England and France in 1308, and France and Savoy in 1378; and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr. Ward (a) considers these treaties as evidence of the advancement of society in regularity and order. (b)

asylum to fugitives loaded with such atrocity. If there be no authority in this country, state or national, to surrender such a fugitive, then it is idle to talk about the authority of the law of nations as part of the common law. Then "public law, the personification, as it were, of natural justice, becomes a mere nonentity, the beautiful figment of philosophers, and destitute of all real influence on the fortunes of mankind."

(a) History of the Law of Nations, ii. 318-320.

(b) By the treaty of amity, commerce, and navigation between Great Britain and the United States, in November, 1795, it was by the 27th article agreed, that persons charged with murder or forgery, seeking an asylum in the dominions of either party, should be delivered up on due requisition, provided the evidence of criminality be sufficient to justify apprehension and commitment for trial, if the offence had been committed in the jurisdiction where the requisition is made. But this treaty, on this and other points, expired by its own limitation after the expiration of twelve years. The provision was happily renewed by the treaty between the United States and the United Kingdom of Great Britain and Ireland, signed at Washington, August 9, 1842, and afterwards duly ratified. This treaty terminates the question, so far as the two countries are concerned, which had long embarrassed the councils and courts in this country. By the 10th article of the treaty it is declared, that the two powers respectively, upon requisitions by the due authorities, should deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum, or should be found within the territories of the other; provided, that this should only be done upon such evidence of criminalty as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. A similar convention was made between the United States and France, and ratified at Washington, April 12, 1844; but the provision was extended to the crime of an attempt to commit murder, and to rape, and embezzlement by public officers, when the same is punishable with infamous punishment. The treaty provisions would seem to require statute provisions of the several governments to carry the treaties for surrendering fugitives more promptly into effect. The act of 8 & 9 Vict. c. 120, has such a provision in respect to the treaty of Washington in 1842; without any special provision on the subject, the power and duty of duly carrying into effect treaties of that kind would belong, exclusive of the state authorities, to the courts and magistrates of federal jurisdiction. The legisla ture of the Kingdom of Belgium, by a law of the 1st of October, 1833, authorized the surrender of fugitives from foreign countries upon the charge of murder, rape, arson, counterfeiting the current coin or forging public bank paper, perjury, robbery, theft, peculation by public trustees and fraudulent bankrupts; but with the proviso that the law of the foreign country be reciprocal in the case, and that the judgment or judicial accusation be duly authenticated, and the demand be made within the time of limitation prescribed by the Belgic law. M. Pinheiro-Ferreira severely con

7. Ambassadors. Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to the laws of the country to which they are deputed. As they are representatives of their sovereigns, and requisite for negotiations and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions or perfidious policy have violated this immunity. Some very honorable examples of respect for the rights of ambassadors, even when their privileges would seem in justice to have been forfeited on account of the gross abuse of them, are to be met with in the ancient Roman annals, notwithstanding the extreme arrogance of their pretensions and the intemperance of their military spirit. (c) If, however, ambassadors should be so regardless of their duty, and of the object of their privilege, as to insult or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall; or they may be

demns this law, and contends for protection to the fugitive, and that the tribunals of the country to which he resorts should take cognizance of criminal cases equally as of matters of contract! See Cours de Droit Public, par Le Comm. S. PinheiroFerreira, Paris, 1830, ii. 24-34; Revue Étrangère de Législation, et d'Économie Politique, No. 2, Paris, December, 1833. Some other foreign jurists, of more established reputation, maintain the same doctrine, and hold that crimes committed in one state may, if the criminal be found in another state, be, upon demand, punished there. Hurtius, de Collis. Leg. P. Voet, de Statut. cited in Story's Comm. on the Conflict of Laws, 516-520; Martens, Law of Nations, b. 3, c. 3, sec. 22, 23; Grotius de Jure, B. & P. b. 2, c. 21, sec. 4. The latter says, that every government is bound to punish the fugitive criminal on demand, or deliver him up. But the better opinion now is, both on principle and authority, that the prosecution and punishment of crimes are left exclusively to the tribunals of the country where they are committed. Kames, Princip. of Equity, ii. 326; Merlin, Répertoire, Souveraineté, sec. 5, n. 7, pp. 757, 758; Pardessus, Droit Comm. v. art. 1467. If, indeed, the fugitive is to be tried and punished for a crime committed out of the territory, the punishment must be according to the law of the place where the offence was committed. Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur. Bartholus, cited in Henry on Foreign Law, 47. It is, however, a decided and settled principle in the English and American law, that the penal laws of a country do not reach, in their disabilities or penal effects, beyond the jurisdiction where they are established. Folliott v. Ogden, 1 H. Black. 123, 135; Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green, 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440.

(c) Livy, b. 2, c. 4; b. 30, c. 25.

dismissed and required to depart within a reasonable time. (d) We have had instances, within our own times, of all these modes of dealing with ministers who had given offence; and it is not to be denied that every government has a perfect right to judge for itself whether the language or conduct of a foreign minister be

admissible. The writers on public law go still further, and * 39 allow force to be applied to confine or send away* an ambassador when the safety of the state, which is superior to all other considerations, absolutely requires it, arising either from the violence of his conduct, or the influence and danger of his machinations. This is all that can be done, for ambassadors cannot, in any case, be made amenable to the civil or criminal jurisdiction of the country; and this has been the settled rule of public law, ever since the attempt made in the reign of Elizabeth to subject the Scotch and Spanish ambassadors to criminal jurisdiction, and the learned discussions which that case excited. (a) 1 By fiction of law, an ambassador is considered as if he were out of the territory of the foreign power; and it is an implied agree

(d) In 1797, it was considered by the Attorney-General of the United States, in his letter to the Secretary of State, to be a contempt of the government, for a foreign minister, while a resident minister in the United States, to communicate his sentiments to the people of the United States through the press. His intercourse and correspondence of that kind is to be with the executive department of the government exclusively. Opinions of the Attorneys-General, i. 43.

(a) Grotius, b. 2, c. 18, sec. 4, Bynk de Foro Legatorum, c. 8, 17, 18; Vattel, b. 4, c. 7, sec. 92-103, Ward's History, ii. 486-552; Mashall, Ch. J., in the case of the Schooner Exchange v M'Faddon, 7 Cranch, 138; Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, pp. 236–261, has given an analysis or summary of Bynkershoek's treatise De Foro Legatorum, and which is justly regarded as an excellent work and of high authority. It is contained in the 2d volume of Bynkershoek's works, published in 2 volumes, folio, at Leyden, 1767.

1 The general privilege of a minister having no real estate in the foreign country is to be exempt from suit there, although neither his person nor goods are touched, and although the liability arises out of business engaged in there. Magdalena Steam Nav. Co. v. Martin, 2 El. & El. 94. See Valarino v. Thompson, 3 Seld. (7 N. Y.) 576; Halleck, c. 9, §§ 14, 19 et

seq. It has been held otherwise, if he voluntarily attorns to the jurisdiction in such a case. Taylor v. Best, 14 C. B. 487. But see Valarino v Thompson, 3 Seld. 576. He cannot waive his immunity from arrest. United States v. Benner, 1 Baldw. 234, post, 182, n. (b). See Wheat. Dana's note 129; Halleck, c. 9, § 16 et seq. xl

1 See generally, as to rights and privileges of international agents, Hall, Int. Law, pt. 2, c. 9.

ment among nations, that the ambassador, while he resides within the foreign state, shall be considered as a member of his own country, retaining his original domicile, and the government he represents has exclusive cognizance of his conduct and control of his person. (b) An ambassador is also deemed under the protection of the law of nations in his passage through the territories of a third and friendly power, while upon his public mission in going to and returning from the government to which he is deputed. To arrest him under such circumstances would be a breach of his privileges as a public minister. (c) The attendants of the ambassador attached to his person, and the effects in his use, and the house in which he resides, y1 and his domestic servants, are under his protection and privilege, and equally exempt from the foreign jurisdiction, though there are strong instances in which their inviolability has been denied and invaded. (d) The

(b) Grotius, b. 2, c. 18, sec. 1-6; Wicquefort, de l'Ambassadeur, liv. 1, sec. 27; Vattel, b. 4, c. 7, sec. 81-135; Bynk, de Foro Legat. c. 8. If an ambassador be concerned in trade, his property in that trade is liable to seizure, as in the case of any individual. Bynk. de Foro Legat. c. 14; Vattel, b. 4, c. 8.

(c) Vattel, b. 4, c. 7, sec. 63, 84; Holbrook v. Henderson, 4 Sandf. 619. In this case, Henderson, the minister from the Republic of Texas to France, was arrested in New York for debt, while on his return from France to Texas, by the way of New York, and the court discharged him from the arrest. It was held that an entry into the country in time of peace did not require, for the protection of the person, a passport, though the law assumes that passports may be granted by the government of the United States. Act of Congress, April 30, 1790, sec. 27. Passports, though named in our law, are unknown in practice. The protection is implied by natural and municipal law, and it is the duty of the courts of justice, when cases arise before them, to enforce the law of nations on this subject, as part of the law of the land. The doctrine of international law, as laid down by Vattel, is founded in good sense and public policy, and sustained by the interests and courtesy of nations. Grotius says, b. 2, c. 18, sec. 5, that the obligation to protect ambassadors extends only to the power to whom the embassy is sent, and does not extend to the power through whose territories the ambassador presumes to pass without a passport. But that harsh and narrow rule is now justly exploded.

(d) Rutherforth, b. 2, c. 9; Ward's History, ii. 552, 553; Vattel, b. 4, c. 8, sec. 113; United States v. Hand, 2 Wash. 435; Opinions of the Attorneys-General of the United States, Washington, 1841, i. 89-91. The immunities of a public minister are considered as not extending to debtors, as to debts incurred prior to their entering into the minister's service, nor to fugitive slaves, nor to persons who were under previous duties, as soldiers, sailors, apprentices, minors, a wife, &c., nor does the privilege of immunity protect a laborer engaged to work in the garden attached to the minister's residence. Ib. The duties and privileges of a public minister are detailed at large by Mr. Wheaton, in his Elements of International Law, 3d edition,

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yl See Bar, Int. Law, 492, note (U).

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distinction between ambassadors, ministers plenipotentiary, envoys extraordinary, and resident ministers relates to diplomatic precedence and etiquette, and not to their essential powers and privileges. (e)

* 40

* A government may, in its discretion, lawfully refuse to receive an ambassador, and without affording any just cause for war, though the act would, probably, excite unfriendly disposition, unless accompanied with conciliatory explanations.1 The

264-387, and afterwards in his larger work on the History of the Law of Nations in Europe and America, New York, 1845, 236-261; and from his long residence at two of the European courts in a diplomatic character, his authority on the subject acquires additional force.

(e) Martens, 201-207; Vattel, b. 4, c. 6. Chargé d'affaires is a diplomatic representative or minister of the fourth grade; and a resident minister seems not to be equal to a minister plenipotentiary. Nor is a minister plenipotentiary of equal rank and dignity with an ambassador, who represents the person of his sovereign. The great powers, at the Congress of Vienna in 1815 and of Aix la Chapelle in 1818, by an arrangement, divided diplomatic agents into four classes: 1. Ambassadors, papal legates, or nuncios. 2. Envoys, ministers, and other agents accredited to the sovereigns. 3. Ministers resident, accredited to sovereigns. 4. Chargés d'affaires, accredited to the department of foreign relations. A minister extraordinary has not by that title any superiority of rank. The Comm. Pinheiro-Ferreira, the Portuguese publicist, and himself a ministre d'état, in his Cours de Droit Public classes together chargés d'affaires, ministers resident, or simply ministers or residents, as diplomatic agents of the third class. The United States are usually represented at the courts of the great powers of the first class by ministers plenipotentiary, and at those of an inferior class by a chargé d'affaires; and they have never sent a person of the rank of ambassador in the diplomatic sense. The Prince of Orange once expressed to Mr. Adams his surprise that the United States had not put themselves, in that respect, on a level with the crowned heads. Diplomatic Correspondence, edited by Mr. Sparks, vii. 108. The questions concerning precedence among the members of the diplomatic corps at foreign courts were all happily settled by the Congress of Vienna, in 1815, and signed by the representatives of the eight principal European powers. It was agreed that diplomatic agents of the respective classes take rank according to the date of the official notice of their arrival, and that the order of sig nature of ministers to acts or treaties between several powers that allow of the alternat, should be determined by lot. Recueil des Pièces Officielles, viii. No. 17; Wheaton's Elements of International Law, 265; his History of the Law of Nations in Europe and America, New York, 1845, 496.

1 Dana's Wheaton, note 137; Annual Register, 1843, p. 160; 1856, p. 277, &c.

The government of a revolted state which has not yet been recognized, sometimes sends out diplomatic agents, who, although not invested with the representative character, nor entitled to diplomatic honors, may be clothed with the powers

and enjoy the immunities of ministers. Despatch of Earl Russell to Lord Lyons, Jan. 23, 1862; North Am. Pap. Nov. 4, 1862, p. 234, cited Abdy's Kent, 135; cited Dana's Wheat. note 121, as Parl. Pap. N. A. No. 5. But Mr. Seward has stated, in the case of the Mexican Empire, that the government of the United States holds