fort suggests, that the privilege does not extend to a debt, acknowledged by an ambassador before a notary public (g). The distinction is manifestly absurd, for if an ambassador be privileged as to all debts as he undoubtedly is, it is plainly immaterial by what evidence the debt is to be proved. If he were liable for such a debt, still more must he be liable for debts acknowledged by deed. Bynkershoek imputes this groundless distinction to Wicquefort's ignorance of private law (h). Wicquefort seems to have inferred a waiver of privilege from such acknowledgment; but he immediately corrects his own inference by the remark, that the privilege of an ambassador is the privilege of his sovereign, and cannot be waived without his consent (i). A debt so acknowledged is no less within the privilege, than any other contract. Secondly, As to the exemption of ambassadors and their train from criminal jurisdiction. The principle of this exemption is clearly established by Grotius and Bynkershoek. The immunity of ambassadors, says Grotius, is a difficult question, and has been variously determined by eminent writers of the present age. Some think that they are exempt only from unjust violence, and that privileges are to be construed according to common right. Others think that their exemption extends to all offences but such as are violations of the law of nations; but this is a large exception, for the law of nations includes the law of nature (j), so that on this principle an ambassador would be punishable for all offences but such as are of mere municipal institution. Others restrain the exception to cases of treason. Others think it dangerous to allow jurisdiction over an ambassador in any case, and that justice should be demanded of the sovereign by whom he is accredited. (g) Wicq. i. 899. (h) Bynk. F. L. xvi. (i) Wicq. i. 899; Bynk. F. L. xxiii. (j) This is inaccurate: but the inaccuracy does not affect the argument; for Grotius correctly refers the question to the usage of nations. The arguments adduced in support of each opinion lead to no certain conclusion; for this law is not like the law of nature to be deduced from mere reason, but is a matter determinable by the will of nations. But they may have given either an entire or a limited immunity to ambassadors; for on the one side is to be considered the importance of punishing great offenders; and on the other, the importance of embassies, the purposes of which are best promoted by entire security. The question to be considered, therefore, is, how far the usage of nations is settled. According to natural justice and equity, that is, according to the mere law of nature, an offender may be punished wherever he is found; but the law of nations excepts ambassadors, and those who come under the protection of the public faith. Therefore the prosecution of ambassadors is prohibited by the law of nations, whereby many things are forbidden, which the law of nature allows. The better opinion is, that privileges must be construed to confer something beyond common right; for if ambassadors were only protected against unjust violence, they would enjoy no distinction or privilege at all. Besides, the security of ambassadors is more important than the punishment of particular offences. safety of ambassadors would be placed on a very unsteady footing, if they were responsible to any one but the sovereign by whom they are sent; for, since the interests of those who send ambassadors, and of those who receive them, are generally different and often adverse, there never would be any difficulty in finding something to impute to an ambassador that would bear the semblance of an offence; and although some offences be too clear to admit of doubt, the general peril is a sufficient justification of the general rule (k). The Therefore, if an offence be such as may be overlooked without danger, it may be passed over without notice, or the ambassador may be required to leave the country. If an (k) Cf. Wicq. 808, 825; Vatt. iv. 98. ambassador commit a crime of more serious character, and which endangers the public safety, he may be sent home, and his sovereign may be required to do justice upon him. In case of extreme necessity, and to provide against imminent peril, he may be arrested and examined (7). The offences that may be committed by ambassadors, says Bynkershoek, are either common offences or such as affect the safety of the state. In regard to both classes, if reason only be consulted, much may be alleged for and against the privileges of ambassadors. Grotius examines the arguments on both sides, and justly rejects the opinion, that ambassadors are only to be protected against unjust violence; for on that principle they would have no privilege, as private persons are entitled to the same protection. Others restrict the privilege to such offences as are not contrary to the law of nations, in which case ambassadors would be punishable for all offences but such as are created by municipal law. Others, to whom this restriction seems too harsh, extend the privilege to all offences short of treason. Grotius himself weighs the importance of punishing crimes against the importance of giving security to ambassadors, and justly concludes that the preponderance must be ascertained by the will of nations. To the usage of nations, therefore, the appeal must be made, where the question is, whether a delinquent ambassador is protected by the law of nations in one class of offences, or in all. This usage is to be collected from precedents, of which there is such an abundance, that the examination of them will remove all difficulty in the determination of this question. Looking only to precedents to determine what is the usage, and consequently what is the law of nations, they seem to me to prove that an ambassador cannot be prosecuted or punished for any offence in the country wherein he is sent to reside, but (1) Grot. ii. 18, iv. that a sovereign against whom an offence is committed ought to follow those rules which Grotius has prescribed; except that even in offences of the greatest malignity, I should hold the expulsion of an ambassador to be sufficient. The principal reason that determined the opinion of Grotius, determines mine, namely, that by the unanimous consent of nations, an ambassador is deemed not to be subject to the sovereign to whom he is accredited (m). After citing many precedents, and referring to those collected by Wicquefort, he concludes with these words :-Examine the precedents collected by Wicquefort, compare them with those which I have produced, and you will find it impossible to doubt, that by the conventional law of nations, founded upon their tacit agreement, ambassadors, however deserving of punishment they may be, can be punished only by those whose ambassadors they are, and cannot be punished by those to whom they are accredited (n). It will be convenient first to collect the cases in which the law of nations has been violated, omitting those that are gathered from ancient history, which are altogether impertinent, where the custom, not of ancient, but of modern nations, is to be determined. A comparison of these precedents with those in which the law has prevailed, will fully bear out the opinion of Bynkershoek. Pope Julius 2 imprisoned the ambassador of the Duke of Savoy, and caused him to be put to the question as a spy (0). Pope Paul 4 imprisoned Garcilasso de la Vega, the Spanish ambassador, for conspiring against his government; and replied to the remonstrances of the Duke of Alva, that if the ambassador had not exceeded his functions he would not have been molested; but that when he made himself an accomplice of treasonable conspiracies, he must be deemed to have acted in (m) Bynk. F. L. xvii.-cf. Wicq. i. 808, 822, 825. (n) Bynk. F. L. xviii. (0) Wicq. i. 846. his private capacity, and to be liable to punishment. The matter went no further, and he was discharged. But the King of Spain resented the outrage, and exacted satisfaction for it (p). Marveille, the French minister at Milan, was executed for murder; but it is at least doubtful whether he was entitled to privilege, as he seems to have been a secret agent, and not an accredited minister (q). An ambassador in Portugal and the Venetian ambassador at Milan, were put to death for adultery (r). A domestic servant of the French ambassador in Rome, was put to death for having broken the chain of the galley slaves to rescue a prisoner (s). The King of Spain caused some of the Venetian ambassador's domestics, who had been guilty of a grave offence, to be seized in the house of the ambassador. They were tried and condemned to death, but afterwards pardoned and ordered to quit the kingdom. The King of Spain is said on that occasion to have sent a circular letter to all the courts to declare, that if his ambassadors committed any offence, he was willing that they should be tried by the laws of the country in which they were sent to reside. But the opinion of a single sovereign does not constitute the law of nations. Besides, Spanish ambassadors have been dismissed by many sovereigns, who would have punished them if the King of Spain had given such a permission, or it had been the Spanish practice to punish ambassadors (†). In 1601, some of the train of the French ambassador at Valladolid having been arrested for having killed two Spaniards, the King of Spain with difficulty escaped a war with France, through the intercession of the Pope; to whom (p) Wicq. i. 847; Bynk. F. L. xviii.; Flass. Dip. Fran. i. 364. (8) Wicq. i. 394. (1) Bynk. F. L. xix. |