person charged with such a commission; and as the state, which allows of this commerce, must naturally favour it, so for the same reason it is to admit a consul. But there being no absolute and perfect obligation to this, the nation disposed to have a consul must procure itself this right by treaty of commerce. He goes on: the consul is no public minister and cannot pretend to the privileges appertaining to such character. Yet having his sovereign's commission and being in this quality received by the prince in whose dominions he resides, he is to a certain degree entitled to the privileges of the law of nations." No doubt he is entitled to the protection of the law of nations, and so is every man who comes into this country from a foreign state under a safe conduct. Vattel proceeds, "the sovereign by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of a consul would be insignificant and deceptive. His functions first require, that he should not be a subject of the state where he resides; as he would be obliged in all things to conform to its orders and thus not be at liberty to acquit himself of the duties of his post." What is the case of this defendant? He is not indeed stated to be a natural born subject of this country, but he is shewn to be a person owing temporary allegiance, and it is not negatived that he is a subject born. At any rate it appears, that he is a merchant domiciled, and subject to the bankrupt laws. If he has incurred penalties under those laws, shall he be exempted from their operation by being appointed a consul of a foreign prince? Vattel says, "his functions seem to require (and this is merely argument, and it is put as doubtful) that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be imprisoned or molested, unless he himself violate the law of nations by some enormous offence." This certainly may, at first sight, seem to import, that Vattel considered a consul to be entitled to all the pri

vileges of an ambassador. But let us advert to the fourth book of the same writer, c. 6, s. 75. In the sections immediately preceding that section, he has been discussing the various functions of ambassadors, envoys, residents, and the last description is that of ministers. He there says, s. 75, “We have spoken of consuls in the article of commerce, IL, c. 2, s. 34. Formerly, agents were a kind of public ministers, but in the present increase and profusion of titles, this is given to mere commissioners appointed by princes for their private affairs, and who, not unfrequently, are subjects of the country where they reside. They are not public ministers, and consequently, not under the protection of the law of nations. But a more particular protection is due to them, than to other subjects or citizens, and some regard in consideration of the prince, whom they serve." Then, he says, " if a prince sends an agent with credentials and for public affairs, the agent from that time becomes a public minister." Then he goes to another subject and discourses of credentials, by which the character of a minister is made known to the sovereign to whom he is sent. It was so positively averred in argument, that Vattel was an authority to shew that consuls were under the protection of the law of nations, that I was desirous of consulting him; and the passage to which I have referred, shews that it is otherwise. So in another place, Bk. 4, c. 8, s. 112, he says, "A subject of a state may, even in accepting the commission of a foreign prince, remain a subject,” and he adds, " that the States General of the United Provinces, in 1681, declared, that no subject of the state should be received as ambassador or minister of another power, but on condition that he should not devest himself of his quality of subject, even in regard to jurisdiction, both in civil and criminal affairs; and that whoever, in making himself known as ambassador or minister, had not mentioned his quality of subject to the state, should not enjoy those rights and privileges which are peculiar to the ministers of foreign powers." I confess, that I should be afraid

to say, that an ambassador announced under that name would not be entitled to the privileges belonging to the ministers of foreign powers, except on the condition in the above declaration. But Vattel proceeds, "such a minister may retain his former subjection tacitly, and then by a natural consequence drawn from his actions, state, and whole behaviour, it is known that he continues a subject. Thus, notwithstanding the declaration above mentioned, those Dutch merchants who procure to themselves the title of residents of some foreign prince, yet continue to trade, thereby sufficiently denote that they remain subjects." Again, I should be afraid of adopting a rule, which would leave it to the party himself, whether or not he would deprive his sovereign of the benefit resulting from the privileges belonging to his character as a public minister. However, Vattel says, "whatever inconveniences there may be in the subjection of a minister to the sovereign with whom he resides, if the foreign prince will put up with such inconveniences, and is contented with a minister on that footing, it is his own doing, and should his minister on any ignominious occasion be treated as a subject, he has no cause of complaint." This is peculiarly the case with consuls, for, in fact, they are generally the subjects of the state to which they are appointed, and in which they reside. A knowledge of the language of the country, and of the forms which exist there, such as will be best found in a subject of the country, is absolutely necessary for the discharge of their functions; and if the sovereign of a foreign state is contented to appoint a subject, he must put up with all consequences which attend his being a subject. This is according to what is laid down in Vattel, and, therefore, it is not correctly asserted, that he is at variance with the other authorities on the nature of a consul's character. Wicquefort and Barbeyrac are decidedly of the same opinion, that a consul is not entitled to the jus gentium belonging to ambassadors. And in Barbuit's case, Lord Talbot said, that as there was no authority for considering the defendant in any

other view, than as a consul, unless he could be satisfied that those acting in that capacity were entitled to the jus gentium, he could not discharge him. It appears, from a note to that case, that the government afterwards settled the matter; and very likely it was thought convenient to our relations at that time, considering our connection with the sovereign, who had appointed the consul, to soothe him by the payment of the money. That is the farthest extent to which the argument, from what was done in that case, can be carried; for Lord Talbot seems to have been of opinion, that as consul he was not entitled. The case before Lord Talbot is the only one upon the subject. Clarke v. Cretico (z), was decided upon the ground of the party being divested of the character of consul at the time of the arrest, but the Chief Justice seems to have inclined to the opinion, that a consul was not privileged. In the absence of all authority, either of custom, or the law of nations, how can we say that a consul is entitled to this privilege? The instances cited from Wicquefort prove the contrary. The dispute between the Pope and the Republic of Venice, is detailed at length in Beawes, from which it appears, that the violence offered to the consul of that republic by the governor of Ancona, was of such a sort, and done in such a manner, as would have entitled any sovereign state under the like circumstances to have made reclamation; their consul was grossly insulted. Nobody is disposed to deny that a consul is entitled to privileges to a certain extent, such as for safe conduct; and if that be violated, the sovereign has a right to complain of such violation. This consideration disposes of the authority which was endeavoured to be derived from that case. Then it is expressly laid down, that he is not a public minister, and more than that, that he is not entitled to the jus gentium. And I cannot help thinking, that the act of parliament, that mentions only ambassadors and public

(2) 1 Taunt. 106.

ministers, and which was passed at a time, when it was an object studiously to comprehend all kinds of public ministers entitled to those privileges, must be considered as declaratory, not only of what the law of nations is, but of the extent to which that law is to be carried. It appears to me, that a different construction would lead to enormous inconveniences, for there is a power of creating vice consuls, and they too must have similar privileges. Thus, a consul might appoint a vice consul in every port, to be armed with the same immunities, and be the means of creating an exemption from arrest indirectly, which the Crown could not grant directly. The mischief of this would be enormous. If we saw clearly, that the law of nations was in favour of the privilege, it would be afforded to the defendant, and it would be our duty rather to extend than to narrow it. But we are of opinion, that no such privilege exists, but that this defendant is like every other merchant liable to arrest (a).

(a) Viveash v. Becker, 3 M. & S. 284, et vid. Heathfield v. Chilton, 4 Burr. 2016; Kent Comm. i. 44.