But there is no or for wrongs done, or for offences committed during the continuance of his office, he was not privileged: as to the former, that he might not carry off the property of his creditors without paying for it; as to the latter, because his privilege was forfeited by his own wrong, according to the maxim omnem dignitatem reatus excludit. analogy between the legati here spoken of, and modern ambassadors. These legati were mere delegates sent by subjects to their sovereign. They were mere provincial and municipal deputies (f). Bynkershoek expresses his surprise, that after this distinction had been pointed out by Cujacius and Mornacius, and many others, these maxims should have been misapplied by the five eminent lawyers who were consulted by Queen Elizabeth in the Bishop of Rosse's case (g). It is more surprising that the Judges of the Provincial Court of Holland, the countrymen of Grotius, should have been ignorant of this distinction, when it had been particularly noticed by him. But if the civil law had expressly applied these rules to foreign ambassadors, they would not therefore have constituted the law of nations. If a different rule has been established by the usage of nations, that is the rule by which these questions must be determined. It is a great mistake to apply the maxims of the civil law to foreign ambassadors, whose rights must be ascertained by the tacit consent of nations (h). Grotius lays down the rule, that the personal property of an ambassador cannot be seized as security, nor taken in execution by judicial process, nor, as some have supposed, by the prerogative of the Crown, for any debts by him contracted; for an ambassador should be exempt from (ƒ) Grot. ii. 18, x.; Bynk. F. L. vi.; Mornacius, ff. v. i. § 3; Legatis in eo quod ante, &c.; Zouch de leg. del. Jud. 139; Wicq. i. 818, 821, 838. (g) Bynk. F. L. vi. Answer to first question, Cam. El. an. 1571; Wicq. i. 819, 821. (h) Bynk. ibid. and vii. p. 157. all constraint that he may have entire security. If, therefore, he be in debt, and have no real property, his creditor ought to apply to him amicably, and if he refuse payment, resort must be had to his sovereign, or to such means as are used against debtors out of the realm (i). By these words, says Bynkershoek, Grotius clearly expresses the exemption of an ambassador from civil jurisdiction; and, he adds, in truth I may venture to say, that in civil matters, as to giving evidence and actions of debt, and other liabilities of the like nature, there is no country in Europe, at least none that I know of, wherein an ambassador is held liable to the ordinary jurisdiction of its tribunals (j). The decisions of the Judges of the Provincial Court of Holland in the seventeenth century were often erroneous; and when their proceedings rendered it necessary for the States General, after the promulgation of their declaratory decree, to interfere to protect the rights of ambassadors: it is difficult to impute to the prejudices of the accuser the charge of incorrigible ignorance, which Wicquefort continually brings against them (k). Bynkershoek himself mentions many instances of their illegal decisions. Amongst others, he states the case of the Portuguese ambassador, who was arrested and detained in prison till he had compromised with his creditors. Nothing could be more fraudulent than his conduct; for he had pledged, for the purpose of raising money, plate which he had bought on credit the day before. Yet, says Bynkershoek, the whole proceeding seems to me to have been contrary to law, notwithstanding the dishonesty of the ambassador (1). Of the same tribunal he observes in another place, that the law of the Court cannot be reconciled with the law of nations (m). In 1644, this Court replied to the inquiries of the States General respecting the Swedish ambassador, that the Court had jurisdiction over him in all (1) Grot. ii. 18, ix. (1) Bynk. F. L. xiii. (m) Bynk. F. L. xv. matters not concerning his office, to any extent short of subjecting him to personal constraint, or depriving him of the means of subsistence. The same Court allowed an action against the Spanish ambassador on a contract for the lease of a house. In 1651, the States General having signified to the Danish ambassador that they would no longer consider him as an ambassador; his creditors applied to the Court for an order to arrest him. In this case, however, the Court consulted the States of Holland, and being informed that the decree had reference to pending negotiations, and not to the public character of the ambassador, they refused the order (n). In 1679, the Court, in accordance with their principles of international law, seized the furniture and effects of the Danish ambassador. Thereupon the States General published a decree, wherein they declared; that foreign ministers and their attendants, and goods, are not liable during their residence, nor on their way thither or thence, to be arrested or taken in execution for any debt contracted in the United Provinces. This edict is declaratory of the law of nations, and must be construed with reference to the occasion of its promulgation. It only expresses debts contracted during residence, but it was not intended to imply liability for debts contracted elsewhere; and those to whom it was addressed never supposed ambassadors to be liable for debts contracted previously (0). In 1688, the secretary of legation of the Venetian embassy was arrested by process of the same Court for an alleged breach of contract. But neither in this matter, says Bynkershoek, should I be willing to admit the authority of the Court (p). Bynkershoek professes not to understand what Grotius means by saying, that if an ambassador refuse payment, resort must be had to his sovereign, or to such means as are used against debtors out of the realm. But his meaning (n) Wicq. i. 856; Bynk. F. L. vii. (0) Bynk. F. L. ix. (p) Bynk. F. L. xix. seems distinctly expressed, that if, on petition, a sovereign will not compel his ambassador to satisfy his creditors, their remedy is by suit in the Courts of his own country, or by action in rem, where he possesses property not privileged, and the law allows that form of proceeding. Thus Bynkershock himself explains the words of Grotius (9). In France, it appears, that the immunity of ambassadors was settled as early as the time of Henry 4; whom Bynkershoek characterizes as most learned in the law of nations and most tenacious of its rules (r). This text, says Mornacius, in his comment on the first title of the fifth book of the Pandects, and the title De legatis, are to be understood of municipal delegates, who are commonly called deputies. But ambassadors accredited by foreign powers are protected by the law of nations to that degree, that they are not compelled to submit to civil or criminal jurisdiction in their own persons or in the persons of their attendants; and this privilege they alway maintain in the highest language and with the greatest energy. An example occurred in the case of the Venetian ambassador, whose goods were seized and an action brought against him by his landlord, for leaving his house clandestinely without paying his quarter's rent. The ambassador complained to the King, who treated the matter with unusual severity; determined the question that was raised respecting the customs of France, to the entire satisfaction of the ambassador; and commanded every thing to be done that could be devised to uphold his dignity (s). In the time of Louis 14, some horses of the Venetian ambassador, in the care of servants wearing his livery, were seized for his debts. The civil lieutenant had authorized the proceeding, on the ground that the ambassador had taken leave of the court and that his successor had arrived. The (9) Bynk. F. L. ix. x. xvi. (r) Bynk. F. L. xix. (8) Mornacius in ff. v. tit. i. § 3. H King, on the complaint of the ambassador and his successor, ordered the officers who had been concerned in the seizure to be imprisoned for their insolence, and the civil lieutenant to be severely reprimanded, for having summoned the ambassador without any previous notice. He further ordered the civil lieutenant to signify to his officers, that they were forbidden to summon foreign ministers for debt; to expunge from his register the order which he made for a summons to issue; and to make a personal apology to the ambassador (t). Yet in 1772, during the reign of a prince of a diffent character, the court of Versailles refused passports to the Baron de Wreck, ambassador of Hesse Cassel, and permitted his creditors to seize his furniture in satisfaction of his debts. The memorial circulated amongst the diplomatic body in vindication of this act, is more reprehensible than the act itself. Its author has the effrontery to state, that the privilege of ambassadors does not extend to their goods, and to cite Grotius, Wicquefort, and Bynkershoek in support of this statement; and to assert, that in England there is no law to ascertain the privileges of ambassadors, though the declaratory act of Queen Anne was passed in 1709 (u). Vattel observes, that such exceptions only serve to prove the rule by the reprobation which they have encountered. In England, the common law recognizes the rights of ambassadors in their full extent, by immediately stopping all legal process sued out through the ignorance or rashness of individuals, which may entrench on the immunities of a (t) Flass. Dip. Fran. iv. 42. (u) Flass. Dip. Fran. vii. 92. The author of this memorial was Pfeffel, the legal adviser of the foreign department. It is probable that he was employed to justify an act which he had not advised. For no lawyer could have advised an act so outrageously illegal; and the style, in which he defends the worse, shews that he well knew the better reason. He was afterwards employed to justify, on the ground of an original defect of title, the seizure of Avignon by Louis 15, after it had been in the possession of the holy see for more than four centuries. |