, not only injures the sovereign whom that minister represents, but also attacks the common safety and well-being of nations: he becomes guilty of an atrocious crime against mankind in general.4
§ 82. Particular protection due to them.5
This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreigner, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. An act of violence done to a private person is an ordinary transgression, which, according to circumstances, the prince may pardon: but if done to a public minister, it is a crime of state, an offence against the law of nations; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been committed, but with him who has been offended in the person of his representative. However, if the minister has been insulted by persons who were ignorant of his character, the offence is wholly unconnected with the law of nations, and falls within the class of ordinary transgressions. A company of young rakes, in a town of Switzerland, having, in the night-time, insulted the British minister’s house, without knowing who lived in it, the magistracy sent a message to the minister to know what satisfaction he required. He prudently answered, that it was the magistrates’ concern to provide for the public safety by such means as they thought best; but that, as to his own part, he required nothing, not thinking himself affronted by persons who could have had no design against him, as not knowing his house. Another particular circumstance, in the protection due to foreign ministers, is this: according to the destructive maxims introduced by a false point of honor, a sovereign is under a necessity of showing indulgence to a person wearing a sword, who instantly revenges an affront done to him by a private individual: but violent proceedings against a public minister can never be allowed or excused, unless where the latter has himself been the aggressor, and, by using violence in the first instance, has reduced his opponent to the necessity of self-defense.
§ 83. When it commences.
Though the minister’s character is not displayed in its full extent, and does not thus insure him the enjoyment of all of his rights, till he is acknowledged and admitted by the sovereign, to whom he delivers his credentials, yet, on his entering the country to which he is sent, and making himself known, he is under the protection of the law of nations; otherwise, it would not be safe for him to come. Until he has had his audience of the prince, he is, on his own word, to be considered as a minister; and besides, exclusive of the notice of his mission, usually given by letter, the minister has, in case of doubt, his passports to produce, which will sufficiently certify his character.
§ 84. What is due to them in countries through which they pass.
These passports sometimes become necessary to him in the countries through which he passes on his way to the place of his destination; and, in case of need, he shows them, in order to obtain the privileges to which he is entitled. It is true, indeed, that the prince alone to whom the minister is sent, is under any obligation, or particular engagement to insure him the enjoyment of all the rights annexed to his character. Yet the others through whose dominions he passes are not to deny him those regards to which the minister of a sovereign is entitled, and which nations reciprocally owe to each other. In particular they are bound to afford him perfect security. To insult him would be injuring his master, and the whole nation to which he belongs: to arrest him, and offer him violence, would be infringing the right of embassy, which belongs to all sovereigns (§§ 57-63). The French monarch, Francis the First, had therefore very good reason to complain of the murder of his ambassador, Rincon and Fregose, as an atrocious violation of public faith and the law of nations. Those two ministers, the one destined for Constantinople, the other for Venice, having embarked on the Po, were stopped and murdered; and, according to all appearances, the deed had been perpetrated by order of the governor of Milan.6 The emperor Charles the Fifth, having taken no pains to discover the persons concerned in the murder, authorized a belief that he had himself ordered it, oral least that he tacitly approved of the act after its commission. And, as he did not give any suitable satisfaction for it, Francis had a very just cause for declaring war against him, and even calling for the assistance of all other nations: for an affair of this nature is not a private dispute, a doubtful question, in which each party pretends to have justice on his side: it is a quarrel which involves the concern of all nations, since they are all equally interested in maintaining the sacred inviolability of that right, and of those means which enable them to hold communication with each other, and to treat of their affairs. If an innocent passage, and even perfect security are due to a private individual, much more are they due to the minister of a sovereign, who is going to execute his master’s orders, and who travels on the affairs of a nation. I say, “an innocent passage;” for the minister’s journey is justly suspected, if a sovereign has reason to apprehend that he will make an improper use of the liberty granted him of entering his territories, by plotting against his interests while in the country, or that he is going to convey intelligence to his enemies, or to stir up others against him. We have already said (§ 64) that he may in such case refuse him a passage: but he is not to maltreat him, nor suffer any violence to be offered to his person. If he has not reason sufficient for denying him a passage, he may take precautions against the abuse which the minister might make of it. These maxims the Spaniards found established in Mexico and the neighboring provinces. In those countries, ambassadors were respected throughout their whole journey: but they could not deviate from the high road without forfeiting their rights7 a prudent and judicious reservation, introduced as a guard against the admission of spies under the name of ambassadors. Thus, while the negotiations for peace were carried on at the famous congress of Westphalia, amid the dangers of war and the din of arms, the several couriers sent or received by the plenipotentiaries had each his particular route designated; and, out of the prescribed tract, his passport could afford him no protection.8
§ 85. Ambassadors going to an enemy’s country.
What we have here observed relates to nations that are at peace with each other. On the breaking out of a war, we cease to be under any obligation of leaving the enemy in the free enjoyment of his rights: on the contrary, we are justifiable in depriving him of them, for the purpose of weakening him, and reducing him to accept of equitable conditions. His people may also be attacked and seized wherever we have a right to commit acts of hostility. Not only, therefore, may we justly refuse a passage to the ministers whom our enemy sends to other sovereigns; we may even arrest them if they attempt to pass privately, and without permission, through places belonging to our jurisdiction. Of such proceeding the last war furnishes a signal instance. A French ambassador, on his route to Berlin, touched, through the imprudence of his guides, at a village within the electorate of Hanover, whose sovereign, the king of England, was at war with France. The minister was there arrested and afterwards sent over to England. As his Britannic majesty had in that instance only exerted the rights of war, neither the court of France nor that of Prussia complained of his conduct.
§ 86. Embassies between enemies.
The reasons which render embassies necessary, and ambassadors sacred and inviolable, are not less cogent in time of war, than in profound peace. On the contrary, the necessity and indispensable duty of preserving some resource by which the minds of the belligerent parties may be brought to a mutual understanding, and peace be restored, is a fresh reason why the persons of ministers, as instruments in the preliminary conferences and final reconciliation, should be still more scared and inviolable. Nomen legati, says Cicero, ejusmodi esse debet, quod, non modo, inter sociorum jura, sed etiam inter hostium tela, incolume versetur.9 Accordingly, one of the most sacred laws of war is that which insures perfect security to persons who bring messages or proposals from the enemy. It is true, indeed, that the ambassador of an enemy must not approach without permission: and as there does not always exist a convenient opportunity of obtaining such permission through the medium of neutral persons, the defect has been supplied by the establishment of certain privileged messengers for carrying proposals from enemy to enemy, in perfect safety.
§ 87. Heralds, trumpeters, and drummers.
The privileged messengers I allude to are heralds, trumpeters, and drummers, who, from the moment they make themselves known, and as long as they confine themselves within the terms of their commission, are, by the laws of war and those of nations, considered as sacred and inviolable. This regulation is absolutely necessary; for, exclusive of the duty incumbent on us to reserve the means of restoring peace (as above mentioned), there occur, even during the course of the war, a thousand occasions, when the common safety and advantage of both parties require that they should be able to send messages and proposals to each other. The institution of heralds succeeded that of the Roman feciales: at present, however, they are seldom employed: drummers or trumpeters are sent, and after them, according to the exigence of the occasion, ministers, or officers furnished with powers. Those drummers and trumpeters are held sacred and inviolable; but they are to make themselves known by the marks peculiar to them.10 Maurice, prince of Orange, highly resented the conduct of the garrison of Ysendick, who had fired at his trumpeter: on which occasion the prince observed that no punishment can be too severe for those who violate the law of nations. Other instances may be seen in Wicquefort, and particularly the reparation which the duke of Savoy, as general of Charles the Fifth’s army, caused to be made to a French trumpeter, who had been dismounted and despoiled by some German soldiers.11
§ 88. Ministers, trumpeters, etc., to be respected, even in a civil war.
In the wars of the Netherlands the duke of Alva hanged up a trumpeter belonging to the prince of Orange, saying that he was not obliged to allow safety to a trumpeter sent him by the chief of the rebels,11 On this, as on many other occasions, that sanguinary general was undoubtedly guilty of a flagrant violation of the laws of war, which, as we have proved above (Book III. Chap. XVIII.), ought to be observed even in civil wars: for, unless both parties can with perfect safety interchange messages, and reciprocally send confidential persons to each other, how can they, on those unfortunate occasions, ever come to talk of peace? What channel remains open for negotiating a salutary accommodation? The same duke of Alva, in the war which the Spaniards afterwards made on the Portuguese, whom they also termed rebels, caused the governor of Cascais to be hanged for having given order to fire on a trumpeter sent to demand a surrender of the town.12 In a civil war, or when a prince takes up arms for the purpose of subduing a body of people who think themselves absolved from their allegiance to him, an attempt to compel the enemies to respect the laws of war, while he himself does not observe them on his own part, is in fact equal to a determined resolution of carrying those wars to the extreme of cruelty, and converting them into a scene of inordinate and endless murder, by the long series of mutual retaliations which will naturally ensue.
§ 89. Sometimes they may be refused admittance.13
But, as a prince, when influenced by substantial reasons, may refuse to admit and listen to ambassadors, in like manner the general of an army, or any other commander, is not always obliged to permit the approach of a trumpeter or drummer, and to give him a hearing. If, for instance, the governor of a besieged town is apprehensive that a summons to surrender may intimidate the garrison, and excite premature ideas of capitulation, he undoubtedly may, on seeing the trumpeter advance, send him orders to retire, informing him that if he comes a second time on the same errand and without permission, he shall be fired upon. This conduct is no violation of the laws of war: but such a mode of proceeding ought not to be adopted without very cogent reasons, because, by irritating the besiegers, it exposes the garrison to be treated by them with the extreme of rigor, untempered with mercy or moderation. To refuse to hear a trumpeter’s message without alleging a substantial reason for the refusal, is equivalent to a declaration that the party is determined to persevere in irreconcilable hostility.
§ 90. Every thing which has the appearance of insult to them must be avoided.
Whether we admit or refuse to hear a herald or a trumpeter, we ought carefully to avoid every thing which might wear the appearance of an insult offered to him. Not only does the law of nations claim that respect, but prudence moreover recommends such caution and delicacy. In 1744, the Bailly de Bivry sent a trumpeter, with an officer, to summon the redoubt of Pierrelonge in Piedmont. The Savoyard officer who commanded in the redoubt, a brave man, but of a blunt and fiery disposition, feeling his indignation roused by a summons to surrender a post which he deemed tenable and secure, returned an insulting answer to the French general. The officer to whom the answer was given, judiciously took advantage of the circumstance, and delivered it to the Bailly de Bivry in the hearing of the French troops. It set them in a flame; and their native valor being stimulated by the eager desire of avenging an affront, their impetuosity was irresistible: though the attack was attended with considerable carnage, the losses they sustained only added fresh fuel to their courage, till at length they carried the redoubt: and thus the imprudent commandant was accessory to his own death, the slaughter of his men, and the loss of his post.
§ 91. By and to whom they may be sent.
The prince, the general of the army, and every commander-in-chief within his department, have alone the right of sending a trumpeter or drummer; and, on the other hand, it is only to the commander-in-chief that they can send such messengers. Should a general, besieging a town, attempt to send a trumpeter to any subaltern, to the magistracy, or the townsmen, the governor might justly treat that trumpeter as a spy. The French monarch, Francis the First, while engaged in war with Charles the Fifth, sent a trumpeter to the diet of the empire, then assembled at Spires. The trumpeter was seized by order of the emperor, who threatened to hang him, because he was not sent to him.14 But he did not dare to put his threat in execution; for, loudly as he complained on the subject, he was nevertheless convinced, in his own mind, that the diet had a right, even without his consent, to listen to the proposals brought by a trumpeter. On the other hand, a drummer or trumpeter from a subaltern is seldom received, unless for some particular object depending on the present authority of the subaltern acting in his function. At the siege of Rynberg in 1598, a colonel of a Spanish reigment having taken upon him to summon the town, the governor sent the drummer orders to withdraw, informing him at the same time, that, if any other drummer or trumpeter had the audacity to come on the same errand from a subaltern, he would cause the messenger to be hanged.15
§ 92. Independence of foreign ministers.16
The inviolability of a public minister, or the protection to which he has a more sacred and particular claim than any other person, whether native or foreigner, is not the only privilege he enjoys: the universal practice of nations allows him, moreover, an entire independence on the jurisdiction and authority of the state in which he resides. Some authors17 maintain that this independence is merely a matter of institution between different states, and will have it referred to the arbitrary law of nations, which owes its origin to manners, customs, or particular conventions: in a word, they deny it to be grounded on the natural law of nations. It is true, indeed, that the law of nature gives men a right to punish those who injure them: consequently it empowers sovereigns to punish any foreigner who disturbs the public tranquillity, who offends them, or maltreats their subjects: it authorizes them to compel such foreigner to conform to the laws, and to behave properly towards the citizens. But it is no less true, that the natural law at the same time imposes on all sovereigns the obligation of consenting to those things, without which it would be impossible for nations to cultivate the society that nature has established among them, to keep up a mutual correspondence, to treat of their affairs, or to adjust their differences. Now, ambassadors, and other public ministers, are necessary instruments for the maintenance of that general society, of that mutual correspondence between nations. But their ministry cannot effect the intended purpose, unless it be invested with all the prerogatives which are capable of insuring its legitimate success, and of enabling the minister freely and faithfully to discharge his duty in perfect security. The law of nations, therefore, while it obliges us to grant admission to foreign ministers, does also evidently oblige us to receive those ministers in full possession of all the rights which necessarily attach to their character all the privileges requisite for the due performance of their functions. It is easy to conceive that independence must be one of those privileges; since, without it, that security which is so necessary to a public minister, would be enjoyed on a very precarious footing. He might be molested, persecuted, maltreated, under a thousand pretenses. A minister is often charged with commissions that are disagreeable to the prince to whom he is sent. If that prince has any power over him, and especially a sovereign authority, how is it to be expected that the minister can execute his master’s orders with due fidelity, firmness, and freedom of mind? It is a matter of no small importance that he have no snares to apprehend that he be not liable to be diverted from his functions by any chicanery that he have nothing to hope, nothing to fear, from the sovereign to whom he is sent. In order, therefore, to the success of his ministry, he must be independent of the sovereign authority and of the jurisdiction of the country, both in civil and criminal matters. To this may be added, that the nobility and other persons of eminence would be averse to undo taking an embassy, if such commission were to subject them to a foreign authority not unfrequently in countries where they have little friendship to expect for their own nation, and where they must support disagreeable claims, and enter into discussions naturally productive of acrimony. In a word, if an ambassador may be indicted for ordinary offences, be criminally prosecuted, taken into custody, punished if he may be sued in civil cases the consequence will often be, that he will neither possess the power, the leisure, nor the freedom of mind which his master’s affairs require. And how shall he be able to support the dignity of representation in such a state of subjection? On the whole, therefore, it is impossible to conceive that the prince who sends an ambassador, or any other minister, can have any intention of subjecting him to the authority of a foreign power: and this consideration furnishes an additional argument which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the footing of independency: and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation.
The established practice is perfectly conformable to the principles here laid down. All sovereigns claim a perfect independency for their ambassadors and ministers. If it be true that there was a king of Spain, who from a desire of arrogating to himself a jurisdiction over the foreign ministers resident at his court, wrote to all the Christian princes, informing them that if his ambassadors would commit any crime in the places of their respective residence, it was his pleasure that they should forfeit all their privileges, and be tried according to the laws of the country18 one solitary instance is of no weight in an affair of this nature; nor have his successors on the Spanish throne adopted a similar mode of thinking.
§ 93. How the foreign minister is to behave.
This independency of the foreign minister is not to be converted into licentiousness: it does not excuse him from conforming to the customs and laws of the country in all his external actions, so far as they are unconnected with the object of his mission and character; he is independent; but he has not a right to do whatever he pleases. Thus, for instance, if there exist a general prohibition against passing, in a carriage near a powder-magazine, or over a bridge against walking round, and examining the fortifications of a town, etc. the ambassador is bound to respect such prohibitions.19 Should he forget his duty should he grow insolent, and be guilty of irregularities and crimes there are, according to the nature and importance of his offences, various modes of repressing him: and these we shall speak of, after we have said a few words concerning the line of conduct to be pursued by a public minister in the place of his residence. He must not avail himself of his independency for the purpose of violating the laws and customs; he should rather punctually conform to them, as far as they may concern him, although the magistrate has no compulsive power over him; and he is especially bound to a religious observance of the rules of justice towards all who have any dealings with him. As to what concerns the prince to whom he is sent, the ambassador should remember that his ministry is a ministry of peace, and that it is on that footing only he is received. This reason forbids his engaging in any evil machinations: let him serve his master without injuring the prince who receives him. It is a base treachery to take advantage of the inviolability of the ambassadorial character, for the purpose of plotting in security the ruin of those who respect that character of laying snares for them of clandestinely injuring them of embroiling and ruining their affairs. What would be infamous and abominable in a private guest, shall that be allowable and becoming in the representative of a sovereign?
Here arises an interesting question. It is but too common for ambassadors to tamper with the fidelity of the ministers of the court to which they are sent, and of the secretaries and other persons employed in the public offices. What ideas are we to entertain of this practice? To corrupt a person to seduce him to engage him by the powerful allurement of gold to betray his prince and violate his duty, is, according to all the established principles of morality, undoubtedly a wicked action. How comes it then that so little scruple is made of it in public affairs? A wise and virtuous politician20 sufficiently gives us to understand that he absolutely condemns that scandalous resource: but, fearful of provoking the whole tribe of politicians to assail him at once, like a nest of hornets, he proceeds no further than barely advising them not to practice such manuvres except when every other resource fails. As to me, whose pen is employed in developing the sacred and immutable principles of justice, I must, in duty to the moral world, openly aver that the mode of corruption is directly repugnant to all the rules of virtue and probity, and a flagrant violation of the law of nature. It is impossible to conceive an act of a more flagitious nature, or more glaringly militant against the reciprocal duties of men, than that of inducing any one to do evil. The corruptor is undoubtedly guilty of a crime against the wretch whom he seduces; and as to the sovereign whose secrets are thus treacherously explored, is it not both an offence and an injury committed against him, to abuse the friendly reception given at his court, and to take advantage of it for the purpose of corrupting the fidelity of his servants? He has a right to banish the corruptor from his dominions, and to demand justice of his employer.
If every bribery be excusable, it is when it happens to be the only possible mode by which we can completely discover and defeat a heinous plot, capable of ruining, or materially endangering the state in whose service we are employed. In the conduct of him who betrays such a secret, there may, according to circumstances, be no criminality. The great and lawful advantage accruing from the action which we induce him to perform, together with the urgent necessity of having recourse to it, may dispense with our paying too scrupulous an attention to the questionable complexion of the deed on his part. To gain him over is no more than an act of simple and justifiable self-defense. It every day happens, that, in order to foil the machinations of wicked men, we find ourselves under a necessity of turning to our account the vicious dispositions of men of similar stamp. On this footing it was Henry the Fourth said to the Spanish minister, that “it is justifiable conduct in an ambassador to have recourse to bribery for the purpose of detecting the intrigues that are carried on against his sovereign’s interest;”21 adding, that the affair of Marseilles, that of Metz, and several others, sufficiently showed that he had good reason for endeavoring to penetrate the schemes which his enemies were plotting at Brussels against the tranquillity of his kingdom. That great prince, it is to be presumed, did not consider bribery and seduction as on all occasions excusable in a foreign minister, since he himself gave orders for the arrest of Bruneau, the Spanish ambassador’s secretary, who had tampered with Mairargues for the clandestine surrender of Marseilles to the Spaniards.
In barely taking advantage of the offers made to us by a traitor, whom we have not seduced, our conduct is less inconsistent with justice and honor. But the examples of the Romans, which we have already quoted (Book III. §§ 155, 181), and in which there was question of declared enemies, those examples, I say, sufficiently show that true greatness of soul disdains even that resource, lest the adoption of it should hold out an encouragement to infamous treachery. A prince or a minister, whose ideas of honor are not inferior to those of the ancient Romans above noticed, will never stoop to embrace the proposals of a traitor, except when compelled by some dire, uncontrollable necessity: and even then he will regret the degrading circumstance of owing his preservation to so unworthy an expedient.
But I do not here mean to condemn an ambassador for employing civilities and polite attentions, and even presents and promises, with a view to gain friends for his sovereign. To conciliate men’s affections and good-will is not seducing them, or impelling them to the perpetration of criminal deeds: and, as to those new friends, it is their business to keep a strict watch over their own hearts, lest their attachment to a foreign prince should ever warp them from the fidelity which they owe to their lawful sovereign.
§ 94. How he may be punished. 1. For ordinary transgressions.
Should an ambassador forget the duties of his station should he render himself disagreeable and dangerous should he form cabals and schemes prejudicial to the peace of the citizens, or to the state or prince to whom he is sent there are various modes of punishing him, proportionate to the nature and degree of his offence. If he maltreats the subjects of the state if he commits any acts of injustice or violence against them the injured subjects are not to seek redress from the ordinary magistrates, since the ambassador is wholly independent of their jurisdiction: and, for the same reason, those magistrates cannot proceed directly against him. On such occasions, therefore, me plaintiffs are to make application to their sovereign, who demands justice from the ambassador’s master, and, in case of a refusal, may order the insolent minister to quit his domains.
§ 95. 2. for faults committed against the prince.
Should a foreign minister offend the prince himself should he fail in the respect which he owes him, or, by his intrigues, embroil the state and the court the offended prince, from a wish to keep measures with the offender’s sovereign, sometimes contents himself with simply requiring that the minister be recalled; or if the transgression be of a more serious nature, he forbids his appearance at court in the interval while his master’s answer is expected; and, in cases of a heinous complexion, he even proceeds so far as to expel him from his territories.
§ 96. Right of ordering away an ambassador who is guilty, or justly suspected.
Every sovereign has an unquestionable right to proceed in this manner; for, being master in his own dominions, no foreigner can stay at his court, or in his territories, without his permission. And though sovereigns are generally obliged to listen to the overtures of foreign powers, and to admit their ministers, this obligation entirely ceases with regard to a minister, who, being himself deficient in the duties attached to this station, becomes dangerous to, or justly suspected by the sovereign, to whom he can come in no other character than that of a minister of peace. Can a prince be obliged to suffer that a secret enemy, who is raising disturbances in the state and plotting its ruin, shall remain in his dominions and appear at his court? Ridiculous was the answer of Philip the Second to queen Elizabeth, on her request that he would recall his ambassador, who was carrying on dangerous plots against her. The Spanish monarch refused to recall him, saying, that “the condition of princes would be very wretched indeed, if they were obliged to recall a minister whenever his conduct did not suit the humour or the interest of those with whom he was negotiating.”22 Much more wretched would be the condition of princes, if they were bound to suffer in their states, and at their court, a minister who was disagreeable or justly suspected, an incendiary, an enemy disguised under the character of an ambassador, who should avail himself of his inviolability for the purpose of boldly plotting schemes of a pernicious tendency. The queen, justly offended at Philip’s refusal, put a guard on the ambassador.23
§ 97. Right of repressing him by force, if he behaves as an enemy.
But is a prince on every occasion bound to confine his resentment to the simple expulsion of an ambassador, however great the enormities of which the latter may have been guilty? Such is the doctrine maintained by some authors, who ground their opinion on the absolute independency of a public minister. I own he is independent of the jurisdiction of the country: and I have already said, that, on this account, the common magistrate cannot proceed against him. I further admit, that, in all cases of ordinary transgression, all instances of offensive or disorderly behavior, which, though injurious to individuals, or to society, do not endanger the safety of the state or of the sovereign, there is that degree of respect due to the ambassadorial character which is so necessary for the correspondence of nations, and to the dignity of the prince represented, that a complaint be first made to him of the conduct of his minister, together with a demand of reparations; and that, if no satisfaction is obtained, the offended sovereign be then content with simply ordering the ambassador to quit his dominions, in case the serious nature of the offences absolutely require that a stop be put to them. But shall an ambassador be suffered with impunity to cabal against the state where he resides, to plot its ruin, to stir up the subjects to revolt, and boldly to foment the most dangerous conspiracies, under the assurance of being supported by his master? If he behaves as an enemy, shall it not be allowable to treat him as such? the question admits not of a doubt with regard to an ambassador who proceeds to overt acts, who takes up arms, and uses violence. In such case, those whom he attacks may repel him: self-defense being authorized by the law of nature. Those Roman ambassadors, who, being sent to the Gauls, fought against them with the people of Clusium, divested themselves of the ambassadorial character.24 Can any one therefore imagine that the Gauls were bound to spare them in the hour of battle?
§ 98. Ambassador forming dangerous plots and conspiracies.
The question is more difficult with respect to an ambassador who, without proceeding to overt acts, broaches plots of a dangerous tendency, who, by his occult machinations, excites the subject to revolt, and who forms and encourages conspiracies against the sovereign or the state. Shall it be deemed unlawful to repress and inflict exemplary punishment on a traitor who abuses the sacred character with which he is invested, and who is himself the first to set the example of violating the law of nations? That sacred law provides no less for the safety of the prince who receives an ambassador, than for that of the ambassador himself. But, on the other hand, if we allow the offended prince a right to punish a foreign minister in such cases, the subjects of contest and rupture between sovereigns will become very frequent; and it is much to be feared that the ambassadorial character will cease to enjoy that protection and inviolability which are so essential to it. There are certain practices connived at in foreign ministers, though not always strictly consistent with the rules of rectitude: there are others, again, which are not to be corrected by actual punishment, but simply by ordering the minister to depart. How shall we, in every case, be able to ascertain the precise boundaries of those different degrees of transgression? When there exists a premeditated design of persecuting a minister, an odious coloring will be given to his intrigues: his intentions and proceedings will be calumniated by sinister constructions; even false accusations will be raised against him. Finally, such plots as we here allude to are generally conducted with caution: they are carried on so secretly, that, to obtain full proof of them, is a matter of extreme difficulty, and indeed hardly possible, without the formalities of justice, formalities to which we cannot subject a minister who is independent of the jurisdiction of the country.
In laying down the grounds of the voluntary law of nations (Prelim. § 21), we have seen that, in particular conjunctures, nations must, with a view to the general advantage, necessarily recede from certain rights, which, taken in themselves and abstracted from every other consideration, should naturally belong to them. Thus, although the sovereign who has justice on his side be alone really entitled to all the rights of war (Book III. § 188), he is nevertheless obliged to look upon his enemy as enjoying equal rights with himself, and to treat him accordingly (Ibid. §§ 190, 191). The same principles must be our rule in the present case. We may therefore venture to affirm, that, in consideration of the extensive utility, nay, the absolute necessity of embassies, sovereigns are bound to respect the inviolability of an ambassador as long as it is not incompatible with their own safety and the welfare of their state. Consequently, when the intrigues of the ambassador have transpired, and his plots are discovered, when the danger is passed, so that there no longer exists a necessity of laying hands on him in order to guard against it, the offended sovereign ought, in consideration of the ambassadorial character, to renounce his general right of punishing a traitor and a secret enemy who conspires against the safety of the state, and to content himself with dismissing the guilty minister, and requiring that punishment to be inflicted on him by the sovereign to whose authority he is subject.
Such, in fact, is the mode of proceeding established by common consent among the generality of nations, especially those of Europe. Wicquefort25 gives us several instances of some of the principal European sovereigns, who, on discovering ambassadors to be guilty of odious machinations, have limited their resentment to the expulsion of the offenders, without even making application to have them punished by their masters, of whom they did not expect to obtain a compliance with such a demand. To these instances let us add that the duke of Orleans, regent of France. That prince, having detected a dangerous conspiracy which had been formed against him by the prince de Cellamre, ambassador from Spain, behaved with great moderation on the occasion, not adopting any severer measures than those of setting a guard over the guilty minister, seizing his papers, and causing him to be conducted out of the kingdom. Another remarkable instance, of very ancient date, stands recorded by the Roman historians, that in which Tarquin’s ambassadors were concerned. Having repaired to Rome under pretense of claiming the private property belonging to their master, who had been expelled from his kingdom, they tampered with the profligate young nobility, and engaged them in a black and infamous conspiracy against the liberties of their country. Although such conduct would have authorized the rulers of the Roman state to treat them as enemies, the consuls and senate nevertheless respected the law of nations in the persons of those ambassadors.26 The offenders were sent back to their employer, without having received any personal injury: but, from Livy’s account of the transaction, it appears that the letters which they had from the conspirators to Tarquin were taken from them.
§ 99. What may be done to him according to the exigency of the case.
This example leads us to the true rule of the law of nations, in the cases now in question. An ambassador cannot be punished because he is independent: and, for the reasons we have alleged, it is not proper to treat him as an enemy, till he himself proceeds to overt acts of violence: but we are justifiable in adopting against him every measure which the circumstances of the case may reasonably require for the purpose of defeating his machinations and averting the evil which he has plotted. If, in order to disconcert and prevent a conspiracy, it were necessary to arrest or even put to death an ambassador who animates and conducts it, I do not see why we should for a moment hesitate to take either of those steps, not only because the safety of the state is the supreme law, but also because, independent of that maxim, the ambassador’s own deeds give us a perfect and particular right to proceed to such extremities. A public minister, I grant, is independent, and his person is sacred: but it is unquestionably lawful to repel his attacks, whether of a secret or of an open nature, and to defend ourselves against him, whenever he acts either as an enemy or a traitor. And if we cannot accomplish our own preservation without harm thence resulting to him, it is he himself who has laid us under a necessity of not sparing him. On such an occasion, it may with great truth be asserted, that the minister has, by his own act, excluded himself from the protection of the law of nations. Suppose the Venetian senate, though apprised of the marquis of Bedamar’s conspiracy, and impressed with a thorough conviction of that minister’s being the prime mover and director of the whole business, had nevertheless been, in other particulars, destitute of sufficient information to enable them to crush the detestable plot, suppose they had been uncertain with respect to the number and rank of the conspirators, the designs they had in agitation, and the particular quarter where the meditated mischief was to burst forth, whether an intention was entertained of exciting a revolt among the marine or the land forces, or effecting the clandestine capture of some important fortress, would they, under such circumstances, have been bound to suffer the ambassador to depart unmolested, and thus afford him an opportunity of joining and heading his accomplices, and of bringing his designs to a successful issue! No man will seriously answer in the affirmative: the senate, therefore, would have had a right to arrest the marquis and all his household, and even to extort from them their detestable secret. But those prudent republicans, seeing the danger was removed, and the conspiracy totally suppressed, chose to keep measures with Spain: wherefore they prohibited all accusation of the Spaniards as concerned in the plot, and contented themselves with simply requesting the ambassador to withdraw, in order to screen himself from the rage of the populace.
§ 100. Ambassador attempting against the sovereign’s life.
In this case the same rule is to be followed which we have already laid down (Book III. § 136,) in treating of what may lawfully be done to an enemy. Whenever an ambassador acts as an enemy, we are justifiable in adopting against him every measure that is necessary for the purpose of defeating his evil designs and insuring our own safety. It is on the same principle, and under the idea which represents the ambassador as a public enemy when he behaves as such, that we proceed to determine the treatment he ought to receive in case he pursues his criminal career to the last stage of enormity. If an ambassador commit any of those atrocious crimes which sap the very foundations of the general safety of mankind, if he attempt to assassinate or poison the prince who has received him at his court, he unquestionably deserves to be punished as a treacherous enemy guilty of poisoning or assassination (See Book III. § 155). The ambassadorial character, which he has so basely prostituted, cannot shield him from the sword of justice. Is the law of nations to protect such a criminal, when the personal security of all sovereigns and the general safety of mankind loudly demand that his crime should be expiated by the sacrifice of his forfeit life? It is true, indeed, that we have little room to apprehend that a public minister will proceed to such dreadful enormities: for it is generally men of honor who are invested with the character of ambassadors; and even if there should, among the number, be some whose consciences are callous to every scruple, the difficulties, nevertheless, and the magnitude of the danger, are sufficient to deter them from the attempt. Yet such crimes are not wholly unexampled in history. Monsieur Barbeyrac27 instances the assassination of the lord of Sirmium by an ambassador of Constantinus Diogenes, governor of the neighboring province for Basilius II., emperor of Constantinople; and for his authority he quotes the historian Cedrenus. The following fact is likewise to the purpose. In the year 1382, Charles III., king of Naples, having sent to his competitor, Louis, duke of Anjou, a knight named Matthew Sauvage, in the character of a herald, to challenge him to single combat, the herald was suspected of carrying a demi-lance whose point was tinged with a poison of so subtle a nature, that whoever should look steadfastly on it, or even suffer it to touch his clothes, would instantly drop down dead.
The duke, being apprized of the danger, refused to admit the herald into his presence, and ordered him to be taken into custody. The culprit was interrogated, and, upon his own confession, suffered the punishment of decapitation. Charles complained of the execution of his herald, as an infraction of the laws and usages of war: but Louis, in his reply, maintained that he had not violated those laws in his treatment of Sauvage, who had been convicted by his own confession.28
Had the crime imputed to the herald been clearly substantiated, he was an assassin, who no law could protect. But the very nature of the accusation sufficiently proves that it was a false and groundless charge.
§ 101. Two remarkable instances respecting the immunities of public ministers.
The question of which we have been treating has been debated in England and France on two famous occasions. In the former of those countries, the question arose in the case of John Leslie, bishop of Ross, ambassador from Mary, queen of Scots. That minister was continually intriguing against queen Elizabeth, plotting against the tranquillity of the state, forming conspiracies, and exciting the subjects to rebellion. Five of the most able civilians, 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 annexed to his character, and is subject to the punishment of the law.” They should rather have said, that he may be treated as an enemy. But the council contented themselves with causing the bishop to be arrested, and after having detained him a prisoner in the Tower for two years, set him at liberty when there was no longer any danger to be apprehended from his intrigues, and obliged him to depart from the kingdom.29 This instance may serve to confirm the principles which we have laid down; and the like may be said of the following. Bruneau, secretary to the Spanish ambassador in France, was detected in the very act of treating with Mairargues, in a time of profound peace, for the surrender of Marseilles to the Spaniards. The secretary was thereupon committed to prison, and was subjected to a judicial examination by the parliament before whom Mairargues was tried. That body, however, did not pronounce sentence of condemnation on Bruneau, but referred his case to the king, who restored him to his master, on condition that the latter should order him to depart immediately from the kingdom. The ambassador warmly complained of the imprisonment 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.” The king might have added, that a nation has even a right to adopt, against a public minister, every measure which may be necessary for the purpose of warding off the mischief he meditates against her, of defeating his projects, and preventing their evil consequences. It was on this principle that the parliament were authorized to interrogate Bruneau, for the purpose of discovering all the parties concerned in so dangerous a conspiracy. The question, whether foreign ministers who violate the law of nations do thereby forfeit their privileges, was warmly debated at Paris, but, without waiting to have the point decided, the king restored Bruneau to his master.30
§ 102. Whether reprisals may be made on an ambassador.
It is not lawful to maltreat an ambassador by way of retaliation: for the prince who uses violence against a public minister is guilty of a crime; and we are not to take vengeance for his misconduct by copying his example. We never can, under pretense of retaliation, be authorized to commit actions which are in their own nature unjustifiable: and such undoubtedly would be any instance of ill treatment inflicted on an unoffending minister as a punishment for this master’s faults. If it be an indispensable duty to pay a general regard to this rule in cases of retaliation, it is more particularly obligatory with regard to an ambassador, on account of the respect due to his character. The Carthaginians having violated the law of nations in the persons of the Roman ambassadors, the ambassadors of that perfidious nation were brought to Scipio, who, being asked how he would have them to be treated, replied, “Not in the manner that the Carthaginians have treated ours.” Accordingly he dismissed them in safety;31 but at the same time he made preparations for chastising, by force of arms, the state which had violated the law of nations.32 There cannot be a better pattern for sovereigns to follow on such an occasion. If the injury for which we would make retaliation does not concern a public minister, there exists a still stronger certainty that we must not retaliate on the ambassador of the sovereign against whom our complaint lies. The safety of public ministers would be very precarious, if it were liable to be affected by every casual difference that might arise. But there is one particular case in which it appears perfectly justifiable to arrest an ambassador, provided no ill treatment be given to him in other respects. When, for instance, a prince has, in open violation of the law of nations, caused our ambassador to be arrested, we may arrest and detain his, as a pledge for the life and liberty of ours. But should this expedient prove unsuccessful, it would become our duty to liberate the unoffending minister, and to seek redress by more efficacious measures. Charles the Fifth caused the French ambassador, who had made him a declaration of war, to be put under an arrest; whereupon Francis the First caused Granvelle, the emperor’s ambassador, to be arrested in like manner. At length, however, it was agreed that both those ministers should be conducted to the frontier, and released at the same time.33
§ 103. Agreement of nations concerning the privileges of ambassadors.
We have derived the independence and inviolability of the ambassadorial character from the natural and necessary principles of the law of nations. These prerogatives are further confirmed by the uniform practice and general consent of mankind. We have seen above (§ 84), that the Spaniards found the right of embassies established and respected in Mexico. The same principle also prevails even among the savage tribes of North America: and if we thence turn our eye to the other extremity of the globe, we find that ambassadors are highly respected in China. In India also the same rule is observed, though with less scrupulous punctuality:34 the king of Ceylon, for instance, has sometimes imprisoned the ambassadors of the Dutch East-India company. Being master of the places which produce cinnamon, he knows that the Dutch, in consideration of a profitable commerce, will overlook many irregularities in his conduct; and, with the true disposition of a barbarian, he takes an undue advantage of that circumstance. The Koran enjoins the moslems to respect public ministers: and if the Turks have not in all instances uniformly observed that precept, their violations of it are rather imputable to the ferocity of particular princes than to the principles of the nation at large. The rights of ambassadors were formerly very well known among the Arabs. A writer of that nation35 relates the following incident: Khaled, an Arabian chief, having come, in the character of ambassador, to the army of the emperor Heraclius, used insolent language to the general: whereupon the latter observed to him, that “ambassadors were protected from all kind of violence by the law which universally prevailed among nations: audit was probably that consideration which had emboldened the Arab to speak to him in so indecent a manner.”36 It would be quite unnecessary, in this place, to accumulate the various examples with which the history of the European nations presents us: the enumeration would be endless; and the established customs of Europe on this subject are sufficiently known. Saint Louis, when at Acra in Palestine, gave a remarkable instance of the protection due to public ministers: an ambassador from the Old Man of the Mountain, or prince of the Assassins, speaking insolently to the French monarch, the grandmasters of the orders of the Temple and the Hospital informed that minister, that, “were it not for the respect paid to the character with which he was invested, they would cause him to be thrown into the sea.”37 The king, however, dismissed him without suffering the slightest injury to be done him. Nevertheless, as the prince of the Assassins was on his own part guilty of grossly violating the most sacred rights of nations, it would have been reasonable to suppose that his ambassador had no claim to protection, except indeed on this single consideration, that, as the privilege of inviolability is founded on the necessity of keeping open a safe channel of communication, through which sovereigns may reciprocally make proposals to each other, and carry on negotiations both in peace and in war, the protection should therefore extend even to the envoys of those princes, who, guilty themselves of violating the law of nations, would otherwise have no title to our respect.
§ 104. Free exercise of religion.
There are rights of another nature, which, though not necessarily annexed to the character of a public minister, are nevertheless allowed to him by established custom in almost every country. One of the principal of these is the free exercise of his religion. It is, indeed, highly proper that a minister, and especially a resident minister, should enjoy the free exercise of his religion within his own house, for himself and his retinue. But it cannot be said that this right, like those of independence and inviolability, is absolutely necessary to the success of his commission, particularly in the case of a non-resident minister, the only one whom nations are bound to admit (§ 66). the minister may in this respect, do what he pleases in his own house, into which nobody has a right to pry or to enter. But, if the sovereign of the country where he resides should, for substantial reasons, refuse him permission to practice his religion in any manner which might render it an object of public notice, we must not presume to condemn the conduct of that sovereign, mush less to accuse him of violating the law of nations. At present, ambassadors are not debarred the free exercise of their religion in any civilized country: for a privilege which is founded on reason cannot be refused when it is attended with no ill consequence.
§ 105. Whether an ambassador be exempted from all imposts.
Among those rights that are not necessary to the success of embassies, there are, on the other hand, some which are not founded on a general consent of nations, but which are nevertheless, by the custom of several countries, annexed to the ambassadorial character. Of this number is the exemption of things brought into or sent out of the country by a foreign minister from the customary duties on importation and exportation. There is no necessity that he should be favored with any distinction in that respect, since his payment of those duties will not render him the less capable of discharging his functions. If the sovereign is pleased to exempt him from them, it is an instance of civility which the minister could not claim as matter of right, any more than that his baggage, or any chests or packages which he imports from abroad, shall not be searched at the custom-house. Thomas Chaloner, the English ambassador in Spain, sent home a bitter complaint to Queen Elizabeth, his mistress, that the custom-house officers had opened his trunks in order to search them. But the queen returned him for answer, that it was “the duty of an ambassador to wink at every thing which did not directly offend the dignity of his sovereign.”38
The independency of the ambassador exempts him indeed from every personal imposition, capitation, or other duty of that nature, and in general from every tax relating to the character of a subject of the state. But as for duties laid on any kind of goods or provisions, the most absolute independency does not exempt him from the payment of them: even sovereigns themselves are subject to them. In Holland, the following rule is observed: ambassadors are exempt from the taxes on consumption, doubtless, because those taxes are more directly of a personal nature: but they pay the duties on importation and exportation.
However extensive their exemption may be, it is manifest that it solely relates to things intended for their own use. Should they abuse and make a shameful traffic of it by lending their name to merchants, the sovereign has unquestionably a right to put a stop to the fraud, even by suppressing the privilege. Such things have been known in several places; and the sordid avarice of some ministers, who made a trade of their exemption, has obliged the sovereign to deprive them of it. At present, the foreign ministers at Petersburgh are subject to the duties on importation; but the empress has the generosity to indemnify them for the loss of a privilege which they had no right to claim, and which, from the frequency of its abuse, she had been obliged to abolish.
§ 106. Obligation founded on use and custom.
But, here it is asked, whether a nation may abolish what general custom has established with respect to foreign ministers? Let us then consider what obligation custom and received usage can impose on nations, not only in what concerns ministers, but also in any other instance, in general. The usages and customs of other nations are no further obligatory on an independent state, than as she has expressly or tacitly given her consent to them. But when once a custom, indifferent in itself, has been generally established and received, it carries the force of an obligation on the states which have tacitly or expressly adopted it. Nevertheless, if, in process of time, any nation perceives that such custom is attended with inconveniences, she is at liberty to declare that she no longer chooses to conform to it: and when once she has made this explicit declaration, no cause of complaint lies against her for refusing thenceforward to observe the custom in question. But such a declaration should be made beforehand, and at the time when it does not affect any particular nation: it is too late to make it when the case actually exists: for it is a maxim universally received, that a law must never be changed at the moment of the actual existence of the particular case to which we would apply it. Thus, on the subject before us, a sovereign who has previously notified his intentions, and received an ambassador only on that fooling, is not obliged to allow him the enjoyment of all the privileges, or to pay him all the honors, which custom had before annexed to the ambassadorial character, provided that the privileges and honors which are withheld be not essential to the nature of the embassy, and necessary to insure its legitimate success. To refuse privileges of this latter kind, would be the same thing in effect as refusing the embassy itself, a conduct which a state is not at liberty to pursue generally and on every occasion (§ 65), but in those instances only where the refusal is founded on some very substantial reason. To withhold honors which are consecrated by custom and become in a manner essential, is an expression of contempt, and an actual injury.
Here it must be further observed, that, when a sovereign intends to break through an established custom, the rule should be general. To refuse certain customary honors or privileges to the ambassador of one nation, and to continue the enjoyment of them to others, is an affront to that nation, a mark of contempt, or at least of ill-will.
§ 107. A minister whose character is not public.
Sometimes princes send to each other secret ministers, whose character is not public. If a minister of this kind be insulted by a person unacquainted with his character, such insult is no violation of the law of nations: but the prince who receives this ambassador and knows him to be a public minister, is bound by the same ties of duty towards him as towards a publicly acknowledged ambassador, and under equal obligation to protect him, and as far as in his power, to insure him the full enjoyment of that inviolability and independence which the law of nations annexes to the ambassadorial character. No excuse, therefore, can be offered for the conduct of Francis Sforza, duke of Milan, in putting to death Marabiglia, secret minister of Francis the First. Sforza had often treated with that secret agent, and had acknowledged him as the French monarch’s minister.39
§ 108. A sovereign in a foreign country.
We cannot introduce in any more proper place in important question of the law of nations, which is nearly allied to the right of embassies. It is asked, what are the rights of a sovereign, who happens to be in a foreign country, and how the master of the country is to treat him? If that prince be come to negotiate, or to treat about some public affair, he is doubtless entitled in a more eminent degree to enjoy all the rights of ambassadors. If he be come as a traveler, his dignity alone, and the regard due to the nation which he represents and governs, shelters him from all insult, gives him a claim to respect and attention of every kind, and exempts him from all jurisdiction. On his making himself known, he cannot be treated as subject to the common laws; for it is not to be presumed that he has consented to such a subjection: and if a prince will not suffer him in his dominions on that fooling, he should give him notice of his intentions. But, if the foreign prince forms any plot against the safety and welfare of the state, in a word, if he acts as an enemy, he may very justly be treated as such. In every other case he is entitled to full security, since even a private individual of a foreign nation has a right to expect it.
A ridiculous notion has possessed the minds even of persons who deem themselves superior in understanding to the common herd of mankind. They think that a sovereign who enters a foreign country without permission, may be arrested there.40 But on what reason can such an act of violence be grounded? The absurdity of the doctrine carries its own refutation on the face of it. A foreign sovereign, it is true, ought to give notice of his coming, if he wishes to receive such treatment as he is entitled to expect. It would, moreover, be prudent in him to make application for passports, in order that designing malevolence may not have any pretext, any hope of finding specious reasons to palliate an act of injustice and violence. I further allow, that, as the presence of a foreign sovereign may on certain occasions be productive of serious consequences, if the times are in anywise critical, and the motives of his journey liable to suspicion, he ought not to undertake it without the consent and approbation of the prince whose territories he means to enter. When Peter the Great determined personally to visit foreign countries in quest of the arts and sciences to enrich his empire, he traveled in the retinue of his own ambassadors.
A foreign prince unquestionably retains all his rights over his own state and subjects, and may exercise them in every instance that does not affect the sovereignty of the country in which he is a sojourner. The king of France, therefore, appears to have been too punctilious in refusing to permit the emperor Sigismund, when at Lyons, to confer the dignity of duke on the count of Savoy, who was a vassal of the empire (see Book II. § 40). Less difficulty would have been made with any other prince: but the court was scrupulously careful to guard against the old claims of the emperors. On the other hand, it was with very good reason that the same court expressed considerable displeasure at the conduct of Queen Christina, who, whilst residing in France, caused one of her domestics to be executed in her own house: for an execution of that kind is an act of territorial jurisdiction, and besides, Christina had abdicated the crown. Her reservations, her birth, her dignity, might indeed entitle her to great honors, or, at most, to an entire independence, but not to all the rights of an actual sovereign. The famous instance of Mary Queen of Scots, so often quoted on questions on this subject, is not a very apposite example: for that princess was no longer in possession of the crown at the time when she came to England, and was arrested, tried, and condemned to death.
§ 109. Deputies to the states.
The deputies sent to the assembly of the states of a kingdom, or a republic, are not public ministers like those of whom we have spoken above, as they are not sent to foreign powers: but they are public persons, and in that character are possessed of privileges which it is our duty to establish before we lake leave of this subject. The states which have a right to meet by deputies for the purpose of deliberating on public affairs, are, from that very circumstance, entitled to demand perfect security for their representatives, together with every exemption and immunity that is necessary to the free discharge of their functions. If the persons of the deputies be not inviolable, their constituents cannot be assured of their fidelity in asserting the rights of the nation and courageously defending the public interests. And how could those representatives duly acquit themselves of their functions, if people were allowed to molest them by arrests, either for debt or for ordinary offences? Between the nation and the sovereign, in this case, the same reasons hold good, on which, between state and state, the immunities of ambassadors are founded. We may therefore safely venture to assert, that the rights of the nation, and the public faith, secure those deputies from violence of every kind, and even from any judicial prosecution, during the term of their ministry. Such indeed is the rule observed in all countries, and particularly at the diets of the empire, the parliaments of England, and the Cortes of Spain.
Henry the Third, of France, caused the duke and the Cardinal de Guise to be killed at the meeting of the states at Blois. Unquestionably the security of the assembly was violated by that action: but those two princes were factious rebels, whose audacious views aimed at nothing less than depriving their sovereign of his crown. And if it was equally certain that Henry was no longer possessed of sufficient power to bring them to a formal trial, and punish them according to the laws, the necessity of justifiable self-defense gave the king a right to adopt the mode which he pursued, and furnishes a sufficient apology for his conduct. It is the misfortune of weak and unskillful princes, that they suffer themselves to be reduced to extremities, from which they cannot extricate themselves without a violation of every established rule. It is said that Pope Sextus the Fifth, on hearing of the catastrophe of the Duke de Guise, commended that resolute act as a necessary stroke of policy; but when he was told that the cardinal had likewise been killed, he burst into a violent paroxysm of rage.41 This, indeed, was carrying his haughty pretensions to an excessive height. The pontiff readily allowed that urgent necessity had authorized Henry to violate the security of the states, and to break through all the forms of justice: and could he pretend that this prince, rather than be deficient in respect for the Roman purple, should risk both his crown and his life?
1. See Wicquefort’s Ambassadors, per tot. C.
2. Ante. p. 459. n.
3. Ante, p. 459, n. C.
4. An enormous infraction of the law of nations caused the ruin of the powerful empire of Khovarezm, or Kakesm, and opened a door to the Tartars for the subjugation of almost all Asia. The famous Gengis-khan, wishing to establish a commercial intercourse between his states and those of Persia, and the other provinces subject to Mohammed Cotheddin, sultan of Khovarezm, sent to that prince an ambassador, accompanied by a caravan of merchants. On the arrival of that caravan at Otraw, the governor caused them to be arrested, together with the ambassador, and wrote word to the Sultan that they were a company of spies. Mohammed thereupon ordered him to have the prisoners put to death. Gengis-khan demanded satisfaction of the sultan for this barbarous massacre; and, finding him backward to give it, he took up arms. The conquest of the whole empire of Khovarezm soon followed; and Mohammed himself, reduced to the condition of a wretched fugitive, died of a broken heart in a desert island of the Caspian Sea.
Canson, the last sultan of the Mamelucs, having put to death the ambassadors of the Turkish emperor, Selim the First, the injured monarch took a signal vengeance for the atrocious deed. He conquered all the dominions of Canson, and, having defeated and captured that prince near Cairo, he caused him to be hanged at one of the gates of the city. Marigny, History of the Arabs, vol. ii. p. 105, 427.
5. See also the case of the arrest of the Russian ambassador, which occasioned the passing of the 7 Anne, c. 12, See recital in act, and 1 Bla. Com, 250, and ante, 459, note. C.
6. Memoires de Martin du Bellay, liv. ix.
7. Solis’s history of the Conquest of Mexico. § 17.
8. Wicquefort’s Ambassador, book I. § 1.
9. In Verrem, orat. i.
10. But see æsop’s Fables. C.
11. Wicquefort, book i. § 3.
12. Wicquefort, book i.
13. See also Calvin’s case, 7 Coke, 21 b.; 4 Inst. 155; 2 Inst. 57; 1 Chitty’s Com. L. 131. C.
14. Wicquefort, ubi supra.
15. See ante, pp. 459-464.
16. Idem. ibid.
17. See Wolf. Jus Gent. § 1059.
18. The fact is advanced by Antony de Vera, in his “Idea of a Perfect Ambassador:” but Wicquefort suspects the authenticity of the anecdote, not having, as he says, met with it in any other writer. Ambassad. book I. § 29.
19. The king of England having received information that the French and Spanish ambassadors had severally collected considerable numbers of armed men, for the purpose of supporting, on a solemn occasion, their respective claims to precedency, made a general request to all the foreign ministers not to send their carriages to attend the public entry of the Venetian ambassador. The count d’Estrades, at that time minister from the court of France, having complied with his majesty’s desire, Louis XIV. testified his dissatisfaction at the deference paid by the count to the British monarch’s message, “which was no more than a simple request not to send carriages: whereas, even if he had issued an express order (as being at liberty to give what orders he pleases in his own kingdom,) you should have replied that you receive no commands but from me: and if, after that, he had attempted to use violence, the part which remained for you to act, was that of withdrawing from his court.” I think the French monarch entertained erroneous ideas on the subject; since every sovereign must surely have a right to prohibit all foreign ministers doing any thing in his dominions which may tend to produce disorder, and which, moreover, is not necessary to the exercise of their ministerial functions.
20. Mons. Pequet, Discours sur l’Art de Negocier, p. 91
21. See Sully’s Memoirs, and the French historians.
22. Wicquefort, book i. § 29.
23. Idem. ibid.
24. Livy, book v. chap. 26, where the historian peremptorily decides that those ambassadors violated the law of nations: “Legati, contra jus gentium, arma capiunt.”
25. Ambassad. book I. §§ 27, 28, 29.
26. Et quamquam visi sunt (legati) commisisse ut hostium loco essent, jus tamen gentium valuit. Tit. Liv. Lib. ii, cap. 4.
27. In his notes on Bynkershoek’s treatise on the Competent Judge of Ambassadors, ch. xxiv. § 5, note 2.
28. History of the Kings of the Two Sicilies, by Monsieur D’Egly.
29. Cambden’s Annal. Angl. ad ann. 1571, 1573.
30. See the discussion of the question, and the discourse which Henry IV. held on this subject to the Spanish ambassador, in the Memoires de Nevers, vol. ii. p. 858, el seq., in Matthieu, vol. ii. book iii. and other historians.
Joseph Sofi, king of Carezem, having imprisoned an ambassador of Timur-Bec, Timur’s secretary of state wrote him a letter couched in strong terms of expostulation on the subject of that infraction of the law of nations, informing him that “It is a maxim with kings to consider the person of an ambassador as sacred: for which reason he is always held exempt from the punishment of death or imprisonment, if the sovereign to whom he is sent has even the slightest knowledge of the law of nations, or the ambassador himself does but possess sufficient prudence to refrain from the commission of any heinous offence, and to behave with common decency.” La Croix, Hist. of Timur-Bec, book ii. chap. 26. The same historian, in his account of Barcouc, sultan of Egypt, who put Timur’s ambassador to death, observes, “that it was an infamous action; that to insult an ambassador is a violation of the law of nations, and a deed at which nature herself shudders.” Ibid. book v. chap. 17. Edit. A.D. 1797
31. Appian, quoted by Grotius, lib. ii. cap. 28, § 7. According to Diodorus Siculus, Scipio said to the Romans, “Do not imitate that conduct with which you reproach the Carthaginians.” Skipion ouk ephe dein prattein d tois Kapchedoi iois kegalousi Diod. Sic, Excerpt Peiresc. p. 290.
32. Livy, book xxx. chap. 28, § 7. That historian makes Scipio say, “Though the Carthaginians have violated the faith of the truce, and the law of nations, in the person of our ambassadors, I will do nothing against theirs that is unworthy of the maxims of the Roman people, and of my own principles.”
33. Mezeray’s Hist. of France, vol. ii. p. 470.
34. General Hist. of Voyages, art. China, and Indies.
35. Alvakedi’s History of the Conquest of Syria.
36. Ockley’s History of the Saracens, vol. i.
37. Choisy’s History of St. Louis.
38. Wicquefort’s Ambass. book i. § 28, towards the end.
39. See the Memoirs of Martin Du Beilay, book iv., and Father Daniel’s History of France, vol. v. p. 300, etc.
40. It is surprising to see a grave historian give into this opinion. See Gramond’s Hist, Gall. lib. xii. The Cardinal De Richelieu also alleged this trifling reason, when he gave orders for arresting Charles Lewis, the elector Palatine, who had attempted to pass through France incognito, he said, that “no foreign prince was permitted to pass through the kingdom without a passport.” But he added better reasons, drawn from the prince Palatine’s designs against Brissac and the other places left by Bernard, duke of Saxe-Weymar, and to which France pretended to have a greater right than any other power, because those conquests had been made with the money furnished by that kingdom. See the History of the Treaty of Westphalia, by Father Bougant, vol. ii. in 12 mo p. 88.
41. See the French historians.