Holland, who imprisoned the secretary of the English ambassador at the Hague, in retaliation for the imprisonment of the ambassador of the States General in London. This act was clearly irregular; for if the right to do it existed, it was vested in the States General, and could be exercised only by them (i). The authority of Grotius is opposed to that of Bynkershoek; and to this precedent furnished by the Dutch may be opposed that of a state remarkably observant of the law of nations. In 1570, Selim 2 sent an ambassador to Venice to demand the island of Cyprus, and to declare war if it was refused. The ambassador was under considerable apprehension for his own safety, because the Sultan had imprisoned the Venetian ambassador at Constantinople. But the Senate assured him that he had no occasion for alarm, that the republic never permitted its subjects to violate the law of nations by offering violence or insult to an ambassador, and that he should be sent back in safety by the way he came (j). Other sovereigns have shewn less forbearance. Francis 1 arrested the Spanish ambassador in retaliation for the arrest of the French ambassador by Charles 5 (k); and Elizabeth retaliated on the French ambassador, when Throgmorton and Smith were arrested by Charles 9 (7). But in the last instance the proceedings on both sides were lawful; for the English ambassadors had entered France during war without passports, and the French ambassador had continued in England after the commencement of hostilities for a longer period than was necessary for his convenient departure. Heineccius, however, adopts the opinion of Bynkershoek, and holds that the imprisonment of an ambassador is lawful by way of reprisals (m).

The limits that are assigned to the operations of war against ambassadors are, that you may exercise your right of war against them wherever the character of hostility exists. You may stop the ambassador of your enemy on his passage; but when he has arrived, and has taken upon himself the functions of his office, and has been admitted in his representative character, he becomes entitled to peculiar privileges, as set apart for the protection of the relations of amity and peace, in maintaining which all nations are in some degree interested. It has been argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country; but that is a fiction of law, invented for his further protection only, and as such a fiction it is not to be extended beyond the reasoning on which it depends. It is intended as a privilege, and cannot be urged to his disadvantage. He certainly could not on that principle be said to be subject to any of the rights of war in a neutral territory; he is there for the purpose of carrying on the relations of peace and amity for the interests of his own country primarily, but at the same time for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations (n).

Thirdly, The privilege is to be considered with regard to the time during which, and the persons to whom it attaches. It attaches to an ambassador eundo morando et redeundo (0). Hence if an ambassador be recalled and leave any part of his train behind him to settle his affairs, their privilege continues for such reasonable time as is necessary for that purpose. On this ground Bynkershoek condemns the seizure of the property of the wife of the English ambassador at the Hague, who had remained for that purpose only after her husband's departure (p).

(n) The Caroline, 6 Rob. 461.

(0) Bynk. F. L. ix.; Wicq. i. 856, 945; Vatt. iv. §§ 83, 125, 126. (p) Bynk. F. L. xiv.

In 1661, the French ambassador's chaplain, who had remained in Holland after the ambassador's return to France, was imprisoned for performing mass; but he was discharged on the demand of the ambassador, as it seems, on this ground (q). In the case of the Venetian ambassador before cited, whose goods were seized by his creditors, and restored by order of Louis 14, his functions had ceased by the reception of his successor (r).

The functions of an ambassador cease by the death of either of the sovereigns by or to whom he is accredited (s). Yet, on the assassination of Henry 3, the Senate of Venice, out of consideration for Henry 4, intimated to the French ambassador that they would continue to recognize him as ambassador of France until new credentials had been delivered to them (t). But the privilege of an ambassador is not suspended while he is expecting new credentials, or waiting to be recalled (u). The functions of an ordinary ambassador are determined by a declaration of war; but he cannot be treated as an enemy, and can only be required to leave the country, though his sovereign be the aggressor, or war be declared by him (v).

Secondly, The privilege of an ambassador extends to all his train or comites (w). The words of the statute of Anne, domestic or domestic servants, are put only by way of example. It is not essential to the privilege, that the servant should lodge in the house of the ambassador; for his house may not

(9) Bynk. F. L. xv.

(r) Flass. iv. 42.

(8) Wicq. i. 929.

(1) Wicq. i. 930.

(u) Vatt. iv. § 125, 126.

(v) Wicq. i. 939, 940; Bynk. F. L. xxii.

(w) Vatt. iv. 120, et seq.; Bynk. F. L. xv. Ex consuetudine, quæ nunc vicit inter gentes, viri legati domum revocant tam in contractibus, quam in delictis. Igitur in utrisque etiam domum revocabunt, comites sive majores sive minores: nam et lixæ, scoparii, stabularii sequuntur forum legati.

Couriers

be large enough to contain all his servants (x). employed in conveying ambassadors' despatches are privileged (y). Secretaries, though neither domestics nor menial servants, are privileged (z). The case of English v. Caballero (a), is probably ill reported. In that case, although it appeared that the secretary of an ambassador was in daily attendance upon him, before and at the time of the arrest, and employed in copying despatches and other official documents; the reporter makes the refusal of privilege to depend upon the circumstance, that it was not proved that the secretary was a domestic servant of the ambassador or employed in his house. Neither of these circumstances appeared in Evans v. Higgs or in Hopkins v. De Robeck. In Evans v. Higgs, the defendant was English secretary to an ambassador, and the Court observed, that the nature of his employment required his attendance at the ambassador's house. In Hopkins v. De Robeck, the Court held, that it is sufficient, if it appears that the defendant is really attached as secretary to the embassy; for it would be impossible to carry on state negotiations, if persons in his situation were not protected. Neither of the reasons stated in the report is necessary to support the judgment in English v. Caballero, for the privilege was not claimed for the secretary but for his wife; and such privilege does not seem to be necessary for the convenience of the ambassador, for his secretary might still perform his functions, though his wife was in prison. But to entitle the servant to privilege, he must be in the service of the ambassador when the privilege is claimed, for the process of law shall not take a person out of the service of a public minister; but on the

(x) Widmore v. Alvarez, Fitzgib. 200; Triquet v. Bath, 3 Burr. 1478 ; Hopkins v. De Robeck, 3 T. R. 88; Lockwood v. Coysgarne, (per cur.), 3 Burr. 1676; per cur. Darling v. Atkins, 3 Wilson, 35.

(y) Wicq. i. 864, et seq.

(2) Evans v. Higgs, 2 Strange, 797; Triquet v. Bath, 3 Burr. 1478; Hopkins v. De Robeck, 3 T. R. 80.

(a) 2 D. & R. 25.

other hand, a public minister cannot take a person out of the custody of the law. If a man has no such privilege at the time of being arrested, no subsequent privilege can be given to him by being afterwards taken into the service of a public minister (b). It is not essential to the privilege, that the servant's name should have been registered in the Secretary of State's Office and transmitted to the Sheriff's Office. The statute only requires the names of persons privileged to be registered for the purpose of proceeding against the parties. criminally for a violation of the act (c). Consequently, the circumstance of a name being registered will not give privilege, nor will the omission of the name take away privilege (d). It extends to servants being natives of the country wherein the minister resides as well as to his foreign servants (e). But it extends not to those, whose engagement or service is merely colourable. It has often been made a question, whether persons, who follow an ambassador, not for his convenience, but for their own profit, such as traders and merchants, are to be deemed part of his train. Although ambassadors have often attempted to protect such persons and to have them reckoned as part of their train, the reason of the privilege sufficiently shews, that it extends not to those, who are not in the ambassador's service (f). Montagu, who was bearer of letters from Henrietta Maria to Charles 1 at Oxford, during the civil war, endeavoured to pass as one of the train of the French ambassador. He was discovered and committed to the Tower by the Parliament; nor was he set at liberty, though the ambassador claimed him and made great efforts to procure his dis

(b) Heathfield v. Chilton, 4 Burr. 2015.

(c) Hopkins v. De Robeck, 3 T. R. 80.

(d) Delvalle v. Plomer, 3 Campb. 47; Darling v. Atkins, 3 Wils. 33; Fisher v. Begrery, 1 C. & M. 117; per Ld. Mansf. Heathfield v. Chilton, 4 Burr. 2016.

(e) Wicq. i. 890; Bynk. F. L. xv.; per cur. Lockwood v. Coysgarne, 3 Burr. 1076.

(ƒ) Bynk. F. L. xv.