of the then existing law of England, is, that the suite of an ambassador, if they committed murder, were liable to be tried for it by the Courts of the country. Zouch asserts expressly, that his own opinion upon the main question agreed with that of Grotius and the best authors, as to the exemption of ambassadors themselves; and it should appear, from his Solutio Quæstionis, that if Sa could have proved that he was an actual ambassador, his plea before the delegates would have been allowed.(n)

Conspiracy of Cellamare.

CLXX. The cases which have been hitherto cited have been those in which the representative of England has been a party. They happen to be also among the most important cases on this subject of which there is any record.

There are, however, others in which England was not concerned, and which are of importance for the principle involved in them. Such was the celebrated case of the Conspiracy of the Prince of Cellamare, at the Court of France, in 1718.

The Prince was an ambassador sent to the Court of France from the Court of Spain, by the Cardinal Alberoni, at that time Prime Minister of the latter country. The Prince, *under the direction of Alberoni, [*185] organized a conspiracy against the existing Government of France; and the fact having been ascertained by that Government, they gave orders for searching the papers of the ambassador in his presence and at his hotel. Certain of these papers they placed under the joint seal of the King of France and of the ambassador. They afterwards selected those which related to the conspiracy, some of which they published, in justification of their conduct. None of the ambassadors from the other Courts, then resident at Paris, complained of this act as an infringement of the privileges of their order, though a protest from this body has always been usual when any injury has been done to any member of it resident at the same Court.

The Prince was placed under custody until intelligence was received of the safe arrival of the French Ambassador from Madrid, whom Alberoni had intended to detain. When this intelligence arrived, the Prince was conducted, under military escort, to the frontier.

The next year war was declared between the two countries.(0)

CLXXI. It has been held by high judicial authority, that if a foreign minister commit an assault, he is so far deprived of his privilege that battery committed on him by way of self-defence is legal, though even

(n) Ward's Law of Nations, vol. ii. p. 537, who takes his account from Lord Somers' Tracts, 10, 65, et inf.

Mr. Ward remarks, that Zouch, in the course of his work, also examines the Bishop of Ross's case, and the opinions of the English civilians upon it, so often cited, and blames those opinions in the most unequivocal terms. It is true, it ought to be observed, that he differs from Grotius in his opinion on the immunity of the suite.

See also, De Réal, Science du Gouv., i. t. v., and De Martens, C. C. ii. 490. (0) De Martens, C. C. i. 139.

such conduct on the part of a foreign minister will not justify an arrest on process.(p)

It is clear that courts of justice cannot inquire whether a person recognized by the Government as a foreign minister was duly appointed as such or not. The recognition of the Government is conclusive upon

the judicial tribunal.(g)

*Courts of law have considered that the reasons which neces[*186] sitate the inviolability of the person of the foreign minister apply to those of his train or suite, and therefore, that an assault upon, and threats used towards, a Secretary of Legation, are punishable as a criminal violation of International Law.()

CLXXII. Hitherto the Rights of Inviolability accruing to the ambassador in the State to which he is accredited have been considered, but it must frequently happen that on his way to this State he is obliged to pass through the territory of a third State; and the question arises as to whether he is equally protected and inviolable in this territory.(s) It is clear that the third State may refuse to allow an ambassador a passage through her territory for the same reasons that a State may refuse to receive him.

During the Middle Ages no doubt seems to have been entertained as to the strict legality of seizing the Sovereign or his representative, passing without safe conduct, previously granted through such dominions. In all the complaints made during the cruel captivity of Richard I. in Austria, by that monarch himself, by the Pope, and by other mediators, it does not appear that it was ever urged that the Duke of Austria had violated the jus gentium, which, so far as embassies were concerned, was certainly well understood by the Canon Law, and must have been familiar to the Pope.

As late as the year 1464, Louis XI. justified the arrest, in France, of the Ambassador from the Court of Brittany, as he was travelling to the Court of England, to which he was accredited, though at the time there was peace between Brittany and France.

[*187]

Later still, during the Thirty Years' War, Richelieu arrested, in France, the Elector Palatine, and subjected him to a very close imprisonment, assigning as a reason, "the right which all nations had to arrest strangers who come into the country without a safe conduct." (t)

(p) United States v. Little, 2 Washington (American) C. C. 205. United States v. Ortega, 4 ib. 531. United States v. Benner, 1 Baldwin's Rep. (Amer.) 240. (9) United States v. Ortega, 4 Washington (Amer.) C. C. 531. Torlade v. Barrozo, 1 Miles (Amer.)_366.

(r) Respublica v. De Longchamps, 1 Dall. (Amer.) 117. Exparte Cabrera, 1 Washington (Amer.) C. C. 232.

Vide ante, p. 181, case of the Earl of Holdernesse.

(t) In reality to prevent his treating with the army of the deceased Duke of Saxe-Weimar (the leader of a sort of army of freebooters) for the possession of

Alsatia.

Ward, i. 275, n. 2, 2, 312, citing Bougeant, Hist. de la P. de Westp. 1. 5, 3, 60.

The ambassadors(u) of Francis I. passing through Milan on their way to Venice and Constantinople, to which they were accredited, were seized and executed by the Governor of Milan, the officer of Charles V. They had, of course, no passport or safe conduct; but there was a truce subsisting between France and Spain.

Vattel condemns this atrocity, not merely as a wicked murder, which it unquestionably was, but as a scandalous breach of the International Law (contr ela foi et le droit des gens,)(v) and one which therefore called for the interference of all other States.

*CLXXIII. It may be doubted whether these murders were a violation of the jus legationis, though-regard being had to the fact that these ambassadors were travelling through a country with which their master had a truce, (x) which is, while it lasts, a peace-the doubt is not very reasonable; but there can be no doubt that it was a shameful infringement of general International Law, the utmost rigour of which would only have authorized temporary incarceration upon strong suspicion. We pass by the horrible affair of Patkul, to be shunned as a crime, and not cited as an example.(y)

*In 1756, the English seized, in the Hanoverian territory, [*188] upon the French Ambassador accredited to Prussia, and conveyed him to England.

In 1793, the Austrians seized, on the Lake of Chiavenna, the French Plenipotentiaries accredited to Switzerland and Naples.

CLXXIV. It has been deemed right to mention these instances of the practice of nations, but the sound rules which ought to govern this question appear to be:—

1. That, in time of peace, the ambassador is of right inviolable in his transit through a third country, but cannot claim the privileges of exterritoriality as a matter of tacit compact, though they would probably be accorded to him by the courts of all nations-and to ambassadors to a Congress they are accorded. The diplomatic agents of foreign powers at Frankfort-on-the-Maine are allowed the same privileges, on their transit, as the members of the German Confederation.(*)

(2)

Wicquefort, 1. 1, s. 19, p. 433. Vattel, 1. xiv. c. vii. s. 84.

(v) The distinction which Wicquefort would establish between the two is wholly inadmissible. What he should have said was, that the offence was not, under the circumstances, "contra jus legationis." This point is well put in the Traité complet de la Dipl. s. 213.

(x) It is strange that Vattel omits this circumstance.

(y) De Martens, Causes Célèbres, t. ii. App. 467.

(z) Grotius says, 1. ii. c. xviii. 5, 1: "Non pertinet ergo hæc lex ad eos per quorum fines, non acceptâ veniâ, transeunt legati, nam siquidem ad hostes eorum eunt, aut ab hostibus veniunt, aut alioqui hostilia moliuntur, interfici etiam poterunt .. multoque magis vinciri." It is, however, impossible to defend the former proposition, and it is certainly not a principle of the existing International Law.

Vattel, 1. iv. c. vii. s. 84. "Les autres, sur les terres de qui il passe, ne peuvent lui refuser les égards que mérite le ministre d'un souverian, et que les nations se doivent réciproquement; ils lui doivent surtout une entière sûreté."

Merlin, ib. s. iv. s. v. Art. 12.

Wheaton, i. 269. "He is entitled to respect and protection, though not invested with all the privileges and immunities which he enjoys within the dominions of the sovereign to whom he is sent." Miruss, s. 365. Bynkershoek, De F. L. c. ix.

2. That, in time of war, he cannot be secure from imprisonment without a previously obtained permission to pass through the territory; but that his life can in no case be taken, unless, *indeed, he actually exercises hostilities in the country through which he passes.

[*189]

CLXXV. It is a melancholy reflection, that the opinion of Cicero should be in advance of modern and Christian civilization on this point: "Legatorum jus divino humanoque vallatum præsidio, cujus tam sanctum et venerabile nomen esse debet, ut non solum inter sociorum jura, sed etiam et hostium tela, incolume versatur."(a)

The true International rule would be, that the ambassador should be allowed, in all cases, the jus transitus innoxii. This, though(b) Bynkershoek endeavours to misunderstand it, was clearly the law of Holland at the beginning of the eighteenth century. The Mexicans are said to have adopted a similar principle of law; their practice was to mark out a certain route, out of which it was not lawful for the hostile ambassador to deviate.

It is well remarked by Zouch, that both the State which sends the ambassador, and that to which he is sent, are injured by harm or insult inflicted upon him by a third country.(c)

*CHAPTER VIII.

EMBASSY-EXTERRITORIALITY-CIVIL JURISDICTION.

[*190]

CLXXVI. WE have now to consider the exemption of the ambassador from the jurisdiction of the civil tribunals of the country to which he is accredited. With respect to this subject, the privileges of Exterritoriality have been established by the universal consent and custom of all civilized nations, in order to secure the sanctity of the ambassador : they have been thrown up, from time to time, as outworks to the citadel.

The presumption of law, both from the length of the usage and the reason of the thing (testata et præsumpta mens gentium,) is so strong, that, unless due notification of the intention to depart from the established custom had been given, the ambassador would unquestionably be entitled to demand the enjoyment of the exterritorial privileges ordinarily incident to his station.

Klüber, s. 176. "Persönliche Sicherheit ist das mindeste worauf alsdann der Gesandte Anspruch zu machen hat."

(a) In Verrem, iii.

(b) Ib. Cf. Merlin, Ministre Public, s. v. Art. 12.

Bynkershoek, indeed, admits it at first: "Benigna ordinum erga legatos voluntas ; vulgo alioquin dici solet, jus legationis non valere nisi inter utrumque principem, qui mittit legatos et ad quem missi sunt, cæteræ privatos esse.”—C. ix.

(c) De Judicio inter Gentes, p. 2, s. 4, s. 18.

Fælix, Droit Int. Priv. p. 279, contains the enactments in various municipal codes respecting the treatment and protection of ambassadors.

OCTOBER, 1855.-10

If in an evil hour, for its own welfare, such due notification had been given by any State, and nevertheless, an ambassador, which is a most improbable hypothesis, had been accredited to it, he would not be entitled to claim, as matters stricti juris, those privileges the denial of which had formed the subject of the notification.

CLXXVII. This proposition, however, must be qualified by two important reservations :—

1. It is not competent to a State, by any notification, under the pretext of curtailing exterritorial privileges, to deprive an ambassador of those privileges which are essential to secure performance of his functions, such, for instance, as appertains to the inviolability of his person. 2. A State so narrow-minded and ill-advised as to refuse the customary exterritorial privileges to the representative of *another State, [*191] must take care to act in this matter, impartially, towards all nations. The nation unfavourably distinguished from others by conduct involving a departure from long usage of the civilized world, and, in a manner, affecting its honour, would be entitled to consider such unfavourable distinction as a just cause of war.

It is, indeed, not to be imagined for an instant that any other nation would accept this invidious distinction. She would know that, however nominally in her favour, it was really to her detriment, as a member of that community, a part of which cannot be injured without endangering the welfare of the whole.

CLXXVIII. Nevertheless, the exemption of the ambassador, his family, and suite, from the jurisdiction of the civil, as well as the criminal tribunals of the country in which he was resident, is not absolutely necessary for the preservation of the inviolability of the ambassador. "Persona," Bynkershoek truly remarks, (a) "quantumvis sancta, solâ in jus vocatione non violatur." The Roman Law rightly defined violence, when it said, "vis est et tunc, quotiens quis, id, quod deberi sibi putat, non per judicem reposcit."(b) The Priests, the Vestal Virgins, the Tribunes of the People, were sacred and inviolable: but they were amenable to the Civil Courts of law. The Pontifex was exempt, but only while he was employed in the performance of his holy functions. The ambassador was not, by the reason of the thing, (c) therefore exempt from the jurisdiction of the Civil Courts, which might be so exercised as not to infringe on his inviolability.

CLXXIX. When it had become a custom of universal observance among nations (placuisse gentibus ut communis mos)(d) that the ambassadorial representative should be considered *fictione quâdam, in the [*192] presence itself of the august Principal, the advance was not difficult to another usage, which "fictione simili," considered the representative as being "quasi extra territorium.”

He was a foreigner, and therefore, according to Bynkershoek(e) and

a) Bynk. De F. L., c. v. (b) Dig. 1. iv. t. 2, s. 12. vulnerentur? vis est," &c.

"Cæsar dixit: tu vim putas esse solum si homines

(c) Bynk. De F. L., c. vii. c. viii. (e) De F. L., c. v. c. viii.

(d) Grotius, ib., iv. 5.