order, must be remanded home to their sovereign for judg ment, and that only self-defence will allow the killing of such a functionary. But neither opinion nor practice was so uniform two centuries and more ago, especially in England. The case of Leslie, bishop of Rosse, to which we have already referred, furnishes us with the opinion of English lawyers on the question whether an ambassador, cognizant of and privy to a treason, is punishable by the prince, in whose realm and against whom the treason is committed. The answer was, "We do think that an ambassador, aiding and comforting any traitor in his treason toward the prince with whom he pretendeth to be ambassador in his realm, knowing the same treason, is punishable by the same prince against whom such treason is committed." Leslie stoutly protested against all right of jurisdiction over him, and was not tried, but was detained for some time in prison and then banished the kingdom. A few years afterwards, a contrary opinion was given by men better informed in the law of nations, Albericus Gentilis and Francis Hotman, in the case of Mendoza, the Spanish minister in England, who had plotted to bring in foreign soldiers and dethrone Elizabeth: they decided that an ambassador who had even been concerned in a conspiracy could not be put to death, but must be remanded to his prince for punishment. And a little after in the reign of James I., when the Spanish ambassadors charged the Duke of Buckingham with a conspiracy against the king, which was regarded as false and libellous, Sir Robert Cotton, being consulted whether any proceedings could be instituted against them, maintained that an ambassador as representing the person of a sovereign prince is "exempt from regal trial: that all actions of one so qualified are made the act of his master until he disavow them: and that the injuries of one absolute prince to another are factum hostilitatis, not treason." And he proposed "that a formal complaint against the ambassador should be sent to the king of Spain requiring such justice to be done upon him as by leagues of amity and the law of nations is usual, which if he refused, it would be a dissolution of amity, and equivalent to a declaration of war.”

And yet, at the same time when such doctrine now universally regarded as sound was taught, Coke thinks that "if an ambassador commits a crime which is not merely a malum prohibitum by act of parliament, private law, or custom of the realm, but contra jus gentium, as treason, felony, adultery, he loses privilege, and may be punished in England like any other alien." This opinion had weight with succeeding lawyers. Foster presents a view somewhat similar to this, namely, that although ambassadors owe no allegiance to the sovereign of the country, they are members of society, and therefore bound by the eternal universal law which keeps all civil societies together; and hence may be brought to justice like other offenders, if they commit those enormous offences, which are against the light of nature and the well-being of all society. And Sir Matthew Hale expresses the opinion, that if the ambassador or his associates commit any capital offence, save treason, as rape, murder, or theft, they may be proceeded against by indictment in the ordinary course of justice, like other aliens.

The case which seems to have led him to this opinion was the noted one of Sa, although it applied only to the companions of ambassadors. Sa, in 1653, during the commonwealth, being the brother of the Portuguese ambassador and one of his train, fell into a quarrel with one Gerrard, and wounded him, but he was saved from death by the interference of another gentleman standing by. Thereupon, with other Portuguese, fifty in number, Sa came on the next night to the same place, and with his associates killed one person and wounded many. The ambassador was required to deliver up the delinquents, and Cromwell resolved that Sa should be tried by the law of the land. The case was referred to a special court of men learned in the law who decided that he could be indicted. He was tried before a jury, found guilty, and suffered death. It seems from a statement of the case, that if he had been an ambassador, his privilege would have protected him, but a distinction was made between the principal and the members of his train.

The law of England afforded no sufficient protection to ambassadors until 1708, when, on the occasion of the arrest for

debt and ill usage of the Russian minister, a very severe law was enacted, by which it rested with the chancellor and chief justices, or any two of them, to inflict such punishment as they should think fit on the person whom they should find guilty of bringing a suit against a minister or his servants.

A little after this, in 1717, Gyllenborg, the Swedish ambassador in England, was engaged in a conspiracy to invade the country and dethrone the first George. He was arrested, his dispatches seized, and his cabinet broken open. The case so far was like many acts of violent infraction of international law, and deserves to be mentioned, only because the secretaries of state maintained, by way of apology to the other ministers resident in London, that the measure was necessary for the peace of the kingdom.* Extreme necessity would be a good plea even for killing an ambassador, as Bynkershoek says at the end of his work de foro legatorum, but the question in such cases is, could not simple sending home, forcible expulsion, if necessary, answer every purpose.†

ambassador to a

third power.

8.93.

Bynkershoek lays it down "non valere jus legationis nisi Relations of an inter utrumque Principem, qui mittit legatos, et ad quem missi sunt; cætera [legatos] privatos esse." Grotius had already taught the same thing, and nearly all modern writers concur in this opinion. Vattel, however, (IV. 7, § 84) maintains that innocent transit through a third

*One of the most atrocious violations of international law on record, was the murder of two French ministers, Bonnier and Roberjot, on their way home from the Congress of Rastadt in April, 1797, by Austrian hussars. This seems to have been a piece of villainy on the part of an Austrian minister of State,-carried further by the soldiers than was intended,-for the purpose of getting possession of valuable papers.

+ This subsection is principally drawn from Ward's History, II. 292-330. For the law of 7 Anne, c. 12, referred to, see Kent, I., 183, Lect. ix. Coke, 4th Instit. 153, Foster's crown-law, 188, Hale's pleas of the crown, and the passages referred to in the text are cited by Ward. Comp. also Bynkersh. de for. leg. 18, who, after citing the few examples to be found of regular legal punishments of foreign ministers, says, “novi ævi exempla de legatis qui varie deliquerant non punitis tot ubique in annalibus occurrunt, ut ipsa copia laboremus."

country may not be refused to an ambassador, unless suspected of sinister designs on his way; that to insult him is to insult his master and the whole nation to which he belongs; and that to injure him is picking a quarrel with all nations "who are concerned to maintain as sacred the right and means of communicating together and treating of their affairs." There is so much truth in this, that an injury done to an ambassador, on his way through a land where his countrymen enjoy protection, is a far greater crime than one done to a private man, and that all comity and hospitality ought to be shown to him. But his status is not the same as in the land to which he is accredited. The exterritorial immunities avail only there, and inviolability elsewhere is of a qualified kind. Hence (1.) a state may refuse transit to a foreign minister; (2.) he and his goods may be liable to seizure; (3.) if he enters a territory where he is an enemy, or is bound to one which is hostile to that through which he is passing, he may be seized and impeded from pursuing his journey; and all this without offence against international law. And yet it appears to be desirable, both on the ground of the general good and on the score of justice, that ambassadors should everywhere be safe at least from violence and from arrest.

Quite a number of examples might be cited, where the rights of legation have been treated as of no account by third powers and by enemies. The noted case mentioned by Thucydides (II. 67), in which the Athenians caught in Thrace and killed envoys from the Peloponnesians, on their way to Persia, where they hoped to bring the great king into their alliance against Athens, might have been an act of cruelty, but was not against the modern jus inter gentes. Similar to this was the case of Rinçon and Fregoze, envoys of Francis I. of France, passing through the duchy of Milan, the one on his way to Venice, the other to the Porte. This was then hostile territory, and they were seized and killed seemingly by the procurement of the governor of Milan, the emperor Charles V. showing indifference to the crime. "Alia quæstio," says Bynkersh. (u. s.), speaking of this affair, "de jure legationis, alia de jure

honestatis." Refusals of passports, detentions and expulsions from the country have been not uncommon. Thus in 1572, when all Frenchmen in England found without a passport were ordered to be arrested, du Croc, the French minister to Scotland, on his way thither, shared their fate, at which when the French court complained, Secretary Walsingham averred that he was justly detained for want of a passport. In the same century, a Turkish ambassador was arrested on his way through Venice to France, and when the French resident there claimed his liberation, the republic answered that a sovereign power is not bound to recognize the function of a public minister, unless his credentials are addressed to itself. When, in 1573, the Duke of Anjou, afterwards Henry III. of France, was elected king of Poland, the ambassadors who were on their way to announce his election, were refused a passport in Saxony, and detained by the Elector. In 1744, Marshal Belleisle, while passing through Hanover in the capacity of an ambassador, was seized by the English, then at war with France, and carried as a prisoner to England. And in 1763, Count Wartensleben, minister of the States-general to a part of the German powers, was arrested at Cassel as executor of a will. But there is no right whatever of seizing an enemy's ambassador on neutral soil or a neutral vessel. (Comp. §§ 163, 184.)

$ 94.

The rank of an ambassador has nothing to do with the transaction of affairs, except so far as the capa- Rank of ambassacity to represent their sovereign may be restrict- dors. ed to those of one class,--but only to the ceremonial of courts. Formerly, there was but one class of foreign ministers, or at most two-ambassadors and agents-known to Europe, but since the beginning of the eighteenth century there have been three grades. Moreover, sometimes extraordinary have claimed precedence over ordinary ministers of the same class. The quarrels of ambassadors about rank led to a regulation in the protocol of the plenipotentiaries of the eight principal powers