laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call ambassadors. The rights, the powers, the duties, and the privileges of ambassadors are determined by the law of nature and nations, not by any municipal constitutions. For, as ambassadors represent the persons of their Their privileges. respective masters, who can owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He who is subject to the coercion of laws is necessarily dependent on that power by which those laws were made: but an ambassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master(t), who is bound either to do justice upon him, or to avow himself the accomplice of his crimes (u). But there is great dispute among writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder(x). Our law seems to have formerly taken in the restriction, as well as the general exemption. For it has been held, both by our common lawyers and civilians (y), that an ambassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of *reason and nature, he shall lose his privilege(z): and that therefore, if an ambassador conspires the death of the king in whose land he is, he [*302] may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom (a). And these propositions might seem to be built upon good appearance of reason. For since all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are declaratory of and auxiliary to that law; therefore to this natural universal rule of justice ambassadors, as well as other men, are subject in all countries: and of consequence it might appear reasonable that, wherever they transgress it, they should be liable to make atonement (b). But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime(c). And therefore few, if any, examples have happened within two centuries past, where an ambassador has been punished for any offence, however atrocious in its nature(d). In respect to civil suits, jurists agree, that neither an ambassador, nor any of his train or comites, can be prosecuted for a debt or contract in the courts of (c) Securitas legatorum utilitati, quæ ex pand est, præponderat. (de jure b. & p. 1. 2, c. 18, § 4). (d) In the year 1654, Don Pataleon Sa, brother of the Portuguese ambassador at our court, but not himself clothed with the status of ambassador, was here tried, convicted, and executed for murder. 15 St. Tr. 464; 1 Hale, P. C. 99; Foster, 188. The cases concerning the inviolability of ambassadors are collected in Phillimore Internat. L. ii. pp. 173, et seq. that kingdom wherein he is sent to reside. Yet sir Edward Coke maintains, that if an ambassador make a contract which is good, jure gentium, he shall answer for it here(e). But the truth is, so few cases (if any) had arisen, wherein *the privilege was either claimed or disputed, even with regard to civil [* 303] suits, that our law-books are (in general) quite silent upon it previous to the reign of queen Anne; when an ambassador from Peter the Great, czar of Muscovy, was actually arrested and taken out of his coach in London(ƒ), for a debt of fifty pounds which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons who were concerned in the arrest were examined before the privy council (of which the lord chief justice Holt was at the same time sworn a member(g)), and seventeen were committed to prison(); most of whom were prosecuted by information in the court of queen's bench, at the suit of the attorney-general(i), and at their trial before the lord chief justice were convicted of the facts by the jury(k), the question of law, how far those facts were criminal, being reserved, to be afterwards argued before the judges; which question was never formally determined(). In the mean time the czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death (m). But the queen (to the amazement of that despotic sovereign) directed her secretary to inform him, "that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land; and therefore was persuaded that he would not insist upon *impossibilities "(n). To satisfy however the clamours of the foreign minis[ *304] ters (who made it a common cause) as well as to appease the wrath of Peter, a bill was brought into parliament(o), and afterwards passed into a law(p), to prevent and punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, an ambassador extraordinary (q) was commissioned to appear at Moscow (r), who declared, "that though her majesty could not inflict such a punishment as was required, because of the defect in that particular of the former established constitutions of her kingdom, yet with the unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for the future." This humiliating step was accepted as a full satisfaction by the czar: and the offenders, at his request, were discharged from all further prosecution. The statute(s) passed on the above occasion recites the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which ambassadors and other public ministers, authorized and received as such, have at all (e) 4 Inst. 153. the text were never brought up to receive (ƒ) 21 July, 1708. Boyer's Annals of queen judgment. See per Lord Mansfield, Triquet v. Bath, 3 Burr. 1480. Anne. (g) 25 July, 1708. Ibid. (h) 25, 29 July, 1708. Ibid. (i) 23 Oct. 1708. Ibid. (k) 14 Feb. 1708. Ibid. (An infraction of the law of nations being a misdemeanor, was punishable at the discretion of the court at most only by fine, imprisonment, and the pillory; and, since the czar might have regarded these punishments as a fresh insult, the offenders mentioned in (m) 17 Sept. 1708. Boyer's Annals of queen Anne. (n) 11 Jan. 1708. Boyer's Annals of queen (r) 8 Jan. 1709. Boyer, ibid. times been thereby possessed of, and ought to be kept sacred and inviolable: " wherefore it enacts, that for the future all process whereby the person of any ambassador, or of his " domestic or domestic servant" may be arrested, or his goods distrained or seized, shall be utterly null and void: and the persons prosecuting, soliciting, or executing such process, shall be deemed violators of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the chief justices, or any two of them, shall judge fit to be *imposed (t). But it is expressly [* 305] provided, that no trader within the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an ambassador's servant, unless his name be registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex (u). Exceptions that are strictly conformable to the rights of ambassadors(x), as observed in the most civilized countries. And, in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the land, and are allowed in the courts of common law (y).(82) (t) This statute is declaratory of the law of nations except in so far as a summary jurisdiction for the punishment of offenders is conferred by it, per Lord Mansfield, 3 Burr. 1480. (u) Nor, to entitle persons to the privilege, is it necessary, that their names should have been registered in the secretary of state's office, and transmitted to the sheriff's office; though unless they have been so registered and transmitted the sheriff or his officers cannot be proceeded against under the statute for the unlawful arrest. Seacomb v. Bowlney, 1 Wils. 20; Hopkins v. De Robeck, 3 T. R. 79. (x) Sæpe quæsitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et merca tores. Et, quamvis hos sæpe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum. Bynkersh. c. 15, prope finem. (y) Fitzg. 200; Stra. 797. Magdalena Steam Nav. Co. v. Martin, 28 L. J. Q. B. 310. A secretary of legation accredited to this court by a foreign sovereign and acting in the absence of his ambassador as chargé d'affaires, is entitled to all the privileges of an ambassador, and does not, by engaging in mercantile transactions, forfeit his personal privilege. Taylor v. Best, 14 C. B. 487. See also Viceash v. Bicker, 3 M. & S. 284. (82) By an act of congress passed April 30, 1790, 1 Stat. at Large, 117, § 25, it is provided "That if any writ or process shall at any time hereafter be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the president of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, constructions and purposes whatever." "That in case any person or persons shall sue forth or prosecute any such writ or process, such person or persons, and all attorneys or solicitors prosecuting or soliciting in such case, and all officers executing any such writ or process, being thereof convicted, shall be deemed violators of the laws of nations, and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court. Ib., § 26. "Provided, nevertheless, that no citizen or inhabitant of the United States, who shall have contracted debts prior to his entering into the service of any ambassador or other public minister, which debts shall be still due and unpaid, shall have, take or receive any benefit of this act; nor shall any person be proceeded against by virtue of this act, for having arrested or sued any other domestic servant of any ambassador or other public minister, unless the name of such servant be first registered in the office of the secretary of state, and by such secretary transmitted to the marshal of the district in which congress shall reside, (II.) In making alliances. II. It is also the sovereign's prerogative to make treaties, leagues, and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of *a league, that it be made by treaties and [* 306] the sovereign power(z): and then it is binding upon the whole community: and in England the sovereign power, quoad hoc, is vested in the person of the monarch. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) has here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. (83) III. Upon the same principle the sovereign has also the sole prerogative of making war and peace.(84) For it is held by writers on the law of nature and (III.) In making nations, that the right of making war, which by nature subsisted war and peace. in every individual, is given up by all private persons who enter into society, and is vested in the sovereign power(a): and this right is given up, not only by individuals, but even by the entire body of people, who are (2) Puff. L. of N. b. 8, c. 9, s. 6. (a) Puff. b. 8, c. 6, s. 8, and Barbeyr. in loc. who shall upon receipt thereof affix the same in some public place in his office, whereto all persons may resort and take copies without fee or reward." Ib., § 27. This statute is substantially a re-enactment of 7 Anne, ch. 12, and is considered as merely declaratory of the law of nations. Triquet v. Bath, 3 Burr. 1478; Viveash v. Becker, 3 Maule & Selw. 284; Holbrook v. Henderson, 4 Sandf. 619; Valarino v. Thompson, 7 N. Y. (3 Seld.) 576, 578. A secretary of legation, duly accredited by a foreign government, and acting, in the absence of his ambassador, as chargé d'affaires, is entitled to all the privileges of an ambassador. Taylor v. Best, 14 C. B. 487; S. C., 25 Eng. Law & Eq. 383; Ex parte Cabrera, 1 Wash. C. C. 232; United States v. Benner, Baldw. 234, 240. The evidence requisite to establish the official character of an ambassador or foreign minister is a recognition as such by the chief executive officer of the nation. United States v. Ortega, 4 Wash. C. C. 531; United States v. Benner, Baldw. 234, 240; Taylor v. Best, 14 C. B. 487; S. C., 25 Eng. Law & Eq. 383. (83) The president "shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators then present concur." U. S. Const., art. 2, § 2. "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Ib., art 6. The power to enter into treaties with foreign governments is vested exclusively in the United States government; and the several states are expressly forbidden to enter into such treaties. No state shall, without the consent of congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." U. S. Const., art. 1, § 10. * (84) While the English sovereign is vested with the power of declaring war, the constitution of the United States confides that power to congress, as follows: "The congress shall have power * * to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." U. S. Const., art. 1, § 8. The same section contains other provisions relating to the exercise of the war power, reason under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless it should justify their proceedings, and thereby become partner in their guilt. Such unauthorized volunteers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law(b): hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: cæteri latrones aut prædones sunt. And the why a formal *declaration of war usually, though not neces[* 307] sarily, precedes the actual commencement of hostilities, is not so much that the enemy may be put upon his guard (which is matter rather of magnanimity than right), as that it may be certainly clear that the war is undertaken not by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative. letters of marque and reprisals. IV. But as delay in making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have (IV.) In issuing in some respects armed the subjects with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the law of nations(c), whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case letters of marque and reprisals (words used as synonymous; and signifying, the latter, a taking in return, the former, the passing the frontiers in order to such taking(d)) may be obtained, in order to seize the bodies or goods of the *subjects of the offending [* 308] state, until satisfaction be made, wherever they happen to be found. And indeed this custom of reprisal seems dictated by nature herself; for which reason we find in the most ancient times very notable instances of it(e). But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made(ƒ); else every private sufferer would be a judge (b) Dig. 50, 16, 118. the rest were equitably divided among the other creditors. (c) De Jure B. & P. 1. 3, c. 2, ss. 4 & 5. (d) Dufresne, tit. Marca. (e) See the account given by Nestor, in the eleventh book of the Iliad, of the reprisals made by himself on the Epeian nation; from whom he took a multitude of cattle, as a satisfaction for a prize won at the Elian games by his father Neleus, and for debts due to many private subjects of the Pylian kingdom, out of which booty the king took three hundred head of cattle for his own demand, and VOL. I.-26 (f) "An injury committed upon one of his subjects for which justice has been plainly denied or unreasonably delayed, warrants a sovereign in issuing letters of marque or reprisal, which may either constitute the com. mission of a privateer, or the reprisals may be committed to a king's ship." Phillimore, Internat. L. iii. 13. During the late war with Russia general reprisals were granted. See 17 & 18 Vict. c. 18. |