OF THE RESTORATION OF PEACE; AND OF EMBASSIES
OF PEACE, AND THE OBLIGATION TO CULTIVATE IT.
§ l. What peace is.
PEACE is the reverse of war: it is that desirable state in which every one quietly enjoys his rights, or, if controverted, amicably discusses them by force of argument. Hobbes has had the boldness to assert, that war is the natural state of man. But if, by "the natural state of man," we understand (as reason requires that we should) that state to which he is destined and called by his nature, peace should rather be termed his natural state. For, it is the part of a rational being to terminate his differences by rational methods; whereas, it is the characteristic of the brute creation to decide theirs by force.1 Man, as we have already observed (Prelim. § 10), alone and destitute of succours, would necessarily be a very wretched creature. He stands in need of the intercourse and assistance of his species, in order to enjoy the sweets of life, to develop his faculties, and live in a manner suitable to his nature. Now, it is in peace alone that all these advantages are to be found: it is in peace that men respect, assist, and love each other: nor would they ever depart from that happy state, if they were not hurried on by the impetuosity of their passions, and blinded by the gross deceptions of self-love. What little we have said of the effects will be sufficient to give some idea of its various calamities; and it is an unfortunate circumstance for the human race, that the injustice of unprincipled men should so often render it inevitable.
§ 2. Obligation of cultivating it.
Nations who are really impressed with sentiments of humanity, — who seriously attend to their duty, and are acquainted with their true and substantial interests, — will never seek to promote their own advantage at the expense and detriment of other nations: however intent they may be on their own happiness, they will ever be careful to combine it with that of others, and with justice and equity. Thus disposed, they will necessarily cultivate peace. If they do not live together in peace, how can they perform those mutual and sacred duties which nature enjoins them? And this state is found to be no less necessary to their happiness than to the discharge of their duties. Thus, the law of nature every way obliges them to seek and cultivate peace. That divine law has no other end in view than the welfare of mankind: to that object all its rules and all its precepts lend: they are alt deducible from this principle, that men should seek their own felicity; and morality is no more than the art of acquiring happiness. As this is true of individuals, it is equally so of nations, as must appear evident to any one who will but take the trouble of reflecting on what we have said of their common and reciprocal duties, in the first chapter of the second book.
§ 3. The sovereign's obligation to it.
This obligation of cultivating peace binds the sovereign by a double tie. He owes this attention to his people, on whom war would pour a torrent of evils; and he owes it in the most strict and indispensable manner, since it is solely for the advantage and welfare of the nation that he is intrusted with the government. (Book I. § 39.) He owes the same attention to foreign nations, whose happiness likewise is disturbed by war. The nation's duty in this respect has been shown in the preceding chapter; and the sovereign, being invested with the public authority, is at the same time charged with all the duties of the society, or body of the nation. (Book I. § 41.)
§ 4. Extent of this duty
The nation or the sovereign ought not only to refrain, on their own part, from disturbing that peace which is so salutary to mankind: they are, moreover, bound to promote it as far as lies in their power, — to prevent others from breaking it without necessity, and to inspire them with the love of justice, equity, and public tranquillity, — in a word, with the love of peace. It is one of the best offices a sovereign can render to nations, and to the whole universe. What a glorious and amiable character is that of peace-maker! Were a powerful prince thoroughly acquainted with the advantages attending it, — were he to conceive what pure and effulgent glory he may derive from that endearing character, together with the gratitude, the love, the veneration, and the confidence of nations, — did he know what it is to reign over the hearts of men, — he would wish thus to become the benefactor, the friend, the father of mankind; and in being so, he would find infinitely more delight than in the most splendid conquests. Augustus, shutting the temple of Janus, giving peace to the universe, and adjusting the disputes of kings and nations, — Augustus, at that moment, appears the greatest of mortals, and, as it were, a god upon earth.
§ 5. Of the disturbers of the public peace.
But those disturbers of the public peace, — those scourges of the earth, who, fired by a lawless thirst of power, or impelled by the pride and ferocity of their disposition, snatch up arms without justice or reason, and sport with the quiet of mankind and the blood of their subjects, — those monstrous heroes, though almost deified by the foolish admiration of the vulgar, are in effect the most cruel enemies of the human race, and ought to be treated as such. Experience shows what a train of calamities war entails even upon nations that are not immediately engaged in it. War disturbs commerce, destroys the subsistence of mankind, raises the price of all the most necessary articles, spreads just alarms, and obliges all nations to be upon their guard, and to keep up an armed force. He, therefore, who without just cause breaks the general peace, unavoidably does an injury even to those nations which are not the objects of his arms; and by his pernicious example he essentially attacks the happiness and safety of every nation upon earth. He gives them a right to join in a general confederacy for the purpose of repressing and chastising him, and depriving him of a power which he so enormously abuses. What evils does he not bring on his own nation, lavishing her blood to gratify his inordinate passions, and exposing her to the resentment of a host of enemies! A famous minister of the last century has justly merited the indignation of his country, by involving her in unjust or unnecessary wars. If by his abilities and indefatigable application, he procured her distinguished successes in the field of battle, he drew on her, at least for a time, the execration of all Europe.
§ 6. How far war may be continued.
The love of peace should equally prevent us from embarking in a war without necessity, and from persevering in it after the necessity has ceased to exist. When a sovereign has been compelled to take up arms for just and important reasons, he may carry on the operations of war till he has attained its lawful end, which is, to procure justice and safety. (Book III § 28.)
If the cause be dubious, the just end of war can only be to bring the enemy to an equitable compromise (Book III. § 38); and consequently the war must not be continued beyond that point. The moment our enemy proposes or consents to such compromise, it is our duty to desist from hostilities.
But if we have to do with a perfidious enemy, it would be imprudent to trust either his words or his oaths. In sucli case, justice allows and prudence requires that we should avail ourselves of a successful war, and follow up our advantages, till we have humbled a dangerous and excessive power, or compelled the enemy to give us sufficient security for the time to come.
Finally, if the enemy obstinately rejects equitable conditions, he himself forces us to continue our progress till we have obtained a complete and decisive victory, by which he is absolutely reduced and subjected. The use to be made of victory has been shown above. (Book III. Chap. VIII., IX., XIII.)
§ 7. Peace the end of war.
When one of the parties is reduced to sue for peace, or both are weary of the war, then thoughts of an accommodation are entertained, and the conditions are agreed on. Thus peace steps in and puts a period to the war.
§ 8. General effects of peace.
The general and necessary effects of peace are the reconciliation of enemies and the cessation of hostilities on both sides. It restores the two nations to their natural state.
1. Nam cum sint duo genera decertandi, unum per disceptationem, alterum per vim, — cumque illud proprium sit hominis, hoc belluarum, — confuglendum est ad posterius, si ut non licet superiore. Cicero, de Offic. lib. i. cap. 11.
TREATIES OF PEACE.
§ 9. Definition of a treaty of peace.(188)
WHEN the belligerent powers have agreed to lay down their arms, the agreement or contract in which they stipulate the conditions of peace, and regulate the manner in which it is to be restored and supported, is called the treaty of peace.
§ 10. By whom it may be concluded.
The same power who has the right of making war, of determining on it, of declaring it, and of directing its operations, has naturally that likewise of making and concluding the treaty of peace.(189) These two powers are connected together, and the latter naturally follows from the former. If the ruler of the state is empowered to judge of the causes and reasons for which war is to be undertaken, — of the time and circumstances proper for commencing it, — of the manner in which it is to be supported and carried on, — it is therefore his province also to set bounds to its progress, to point out the time when it shall be discontinued, and to conclude a peace. But this power does not necessarily include that of granting or accepting whatever conditions he pleases, with a view to peace. Though the state has intrusted to the prudence of her ruler the general care of determining on war and peace, yet she may have limited his power in many particulars by the fundamental laws. Thus, Francis the First, king of France, had the absolute disposal of war and peace: and yet the assembly of Cognac declared that he had no authority to alienate any part of the kingdom by a treaty of peace. (See Book I. § 265.)
A nation that has the free disposal of her domestic affairs, and the form of her government, may intrust a single person, or an assembly, with the power of making peace, although she has not given them that of making war. Of this we have an instance in Sweden, where, since the death of Charles XII., the king cannot declare war without the consent of the states assembled in diet; but he may make peace in conjunction with the senate. It is less dangerous for a nation to intrust her rulers with this latter power, than with the former. She may reasonably expect that they will not make peace till it suits with the interest of the state. But their passions, their own interest, their private views, too often influence their resolutions where there is question of undertaking a war. Besides, it must be a very dangerous peace, indeed, that is not preferable to war, whereas, on the other hand, to exchange peace for war is always very hazardous.
When a prince, who is possessed only of limited authority, has a power to make peace, as he cannot of himself grant whatever conditions he pleases, it is incumbent on those who wish to treat with him on sure grounds, to require that the treaty of peace be ratified by the nation, or by those who are empowered to perform the stipulations contained in it. If, for instance, any potentate, in negotiating a treaty of peace with Sweden, requires a defensive alliance or guarantee as the condition, this stipulation will not be valid, unless approved and accepted by the diet, who alone have the power of carrying it into effect. The kings of England are authorized to conclude treaties of peace and alliance; but they cannot, by those treaties, alienate any of the possessions of the crown without the consent of parliament. Neither can they, without the concurrence of that body, raise any money in the kingdom; wherefore, whenever they conclude any subsidiary treaty, it is their constant rule to lay it before the parliament, in order that they may be certain of the concurrence of that assembly to enable them to make good their engagements. When the emperor Charles V. required of Francis the First, his prisoner, such conditions as that king could not grant without consent of the nation, he should have detained him till the states-general of France had ratified the treaty of Madrid, and Burgundy had acquiesced in it: thus he would not have lost the fruits of his victory by an oversight which appears very surprising in a prince of his abilities.
§ 11. Alienations made by a treaty of peace.
We shall not repeat here what we have said on a former occasion concerning the alienation of a part of the state (Book I. §§ 263, &c.) or of the whole state. (Ibid. §§ 68, &c.) We shall therefore content ourselves with observing, that, in case of a pressing necessity, such as is produced by the events of an unfortunate war, the alienations made by the prince, in order to save the remainder of the state, are considered as approved and ratified by the mere silence of the nation, when she has not, in the form of her government, retained some easy and ordinary method of giving her express consent, and has lodged an absolute power in the prince's hands. The states-general are abolished in France by disuse, and by the tacit consent of the nation. Whenever, therefore, that kingdom is reduced to any calamitous exigency, it belongs to the king alone to determine by what sacrifices he may purchase peace: and his enemies will treat with him on a sure footing. It would be a vain plea on the part of the people, to say that it was only through fear they acquiesced in the abolition of the states-general. The fact is, that they did acquiesce, and thereby suffered the king to acquire all the powers necessary for contracting with foreign states in the name of the nation. In every state there must necessarily be some power with which other nations may treat on secure grounds. A certain historian1 says, that, "by the fundamental laws, the kings of France cannot, to the prejudice of their successors, renounce any of their rights, by any treaty, whether voluntary or compulsory." The fundamental laws may indeed withhold from the king the power of alienating, without the nation's consent, what belongs to the state; but they cannot invalidate an alienation or renunciation made with that consent.2
And if the nation has permitted matters to proceed to such lengths that she now has no longer any means of expressly declaring her consent, her silence alone, on such occasions, is in reality a tacit consent. Otherwise there would be no possibility of treating on sure grounds with such a state; and her pretending thus beforehand to invalidate all future treaties would be an infringement of the law of nations, which ordains that all states should retain the means of treating with each other (Book I, § 262), and should observe their treaties. (Book II. §§ 163, 269, &c.)
It is to be observed, however, that in our examination whether the consent of the nation be requisite for alienating any part of the state, we mean such parts as are still in the nation's possession, and not those which have fallen into the enemy's hands during the course of the war: for, as these latter are no longer possessed by the nation, it is the sovereign alone, if invested with the full and absolute administration of the government, and with the power of making war and peace, — it is he alone, I say, who is to judge whether it be expedient to relinquish those parts of the state, or to continue the war for the recovery of them. And even though it should be pretended that he cannot by his own single authority make any valid alienation of them, — he has, nevertheless, according to our supposition, that is, if invested with full and absolute power, — he has, I say, a right to promise that the nation shall never again take up arms for the recovery of those lands, towns, or provinces, which he relinquishes: and this suffices for securing the quiet possession of them to the enemy into whose hands they are fallen.
§ 12. How the sovereign may in a treaty dispose of what concerns individuals.
The necessity of making peace authorizes the sovereign to dispose of the property of individuals; and the eminent domain gives him a right to do it (Book I. § 244). He may even, to a certain degree, dispose of their persons, by virtue of the power which he has over all his subjects. But as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction. (Ibid.)
§ 13. Whether a king, being a prisoner of war, can make peace.
Every impediment by which the prince is disabled from administering the affairs of government, undoubtedly deprives him of the power of making peace. Thus a king cannot make a treaty of peace during his minority, or while in a state of mental derangement: this assertion does not stand in need of any proof: but the question is, whether a king can conclude a peace while he is a prisoner of war, and whether the treaty thus made be valid? Some celebrated authors3 here draw a distinction between a monarch whose kingdom is patrimonial, and another who has only the usufructus of his dominions. We think we have overthrown that false and dangerous idea of a patrimonial kingdom (Book I. §§ 68, &c.), and evidently shown that the notion ought not to be extended beyond the bare power with which a sovereign is sometimes intrusted, of nominating his successor, of appointing a new prince to rule over the state, and dismembering some parts of it, if he thinks it expedient; — the whole, however, to be uniformly done for the good of the nation, and with a view to her greater advantage. Every legitimate government, whatever it be, is established solely for the good and welfare of the state. This incontestable principle being once laid down, the making of peace is no longer the peculiar province of the king; it belongs to the nation. Now it is certain that a captive prince cannot administer the government, or attend to the management of public affairs. How shall he who is not free command a nation? How can he govern it in such manner as best to promote the advantage of the people, and the public welfare? He does not, indeed, forfeit his rights; but his captivity deprives him of the power of exercising them, as he is not in a condition to direct the use of them to its proper and legitimate end. He stands in the same predicament as a king in his minority, or labouring under a derangement of his mental faculties. In such circumstances, it is necessary that the person or persons whom the laws of the state designate for the regency should assume the reins of government. To them it belongs to treat of peace, to settle the terms on which it shall be made, and to bring it to a conclusion, in conformity to the laws.
The captive sovereign may himself negotiate the peace, and promise what personally depends on him: but the treaty does not become obligatory on the nation till ratified by herself, or by those who are invested with the public authority during the prince's captivity, or, finally, by the sovereign himself after his release.
But, if it is a duty incumbent on the state to use her best efforts for procuring the release of the most inconsiderable of her citizens who has lost his liberty in the public cause, the obligation is much stronger in the case of her sovereign, whose cares, attention, and labours are devoted to the common safety and welfare. It was in fighting for his people that the prince, who has been made prisoner, fell into that situation, which, to a person of his exalted rank, must be wretched in the extreme: and shall that very people hesitate to deliver him at the expense of the greatest sacrifices? On so melancholy an occasion, they should not demur at any thing short of the very existence of the state. But, in every exigency, the safety of the people is the supreme law; and, in so severe an extremity, a generous prince will imitate the example of Regulus, That heroic citizen, being sent back to Rome on his parole, dissuaded the Romans from purchasing his release by an inglorious treaty, though he was not ignorant of the tortures prepared for him by the cruelty of the Carthaginians.4
§ 14. Whether peace can be made with an usurper
When an unjust conqueror, or any other usurper, has invaded the kingdom, he becomes possessed of all the powers of government when once the people have submitted to him, and, by a voluntary homage, acknowledged him as their sovereign. Other states, as having no right to intermeddle with the domestic concerns of that nation, or to interfere in her government, are bound to abide by her decision, and to look no farther than the circumstances of actual possession. They may, therefore, broach and conclude a treaty of peace with the usurper. They do not thereby infringe the right of the lawful sovereign: it is not their business to examine and judge of that right: they leave it as it is, and only look to the possession in all the affairs they have to transact with that kingdom, pursuant to their own rights and those of the nation whose sovereignty is contested. But this rule does not preclude them from espousing the quarrel of the dethroned monarch, and assisting him, if he appears to have justice on his side: they then declare themselves enemies of the nation which has acknowledged his rival, as, when two different states are at war, they are at liberty to assist either party whose pretensions appear to be best founded.
§ 15. Allies included in the treaty of peace.
The principal in the war, the sovereign in whose name it has been carried on, cannot justly make a peace without including his allies, — I mean those who have given him assistance without directly taking part in the war. This precaution is necessary, in order to secure them from the resentment of live enemy: for though the latter has no right to take offence against his adversary's allies, whose engagements were purely of a defensive nature, and who have done nothing more than faithfully execute their treaties (Book III. § 101) — yet it too frequently happens that the conduct of men is influenced by their passions rather than by justice and reason. If the alliance was not of prior date to the commencement of the war, and was formed with a view to that very war, — although these new allies do not engage in the contest with all their force, nor directly as principals, they nevertheless give to the prince against whom they have joined, just cause to treat them as enemies. The sovereign, therefore, whom they have assisted, must not omit including them in the peace.
But the treaty concluded by the principal is no farther obligatory on his allies than as they are willing to accede to it, unless they have given him full power to treat for them. By including them in his treaty, he only acquires a right, with respect to his reconciled enemy, of insisting that he shall not attack those allies on account of the succours they have furnished against him, — that he shall not molest them, but shall live in peace with them as if nothing had happened.
§ 16. Associates to treat each for himself.
Sovereigns who have associated in a war, — all those who have directly taken part in it, — are respectively to make their treaties of peace, each for himself. Such was the mode adopted at Nimeguen, at Ryswick, and at Utrecht. But the alliance obliges them to treat in concert. To determine in what cases an associate may detach himself from the alliance, and make a separate peace, is a question which we have examined in treating of associations in war (Book III. Chap. VI.), and of alliances in general (Book II. Chap. XII. and XV.).
§ 17. Mediation.
It frequently happens that two nations, though equally tired of the war, do nevertheless continue it merely from a fear of making the first advances to an accommodation, as these may be imputed to weakness; or they persist in it from animosity, and contrary to their real interests. On such occasions, some common friends of the parties effectually interpose, by offering themselves as mediators. There cannot be a more beneficent office, and more becoming a great prince, than that of reconciling two nations at war, and thus putting a stop to the effusion of human blood: it is the indispensable duty of those who have the means of performing it with success. This is the only reflection we shall here make on a subject we have already discussed (Book II. § 328).
§ 18. On what footing peace may be concluded.
A treaty of peace can be no more than a compromise. Were the rules of strict and rigid justice to be observed in it, so that each party should precisely receive every thing to which he has a just title, it would be impossible ever to make a peace. First, with regard to the very subject which occasioned the war, one of the parties would be under a necessity of acknowledging himself in the wrong, and condemning hie own just pretensions: which he will hardly do, unless reduced to the last extremity. But if he owns the injustice of his cause, he must at the same time condemn every measure he has pursued in support of it: he must restore what he has unjustly taken, must reimburse the expenses of the war, and repair the damages. And how can a just estimate of all the damages be formed: What price can be set on all the blood that has been shed, the loss of such a number of citizens, and the ruin of families! Nor is this all. Strict justice would further demand, that the author of an unjust war should suffer a penalty proportioned to the injuries for which he owes satisfaction, and such as might insure the future safety of him whom he attacked. How shall the nature of that penalty be determined, and the degree of it be precisely regulated? In fine, even he who had justice on his side may have transgressed the bounds of justifiable self-defence, and been guilty of improper excesses in the prosecution of a war whose object was originally lawful: here then are so many wrongs, of which strict justice would demand reparation. He may have made conquests and taken booty beyond the value of his claim. Who shall make an exact calculation, a just estimate of this? Since, therefore, it would be dreadful to perpetuate the war, or to pursue it to the utter ruin of one of the parties, — and since, however just the cause in which we are engaged, we must at length turn our thoughts towards the restoration of peace, and ought to direct all our measures to the attainment of that salutary object, — no other expedient remains than that of coming to a compromise respecting all claims and grievances on both sides, and putting an end to all disputes by a convention as fair and equitable as circumstances will admit of. In such conventions, no decision is pronounced on the original cause of the war, or on those controversies to which the various acts of hostility might give rise; nor is either of the parties condemned as unjust, — a condemnation to which few princes would submit; — but, a simple agreement is formed, which determines what equivalent each party shall receive in extinction of all his pretensions.
§ 19. General effect of the treaty of peace.
The effect of the treaty of peace is to put an end to the war, and to abolish the subject of it. It leaves the contracting parties no right to commit any acts of hostility on account either of the subject itself which had given rise to the war, or, of any thing that was done during its continuance: wherefore they cannot lawfully take up arms again for the same subject. Accordingly, in such treaties, the contracting parties reciprocally engage to preserve perpetual peace: which is not to be understood as if they promised never to make war on each other for any cause whatever. The peace in question relates to the war which it terminates: and it is in reality perpetual, inasmuch as it does not allow them to revive the same war, by taking up arms again for the same subject which had originally given birth to it.
A special compromise, however, only extinguishes the particular means to which it relates, and does not preclude any subsequent pretensions to the object itself, on other grounds. Care is therefore usually taken to require a general compromise, which shall embrace not only the existing controversy, but the very thing itself which is the subject of that controversy: stipulation is made for a general renunciation of all pretensions whatever to the thing in question: and thus, although the party renouncing might in the sequel be able to demonstrate by new reasons that the thing did really belong to him, his claim would not be admitted.
§ 20. Amnesty.
An amnesty is a perfect oblivion of the past; and the end of peace being to extinguish all subjects of discord, this should be the leading article of the treaty: and accordingly, such is at present the constant practice. But though the treaty should be wholly silent on this head, the amnesty, by the very nature of the peace, is necessarily implied in it.
§ 21. Things not mentioned in the treaty.
As each of the belligerent powers maintains that he has justice on his side, — and as their pretensions are not liable to be judged by others (Book III. § 188), — whatever state things happen to be in at the time of the treaty is to be considered as their legitimate state; and if the parties intend to make any change in it, they must expressly specify it in the treaty. Consequently all things not mentioned in the treaty are to remain on the same footing on which they stand at the period when it is concluded. This is also a consequence of the promised amnesty. All damages caused during the war are likewise buried in oblivion; and no action can be brought for those of which the treaty does not stipulate the reparation: they are considered as having never happened.
§ 22. Things not included in the compromise or amnesty.
But the effect of the compromise or amnesty cannot be extended to things which have no relation to the war that is terminated by the treaty. Thus, claims founded on a debt, or on an injury which had been done prior to the war, but which made no part of the reasons for undertaking it, still stand on their former footing, and are not abolished by the treaty, unless it be expressly extended to the extinction of every claim whatever. The case is the same with debts contracted during the war, but for causes which have no relation to it, — or with injuries done during its continuance, but which have no connection with the state of warfare.
Debts contracted with individuals, or injuries which they may have received from any other quarter, without relation to the war, are likewise not abolished by the compromise and amnesty, as these solely relate to their own particular object, — that is to say, to the war, its causes, and its effects. Thus, if two subjects of the belligerent powers make a contract together in a neutral country, or if the one there receives an injury from the other, — the performance of the contract, or the reparation of the injury and damage, may be prosecuted after the conclusion of the treaty of peace.
Finally, if the treaty expresses that all things shall be restored to the state in which they were before the war, this clause is understood to relate only to immovable possessions, and cannot be extended to movables, or booty, which immediately becomes the property of the captors, and is looked on as relinquished by the former owners on account of the difficulty of recognising it, and the little hope they entertain of ever recovering it.
§ 23. Former treaties, mentioned and confirmed in the new, are a part of it.
When the last-made treaty mentions and confirms other treaties of prior date, these constitute a part of the new one, no less than if they were literally transcribed and included in it: and any new articles relating to former conventions are to be interpreted according to the rules which we have laid down in a preceding part of this work (Book II. Chap. XVII. and particularly § 286).
(188) Upon the subject of treaties in general, and their construction, see ante, book ii. ch. xii. p. 192-274. Whilst examining the sections of Vattel relative to treaties, it will be found advisable to read the modern treaties, which are collected in Chitty's Commercial Law, latter part of vol. 2. — C.
(189) Ante, 292-2; and see Hoop, 1 Rob. Rep. 196, Id.; 1 Chitty's Com. L. 378. — C.
1. The abbé de Choisi, Hist. de Charles V. p. 492.
2. The renunciation made by Anne of Austria, consort of Louis the Thirteenth, was good and valid, because it was confirmed by the general assembly of the Cortes, and registered in all the offices. The case was otherwise with that made by Anna Theresa, which was not sanctioned by those formalities — consequently, not stamped with the national approbation, and the character of a law of the state. The cardinals who examined this affair by order of the pope, whom Charles II. had consulted, paid no regard to Maria Theresa's renunciation, as not deeming it of sufficient force to invalidate the laws of the country, and to supersede the established custom. — Memoirs of M. de St. Philippe, vol. i. p. 29. — Ed. A.D. 1797.
3. See Wolf. Jus Gent. § 982.
4. See Tit. Liv. Epitom. lib. xviii. and other historians.
OF THE EXECUTION OF THE TREATY OF PEACE.
§ 24. When the obligation of the treaty commences.
A TREATY of peace becomes obligatory on the contracting parties from the moment of its conclusion, — the moment it has passed through all the necessary forms: and they are bound to have it carried into execution without delay.1 From that instant all hostilities must cease, unless a particular day has been specified for the commencement of the peace. But this treaty does not bind the subjects until it is duly notified to them. The case is the same in this instance as in that of a truce (Book II. § 239). If it should happen that military men, acting within the extent of their functions and pursuant to the rules of their duty, commit any acts of hostility before they have authentic information of the treaty of peace, it is a misfortune, for which they are not punishable: but the sovereign, on whom the treaty of peace is already obligatory, is bound to order and enforce the restitution of all captures made subsequent to its conclusion: he has no right whatever to retain them.
§ 25. Publication of the peace.
And in order to prevent those unhappy accidents, by which many innocent persons may lose their lives, public notice of the peace is to be given without delay, at least to the troops. But at present, as the body of the people cannot of themselves undertake any act of hostility, and do not personally engage in the war, the solemn proclamation of the peace may be deferred, provided that care be taken to put a stop to all hostilities: which is easily done by means of the generals who direct the operations, or by proclaiming an armistice at the head of the armies. The peace of 1735, between the emperor and France, was not proclaimed till long after. The proclamation was postponed till the treaty was digested at leisure, — the most important points having been already adjusted in the preliminaries. The publication of the peace replaces the two nations in the state they were in before the war. It again opens a free intercourse between them, and reinstates the subjects on both sides in the enjoyment of those mutual privileges which the state of war had suspended. On the publication, the treaty becomes a law to the subjects: and they are thenceforward bound to conform to the regulations stipulated therein. If, for instance, the treaty imports that one of the two nations shall abstain from a particular branch of commerce, every subject of that nation, from the time of the treaty's being made public, is obliged to renounce that commerce.
§ 26. Time of the execution.
When no particular time has been assigned for the execution of the treaty, and the performance of the several articles, common sense dictates that every point should be carried into effect as soon as possible: and it was, no doubt, in this light that the contracting parties understood the matter. The faith of treaties equally forbids all neglect, tardiness, and studied delays, in the execution of them.
§ 27. A lawful excuse to be admitted.
But in this affair, as in every other, a legitimate excuse, founded on a real and insurmountable obstacle, is to be admitted; for nobody is bound to perform impossibilities. The obstacle, when it does not arise from any fault on the side of the promising party, vacates a promise which cannot be made good by an equivalent, and of which the performance cannot be deferred to another time. If the promise can be fulfilled on another occasion, a suitable prolongation of the time must be allowed. Suppose one of the contracting nations has, by the treaty of peace, promised the other a body of auxiliary troops: she will not be bound to furnish them, if she happen to stand in urgent need of them for her own defence. Suppose she has promised a certain yearly quantity of corn: it cannot be demanded at a time when she herself labours under a scarcity of provisions; but, on the return of plenty, she is bound to make good the quantity in arrear, if required.
§ 28. The promise is void when the party to whom it was made has himself hindered the performance of it.
It is further held as a maxim, that the promiser is absolved from his promise, when, after he has made his preparations for performing it according to the tenor of his engagement, he is prevented from fulfilling it, by the party himself to whom it was made. The promisee is deemed to dispense with the fulfilment of a promise of which he himself obstructs the execution. Let us therefore add, that if he who had promised a thing by a treaty of peace was ready to perform it at the time agreed on, or immediately and at a proper time if there was no fixed term, — and the other party would not admit of it, the promisor is discharged from his promise: for the promisee, not having reserved to himself a right to regulate the performance of it at his own pleasure, is accounted to renounce it by not accepting of it in proper season and at the time for which the promise was made. Should he desire that the performance be deferred till another time, the promisor is in honour bound to consent to the prolongation, unless he can show by very good reasons that the promise would then become more inconvenient to him.
§ 29. Cessation of contributions.
To levy contributions is an act of hostility which ought to cease as soon as peace is concluded (§ 24). Those which are already promised, but not yet paid, are a debt actually due; and, as such, the payment may be insisted on. But, in order to obviate all difficulty, it is proper that the contracting parties should clearly and minutely explain their intentions respecting matters of this nature; and they are generally careful to do so.
§ 30. Products of the thing restored or ceded.
The fruits and profits of those things which are restored by a treaty of peace are due from the instant appointed for carrying it into execution: and if no particular period has been assigned, they are due from the moment when the restitution of the things themselves was agreed to: but those which were already received or become payable before the conclusion of the peace, are not comprised in the restitution; for the fruits and profits belong to the owner of the soil; and, in the case in question, possession is accounted a lawful title. For the same reason, in making a cession of the soil, we do not include in that cession the rents and profits antecedently due. This Augustus justly maintained against Sextus Pompey, who, on receiving a grant of the Peloponnesus, claimed the imposts of the preceding years.2
§ 31. In what condition things are to be restored.
Those things, of which the restitution is, without further explanation, simply stipulated in the treaty of peace, are to be restored in the same state in which they were when taken: for the word "restitution" naturally implies that every thing should be replaced in its former condition. Thus, the restitution of a thing is to be accompanied with that of all the rights which were annexed to it when taken. But this rule must not be extended to comprise those changes which may have been the natural consequences and effects of the war itself and of its operations. A town is to be restored in the condition it was in when taken, as far as it still remains in that condition at the conclusion of the peace. But if the town has been razed or dismantled during the war, that damage was done by the right of arms, and is buried in oblivion by the act of amnesty. We are under no obligation to repair the ravages that have been committed in a country which we restore at the peace; we restore it in its existing state, but, as it would be a flagrant perfidy to ravage that country after the conclusion of the peace, the case is the same with respect to a town whose fortifications have escaped the devastation of war: to dismantle it previous to the restoration would be a violation of good faith and honour. If the captor has repaired the breaches, and put the place in the same state it was in before the siege, he is bound to restore it in that state. If he has added any new works, he may indeed demolish these: but if he has razed the ancient fortifications, and constructed others on a new plan, it will be necessary to come to a particular agreement respecting this improvement, or accurately to define in what condition the place shall be restored. Indeed this last precaution should in every case be adopted, in order to obviate all dispute and difficulty. In drawing up an instrument solely intended for the restoration of peace, it should be the object of the parties to leave, if possible, no ambiguity whatever, — nothing which may have a tendency to rekindle the flames of war. I am well aware, however, that this is not the practice of those who value themselves now-a-days on their superior abilities in negotiation: on the contrary, they study to introduce obscure or ambiguous clauses into a treaty of peace, in order to furnish their sovereign with a pretext for broaching a new quarrel and taking up arms again on the first favourable opportunity. How contrary such pitiful finesse is to the faith of treaties, we have already observed (Book II, § 231): it is a disparagement of that candour and magnanimity which should beam forth in all the actions of a great prince.
§ 32. The interpretation of a treaty of peace is to be against the superior party.(190)
But, as it is extremely difficult wholly to avoid ambiguity in a treaty, though worded with the greatest care and the most honourable intentions, — and to obviate every doubt which may arise in the application of its several clauses to particular cases, — recourse must often be had to the rules of interpretation. We have already devoted an entire chapter to the exposition of those important rules:3 wherefore, instead of entering at present into tedious repetitions, we shall confine ourselves to a few rules more particularly adapted to the special case before us, — the interpretation of treaties of peace. 1. In case of doubt, the interpretation goes against him who prescribed the terms of the treaty: for as it was in some measure dictated by him, it was his own fault if he neglected to express himself more clearly: and by extending or restricting the signification of the expressions to that meaning which is least favourable to him, we either do him no injury, or we only do him that to which he has wilfully exposed himself; whereas, by adopting a contrary mode of interpretation, we would incur the risk of converting vague or ambiguous terms into so many snares to entrap the weaker party in the contract, who has been obliged to subscribe to what the stronger had dictated.
§ 33. Names of ceded countries.
2. The names of countries ceded by treaty are to be understood according to the usage prevailing at the time among skilful and intelligent men: for it is not to be presumed that weak or ignorant persons should be intrusted with so important a concern as that of concluding a treaty of peace; and the articles of a contract are to be understood of what the contracting parties most probably had in contemplation, since the object in contemplation is the motive and ground of every contract.
§ 34. Restoration not to be understood of those who have voluntarily given themselves up.
3. The treaty of peace naturally and of itself relates only to the war which it terminates. It is, therefore, in such relation only, that its vague clauses are to be understood. Thus, the simple stipulation of restoring things to their former condition does not relate to changes which have not been occasioned by the war itself: consequently, this general clause cannot oblige either of the parties to set at liberty a free people who have voluntarily given themselves up to him during the war. And as a people, when abandoned by their sovereign, become free, and may provide for their own safety in whatever manner they think most advisable (Book I. § 202) — if such people, during the course of the war have voluntarily, and without military compulsion, submitted and given themselves up to the enemy of their former sovereign, the general promise of restoring conquests shall not extend to them. It were an unavailing plea, to allege that the party who requires all things to be replaced on their former footing may have an interest in the independence of the former of those people, and that he evidently has a very great one in the restoration of the latter. If he wished to obtain things which the general clause does not of itself comprise, he should have clearly and specifically expressed his intentions relative to them. Stipulations of every kind may be inserted in a treaty of peace; but if they bear no relation to the war which it is the view of the contracting parties to bring to a conclusion, they must be very expressly specified; for the treaty is naturally understood to relate only to its own particular object.
1. It is an essential point to neglect none of the formalities which can insure the execution of the treaty, and prevent new disputes. Accordingly, care must be taken to have it duly recorded in all the proper offices and courts. M. Van Benningen, writing to the Grand Pensionary De Witt, in 1662, thus observes — "The articles and conditions of this alliance contain various matters of different natures, the majority of which fall under the cognisance of the privy council, — several under that of the civil tribunals, the parliaments, &c. — escheatage, for instance, which comes under the cognisance of des comptes [exchequer]. Thus, the treaty must be recorded in all those different places." This advice was followed; and the states-general required that the treaty conducted the same year should be recorded in all the parliaments of the kingdom. See the king's reply on this subject, in his letter to the Count D'Estrades, page 399. — Edit A.D. 1797.
2. Applan, de Bell. Civ. lib. v., quoted by Grotius, lib. ii. cap. 20, § 22.
(190) As to the construction of treaties in general, see Book II. Chap. XVII. § 262, ante, 244. — C.
3. Book II. Chap. XVII. ante, 244-274.
OF THE OBSERVANCE AND BREACH OF THE TREATY OF PEACE.
§ 35. The treaty of peace binds the nation and successors.
THE treaty of peace concluded by a lawful power is undoubtedly a public treaty, and obligatory on the whole nation (Book II. § 154). It is likewise, by its nature, a real treaty; for if its duration had been limited to the life of the sovereign, it would be only a truce, and not a treaty of peace. Besides, every treaty which, like this, is made with a view to the public good, is a real treaty (Book II. § 198). It is therefore as strongly binding on the successors as on the prince himself who signed it, since it binds the state itself, and the successors can never have, in this respect, any other rights than those of the state.
§ 36. It is to be faithfully observed.
After all we have said on the faith of treaties and the indispensable obligation which they impose, it would be superfluous to use many words in showing how religiously treaties of peace in particular should be observed both by sovereigns and people. These treaties concern and bind whole nations; they are of the highest importance; the breach of them infallibly rekindles the flames of war; — all which considerations give additional force to the obligation of keeping our faith, and punctually fulfilling our promises.
§ 37. The plea of fear or force does not dis-
We cannot claim a dispensation from the observance of a treaty of peace, by alleging that it was extorted from us by fear, or wrested from us by force. In the first place, were this plea admitted, it would destroy, from the very foundations, all the security of treaties of peace; for there are few treaties of that kind, which might not be made to afford such a pretext, as a cloak for the faithless violation of them. To authorize such an evasion would be a direct attack on the common safety and welfare of nations: — the maxim would be detestable, for the same reasons which have universally established the sacredness of treaties (Book II. § 220). Besides, it would generally be disgraceful and ridiculous to advance such a plea. At the present day, it seldom happens that either of the belligerent parties perseveres to the last extremity before he will consent to a peace. Though a nation may have lost several battles, she can still defend herself: as long as she has men and arms remaining, she is not destitute of all resource. If she thinks fit, by a disadvantageous treaty, to procure a necessary peace, — if by great sacrifices she delivers herself from imminent danger or total ruin, — the residue which remains in her possession is still an advantage for which she is indebted to the peace: it was her own free choice to prefer a certain and immediate loss, but of limited extent, to an evil of a more dreadful nature, which, though yet at some distance, she had but too great reason to apprehend.
If ever the plea of constraint may be alleged, it is against an act which does not deserve the name of a treaty of peace, — against a forced submission to conditions which are equally offensive to justice and all the duties of humanity. If an unjust and rapacious conqueror subdues a nation, and forces her to accept of hard, ignominious, and insupportable conditions, necessity obliges her to submit; but this apparent tranquillity is not a peace; it is an oppression which she endures only so long as she wants the means of shaking it off, and against which men of spirit rise on the first favourable opportunity. When Ferdinand Cortes attacked the empire of Mexico without any shadow of reason, without even a plausible pretext, — if the unfortunate Montezuma could have recovered his liberty by submitting to the iniquitous and cruel conditions of receiving Spanish garrisons into his towns and his capital, of paying an immense tribute, and obeying the commands of the king of Spain, — will any man pretend to assert that he would not have been justifiable in seizing a convenient opportunity to recover his rights, to emancipate his people, and to expel or exterminate the Spanish horde of greedy, insolent, and cruel usurpers? No! such a monstrous absurdity can never be seriously maintained. Although the law of nature aims at protecting the safety and peace of nations by enjoying the faithful observances of promises, it does not favour oppressors. All its maxims tend to promote the advantage of mankind: that is the end of all laws and rights. Shall he, who with his own hand tears asunder all the bonds of human society, be afterwards allowed to claim the benefit of them? Even though it were to happen that this maxim should be abused, and that a nation should, on the strength of it, unjustly rise in arms and recommence hostilities, — still it is better to risk that inconvenience than to furnish usurpers with an easy mode of perpetuating their injustice, and establishing their usurpation on a permanent basis. Besides, were you to preach up the contrary doctrine which is so repugnant to all the feelings and suggestions of nature, where could you expect to make proselytes?
§ 38. How many ways a treaty of peace may be broken.
Equitable agreements, therefore, or at least such as are supportable, are alone entitled to the appellation of treaties of peace: these are the treaties which bind the public faith, and which are punctually to be observed, though in some respects harsh and burdensome. Since the nation consented to them, she must have considered them as in some measure advantageous under the then existing circumstances; and she is bound to respect her promise. Were men allowed to rescind at a subsequent period those agreements to which they were glad to subscribe on a former occasion, there would be an end to all stability in human affairs.
The breach of a treaty of peace consists in violating the engagements annexed to it, either by doing what it prohibits, or by not doing what it prescribes. Now, the engagements contracted by treaty maybe violated in three different ways, — either by a conduct that is repugnant to the nature and essence of every treaty of peace in general, — by proceedings which are incompatible with the particular nature and essence of every treaty of peace in general, — by proceedings which are incompatible with the particular nature of the treaty in question, — or, finally, by the violation of any article expressly contained in it.
§ 39. By a conduct contrary to the nature of every treaty of peace.
First, a nation acts in a manner that is repugnant to the nature and essence of every treaty of peace, and to peace itself, when she disturbs it without cause, either by taking up arms and recommencing hostilities without so much as a plausible pretext, or by deliberately and wantonly offending the party with whom she has concluded a peace, and offering such treatment of him or his subjects as is incompatible with the state of peace, and such as he cannot submit to without being deficient in the duty which he owes to himself. It is likewise acting contrary to the nature of all treaties of peace to take up arms a second time for the same subject that had given rise to the war which has been brought to a conclusion, or through resentment of any transaction that had taken place during the continuance of hostilities. If she cannot allege at least some plausible pretext borrowed from a fresh cause, which may serve to palliate her conduct, she evidently revives the old war that was extinct, and breaks the treaty of peace.
§ 40. To take up arms for a fresh cause
But to take up arms for a fresh cause is no breach of the treaty of peace: for though a nation has promised to live in peace, she has not therefore promised to submit to injuries and wrongs of every kind, rather than procure justice by force of arms. The rupture proceeds from him who, by his obstinate injustice, renders this method necessary.
But here it is proper to recall to mind what we have more than once observed, — namely, that nations acknowledge no common judge on earth, — that they cannot mutually condemn each other without appeal, — and, finally, that they are bound to act in their quarrels as if each was equally in the right. On this footing, whether the new cause which gives birth to hostilities be just or not, neither he who makes it a handle for taking up arms, nor he who refuses satisfaction, is reputed to break the treaty of peace, provided the cause of complaint on the one hand, and the refusal of satisfaction on the other, have at least some colour of reason, so as to render the question doubtful. When nations cannot come to any agreement on questions of this kind, their only remaining resource is an appeal to the sword. In such case the war is absolutely a new one, and does not involve any infraction of the existing treaty.
§ 41. A subsequent alliance with an enemy is likewise no breach of the treaty.
And as a nation, in making a peace, does not thereby give up her right of contracting alliances and assisting her friends, it is likewise no breach of the treaty of peace to form a subsequent alliance with the enemies of the party with whom she has concluded such treaty, — to join them, to espouse their quarrel, and unite her arms with theirs, — unless the treaty expressly prohibits such connections. At most, she can only be said to embark in a fresh war in defence of another people's cause.
But I here suppose these new allies to have some plausible grounds for taking up arms, and that the nation in question has just and substantial reasons for supporting them in the contest. Otherwise, to unite with them just as they are entering on the war, or when they have already commenced hostilities, would be evidently seeking a pretext to elude the treaty of peace, and no better, in fact, than an artful and perfidious violation of it.
§ 42. Why a distinction is to be made between a new war and a breach of the treaty.
It is of great importance to draw a proper distinction between a new war and the breach of an existing treaty of peace, because the rights acquired by such treaty still subsist, notwithstanding the new war: whereas they are annulled by the rupture of the treaty on which they were founded. It is true, indeed, that the party who had granted those rights does not fail to obstruct the exercise of them during the course of the war, as far as lies in his power, — and even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new treaty of peace, may urge the restitution of them. In negotiations of that kind, there is a material difference between demanding the restitution of what we were possessed of before the war, and requiring new concessions, a little equality in our successes entitles us to insist on the former, whereas nothing less than a decided superiority can give us a claim to the latter. It often happens, when nearly equal success has attended the arms of both parties, that the belligerent powers agree mutually to restore their conquests, and to replace every thing in its former state. When this is the case, if the war in which they were engaged was a new one, the former treaties still subsist; but if those treaties were broken by taking up arms a second time for the same subject, and an old war was revived, they remain void; so that, if the parties wish they should again take effect, they must expressly specify and confirm them in their new treaty.
The question before us is highly important in another view also, — that is, in its relation to other nations who may be interested in the treaty, inasmuch as their own affairs require them to maintain and enforce the observance of it. It is of the utmost consequence to the guarantees of the treaty, if there are any, — and also to the allies, who have to discover and ascertain the cases in which they are bound to furnish assistance. Finally, he who breaks a solemn treaty is much more odious than the other, who, after making an ill-grounded demand, supports it by arms. The former adds perfidy to injustice: he strikes at the foundation of public tranquillity; and as he thereby injures all nations, he affords them just grounds for entering into a confederacy in order to curb and repress him. Wherefore, as we ought to be cautious of imputing the more odious charge, Grotius justly observes, that, in a case of doubt, and where the recurrence to arms may be vindicated by some specious pretext resting on a new ground, "it is better that we should, in the conduct of him who takes up arms anew, presume simple injustice, unaccompanied by perfidy, than account him at once guilty both of perfidy and injustice."1
§ 43. Justifiable self-defence is no breach of the treaty.
Justifiable self-defence is no breach of the treaty of peace. It is a natural right which we cannot renounce: and, in promising to live in peace, we only promise not to attack without cause, and to abstain from injuries and violence. But there are two modes of defending our persons or our property; sometimes the violence offered to us will admit of no other remedy than the exertion of open force; and under such circumstances, we may lawfully have recourse to it. On other occasions, we may obtain redress for the damage and injury by gentler methods; and to these we ought of course to give the preference. Such is the rule of conduct which ought to be observed by two nations that are desirous of maintaining peace, whenever the subjects of either have happened to break out into any act of violence. Present force is checked and repelled by force. But, if there is question of obtaining reparation of the damage done, together with adequate satisfaction for the offence, we must apply to the sovereign of the delinquents: we must not pursue them into his dominions, or have recourse to arms, unless he has refused to do us justice. If we have reason to fear that the offenders will escape, — as, for instance, if a band of unknown persons from a neighbouring country have made an irruption into our territory, — we are authorized to pursue them with an armed force into their own country, until they be seized; and their sovereign cannot consider our conduct in any other light than that of just and lawful self-defence, provided we commit no hostilities against innocent persons.
§ 44. Causes of rupture on account of allies.
When the principal contracting party has included his allies in the treaty, their cause becomes in this respect inseparable from his; and they are entitled, equally with him, to enjoy all the conditions essential to a treaty of peace; so that any act, which, if committed against himself, would be a breach of the treaty, is no less a bleach of it, if committed against the allies whom he has caused to be included in his treaty. If the injury be done to a new ally, or to one who is not included in the treaty, it may, indeed, furnish a new ground for war, but is no infringement of the treaty of peace.
§ 45. 2. The treaty is broken by what is contrary to its particular nature.
The second way of breaking a treaty of peace is by doing any thing contrary to what the particular nature of the treaty requires. Thus, every procedure that is inconsistent with the rules of friendship is a violation of a treaty of peace which has been concluded under the express condition of thenceforward living in amity and good understanding.
To favour a nation's enemies, — to give harsh treatment to her subject, — to lay unnecessary restrictions on her commerce, or give another nation a preference over her without reason, — to refuse assisting her with provisions, which she is willing to pay for, and we ourselves can well spare, — to protect her factious or rebellious subjects, — to afford them an asylum, — all such proceedings are evidently inconsistent with the laws of friendship. To this list, may, according to circumstances, be also added — the building of fortresses on the frontiers of a state, — expressing distrust against her, — levying troops, and refusing to acquaint her with the motives of such step, &c.(191) But, in affording a retreat to exiles, — in harbouring subjects who chose to quit their country, without an intention of injuring it by their departure, and solely for the advantage of their private affairs, — in charitably receiving emigrants who depart from their country with a view to enjoy liberty of conscience elsewhere, — there is nothing inconsistent with the character of a friend. The private laws of friendship do not, according to the caprice of our friends, dispense with our observance of the common duties of humanity which we owe to the rest of our species.
§ 46. 3. By the violation of any article.
Lastly, the peace is broken by the violation of any of the express articles of the treaty. This third way of breaking it is the most decisive, the least susceptible of quibble or evasion. Whoever fails in his engagements annuls the contract as far as depends on him: — this cannot admit of a doubt.
§ 47. The violation of a single article breaks the whole treaty.
But it is asked whether the violation of a single article of the treaty can operate a total rupture of it? Some writers,2 here drawing a distinction between the articles that are connected together (connexi) and those that stand detached and separate (diversi), maintain, that, although the treaty be violated in the detached articles, the peace nevertheless still subsists with respect to the others, But, to me, the opinion of Grotius' appears evidently founded on the nature and spirit of treaties of peace. That great man says that all the articles of one and the same treaty are conditionally included in each other, as if each of the contracting parties had formally said, "I will do such or such thing, provided that, on your part, you do so and so;"3 and he justly adds, that, when it is designed that the engagement shall not be thereby rendered ineffectual, this express clause is inserted, — that, "though any one of the articles of the treaty may happen to be violated, the others shall subsist in full force." Such an agreement may unquestionably be made. It may likewise be agreed that the violation of one article shall only annul those corresponding to it, and which, as it were, constitute the equivalent to it. But, if this clause be not expressly inserted in the treaty of peace, the violation of a single article overthrows the whole treaty, as we have proved above, in speaking of treaties in general (Book II. § 202).
§ 48. Whether a distinction may here be made between the more and the less important articles.
It is equally nugatory to attempt making a distinction in this instance between the articles of greater and those of lesser importance. According to strict justice, the violation of the most trifling article dispenses the injured party from the observance of the others, since they are all, as we have seen above, connected with each other, as so many conditions. Besides, what a source of dispute will such a distinction lay open! Who shall determine the importance of the article violated? We may, however, assert with truth, that, to be ever ready to annul a treaty on the slightest cause of complaint, is by no means consonant to the reciprocal duties of nations, to that mutual charity, that love of peace, which should always influence their conduct.
§ 49. Penalty annexed to the
In order to prevent so serious an inconvenience, it is prudent to agree on a penalty to be suffered by the party who violates any of the less important articles: and then, on his submitting to the penalty, the treaty still subsists in full force. In like manner, there may, to the violation of each individual article, be annexed a penalty proportionate to its importance. We have treated of this subject in our remarks on truces (Book III, § 243), to which we refer the reader.
§ 50. Studied delays
Studied delays are equivalent to an express denial, and differ from it only by the artifice with which he who practises them seeks to palliate his want of faith: he adds fraud to perfidy, and actually violates the article which he should fulfil.
§ 51. Insurmountable impediments.
But, if a real impediment stand in the way, time must be allowed; for no one is bound to perform impossibilities. And for the same reason, if any insurmountable obstacle should render the execution of an article not only impracticable for the present, but for ever impossible, no blame is imputable to him who had engaged for the performance of it; nor can his inability furnish the other party with a handle for annulling the treaty; but the latter should accept of an indemnification, if the case will admit of it, and the indemnification be practicable. However, if the thing which was to have been performed in pursuance of the article in question be of such a nature that the treaty evidently appears to have been concluded with a sole view to that particular thing, and not to any equivalent, — the intervening impossibility undoubtedly cancels the treaty. Thus, a treaty of protection becomes void when the protector is unable to afford the promised protection, although his inability does not arise from any fault on his part. In the same manner, also, whatever promises a sovereign may have made on condition that the other party should procure him the restoration of an important town, he is released from the performance of every thing which he had promised as the purchase of the recovery, if he cannot be put in possession. Such is the invariable rule of justice. But rigid justice is not always to be insisted on: — peace is so essential to the welfare of mankind, and nations are so strictly bound to cultivate it, to procure it, and to re-establish it when interrupted, — that, whenever any such obstacles impede the execution of a treaty of peace, we ought ingenuously to accede to every reasonable expedient, and accept of equivalents or indemnifications, rather than cancel a treaty of peace already concluded, and again have recourse to arms.
§ 52. Infractions of the treaty of peace by the subjects;
We have already, in an express chapter (Book II. Chap. VI.), examined how and on what occasions the actions of subjects may be imputed to the sovereign and the nation. It is by what circumstance we must be guided in determining how far the proceedings of the subjects may be capable of annulling a treaty of peace. They cannot produce such effect unless so far as they are imputable to the sovereign. He who is injured by the subjects of another nation takes satisfaction for the offence, himself, when he meets with the delinquents in his own territories, or in a free place, as, for instance, on the open sea; or if it be more agreeable to him, he demands justice of their sovereign. If the offenders are refractory subjects, no demand can be made on their sovereign; but whoever can seize them, even in a free place, executes summary justice on them himself. Such is the mode observed towards pirates: and, in order to obviate all misunderstandings, it is generally agreed that the same treatment be given to all private individuals who commit acts of hostility without being able to produce a commission from their sovereign.
§ 53. Or by allies.
The actions of our allies are still less imputable to us than those of our subjects. The infractions of a treaty of peace by allies, even by those who have been included in it, or who joined in it as principals, can therefore produce no rupture of it except with regard to themselves, and do not affect it in what concerns their ally, who, on his part, religiously observes his engagements. With respect to him, the treaty subsists in full force, provided he do not undertake to support the cause of those perfidious allies, if he furnishes them with such assistance as he cannot be bound to give them on an occasion of this nature, he espouses their quarrel, and becomes an accomplice in their breach of faith. But, if he has an interest in preventing their ruin, he may interpose, and, by obliging them to make every suitable reparation, save them from an oppression of which he would himself collaterally feel the effects. It even becomes an act of justice to undertake their defence against an implacable enemy, who will not be contented with an adequate satisfaction.
§ 54. Right of the offended party against him who has violated the treaty.
When the treaty of peace is violated by one of the contracting parties, the other has the option of either declaring the treaty null and void, or allowing it still to subsist: for a contract which contains reciprocal engagements, cannot be binding on him with respect to the party who on his side pays no regard to the same contract. But, if he chooses not to come to a rupture, the treaty remains valid and obligatory. It would be absurd that he who had been guilty of the violation should pretend that the agreement was annulled by his own breach of faith: this would, indeed, be an easy way of shaking off engagements, and would reduce all treaties to empty formalities. If the injured party be willing to let the treaty subsist, he may either pardon the infringement, — insist on an indemnification or adequate satisfaction, — or discharge himself, on his part, from those engagements corresponding with the violated article, — those promises he had made in consideration of a thing which has not been performed. But, if he determines on demanding a just indemnification, and the party in fault refuses it, then the treaty is necessarily broken, and the injured party has a very just cause for taking up arms again. And indeed this is generally the case; for it seldom happens that the infractor will submit to make reparation, and thereby acknowledge himself in fault.
1. Lib. iii. cap. 20, § 28.
(191) And see, ante. Book III. c. 3, as to what are just causes of war. — C.
2. See Wolf. Jus Gent. §§ 1022, 1023.
3. Lib. iii. cap. xix. § 14.
OF THE RIGHT OF EMBASSY, OR THE RIGHT OF SENDING AND RECEIVING PUBLIC
§ 55. It is necessary that nations be enabled to treat and communicate together.
IT is necessary that nations should treat and hold intercourse together, in order to promote their interests, — to avoid injuring each other, — and to adjust and terminate their disputes. And as they all he under the indispensable obligation of giving their consent and concurrence to whatever conduces to the general advantage and welfare (Prelim. § 13) — of procuring the means of accommodating and terminating their differences (Book II. § 323, &c.) — and as each has a right to every thing which her preservation requires (Book I. § 18) — to every thing which can promote her perfection without injuring others (Ib. § 23), as also to the necessary means of fulfilling her duties, — it results from the premises, that each nation is at once possessed of the right to treat and communicate with others, and bound by reciprocal obligation to consent to such communication as far as the situation of her affairs will permit her.
§ 56. They do this by the agency of public ministers.
But nations or sovereign states do not treat together immediately: and their rulers or sovereigns cannot well come to a personal conference in order to treat of their affairs. Such interviews would often be impracticable; and, exclusive of delays, trouble, expense, and so many other inconveniences, it is rarely, according to the observation of Philip de Commines, that any good effect could be expected from them. The only expedient, therefore, which remains for nations and sovereigns, is to communicate and treat with each other by the agency of procurators or mandatories, — of delegates charged with their commands, and vested with their powers, — that is to say, public ministers. This term, in its more extensive and general sense, denotes any person intrusted with the management of public affairs, but is more particularly understood to designate one who acts in such capacity at a foreign court.
At present there are several orders of public ministers, and in the sequel we shall speak of them; but whatever difference custom has introduced between them, the essential character is common to them all; I mean that of minister, and in some sort, representative of a foreign power, — a person charged with the commands of that power, and delegated to manage his affairs: and that quality is sufficient for our present purpose.
§ 57. Every sovereign
Every sovereign state then has a right to send and to receive public ministers; for they are necessary instruments in the management of those affairs which sovereigns have to transact with each other, and the channels of that correspondence which they have a right to carry on. In the first chapter of this work may be seen who are those sovereigns, and what those independent states, that are entitled to rank in the great society of nations. They are the powers to whom belongs the right of embassy.
§ 58. An unequal alliance, or a treaty of protection, does not take away this right.
An unequal alliance, or even a treaty of protection, not being incompatible with sovereignty (Book I. §§ 5, 6), — such treaties do not of themselves deprive a state of the right of sending and receiving public ministers. If the inferior ally or the party protected has not expressly renounced the right of entertaining connections and treating with other powers, he necessarily retains that of sending ministers to them, and of receiving their ministers in turn. The same rule applies to such vassals and tributaries as are not subjects (Book I. §§ 7,8).
§ 59. Right of the princes and states of the empire in this respect.
Nay more, this right may even belong to princes or communities not possessed of sovereign power; for the rights whose assemblage constitutes the plenitude of sovereignly, are not indivisible: and if, by the constitution of the state, by the concession of the sovereign, or by reservations which the subjects have made with him, a prince or community remains possessed of any one of those rights which usually belong to the sovereign alone, such prince or community may exercise it, and avail themselves of it in all its effects and all its natural or necessary consequences, unless they have been formally excepted. Though the princes and states of the empire are dependent on the emperor and the empire, yet they are sovereign in many respects; and as the constitutions of the empire secure to them the right of treating with foreign powers and contracting alliances with them, they incontestably have also that of sending and receiving public ministers. The emperors, indeed, when they felt themselves able to carry their pretensions very high, have sometimes disputed that right, or at least attempted to render the exercise of it subject to the control of their supreme authority, — insisting that their permission was necessary to give it a sanction. But since the peace of Westphalia, and by means of the imperial capitulations, the princes and states of Germany have been able to maintain themselves in the possession of that right; and they have secured to themselves so many other rights, that the empire is now considered as a republic of sovereigns.
§ 60. Cities that have the right of banner.
There are even cities which are and which acknowledge themselves to be in a state of subjection, that have nevertheless a right to receive the ministers of foreign powers, and to send them deputies, since they have a right to treat with them. This latter circumstance is the main point upon which the whole question turns; for whosoever has a right to the end, has a right to the moans. It would be absurd to acknowledge the right of negotiating and treating, and to contest the necessary means of doing it. Those cities of Switzerland, such as Neufchatel and Bienne, which have the right of banner, have, by natural consequence, a right to treat with foreign powers, although the cities in question be subject to the dominion of a prince: for the right of banner, or of arms, comprehends that of granting succours of troops,1 provided such grants be not inconsistent with the service of the prince. Now, if those cities are entitled to grant troops, they must necessarily be at liberty to listen to the applications made to them on the subject by a foreign power, and to treat respecting the conditions. Hence it follows that they may also depute an agent to him for that purpose, or receive his ministers. And as they are at the same time vested with the administration of their own internal police, they have it in their power to insure respect to such foreign ministers as come to them. What is here said of the rights of those cities is confirmed by ancient and constant practice. However exalted and extraordinary such rights may appear, they will not be thought strange, if it be considered that those very cities were already possessed of extensive privileges at the time when their princes were themselves dependent on the emperors, or on other liege lords who were immediate vassals of the empire. When the princes shook off the yoke of vassalage, and established themselves in a state of perfect independence, the considerable cities in their territories made their own conditions; and instead of rendering their situation worse, it was very natural that they should take hold of existing circumstances, in order to secure to themselves a greater portion of freedom and happiness. Their sovereigns cannot now advance any plea in objection to the terms on which those cities consented to follow their fortunes and to acknowledge them as their only superiors.
§ 61. Ministers of viceroys.
Viceroys and chief governors of a sovereignty or remote province have frequently the right of sending and receiving public ministers; but, in that particular, they act in the name and by the authority of the sovereign whom they represent, and whose rights they exercise. That entirely depends on the will of the master by whom they are delegated. The viceroy of Naples, the governors of Milan, and the governors-general of the Netherland for Spain, were invested with such power.
§ 62. Ministers of the nation or of the regents during an interregnum.
The right of embassy, like all the other rights of sovereignty, originally resides in the nation as its principal and primitive subject. During an interregnum, the exercise of that right reverts to the nation, or devolves on those whom the laws have invested with the regency of the state. They may send ministers in the same manner as the sovereign used to do; and these ministers possess the same rights as were enjoyed by those of the sovereign. The republic of Poland sends ambassadors while her throne is vacant: nor would she suffer that they should be treated with less respect and consideration than those who are sent while she has a king, Cromwell effectually maintained the ambassadors of England in the same rank and respectability which they possessed under the regal authority.
§ 63. Of him who molests another in the exercise of the right of embassy.
Such being the rights of nations, a sovereign who attempts to hinder another from sending and receiving public ministers, does him an injury, and offends against the law of nations. It is attacking a nation in one of her most valuable rights, and disputing her title to that which nature herself gives to every independent society: it is offering an insult to nations in general, and tearing asunder the ties by which they are united.
§ 64. What is allowable in this respect in time of war.
But this is to be understood only of a time of peace; war introduces other rights. It allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. There are even occasions when we may refuse a passage to the ministers of neutral nations, who are going to our enemy. We are under no obligation to allow them an opportunity of perhaps conveying him intelligence of a momentous nature, and concerting with him the means of giving him assistance, &c. This admits of no doubt, for instance, in the case of a besieged town. No right can authorize the minister of a neutral power or any other person whatsoever, to enter the place without the besieger's consent. But, in order to avoid giving offence to sovereigns, good reasons must be alleged for refusing to let their ministers pass; and with such reasons they must rest satisfied, if they are disposed to remain neuter. Sometimes even a passage is refused to suspected ministers in critical and dubious junctures, although there do not exist any open war. But this is a delicate proceeding, which, if not justified by reasons that are perfectly satisfactory, produces an acrimony that easily degenerates into an open rupture.
§ 65. The minister of a friendly power is to be received.
As nations are obliged to correspond together, to attend to the proposals and demands made to them, to keep open a free and safe channel of communication for the purpose of mutually understanding each other's views and bringing their disputes to an accommodation, a sovereign cannot, without very particular reasons, refuse admitting and hearing the minister of a friendly power, or of one with whom he is at peace. But in case there be reasons for not admitting him into the heart of the country, he may notify to him that he will send proper persons to meet him at an appointed place on the frontier, there to hear his proposals. It then becomes the foreign minister's duty to stop at the place assigned: it is sufficient that he obtains a hearing; that being the utmost that he has a right to expect.
§ 66. Of resident ministers.
The obligation, however, does not extend so far as to include that of suffering at all times the residence of perpetual ministers, who are desirous of remaining at the sovereign's court, although they have no business to transact with him. It is natural, indeed, and perfectly conformable to the sentiments which nations ought mutually to entertain for each other, that a friendly reception should be given to those resident ministers, when there is no inconvenience to be apprehended from their slay. But if there exist any substantial reason to the contrary, the advantage of the state undoubtedly claims a preference; and the foreign sovereign cannot take it amiss if his minister be requested to withdraw, when he has fulfilled the object of his commission, or when he has not any business to transact. The custom of keeping every where ministers constantly resident is now so firmly established, that whoever should refuse to conform to it, must allege very good reasons for his conduct, if he wishes to avoid giving offence. These reasons may arise from particular conjunctures: but there are also ordinary reasons ever subsisting, and such as relate to the constitution of a government and the state of a nation. Republics would often have very good reasons of the latter kind, to excuse themselves from continually suffering the residence of foreign ministers, who corrupt the citizens, — gain them over to their masters, to the great detriment of the republic, — and excite and foment parties in the state, &c. And even though no other evil should arise from their presence than that of inspiring a nation, originally plain, frugal, and virtuous, with a taste for luxury, the thirst of gain, and the manners of courts, — that alone would be more than sufficient to justify the conduct of wise and provident rulers in dismissing them. The Polish government is not fond of resident ministers; and indeed their intrigues with the members of the diet have furnished but too many reasons for keeping them at a distance. In the war of 1666, a nuncio publicly complained, in the open diet, of the French ambassador's unnecessarily prolonging his stay in Poland, and declared that he ought to be considered as a spy. In 1668, other members of that body moved for a law to regulate the length of time that an ambassador should be allowed to remain in the kingdom.2
§ 67. How the ministers of an enemy are to be admitted.
The greater calamities of war are, the more it is incumbent on nations to preserve means for putting an end to it. Hence it becomes necessary, that, even in the midst of hostilities, they be at liberty to send ministers to each other, for the purpose of making overtures of peace, or proposals tending to moderate the transports of hostile rage. It is true, indeed, that the minister of an enemy cannot come without permission; accordingly, a passport, or safe-conduct, is asked for him, either through the intervention of some common friend, or by one of those messengers who are protected by the laws of war, and of whom we shall speak in the sequel — I mean a trumpeter or drummer. It is true, also, that, for substantial reasons, the safe-conduct may be refused, and admission denied to the minister. But this liberty, which is authorized by the care that every nation is bound to bestow on her own safety, is no bar to our laying it down as a general maxim, that we are not to refuse admitting and hearing an enemy's minister; that is to say, that war alone, and of itself, is not a sufficient reason for refusing to hear any proposal coming from an enemy; but that, to warrant such refusal, there must exist some reason of a particular nature, and which rests upon very good grounds, as, for instance, when an artful and designing enemy has, by his own conduct, given us just cause to apprehend that his only intention, in sending his ministers and making proposals, is to disunite the members of a confederacy, to lull them into security by holding out false appearances of peace, and then to overpower them by surprise.
§ 68. Whether ministers may be received from or sent to an usurper.
Before we conclude this chapter, it will be proper to discuss a celebrated question, which has been often debated. It is asked whether foreign nations may receive the ambassadors and other ministers of an usurper, and send their ministers to him? In this particular, foreign powers take for their rule the circumstance of actual possession, if the-interest of their affairs so require: and, indeed, there cannot be a more certain rule, or one that is more agreeable to the law of nations and the independency of states. As foreigners have no right to interfere in the domestic concerns of a nation, they are not obliged to canvass and scrutinize her conduct in the management of them, in order to determine how far it is either just or unjust. They may, if they think proper, suppose the right to be annexed to the possession. When a nation has expelled her sovereign, other powers, who do not choose to declare against her, and to risk the consequences of her enmity or open hostility, consider her thenceforward as a free and sovereign state, without taking on themselves to determine whether she has acted justly in withdrawing from her allegiance to the prince by whom she was governed. Cardinal Mazarin received Lockhart, whom Cromwell had sent as ambassador from the republic of England, and refused to see either King Charles the Second, or his ministers. If a people, after having expelled their prince, submit to another — if they change the order of succession, and acknowledge a sovereign to the prejudice of the natural and appointed heir — foreign powers may, in this instance also, consider what has been done as lawful: it is no quarrel or business of theirs. At the beginning of the last century, Charles, Duke of Sudermania, having obtained the crown of Sweden, to the prejudice of his nephew Sigismund, king of Poland, was soon acknowledged by most sovereigns. Villeroy, minister of the French monarch, Henry the Fourth, in his dispatches of the 8th of April, 1608, plainly said to the president, Jeanin, "All these reasons and considerations shall not prevent the king from treating with Charles, if he finds it to be his interest, and that of his kingdom." This remark was sensible and judicious. The king of France was neither the judge nor the guardian of the Swedish nation, that he should, contrary to the interests of his own kingdom, refuse to acknowledge the king whom Sweden had chosen, under pretence that a competitor had termed Charles an usurper. Had the charge been even founded injustice, it was an affair which did not fall under the cognizance of foreigners.
Therefore, when foreign powers have received the ministers of an usurper, and sent theirs to him, the lawful prince, on recovering the throne, cannot complain of these measures as an injury, nor justly make them the ground of a war, provided those powers have not proceeded to greater lengths, nor furnished any assistance against him. But to acknowledge the dethroned prince or his heir, after the state has solemnly acknowledged the person to whom the sceptre has been transferred, is an injury done to the latter, and a profession of enmity to the nation that has chosen him. Such a step, hazarded in favour of James the Second's son, was, by William the Third and the British nation, alleged as one of the principal reasons of the war which England soon after declared against France. Notwithstanding all the caution, and all the protestations of Louis the Fourteenth, his acknowledgment of young Stuart, as king of England, Scotland, and Ireland, under the title of James the Third, was considered by the English as an injury done both to the king and to the nation.
1. See the History of the Helvetic Confederacy, by M. de Watteville.
2. Wiquefort's Ambassador, b. i. § 1.
OF THE SEVERAL ORDERS OF PUBLIC MINISTERS — OF THE REPRESENTATIVE
CHARACTER — AND OF THE HONOUR DUE TO MINISTERS.
§ 69. Origin of the several orders of public ministers.
IN former days, people were scarcely acquainted with more than one order of public ministers, in Latin termed legati, which appellation has been rendered by that of "ambassadors." But, when courts were become more proud, and, at the same time, more punctilious in the article of ceremony, and especially when they had introduced the idea of extending the minister's representation even to that of his master's dignity, it was thought expedient to employ commissioners of less exalted rank on certain occasions, in order to avoid trouble, expense, and disputes. Louis the Eleventh of France was, perhaps, the first who set the example. Thus, several orders of ministers being established, more or less dignity was annexed to their character, and proportionate honours were required for them.
§ 70. Representative character.
Every minister, in some measure, represents his master, as every agent or delegate represents his constituent. But this representation relates to the affairs of his office: the minister represents the subject in whom reside the rights which he is to exercise, preserve, and assert — the rights respecting which he is to treat in his master's stead. Although such representation is admitted in a general view, and so far as respects the essence of affairs, it is with an abstraction of the dignity of the constituent. In process of time, however, princes would have ministers to represent them, not only in their rights and in the transaction of their affairs, but also in their dignity, their greatness, and their pre-eminence. It was, no doubt, to those signal occasions of state, those ceremonies for which ambassadors are sent, as, for instance, marriages, that this custom owes its origin. But so exalted a degree of dignity in the minister is attended with considerable inconvenience in conducting business, and, besides occasioning trouble and embarrassment, is often productive of difficulties and disputes. This circumstance has given birth to different orders of public ministers, and various degrees of representation. Custom has established three principal degrees. What is, by way of pre-eminence, called the representative character, is the faculty possessed by the minister, of representing his master even in his very person and dignity.
§ 71. Ambassadors.(192)
The representative character, so termed by way of pre-eminence, or in contradistinction to other kinds of representation, constitutes the minister of the first rank the ambassador. It places him above all other ministers who are not invested with the same character, and precludes their entering into competition with the ambassador. At present there are ambassadors ordinary and extraordinary: but this is no more than an accidental distinction, merely relative to the subject of their mission. Yet almost everywhere some difference is made in the treatment of these different ambassadors. That, however, is purely matter of custom.
§ 72. Envoys.
Envoys are not invested with the representative character, properly so called, or in the first degree. They are ministers of the second rank, on whom their master was willing to confer a degree of dignity and respectability, which, without being on a level with the character of an ambassador, immediately follows it, and yields the pre-eminence to it alone. There are also envoys ordinary and extraordinary; and it appears to be the intention of princes that the latter should be held in greater consideration. This likewise depends on custom.
§ 73. Residents.
The word resident formerly related only to the continuance of the minister's stay; and it is frequent, in history, for ambassadors in ordinary to be designated by the simple title of residents. But, since the practice of employing different orders of ministers has been generally established, the name of residents has been confined to ministers of a third order, to whose character general custom has annexed a lesser degree of respectability. The resident does not represent the prince's person in his dignity, but only in his affairs. His representation is in reality of the same nature as that of the envoy: wherefore we often term him, as well as the envoy, a minister of the second order, — thus, distinguishing only two classes of public ministers, the former consisting of ambassadors who are invested with the representative character in pre-eminence, the latter comprising all other ministers who do not possess that exalted character. This is the most necessary distinction, and, indeed, the only essential one.
§ 74. Ministers.
Lastly, a custom of still more recent origin has introduced a new kind of ministers without any particular determination of character. These are called simply ministers, to indicate that they are invested with the general quality of a sovereign's mandatories, without any particular assignment of rank and character. It was likewise the punctilio of ceremony which gave rise to this innovation. Use had established particular modes of treatment for the ambassador, the envoy, and the resident. Disputes between ministers of the several princes often arose on this head, and especially about rank. In order to avoid all contest on certain occasions when there might be room to apprehend it, the expedient was adopted of sending ministers not invested with any one of the three known characters. Hence, they are not subjected to any settled ceremonial, and can pretend to no particular treatment. The minister represents his master in a vague and indeterminate manner, which cannot be equal to the first degree; consequently he makes no demur in yielding pre-eminence to the ambassador. He is entitled to the general regard due to a confidential person intrusted by a sovereign with the management of his affairs; and he possesses all the rights essential to the character of a public minister. This indeterminate quality is such that the sovereign may confer it on one of his servants whom he would not choose to invest with the character of ambassador; and, on the other hand, it may be accepted by men of rank, who would be unwilling to undertake the office of resident, and to acquiesce in the treatment at present allotted to men in that station. There are also ministers plenipotentiary, and of much greater distinction than simple ministers. These also are without any particular attribution of rank and character, but, by custom, are now placed immediately after the ambassador, or on a level with the envoy extraordinary.
§ 75. Consuls, agents, deputies. commissioners, &c.(193)
We have spoken of consuls in treating of commerce (Book II. § 34). Formerly, agents were a kind of public ministers: but in the present increase and profusion of titles, this is given to persons simply appointed by princes to transact 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 foreigners or citizens, and likewise some attention in consideration of the prince whom they serve. If that prince sends an agent with credentials and on public business, the agent thenceforward becomes a public minister; his title making no difference in the case. The same remark is also applicable to deputies, commissioners, and others intrusted with the management of public affairs.
§ 76. Credentials.
Among the several characters established by custom, it rests with the sovereign to determine with what particular one he chooses to invest his minister; and he makes known the minister's character in the credentials which he gives him for the sovereign to whom he sends him. Credentials are the instrument which authorizes and establishes the minister in his character with the prince to whom they are addressed. If that prince receives the minister, he can receive him only in the quality attributed to him in his credentials. They are, as it were, his general letter of attorney, his mandate patent, mandatum manifestum.
§ 77. Instructions.
The instructions given to the minister contain his master's secret mandate, the orders to which the minister must carefully conform, and which limit his powers. Here we might apply all the rules of the law of nature respecting procurations and mandates, whether open or secret. But exclusive of their being more particularly applicable to the subject of treaties, we may with the less impropriety dispense with such details in this work, as the custom has wisely been established, that no engagements into which a minister may enter, shall have any validity between sovereigns, unless ratified by his principal.
§ 78. Right of sending ambassadors.
We have seen above that every sovereign, every community, and even every individual, who has a right to treat with foreign powers, has also that of sending ambassadors. (See the preceding chapter.) The question admits of no difficulty so far as respects simple ministers or mandatories, considered in general as persons intrusted with the affairs, and vested with the powers, of those who have a right to treat. Further, the ministers of every sovereign are, without hesitation, allowed to enjoy all the rights and prerogatives belonging to ministers of the second order. Powerful monarchs, indeed, deny to some petty states the right of sending ambassadors: but let us see with what reason. According to the generally established custom, the ambassador is a public minister, representing the person and dignity of a sovereign; and, as this representative character procures him particular honours, great princes are therefore unwilling to admit the ambassador of an inconsiderable state, from a repugnance to paying him honours of so distinguished a kind. But it is manifest that every sovereign has an equal right of causing himself to be represented in the first as well as in the second or the third degree: and the sovereign dignity is entitled to distinguished respect in the great society of nations. We have shown (Book II. Ch. III.) that the dignity of independent nations is essentially the same: that a sovereign prince, however low he may rank in the scale of power, is as completely sovereign and independent as the greatest monarch, in the same manner as a dwarf is a man equally with a giant: although, indeed, the political giant makes a more conspicuous figure in the general society than the dwarf, and has, on that account, a greater portion of respect and more signal honours paid to him. It is evident, then, that every prince, every state, truly possessed of sovereignty, has a right to send ambassadors, and that to contest their right in this instance is doing them a very great injury; it is, in fact, contesting their sovereign dignity. And if they have that right, their ambassadors cannot be refused those regards and honours which custom particularly assigns to the representative of a sovereign. The king of France admits no ambassadors from the princes of Germany, as refusing to their ministers the honours annexed to the first degree of representation; yet he receives ambassadors from the princes of Italy. The reason alleged for this conduct is that he considers the latter to be more perfectly sovereign princes than the former, because, though equally vassals of the emperor and the empire, they are not equally dependent on the imperial authority. The emperors, nevertheless, claim the same rights over the princes of Italy, as over those of Germany. But France, seeing that the former do not actually constitute a part of the Germanic body, nor assist at the diets, countenances their absolute independence, in order as much as possible to detach them from the empire.
I shall not here enter into a detail of the honours due and actually paid to ambassadors: these are matters which altogether depend on institution and custom: I shall only observe, in general, that they are entitled to those civilities and distinctions which usage, and the prevailing manners of the time, have pointed out as proper expressions of the respect due to the representative of a sovereign. And it must be observed here, with regard to things, of institution and custom, that, when a practice is so established, as to impart, according to the usages and manners of the age, a real value and a settled signification to things which are in their own nature indifferent, the natural and necessary law of nations requires that we should pay deference to such institution, and act, with respect to such things, in the same manner as if they really possessed all that value which the opinion of mankind has annexed to them. For instance, according to the general usage of all Europe, it is the peculiar prerogative of an ambassador to wear his hat in presence of the prince to whom he is sent. This right expresses that he is acknowledged as the representative of a sovereign: to refuse it, therefore, to the ambassador of a state which is truly independent, would be doing an injury to that state, and, in some measure, degrading it. The Switzers, who formerly were much deeper adepts in the art of war than in the etiquette of courts, and far from being punctilious on the score of mere ceremony, have, on some occasions, submitted to be treated in a manner unbecoming the dignity of their nation. In 1663, their ambassadors suffered the king of France, and the nobles of his court, to refuse them those honours which custom has rendered essential to the ambassadors of sovereigns, and particularly that of being covered before the king at their audience.1 Some of their number, who knew better what they owed to the glory strongly insisted on that essential and distinctive honour; but the opinion of the majority prevailed, and at length they all yielded, on being assured that the ambassadors of their nation had not worn their hats in presence of Henry the Fourth. Allowing the fact to have been true, the argument was not unanswerable. The Switzers might have replied, that in Henry's time their nation was not yet solemnly acknowledged free and independent of the empire, as it had lately been by the treaty of Westphalia in 1648. They might have said, that, although their predecessors had not been duly attentive to support the dignity of their sovereigns, that gross error could not impose on their successors any obligation to commit a similar one. At present, as the nation is more enlightened, and more attentive to points of that nature, she will not fail to support her dignity in a more becoming manner. Whatever extraordinary honours may, in other respects, be paid to her ambassadors, she will not, in future, suffer herself to be so far blinded by those empty marks of distinction, as to overlook that peculiar prerogative which custom has rendered essential. When Louis the Fifteenth visited Alsace, in 1744, the Helvetic body declined sending ambassadors to compliment him according to custom, until informed whether they would be allowed to wear their hats: and on the refusal of that just demand, none were sent. Switzerland may reasonably hope that his most Christain majesty will no longer insist on a claim which does not enhance the lustre of his crown, and can only serve to degrade an ancient and faithful ally.
(192) An ambassador may annul a treaty, see authorities collected in 1 Chitty's Commercial Law, 46. In the event of his nation rejecting a person sent by the friendly nation as consul, he is to assign the reasons and request the appointment of another consul. Id. 55. In his absence a consul of his nation may demand an audience with the minister of the friendly state, (Id. 63), although a consul has not the same privileges as an ambassador in other respects, Id, 70. The children of an ambassador and of his attendants, though born in a foreign state, are considered natural-born subjects. Id. 110, 112. An ambassador from a foreign court, formerly, could not come into England without a license and safe-conduct. Id. 131. He is the proper person to grant a passport. Id. 492. The ambassador of an enemy at a neutral court may recover and insist on having restored despatches sent by a neutral vessel, and captured by an enemy; and he is peculiarly an object of the protection and favour of the law of nations. Id. 461-2; The Caroline, 6 Rob. Rep. 461; The Madison, 1 Edw. R. 224.
As respects an ambassador or minister in Great Britain, this is declared and enforced by 7 Anne, c. 12; see the decisions thereon. Chitty's Col. Stat. 13; Novello v. Toogood, 1 Barn. & Cres. 554, 2 Dowl. & Ryl. 833, S.C.; and 13 Price Rep. 805. And a servant of a foreign minister, though not lodging in his house, is protected by that act. In re Count Haslang. Dick 274, But a plaintiff under such protection of a foreign ambassador has been compelled to give security for costs before he will be allowed to proceed. Adderly v. Smith, Dick 355. Put that act does not extend to consuls, who are therefore, liable to arrest. Vivearls v. Belcher, 3 Maule & Selwyn, 284. — C.
(193) Ante, 147 and 459.
1. In Wicquefort, may be seen a particular account of the whole transaction. That writer is justifiable in expressing a degree of indignation against the Swiss ambassadors; but he ought not to have insulted the whole nation by coarsely asserting that "they prefer money to honour." Ambassador, book i. § 19. See also 18.
OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF AMBASSADORS AND OTHER PUBLIC
§ 80. Respect due to public ministers.(195)
THE respect which is due to sovereigns should redound to their representatives, and especially their ambassadors as representing their master's person in the first degree. Whoever offends and insults a public minister commits a crime the more deserving of severe punishment, as he might thereby involve his country and his sovereign in very serious difficulties and trouble. It is just that he should be punished for his fault, and that the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister. If the foreign minister is himself the aggressor, and offends a citizen, the latter may oppose him without departing from the respect due to the character which the offender bears, and give him a lesson which shall both efface the slain of the outrage, and make the author of it blush for his misconduct. The person offended may further prefer a complaint to his own sovereign, who will demand for him an adequate satisfaction for the minister's master. The great concerns of the state forbid a citizen, on such occasions, to entertain those thoughts of revenge which the point of honour might suggest, although they should in other respects be deemed allowable. Even according to the maxims of the world, a gentleman is not disgraced by an affront for which it is not in his own power to procure satisfaction.
§ 81. Their persons sacred and inviolable.(196)
The necessity and right of embassies being established (see Chap. V. of this Book), the perfect security and inviolability of ambassadors, and other ministers, is a certain consequence of it: for, if their persons be not protected from violence of every kind, the right of embassy becomes precarious, and the success very uncertain. A right to the end inseparably involves a right to the necessary means. Embassies, then, being of such great importance in the universal society of nations, and so necessary to their common well-being, the persons of ministers charged with those embassies are to be held sacred and inviolable among all nations. (See Book II. § 218.) Whoever offers violence to an ambassador, or to any other public minister, not only injures the sovereign whom that minister represents, but also attacks the common safety and well-being of nations: he becomes guilty of an atrocious crime against mankind in general.1
§ 82. Particular protection due to them.(197)
This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreigner, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. An act of violence done to a private person is an ordinary transgression, which, according to circumstances, the prince may pardon: but if done to a public minister, it is a crime of state, an offence against the law of nations; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been committed, but with him who has been offended in the person of his representative. However, if the minister has been insulted by persons who were ignorant of his character, the offence is wholly unconnected with the law of nations, and falls within the class of ordinary transgressions. A company of young rakes, in a town of Switzerland, having, in the night-time, insulted the British minister's house, without knowing who lived in it, the magistracy sent a message to the minister to know what satisfaction he required. He prudently answered, that it was the magistrates' concern to provide for the public safety by such means as they thought best; but that, as to his own part, he required nothing, not thinking himself affronted by persons who could have had no design against him, as not knowing his house. Another particular circumstance, in the protection due to foreign ministers, is this: — according to the destructive maxims introduced by a false point of honour, a sovereign is under a necessity of showing indulgence to a person wearing a sword, who instantly revenges an affront done to him by a private individual: but violent proceedings against a public minister can never be allowed or excused, unless where the latter has himself been the aggressor, and, by using violence in the first instance, has reduced his opponent to the necessity of self-defence.
§ 83. When it commences.
Though the minister's character is not displayed in its full extent, and does not thus insure him the enjoyment of all of his rights, till he is acknowledged and admitted by the sovereign, to whom he delivers his credentials, — yet, on his entering the country to which he is sent, and making himself known, he is under the protection of the law of nations; otherwise, it would not be safe for him to come. Until he has had his audience of the prince, he is, on his own word, to be considered as a minister; and besides, exclusive of the notice of his mission, usually given by letter, the minister has, in case of doubt, his passports to produce, which will sufficiently certify his character.
§ 84. What is due to them in countries through which they pass.
These passports sometimes become necessary to him in the countries through which he passes on his way to the place of his destination; and, in case of need, he shows them, in order to obtain the privileges to which he is entitled. It is true, indeed, that the prince alone to whom the minister is sent, is under any obligation, or particular engagement to insure him the enjoyment of all the rights annexed to his character. Yet the others through whose dominions he passes are not to deny him those regards to which the minister of a sovereign is entitled, and which nations reciprocally owe to each other. In particular they are bound to afford him perfect security. To insult him would be injuring his master, and the whole nation to which he belongs: to arrest him, and offer him violence, would be infringing the right of embassy, which belongs to all sovereigns (§§ 57-63). The French monarch, Francis the First, had therefore very good reason to complain of the murder of his ambassador, Rincon and Fregose, as an atrocious violation of public faith and the law of nations. Those two ministers, the one destined for Constantinople, the other for Venice, having embarked on the Po, were stopped and murdered; and, according to all appearances, the deed had been perpetrated by order of the governor of Milan.2 The emperor Charles the Fifth, having taken no pains to discover the persons concerned in the murder, authorized a belief that he had himself ordered it, oral least that he tacitly approved of the act after its commission. And, as he did not give any suitable satisfaction for it, Francis had a very just cause for declaring war against him, and even calling for the assistance of all other nations: for an affair of this nature is not a private dispute, a doubtful question, in which each party pretends to have justice on his side: it is a quarrel which involves the concern of all nations, since they are all equally interested in maintaining the sacred inviolability of that right, and of those means which enable them to hold communication with each other, and to treat of their affairs. If an innocent passage, and even perfect security are due to a private individual, much more are they due to the minister of a sovereign, who is going to execute his master's orders, and who travels on the affairs of a nation. I say, "an innocent passage;" for the minister's journey is justly suspected, if a sovereign has reason to apprehend that he will make an improper use of the liberty granted him of entering his territories, by plotting against his interests while in the country, or that he is going to convey intelligence to his enemies, or to stir up others against him. We have already said (§ 64) that he may in such case refuse him a passage: but he is not to maltreat him, nor suffer any violence to be offered to his person. If he has not reason sufficient for denying him a passage, he may take precautions against the abuse which the minister might make of it. These maxims the Spaniards found established in Mexico and the neighbouring provinces. In those countries, ambassadors were respected throughout their whole journey: but they could not deviate from the high road without forfeiting their rights3 — a prudent and judicious reservation, introduced as a guard against the admission of spies under the name of ambassadors. Thus, while the negotiations for peace were carried on at the famous congress of Westphalia, amid the dangers of war and the din of arms, the several couriers sent or received by the plenipotentiaries had each his particular route designated; and, out of the prescribed tract, his passport could afford him no protection.4
§ 85. Ambassadors going to an enemy's country.
What we have here observed relates to nations that are at peace with each other. On the breaking out of a war, we cease to be under any obligation of leaving the enemy in the free enjoyment of his rights: on the contrary, we are justifiable in depriving him of them, for the purpose of weakening him, and reducing him to accept of equitable conditions. His people may also be attacked and seized wherever we have a right to commit acts of hostility. Not only, therefore, may we justly refuse a passage to the ministers whom our enemy sends to other sovereigns; we may even arrest them if they attempt to pass privately, and without permission, through places belonging to our jurisdiction. Of such proceeding the last war furnishes a signal instance. A French ambassador, on his route to Berlin, touched, through the imprudence of his guides, at a village within the electorate of Hanover, whose sovereign, the king of England, was at war with France. The minister was there arrested and afterwards sent over to England. As his Britannic majesty had in that instance only exerted the rights of war, neither the court of France nor that of Prussia complained of his conduct.
§ 86. Embassies between enemies.
The reasons which render embassies necessary, and ambassadors sacred and inviolable, are not less cogent in time of war, than in profound peace. On the contrary, the necessity and indispensable duty of preserving some resource by which the minds of the belligerent parties may be brought to a mutual understanding, and peace be restored, is a fresh reason why the persons of ministers, as instruments in the preliminary conferences and final reconciliation, should be still more scared and inviolable. Nomen legati, says Cicero, ejusmodi esse debet, quod, non modo, inter sociorum jura, sed etiam inter hostium tela, incolume versetur.5 Accordingly, one of the most sacred laws of war is that which insures perfect security to persons who bring messages or proposals from the enemy. It is true, indeed, that the ambassador of an enemy must not approach without permission: and as there does not always exist a convenient opportunity of obtaining such permission through the medium of neutral persons, the defect has been supplied by the establishment of certain privileged messengers for carrying proposals from enemy to enemy, in perfect safety.
§ 87. Heralds, trumpeters, and drummers.
The privileged messengers I allude to are heralds, trumpeters, and drummers, who, from the moment they make themselves known, and as long as they confine themselves within the terms of their commission, are, by the laws of war and those of nations, considered as sacred and inviolable. This regulation is absolutely necessary; for, exclusive of the duty incumbent on us to reserve the means of restoring peace (as above mentioned), there occur, even during the course of the war, a thousand occasions, when the common safety and advantage of both parties require that they should be able to send messages and proposals to each other. The institution of heralds succeeded that of the Roman feciales: at present, however, they are seldom employed: drummers or trumpeters are sent, and after them, according to the exigence of the occasion, ministers, or officers furnished with powers. Those drummers and trumpeters are held sacred and inviolable; but they are to make themselves known by the marks peculiar to them.(198) Maurice, prince of Orange, highly resented the conduct of the garrison of Ysendick, who had fired at his trumpeter: on which occasion the prince observed that no punishment can be too severe for those who violate the law of nations. Other instances may be seen in Wicquefort, and particularly the reparation which the duke of Savoy, as general of Charles the Fifth's army, caused to be made to a French trumpeter, who had been dismounted and despoiled by some German soldiers.6
§ 88. Ministers, trumpeters, &c., to be respected, even in a civil war.
In the wars of the Netherlands the duke of Alva hanged up a trumpeter belonging to the prince of Orange, saying that he was not obliged to allow safety to a trumpeter sent him by the chief of the rebels,6 On this, as on many other occasions, that sanguinary general was undoubtedly guilty of a flagrant violation of the laws of war, which, as we have proved above (Book III. Chap. XVIII.), ought to be observed even in civil wars: for, unless both parties can with perfect safety interchange messages, and reciprocally send confidential persons to each other, how can they, on those unfortunate occasions, ever come to talk of peace? What channel remains open for negotiating a salutary accommodation? The same duke of Alva, in the war which the Spaniards afterwards made on the Portuguese, whom they also termed rebels, caused the governor of Cascais to be hanged for having given order to fire on a trumpeter sent to demand a surrender of the town.7 In a civil war, or when a prince takes up arms for the purpose of subduing a body of people who think themselves absolved from their allegiance to him, an attempt to compel the enemies to respect the laws of war, while he himself does not observe them on his own part, is in fact equal to a determined resolution of carrying those wars to the extreme of cruelty, and converting them into a scene of inordinate and endless murder, by the long series of mutual retaliations which will naturally ensue.
§ 89. Sometimes they may be refused admittance.(199)
But, as a prince, when influenced by substantial reasons, may refuse to admit and listen to ambassadors, in like manner the general of an army, or any other commander, is not always obliged to permit the approach of a trumpeter or drummer, and to give him a hearing. If, for instance, the governor of a besieged town is apprehensive that a summons to surrender may intimidate the garrison, and excite premature ideas of capitulation, he undoubtedly may, on seeing the trumpeter advance, send him orders to retire, informing him that if he comes a second time on the same errand and without permission, he shall be fired upon. This conduct is no violation of the laws of war: but such a mode of proceeding ought not to be adopted without very cogent reasons, because, by irritating the besiegers, it exposes the garrison to be treated by them with the extreme of rigour, untempered with mercy or moderation. To refuse to hear a trumpeter's message without alleging a substantial reason for the refusal, is equivalent to a declaration that the party is determined to persevere in irreconcilable hostility.
§ 90. Every thing which has the appearance of insult to them rnust be avoided.
Whether we admit or refuse to hear a herald or a trumpeter, we ought carefully to avoid every thing which might wear the appearance of an insult offered to him. Not only does the law of nations claim that respect, but prudence moreover recommends such caution and delicacy. In 1744, the Bailly de Bivry sent a trumpeter, with an officer, to summon the redoubt of Pierrelonge in Piedmont. The Savoyard officer who commanded in the redoubt, a brave man, but of a blunt and fiery disposition, feeling his indignation roused by a summons to surrender a post which he deemed tenable and secure, returned an insulting answer to the French general. The officer to whom the answer was given, judiciously took advantage of the circumstance, and delivered it to the Bailly de Bivry in the hearing of the French troops. It set them in a flame; and their native valour being stimulated by the eager desire of avenging an affront, their impetuosity was irresistible: though the attack was attended with considerable carnage, the losses they sustained only added fresh fuel to their courage, till at length they carried the redoubt: and thus the imprudent commandant was accessory to his own death, the slaughter of his men, and the loss of his post.
§ 91. By and to whom they may be sent.
The prince, the general of the army, and every commander-in-chief within his department, have alone the right of sending a trumpeter or drummer; and, on the other hand, it is only to the commander-in-chief that they can send such messengers. Should a general, besieging a town, attempt to send a trumpeter to any subaltern, to the magistracy, or the townsmen, the governor might justly treat that trumpeter as a spy. The French monarch, Francis the First, while engaged in war with Charles the Fifth, sent a trumpeter to the diet of the empire, then assembled at Spires. The trumpeter was seized by order of the emperor, who threatened to hang him, because he was not sent to him.8 But he did not dare to put his threat in execution; for, loudly as he complained on the subject, he was nevertheless convinced, in his own mind, that the diet had a right, even without his consent, to listen to the proposals brought by a trumpeter. On the other hand, a drummer or trumpeter from a subaltern is seldom received, unless for some particular object depending on the present authority of the subaltern acting in his function. At the siege of Rynberg in 1598, a colonel of a Spanish reigment having taken upon him to summon the town, the governor sent the drummer orders to withdraw, informing him at the same time, that, if any other drummer or trumpeter had the audacity to come on the same errand from a subaltern, he would cause the messenger to be hanged.9
§ 92. Independence of foreign ministers.(200)
The inviolability of a public minister, or the protection to which he has a more sacred and particular claim than any other person, whether native or foreigner, is not the only privilege he enjoys: the universal practice of nations allows him, moreover, an entire independence on the jurisdiction and authority of the state in which he resides. Some authors10 maintain that this independence is merely a matter of institution between different states, and will have it referred to the arbitrary law of nations, which owes its origin to manners, customs, or particular conventions: in a word, they deny it to be grounded on the natural law of nations. It is true, indeed, that the law of nature gives men a right to punish those who injure them: consequently it empowers sovereigns to punish any foreigner who disturbs the public tranquillity, who offends them, or maltreats their subjects: it authorises them to compel such foreigner to conform to the laws, and to behave properly towards the citizens. But it is no less true, that the natural law at the same time imposes on all sovereigns the obligation of consenting to those things, without which it would be impossible for nations to cultivate the society that nature has established among them, to keep up a mutual correspondence, to treat of their affairs, or to adjust their differences. Now, ambassadors, and other public ministers, are necessary instruments for the maintenance of that general society, of that mutual correspondence between nations. But their ministry cannot effect the intended purpose, unless it be invested with all the prerogatives which are capable of insuring its legitimate success, and of enabling the minister freely and faithfully to discharge his duty in perfect security. The law of nations, therefore, while it obliges us to grant admission to foreign ministers, does also evidently oblige us to receive those ministers in full possession of all the rights which necessarily attach to their character — all the privileges requisite for the due performance of their functions. It is easy to conceive that independence must be one of those privileges; since, without it, that security which is so necessary to a public minister, would be enjoyed on a very precarious footing. He might be molested, persecuted, maltreated, under a thousand pretences. A minister is often charged with commissions that are disagreeable to the prince to whom he is sent. If that prince has any power over him, and especially a sovereign authority, how is it to be expected that the minister can execute his master's orders with due fidelity, firmness, and freedom of mind? It is a matter of no small importance that he have no snares to apprehend — that he be not liable to be diverted from his functions by any chicanery — that he have nothing to hope, nothing to fear, from the sovereign to whom he is sent. In order, therefore, to the success of his ministry, he must be independent of the sovereign authority and of the jurisdiction of the country, both in civil and criminal matters. To this may be added, that the nobility and other persons of eminence would be averse to undo taking an embassy, if such commission were to subject them to a foreign authority — not unfrequently in countries where they have little friendship to expect for their own nation, and where they must support disagreeable claims, and enter into discussions naturally productive of acrimony. In a word, if an ambassador may be indicted for ordinary offences, be criminally prosecuted, taken into custody, punished — if he may be sued in civil cases — the consequence will often be, that he will neither possess the power, the leisure, nor the freedom of mind which his master's affairs require. And how shall he be able to support the dignity of representation in such a state of subjection? On the whole, therefore, it is impossible to conceive that the prince who sends an ambassador, or any other minister, can have any intention of subjecting him to the authority of a foreign power: and this consideration furnishes an additional argument which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the footing of independency: and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation.
The established practice is perfectly conformable to the principles here laid down. All sovereigns claim a perfect independency for their ambassadors and ministers. If it be true that there was a king of Spain, who from a desire of arrogating to himself a jurisdiction over the foreign ministers resident at his court, wrote to all the Christian princes, informing them that if his ambassadors would commit any crime in the places of their respective residence, it was his pleasure that they should forfeit all their privileges, and be tried according to the laws of the country11 one solitary instance is of no weight in an affair of this nature; nor have his successors on the Spanish throne adopted a similar mode of thinking.
§ 93. How the foreign minister is to behave.
This independency of the foreign minister is not to be converted into licentiousness: it does not excuse him from conforming to the customs and laws of the country in all his external actions, so far as they are unconnected with the object of his mission and character; — he is independent; but he has not a right to do whatever he pleases. Thus, for instance, if there exist a general prohibition against passing, in a carriage near a powder-magazine, or over a bridge — against walking round, and examining the fortifications of a town, &c. — the ambassador is bound to respect such prohibitions.12 Should he forget his duty — should he grow insolent, and be guilty of irregularities and crimes — there are, according to the nature and importance of his offences, various modes of repressing him: and these we shall speak of, after we have said a few words concerning the line of conduct to be pursued by a public minister in the place of his residence. He must not avail himself of his independency for the purpose of violating the laws and customs; he should rather punctually conform to them, as far as they may concern him, although the magistrate has no compulsive power over him; and he is especially bound to a religious observance of the rules of justice towards all who have any dealings with him. As to what concerns the prince to whom he is sent, the ambassador should remember that his ministry is a ministry of peace, and that it is on that footing only he is received. This reason forbids his engaging in any evil machinations: let him serve his master without injuring the prince who receives him. It is a base treachery to take advantage of the inviolability of the ambassadorial character, for the purpose of plotting in security the ruin of those who respect that character — of laying snares for them — of clandestinely injuring them — of embroiling and ruining their affairs. What would be infamous and abominable in a private guest, shall that be allowable and becoming in the representative of a sovereign?
Here arises an interesting question. It is but too common for ambassadors to tamper with the fidelity of the ministers of the court to which they are sent, and of the secretaries and other persons employed in the public offices. What ideas are we to entertain of this practice? To corrupt a person — to seduce him — to engage him by the powerful allurement of gold to betray his prince and violate his duty, is, according to all the established principles of morality, undoubtedly a wicked action. How comes it then that so little scruple is made of it in public affairs? A wise and virtuous politician13 sufficiently gives us to understand that he absolutely condemns that scandalous resource: but, fearful of provoking the whole tribe of politicians to assail him at once, like a nest of hornets, he proceeds no further than barely advising them not to practise such manœuvres except when every other resource fails. As to me, whose pen is employed in developing the sacred and immutable principles of justice, I must, in duty to the moral world, openly aver that the mode of corruption is directly repugnant to all the rules of virtue and probity, and a flagrant violation of the law of nature. It is impossible to conceive an act of a more flagitious nature, or more glaringly militant against the reciprocal duties of men, than that of inducing any one to do evil. The corruptor is undoubtedly guilty of a crime against the wretch whom he seduces; and as to the sovereign whose secrets are thus treacherously explored, is it not both an offence and an injury committed against him, to abuse the friendly reception given at his court, and to take advantage of it for the purpose of corrupting the fidelity of his servants? He has a right to banish the corruptor from his dominions, and to demand justice of his employer.
If every bribery be excusable, it is when it happens to be the only possible mode by which we can completely discover and defeat a heinous plot, capable of ruining, or materially endangering the state in whose service we are employed. In the conduct of him who betrays such a secret, there may, according to circumstances, be no criminality. The great and lawful advantage accruing from the action which we induce him to perform, together with the urgent necessity of having recourse to it, may dispense with our paying too scrupulous an attention to the questionable complexion of the deed on his part. To gain him over is no more than an act of simple and justifiable self-defence. It every day happens, that, in order to foil the machinations of wicked men, we find ourselves under a necessity of turning to our account the vicious dispositions of men of similar stamp. On this footing it was Henry the Fourth said to the Spanish minister, that "it is justifiable conduct in an ambassador to have recourse to bribery for the purpose of detecting the intrigues that are carried on against his sovereign's interest;"14 adding, that the affair of Marseilles, that of Metz, and several others, sufficiently showed that he had good reason for endeavouring to penetrate the schemes which his enemies were plotting at Brussels against the tranquillity of his kingdom. That great prince, it is to be presumed, did not consider bribery and seduction as on all occasions excusable in a foreign minister, since he himself gave orders for the arrest of Bruneau, the Spanish ambassador's secretary, who had tampered with Mairargues for the clandestine surrender of Marseilles to the Spaniards.
In barely taking advantage of the offers made to us by a traitor, whom we have not seduced, our conduct is less inconsistent with justice and honour. But the examples of the Romans, which we have already quoted (Book III. §§ 155, 181), and in which there was question of declared enemies, — those examples, I say, sufficiently show that true greatness of soul disdains even that resource, lest the adoption of it should hold out an encouragement to infamous treachery. A prince or a minister, whose ideas of honour are not inferior to those of the ancient Romans above noticed, will never stoop to embrace the proposals of a traitor, except when compelled by some dire, uncontrollable necessity: and even then he will regret the degrading circumstance of owing his preservation to so unworthy an expedient.
But I do not here mean to condemn an ambassador for employing civilities and polite attentions, and even presents and promises, with a view to gain friends for his sovereign. To conciliate men's affections and good-will is not seducing them, or impelling them to the perpetration of criminal deeds: and, as to those new friends, it is their business to keep a strict watch over their own hearts, lest their attachment to a foreign prince should ever warp them from the fidelity which they owe to their lawful sovereign.
§ 94. How he may be punished. 1. For ordinary transgressions.
Should an ambassador forget the duties of his station — should he render himself disagreeable and dangerous — should he form cabals and schemes prejudicial to the peace of the citizens, or to the state or prince to whom he is sent — there are various modes of punishing him, proportionate to the nature and degree of his offence. If he maltreats the subjects of the state — if he commits any acts of injustice or violence against them — the injured subjects are not to seek redress from the ordinary magistrates, since the ambassador is wholly independent of their jurisdiction: and, for the same reason, those magistrates cannot proceed directly against him. On such occasions, therefore, me plaintiffs are to make application to their sovereign, who demands justice from the ambassador's master, and, in case of a refusal, may order the insolent minister to quit his domains.
§ 95. 2. for faults committed against the prince.
Should a foreign minister offend the prince himself — should he fail in the respect which he owes him, or, by his intrigues, embroil the state and the court — the offended prince, from a wish to keep measures with the offender's sovereign, sometimes contents himself with simply requiring that the minister be recalled; or if the transgression be of a more serious nature, he forbids his appearance at court in the interval while his master's answer is expected; and, in cases of a heinous complexion, he even proceeds so far as to expel him from his territories.
§ 96. Right of ordering away an ambassador who is guilty, or justly suspected.
Every sovereign has an unquestionable right to proceed in this manner; for, being master in his own dominions, no foreigner can stay at his court, or in his territories, without his permission. And though sovereigns are generally obliged to listen to the overtures of foreign powers, and to admit their ministers, this obligation entirely ceases with regard to a minister, who, being himself deficient in the duties attached to this station, becomes dangerous to, or justly suspected by the sovereign, to whom he can come in no other character than that of a minister of peace. Can a prince be obliged to suffer that a secret enemy, who is raising disturbances in the state and plotting its ruin, shall remain in his dominions and appear at his court? Ridiculous was the answer of Philip the Second to queen Elizabeth, on her request that he would recall his ambassador, who was carrying on dangerous plots against her. The Spanish monarch refused to recall him, saying, that "the condition of princes would be very wretched indeed, if they were obliged to recall a minister whenever his conduct did not suit the humour or the interest of those with whom he was negotiating."15 Much more wretched would be the condition of princes, if they were bound to suffer in their states, and at their court, a minister who was disagreeable or justly suspected, an incendiary, an enemy disguised under the character of an ambassador, who should avail himself of his inviolability for the purpose of boldly plotting schemes of a pernicious tendency. The queen, justly offended at Philip's refusal, put a guard on the ambassador.16
§ 97. Right of repressing him by force, if he behaves as an enemy.
But is a prince on every occasion bound to confine his resentment to the simple expulsion of an ambassador, however great the enormities of which the latter may have been guilty? Such is the doctrine maintained by some authors, who ground their opinion on the absolute independency of a public minister. I own he is independent of the jurisdiction of the country: and I have already said, that, on this account, the common magistrate cannot proceed against him. I further admit, that, in all cases of ordinary transgression, all instances of offensive or disorderly behaviour, which, though injurious to individuals, or to society, do not endanger the safety of the state or of the sovereign, there is that degree of respect due to the ambassadorial character which is so necessary for the correspondence of nations, and to the dignity of the prince represented, that a complaint be first made to him of the conduct of his minister, together with a demand of reparations; and that, if no satisfaction is obtained, the offended sovereign be then content with simply ordering the ambassador to quit his dominions, in case the serious nature of the offences absolutely require that a stop be put to them. But shall an ambassador be suffered with impunity to cabal against the state where he resides, to plot its ruin, to stir up the subjects to revolt, and boldly to foment the most dangerous conspiracies, under the assurance of being supported by his master? If he behaves as an enemy, shall it not be allowable to treat him as such? the question admits not of a doubt with regard to an ambassador who proceeds to overt acts, who takes up arms, and uses violence. In such case, those whom he attacks may repel him: self-defence being authorized by the law of nature. Those Roman ambassadors, who, being sent to the Gauls, fought against them with the people of Clusium, divested themselves of the ambassadorial character.17 Can any one therefore imagine that the Gauls were bound to spare them in the hour of battle?
§ 98. Ambassador forming dangerous plots and conspiracies.
The question is more difficult with respect to an ambassador who, without proceeding to overt acts, broaches plots of a dangerous tendency, — who, by his occult machinations, excites the subject to revolt, and who forms and encourages conspiracies against the sovereign or the state. Shall it be deemed unlawful to repress and inflict exemplary punishment on a traitor who abuses the sacred character with which he is invested, and who is himself the first to set the example of violating the law of nations? That sacred law provides no less for the safety of the prince who receives an ambassador, than for that of the ambassador himself. But, on the other hand, if we allow the offended prince a right to punish a foreign minister in such cases, the subjects of contest and rupture between sovereigns will become very frequent; and it is much to be feared that the ambassadorial character will cease to enjoy that protection and inviolability which are so essential to it. There are certain practices connived at in foreign ministers, though not always strictly consistent with the rules of rectitude: there are others, again, which are not to be corrected by actual punishment, but simply by ordering the minister to depart. How shall we, in every case, be able to ascertain the precise boundaries of those different degrees of transgression? When there exists a premeditated design of persecuting a minister, an odious colouring will be given to his intrigues: his intentions and proceedings will be calumniated by sinister constructions; even false accusations will be raised against him. Finally, such plots as we here allude to are generally conducted with caution: they are carried on so secretly, that, to obtain full proof of them, is a matter of extreme difficulty, and indeed hardly possible, without the formalities of justice, — formalities to which we cannot subject a minister who is independent of the jurisdiction of the country.
In laying down the grounds of the voluntary law of nations (Prelim. § 21), we have seen that, in particular conjunctures, nations must, with a view to the general advantage, necessarily recede from certain rights, which, taken in themselves and abstracted from every other consideration, should naturally belong to them. Thus, although the sovereign who has justice on his side be alone really entitled to all the rights of war (Book III. § 188), he is nevertheless obliged to look upon his enemy as enjoying equal rights with himself, and to treat him accordingly (Ibid. §§ 190, 191). The same principles must be our rule in the present case. We may therefore venture to affirm, that, in consideration of the extensive utility, nay, the absolute necessity of embassies, sovereigns are bound to respect the inviolability of an ambassador as long as it is not incompatible with their own safety and the welfare of their state. Consequently, when the intrigues of the ambassador have transpired, and his plots are discovered, — when the danger is passed, so that there no longer exists a necessity of laying hands on him in order to guard against it, — the offended sovereign ought, in consideration of the ambassadorial character, to renounce his general right of punishing a traitor and a secret enemy who conspires against the safety of the state, — and to content himself with dismissing the guilty minister, and requiring that punishment to be inflicted on him by the sovereign to whose authority he is subject.
Such, in fact, is the mode of proceeding established by common consent among the generality of nations, especially those of Europe. Wicquefort18 gives us several instances of some of the principal European sovereigns, who, on discovering ambassadors to be guilty of odious machinations, have limited their resentment to the expulsion of the offenders, without even making application to have them punished by their masters, of whom they did not expect to obtain a compliance with such a demand. To these instances let us add that the duke of Orleans, regent of France. That prince, having detected a dangerous conspiracy which had been formed against him by the prince de Cellamre, ambassador from Spain, behaved with great moderation on the occasion, — not adopting any severer measures than those of setting a guard over the guilty minister, seizing his papers, and causing him to be conducted out of the kingdom. Another remarkable instance, of very ancient date, stands recorded by the Roman historians, — that in which Tarquin's ambassadors were concerned. Having repaired to Rome under pretence of claiming the private property belonging to their master, who had been expelled from his kingdom, they tampered with the profligate young nobility, and engaged them in a black and infamous conspiracy against the liberties of their country. Although such conduct would have authorised the rulers of the Roman state to treat them as enemies, the consuls and senate nevertheless respected the law of nations in the persons of those ambassadors.19 The offenders were sent back to their employer, without having received any personal injury: but, from Livy's account of the transaction, it appears that the letters which they had from the conspirators to Tarquin were taken from them.
§ 99. What may be done to him according to the exigency of the case.
This example leads us to the true rule of the law of nations, in the cases now in question. An ambassador cannot be punished because he is independent: and, for the reasons we have alleged, it is not proper to treat him as an enemy, till he himself proceeds to overt acts of violence: but we are justifiable in adopting against him every measure which the circumstances of the case may reasonably require for the purpose of defeating his machinations and averting the evil which he has plotted. If, in order to disconcert and prevent a conspiracy, it were necessary to arrest or even put to death an ambassador who animates and conducts it, I do not see why we should for a moment hesitate to take either of those steps, — not only because the safety of the state is the supreme law, but also because, independent of that maxim, the ambassador's own deeds give us a perfect and particular right to proceed to such extremities. A public minister, I grant, is independent, and his person is sacred: but it is unquestionably lawful to repel his attacks, whether of a secret or of an open nature, and to defend ourselves against him, whenever he acts either as an enemy or a traitor. And if we cannot accomplish our own preservation without harm thence resulting to him, it is he himself who has laid us under a necessity of not sparing him. On such an occasion, it may with great truth be asserted, that the minister has, by his own act, excluded himself from the protection of the law of nations. Suppose the Venetian senate, — though apprised of the marquis of Bedamar's conspiracy, and impressed with a thorough conviction of that minister's being the prime mover and director of the whole business, — had nevertheless been, in other particulars, destitute of sufficient information to enable them to crush the detestable plot, — suppose they had been uncertain with respect to the number and rank of the conspirators, the designs they had in agitation, and the particular quarter where the meditated mischief was to burst forth, — whether an intention was entertained of exciting a revolt among the marine or the land forces, or effecting the clandestine capture of some important fortress, — would they, under such circumstances, have been bound to suffer the ambassador to depart unmolested, and thus afford him an opportunity of joining and heading his accomplices, and of bringing his designs to a successful issue! — No man will seriously answer in the affirmative: — the senate, therefore, would have had a right to arrest the marquis and all his household, and even to extort from them their detestable secret. But those prudent republicans, seeing the danger was removed, and the conspiracy totally suppressed, chose to keep measures with Spain: wherefore they prohibited all accusation of the Spaniards as concerned in the plot, and contented themselves with simply requesting the ambassador to withdraw, in order to screen himself from the rage of the populace.
§ 100. Ambassador attempting against the sovereign's life.
In this case the same rule is to be followed which we have already laid down (Book III. § 136,) in treating of what may lawfully be done to an enemy. Whenever an ambassador acts as an enemy, we are justifiable in adopting against him every measure that is necessary for the purpose of defeating his evil designs and insuring our own safety. It is on the same principle, and under the idea which represents the ambassador as a public enemy when he behaves as such, that we proceed to determine the treatment he ought to receive in case he pursues his criminal career to the last stage of enormity. If an ambassador commit any of those atrocious crimes which sap the very foundations of the general safety of mankind, — if he attempt to assassinate or poison the prince who has received him at his court, — he unquestionably deserves to be punished as a treacherous enemy guilty of poisoning or assassination (See Book III. § 155). The ambassadorial character, which he has so basely prostituted, cannot shield him from the sword of justice. Is the law of nations to protect such a criminal, when the personal security of all sovereigns and the general safety of mankind loudly demand that his crime should be expiated by the sacrifice of his forfeit life? It is true, indeed, that we have little room to apprehend that a public minister will proceed to such dreadful enormities: for it is generally men of honour who are invested with the character of ambassadors; and even if there should, among the number, be some whose consciences are callous to every scruple, the difficulties, nevertheless, and the magnitude of the danger, are sufficient to deter them from the attempt. Yet such crimes are not wholly unexampled in history. Monsieur Barbeyrac20 instances the assassination of the lord of Sirmium by an ambassador of Constantinus Diogenes, governor of the neighbouring province for Basilius II., emperor of Constantinople; and for his authority he quotes the historian Cedrenus. The following fact is likewise to the purpose. In the year 1382, Charles III., king of Naples, having sent to his competitor, Louis, duke of Anjou, a knight named Matthew Sauvage, in the character of a herald, to challenge him to single combat, — the herald was suspected of carrying a demi-lance whose point was tinged with a poison of so subtle a nature, that whoever should look steadfastly on it, or even suffer it to touch his clothes, would instantly drop down dead.
The duke, being apprized of the danger, refused to admit the herald into his presence, and ordered him to be taken into custody. The culprit was interrogated, and, upon his own confession, suffered the punishment of decapitation. Charles complained of the execution of his herald, as an infraction of the laws and usages of war: but Louis, in his reply, maintained that he had not violated those laws in his treatment of Sauvage, who had been convicted by his own confession.21
Had the crime imputed to the herald been clearly substantiated, he was an assassin, who no law could protect. But the very nature of the accusation sufficiently proves that it was a false and groundless charge.
§ 101. Two remarkable instances respecting the immunities of public ministers.
The question of which we have been treating has been debated in England and France on two famous occasions. In the former of those countries, the question arose in the case of John Leslie, bishop of Ross, ambassador from Mary, queen of Scots. That minister was continually intriguing against queen Elizabeth, plotting against the tranquillity of the state, forming conspiracies, and exciting the subjects to rebellion. Five of the most able civilians, being consulted by the privy council, gave it as their opinion, that "an ambassador raising a rebellion against the prince at whose court he resides, forfeits the privileges annexed to his character, and is subject to the punishment of the law." They should rather have said, that he may be treated as an enemy. But the council contented themselves with causing the bishop to be arrested, and after having detained him a prisoner in the Tower for two years, set him at liberty when there was no longer any danger to be apprehended from his intrigues, and obliged him to depart from the kingdom.22 This instance may serve to confirm the principles which we have laid down; and the like may be said of the following. Bruneau, secretary to the Spanish ambassador in France, was detected in the very act of treating with Mairargues, in a time of profound peace, for the surrender of Marseilles to the Spaniards. The secretary was thereupon committed to prison, and was subjected to a judicial examination by the parliament before whom Mairargues was tried. That body, however, did not pronounce sentence of condemnation on Bruneau, but referred his case to the king, who restored him to his master, on condition that the latter should order him to depart immediately from the kingdom. The ambassador warmly complained of the imprisonment of his secretary: but Henry IV. very judiciously answered, that "the law of nations does not forbid putting a public minister under an arrest, in order to hinder him from doing mischief." The king might have added, that a nation has even a right to adopt, against a public minister, every measure which may be necessary for the purpose of warding off the mischief he meditates against her, — of defeating his projects, and preventing their evil consequences. It was on this principle that the parliament were authorised to interrogate Bruneau, for the purpose of discovering all the parties concerned in so dangerous a conspiracy. The question, whether foreign ministers who violate the law of nations do thereby forfeit their privileges, was warmly debated at Paris, but, without waiting to have the point decided, the king restored Bruneau to his master.23
§ 102. Whether reprisals may be made on an ambassador.
It is not lawful to maltreat an ambassador by way of retaliation: for the prince who uses violence against a public minister is guilty of a crime; and we are not to take vengeance for his misconduct by copying his example. We never can, under pretence of retaliation, be authorized to commit actions which are in their own nature unjustifiable: and such undoubtedly would be any instance of ill treatment inflicted on an unoffending minister as a punishment for this master's faults. If it be an indispensable duty to pay a general regard to this rule in cases of retaliation, it is more particularly obligatory with regard to an ambassador, on account of the respect due to his character. The Carthaginians having violated the law of nations in the persons of the Roman ambassadors, the ambassadors of that perfidious nation were brought to Scipio, who, being asked how he would have them to be treated, replied, "Not in the manner that the Carthaginians have treated ours." Accordingly he dismissed them in safety;24 but at the same time he made preparations for chastising, by force of arms, the state which had violated the law of nations.25 There cannot be a better pattern for sovereigns to follow on such an occasion. If the injury for which we would make retaliation does not concern a public minister, there exists a still stronger certainty that we must not retaliate on the ambassador of the sovereign against whom our complaint lies. The safety of public ministers would be very precarious, if it were liable to be affected by every casual difference that might arise. But there is one particular case in which it appears perfectly justifiable to arrest an ambassador, provided no ill treatment be given to him in other respects. When, for instance, a prince has, in open violation of the law of nations, caused our ambassador to be arrested, we may arrest and detain his, as a pledge for the life and liberty of ours. But should this expedient prove unsuccessful, it would become our duty to liberate the unoffending minister, and to seek redress by more efficacious measures. Charles the Fifth caused the French ambassador, who had made him a declaration of war, to be put under an arrest; whereupon Francis the First caused Granvelle, the emperor's ambassador, to be arrested in like manner. At length, however, it was agreed that both those ministers should be conducted to the frontier, and released at the same time.26
§ 103. Agreement of nations concerning the privileges of ambassadors.
We have derived the independence and inviolability of the ambassadorial character from the natural and necessary principles of the law of nations. These prerogatives are further confirmed by the uniform practice and general consent of mankind. We have seen above (§ 84), that the Spaniards found the right of embassies established and respected in Mexico. The same principle also prevails even among the savage tribes of North America: and if we thence turn our eye to the other extremity of the globe, we find that ambassadors are highly respected in China. In India also the same rule is observed, though with less scrupulous punctuality:27 the king of Ceylon, for instance, has sometimes imprisoned the ambassadors of the Dutch East-India company. Being master of the places which produce cinnamon, he knows that the Dutch, in consideration of a profitable commerce, will overlook many irregularities in his conduct; and, with the true disposition of a barbarian, he takes an undue advantage of that circumstance. The Koran enjoins the moslems to respect public ministers: and if the Turks have not in all instances uniformly observed that precept, their violations of it are rather imputable to the ferocity of particular princes than to the principles of the nation at large. The rights of ambassadors were formerly very well known among the Arabs. A writer of that nation28 relates the following incident: Khaled, an Arabian chief, having come, in the character of ambassador, to the army of the emperor Heraclius, used insolent language to the general: whereupon the latter observed to him, that "ambassadors were protected from all kind of violence by the law which universally prevailed among nations: audit was probably that consideration which had emboldened the Arab to speak to him in so indecent a manner."29 It would be quite unnecessary, in this place, to accumulate the various examples with which the history of the European nations presents us: the enumeration would be endless; and the established customs of Europe on this subject are sufficiently known. Saint Louis, when at Acra in Palestine, gave a remarkable instance of the protection due to public ministers: — an ambassador from the Old Man of the Mountain, or prince of the Assassins, speaking insolently to the French monarch, the grandmasters of the orders of the Temple and the Hospital informed that minister, that, "were it not for the respect paid to the character with which he was invested, they would cause him to be thrown into the sea."30 The king, however, dismissed him without suffering the slightest injury to be done him. Nevertheless, as the prince of the Assassins was on his own part guilty of grossly violating the most sacred rights of nations, it would have been reasonable to suppose that his ambassador had no claim to protection, except indeed on this single consideration, that, as the privilege of inviolability is founded on the necessity of keeping open a safe channel of communication, through which sovereigns may reciprocally make proposals to each other, and carry on negotiations both in peace and in war, the protection should therefore extend even to the envoys of those princes, who, guilty themselves of violating the law of nations, would otherwise have no title to our respect.
§ 104. Free exercise of religion.
There are rights of another nature, which, though not necessarily annexed to the character of a public minister, are nevertheless allowed to him by established custom in almost every country. One of the principal of these is the free exercise of his religion. It is, indeed, highly proper that a minister, and especially a resident minister, should enjoy the free exercise of his religion within his own house, for himself and his retinue. But it cannot be said that this right, like those of independence and inviolability, is absolutely necessary to the success of his commission, particularly in the case of a non-resident minister, the only one whom nations are bound to admit (§ 66). the minister may in this respect, do what he pleases in his own house, into which nobody has a right to pry or to enter. But, if the sovereign of the country where he resides should, for substantial reasons, refuse him permission to practise his religion in any manner which might render it an object of public notice, we must not presume to condemn the conduct of that sovereign, mush less to accuse him of violating the law of nations. At present, ambassadors are not debarred the free exercise of their religion in any civilized country: for a privilege which is founded on reason cannot be refused when it is attended with no ill consequence.
§ 105. Whether an ambassador be exempted from all imposts.
Among those rights that are not necessary to the success of embassies, there are, on the other hand, some which are not founded on a general consent of nations, but which are nevertheless, by the custom of several countries, annexed to the ambassadorial character. Of this number is the exemption of things brought into or sent out of the country by a foreign minister from the customary duties on importation and exportation. There is no necessity that he should be favoured with any distinction in that respect, since his payment of those duties will not render him the less capable of discharging his functions. If the sovereign is pleased to exempt him from them, it is an instance of civility which the minister could not claim as matter of right, any more than that his baggage, or any chests or packages which he imports from abroad, shall not be searched at the custom-house. Thomas Chaloner, the English ambassador in Spain, sent home a bitter complaint to Queen Elizabeth, his mistress, that the custom-house officers had opened his trunks in order to search them. But the queen returned him for answer, that it was "the duty of an ambassador to wink at every thing which did not directly offend the dignity of his sovereign."31
The independency of the ambassador exempts him indeed from every personal imposition, capitation, or other duty of that nature, and in general from every tax relating to the character of a subject of the state. But as for duties laid on any kind of goods or provisions, the most absolute independency does not exempt him from the payment of them: even sovereigns themselves are subject to them. In Holland, the following rule is observed: — ambassadors are exempt from the taxes on consumption, — doubtless, because those taxes are more directly of a personal nature: but they pay the duties on importation and exportation.
However extensive their exemption may be, it is manifest that it solely relates to things intended for their own use. Should they abuse and make a shameful traffic of it by lending their name to merchants, the sovereign has unquestionably a right to put a stop to the fraud, even by suppressing the privilege. Such things have been known in several places; and the sordid avarice of some ministers, who made a trade of their exemption, has obliged the sovereign to deprive them of it. At present, the foreign ministers at Petersburgh are subject to the duties on importation; but the empress has the generosity to indemnify them for the loss of a privilege which they had no right to claim, and which, from the frequency of its abuse, she had been obliged to abolish.
§ 106. Obligation founded on use and custom.
But, here it is asked, whether a nation may abolish what general custom has established with respect to foreign ministers? Let us then consider what obligation custom and received usage can impose on nations, not only in what concerns ministers, but also in any other instance, in general. The usages and customs of other nations are no further obligatory on an independent state, than as she has expressly or tacitly given her consent to them. But when once a custom, indifferent in itself, has been generally established and received, it carries the force of an obligation on the states which have tacitly or expressly adopted it. Nevertheless, if, in process of time, any nation perceives that such custom is attended with inconveniences, she is at liberty to declare that she no longer chooses to conform to it: and when once she has made this explicit declaration, no cause of complaint lies against her for refusing thenceforward to observe the custom in question. But such a declaration should be made beforehand, and at the time when it does not affect any particular nation: it is too late to make it when the case actually exists: for it is a maxim universally received, that a law must never be changed at the moment of the actual existence of the particular case to which we would apply it. Thus, on the subject before us, a sovereign who has previously notified his intentions, and received an ambassador only on that fooling, is not obliged to allow him the enjoyment of all the privileges, or to pay him all the honours, which custom had before annexed to the ambassadorial character, — provided that the privileges and honours which are withheld be not essential to the nature of the embassy, and necessary to insure its legitimate success. To refuse privileges of this latter kind, would be the same thing in effect as refusing the embassy itself, — a conduct which a state is not at liberty to pursue generally and on every occasion (§ 65), but in those instances only where the refusal is founded on some very substantial reason. To withhold honours which are consecrated by custom and become in a manner essential, is an expression of contempt, and an actual injury.
Here it must be further observed, that, when a sovereign intends to break through an established custom, the rule should be general. To refuse certain customary honours or privileges to the ambassador of one nation, and to continue the enjoyment of them to others, is an affront to that nation, a mark of contempt, or at least of ill-will.
§ 107. A minister whose character is not public.
Sometimes princes send to each other secret ministers, whose character is not public. If a minister of this kind be insulted by a person unacquainted with his character, such insult is no violation of the law of nations: but the prince who receives this ambassador and knows him to be a public minister, is bound by the same ties of duty towards him as towards a publicly acknowledged ambassador, and under equal obligation to protect him, and as far as in his power, to insure him the full enjoyment of that inviolability and independence which the law of nations annexes to the ambassadorial character. No excuse, therefore, can be offered for the conduct of Francis Sforza, duke of Milan, in putting to death Marabiglia, secret minister of Francis the First. Sforza had often treated with that secret agent, and had acknowledged him as the French monarch's minister.32
§ 108. A sovereign in a foreign country.
We cannot introduce in any more proper place in important question of the law of nations, which is nearly allied to the right of embassies. It is asked, what are the rights of a sovereign, who happens to be in a foreign country, and how the master of the country is to treat him? If that prince be come to negotiate, or to treat about some public affair, he is doubtless entitled in a more eminent degree to enjoy all the rights of ambassadors. If he be come as a traveller, his dignity alone, and the regard due to the nation which he represents and governs, shelters him from all insult, gives him a claim to respect and attention of every kind, and exempts him from all jurisdiction. On his making himself known, he cannot be treated as subject to the common laws; for it is not to be presumed that he has consented to such a subjection: and if a prince will not suffer him in his dominions on that fooling, he should give him notice of his intentions. But, if the foreign prince forms any plot against the safety and welfare of the state, — in a word, if he acts as an enemy, — he may very justly be treated as such. In every other case he is entitled to full security, since even a private individual of a foreign nation has a right to expect it.
A ridiculous notion has possessed the minds even of persons who deem themselves superior in understanding to the common herd of mankind. They think that a sovereign who enters a foreign country without permission, may be arrested there.33 But on what reason can such an act of violence be grounded? The absurdity of the doctrine carries its own refutation on the face of it. A foreign sovereign, it is true, ought to give notice of his coming, if he wishes to receive such treatment as he is entitled to expect. It would, moreover, be prudent in him to make application for passports, in order that designing malevolence may not have any pretext, any hope of finding specious reasons to palliate an act of injustice and violence. I further allow, that, — as the presence of a foreign sovereign may on certain occasions be productive of serious consequences, — if the times are in anywise critical, and the motives of his journey liable to suspicion, he ought not to undertake it without the consent and approbation of the prince whose territories he means to enter. When Peter the Great determined personally to visit foreign countries in quest of the arts and sciences to enrich his empire, he travelled in the retinue of his own ambassadors.
A foreign prince unquestionably retains all his rights over his own state and subjects, and may exercise them in every instance that does not affect the sovereignty of the country in which he is a sojourner. The king of France, therefore, appears to have been too punctilious in refusing to permit the emperor Sigismund, when at Lyons, to confer the dignity of duke on the count of Savoy, who was a vassal of the empire (see Book II. § 40). Less difficulty would have been made with any other prince: but the court was scrupulously careful to guard against the old claims of the emperors. On the other hand, it was with very good reason that the same court expressed considerable displeasure at the conduct of Queen Christina, who, whilst residing in France, caused one of her domestics to be executed in her own house: for an execution of that kind is an act of territorial jurisdiction, and besides, Christina had abdicated the crown. Her reservations, her birth, her dignity, might indeed entitle her to great honours, or, at most, to an entire independence, — but not to all the rights of an actual sovereign. The famous instance of Mary Queen of Scots, so often quoted on questions on this subject, is not a very apposite example: for that princess was no longer in possession of the crown at the time when she came to England, and was arrested, tried, and condemned to death.
§ 109. Deputies to the states.
The deputies sent to the assembly of the states of a kingdom, or a republic, are not public ministers like those of whom we have spoken above, as they are not sent to foreign powers: but they are public persons, and in that character are possessed of privileges which it is our duty to establish before we lake leave of this subject. The states which have a right to meet by deputies for the purpose of deliberating on public affairs, are, from that very circumstance, entitled to demand perfect security for their representatives, together with every exemption and immunity that is necessary to the free discharge of their functions. If the persons of the deputies be not inviolable, their constituents cannot be assured of their fidelity in asserting the rights of the nation and courageously defending the public interests. And how could those representatives duly acquit themselves of their functions, if people were allowed to molest them by arrests, either for debt or for ordinary offences? Between the nation and the sovereign, in this case, the same reasons hold good, on which, between state and state, the immunities of ambassadors are founded. We may therefore safely venture to assert, that the rights of the nation, and the public faith, secure those deputies from violence of every kind, and even from any judicial prosecution, during the term of their ministry. Such indeed is the rule observed in all countries, and particularly at the diets of the empire, the parliaments of England, and the Cortes of Spain.
Henry the Third, of France, caused the duke and the Cardinal de Guise to be killed at the meeting of the states at Blois. Unquestionably the security of the assembly was violated by that action: but those two princes were factious rebels, whose audacious views aimed at nothing less than depriving their sovereign of his crown. And if it was equally certain that Henry was no longer possessed of sufficient power to bring them to a formal trial, and punish them according to the laws, the necessity of justifiable self-defence gave the king a right to adopt the mode which he pursued, and furnishes a sufficient apology for his conduct. It is the misfortune of weak and unskilful princes, that they suffer themselves to be reduced to extremities, from which they cannot extricate themselves without a violation of every established rule. It is said that Pope Sextus the Fifth, on hearing of the catastrophe of the Duke de Guise, commended that resolute act as a necessary stroke of policy; but when he was told that the cardinal had likewise been killed, he burst into a violent paroxysm of rage.34 This, indeed, was carrying his haughty pretensions to an excessive height. The pontiff readily allowed that urgent necessity had authorized Henry to violate the security of the states, and to break through all the forms of justice: and could he pretend that this prince, rather than be deficient in respect for the Roman purple, should risk both his crown and his life?
(194) See Wicquefort's Ambassadors, per tot. — C.
(195) Ante. p. 459. n.
(196) Ante, p. 459, n. — C.
1. An enormous infraction of the law of nations caused the ruin of the powerful empire of Khovarezm, or Kakesm, and opened a door to the Tartars for the subjugation of almost all Asia. The famous Gengis-khan, wishing to establish a commercial intercourse between his states and those of Persia, and the other provinces subject to Mohammed Cotheddin, sultan of Khovarezm, sent to that prince an ambassador, accompanied by a caravan of merchants. On the arrival of that caravan at Otraw, the governor caused them to be arrested, together with the ambassador, and wrote word to the Sultan that they were a company of spies. Mohammed thereupon ordered him to have the prisoners put to death. Gengis-khan demanded satisfaction of the sultan for this barbarous massacre; and, finding him backward to give it, he took up arms. The conquest of the whole empire of Khovarezm soon followed; and Mohammed himself, reduced to the condition of a wretched fugitive, died of a broken heart in a desert island of the Caspian Sea.
Canson, the last sultan of the Mamelucs, having put to death the ambassadors of the Turkish emperor, Selim the First, the injured monarch took a signal vengeance for the atrocious deed. He conquered all the dominions of Canson, and, having defeated and captured that prince near Cairo, he caused him to be hanged at one of the gates of the city. Marigny, History of the Arabs, vol. ii. p. 105, 427.
(197) See also the case of the arrest of the Russian ambassador, which occasioned the passing of the 7 Anne, c. 12, See recital in act, and 1 Bla. Com, 250, and ante, 459, note. — C.
2. Memoires de Martin du Bellay, liv. ix.
3. Solis's history of the Conquest of Mexico. § 17.
4. Wicquefort's Ambassador, book I. § 1.
5. In Verrem, orat. i.
(198) But see Ćsop's Fables. — C.
6. Wicquefort, book i. § 3.
7. Wicquefort, book i.
(199) See also Calvin's case, 7 Coke, 21 b.; 4 Inst. 155; 2 Inst. 57; 1 Chitty's Com. L. 131. — C.
8. Wicquefort, ubi supra.
(200) See ante, pp. 459-464.
9. Idem. ibid.
10. See Wolf. Jus Gent. § 1059.
11. The fact is advanced by Antony de Vera, in his "Idea of a Perfect Ambassador:" but Wicquefort suspects the authenticity of the anecdote, — not having, as he says, met with it in any other writer. Ambassad. book I. § 29.
12. The king of England having received information that the French and Spanish ambassadors had severally collected considerable numbers of armed men, for the purpose of supporting, on a solemn occasion, their respective claims to precedency, made a general request to all the foreign ministers not to send their carriages to attend the public entry of the Venetian ambassador. The count d'Estrades, at that time minister from the court of France, having complied with his majesty's desire, — Louis XIV. testified his dissatisfaction at the deference paid by the count to the British monarch's message, "which was no more than a simple request not to send carriages: — whereas, even if he had issued an express order (as being at liberty to give what orders he pleases in his own kingdom,) you should have replied that you receive no commands but from me: and if, after that, he had attempted to use violence, the part which remained for you to act, was that of withdrawing from his court." — I think the French monarch entertained erroneous ideas on the subject; since every sovereign must surely have a right to prohibit all foreign ministers doing any thing in his dominions which may tend to produce disorder, and which, moreover, is not necessary to the exercise of their ministerial functions.
13. Mons. Pequet, Discours sur l'Art de Negocier, p. 91
14. See Sully's Memoirs, and the French historians.
15. Wicquefort, book i. § 29.
16. Idem. ibid.
17. Livy, book v. chap. 26, where the historian peremptorily decides that those ambassadors violated the law of nations: "Legati, contra jus gentium, arma capiunt."
18. Ambassad. book I. §§ 27, 28, 29.
19. Et quamquam visi sunt (legati) commisisse ut hostium loco essent, jus tamen gentium valuit. Tit. Liv. Lib. ii, cap. 4.
20. In his notes on Bynkershoek's treatise on the Competent Judge of Ambassadors, ch. xxiv. § 5, note 2.
21. History of the Kings of the Two Sicilies, by Monsieur D'Egly.
22. Cambden's Annal. Angl. ad ann. 1571, 1573.
23. See the discussion of the question, and the discourse which Henry IV. held on this subject to the Spanish ambassador, in the Memoires de Nevers, vol. ii. p. 858, el seq., in Matthieu, vol. ii. book iii. and other historians.
Joseph Sofi. king of Carezem, having imprisoned an ambassador of Timur-Bec, Timur's secretary of state wrote him a letter couched in strong terms of expostulation on the subject of that infraction of the law of nations, — informing him that "It is a maxim with kings to consider the person of an ambassador as sacred: for which reason he is always held exempt from the punishment of death or imprisonment, if the sovereign to whom he is sent has even the slightest knowledge of the law of nations, or the ambassador himself does but possess sufficient prudence to refrain from the commission of any heinous offence, and to behave with common decency." La Croix, Hist. of Timur-Bec, book ii. chap. 26. The same historian, in his account of Barcouc, sultan of Egypt, who put Timur's ambassador to death, observes, — "that it was an infamous action; — that to insult an ambassador is a violation of the law of nations, and a deed at which nature herself shudders." Ibid. book v. chap. 17. Edit. A.D. 1797
24. Appian, quoted by Grotius, lib. ii. cap. 28, § 7. According to Diodorus Siculus, Scipio said to the Romans, "Do not imitate that conduct with which you reproach the Carthaginians." Skipion ouk ephe dein prattein d tois Kapchedoi iois kegalousi Diod. Sic, Excerpt Peiresc. p. 290.
25. Livy, book xxx. chap. 28, § 7. That historian makes Scipio say, "Though the Carthaginians have violated the faith of the truce, and the law of nations, in the person of our ambassadors, I will do nothing against theirs that is unworthy of the maxims of the Roman people, and of my own principles."
26. Mezeray's Hist. of France, vol. ii. p. 470.
27. General Hist. of Voyages, art. China, and Indies.
28. Alvakedi's History of the Conquest of Syria.
29. Ockley's History of the Saracens, vol. i.
30. Choisy's History of St. Louis.
31. Wicquefort's Ambass. book i. § 28, towards the end.
32. See the Memoirs of Martin Du Beilay, book iv., and Father Daniel's History of France, vol. v. p. 300, &c.
33. It is surprising to see a grave historian give into this opinion. See Gramond's Hist, Gall. lib. xii. The Cardinal De Richelieu also alleged this trifling reason, when he gave orders for arresting Charles Lewis, the elector Palatine, who had attempted to pass through France incognito, he said, that "no foreign prince was permitted to pass through the kingdom without a passport." But he added better reasons, drawn from the prince Palatine's designs against Brissac and the other places left by Bernard, duke of Saxe-Weymar, and to which France pretended to have a greater right than any other power, because those conquests had been made with the money furnished by that kingdom. See the History of the Treaty of Westphalia, by Father Bougant, vol. ii. in 12 mo p. 88.
34. See the French historians.
OF THE JUDGE OF AMBASSADORS IN CIVIL CASES.
§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides.
SOME authors will have an ambassador to be subject, in civil cases, to the jurisdiction of the country where he resides. — at least in such cases as have arisen during the time of his embassy; and, in support of their opinion, they allege that this subjection is by no means derogatory to the ambassadorial character: "for," say they, "however sacred a person may be, his inviolability is not affected by suing him in a civil action." But it is not on account of the sacredness of their person that ambassadors cannot be sued: it is because they are independent of the jurisdiction of the country to which they are sent; and the substantial reasons on which that independency is grounded may be seen in a preceding part of this work (§ 92). Let us here add, that it is in every respect highly proper, and even necessary, that an ambassador should be exempt from judicial prosecution even in civil causes, in order that he may be free from molestation in the exercise of his functions. For a similar reason, it was not allowed, among the Romans, to summon a priest while he was employed in his sacred offices:1 but at other times he was open to the law. The reason which we have here alleged for the exemption is also assigned in the Roman law: "Ideo enim non datur actio (adversus legatum) ne ab officio suscepto legationis avocetur,2 ne impediatur legatio."3 But there was an exception as to those transactions which had taken place during the embassy. This was reasonable with regard to those legati, or ministers, of whom the Roman law here speaks, who, being sent only by nations subject to the empire, could not lay claim to the independency enjoyed by a foreign minister. As they were subjects of the state, the legislature was at liberty to establish whatever regulations it thought most proper respecting them: but a sovereign has not the like power of obliging the minister of another sovereign to submit to his jurisdiction: and even if such power was vested in him by convention, or otherwise, the exercise of it would be highly improper: because, under that pretext, the ambassador might be often molested in his ministry, and the state involved in very disagreeable quarrels, for the trifling concerns of some private individuals, who might and ought to have taken better precautions for their own security. It is therefore, only in conformity to the mutual duties which states owe to each other, and in accordance with the grand principles of the law of nations, that an ambassador or public minister is at present, by the universal custom and consent of nations, independent of all jurisdiction in the country where he resides, either in civil or criminal cases. I know there have occurred some instances to the contrary: but a few facts do not establish a custom: on the contrary, those to which I allude, only contribute, by the censure passed on them, to prove the custom such as I have asserted it to be. In the year 1668, the Portuguese resident at the Hague was, by an order of the court of justice, arrested and imprisoned for debt. But an illustrious member of the same court4 very justly thinks that the procedure was unjustifiable, and contrary to the law of nations. In the year 1657, a resident of the elector of Brandenburg was also arrested for debt in England. But he was set at liberty, as having been illegally arrested; and even the creditors and officers of justice who had offered him that insult were punished.5
§ 111. How he may voluntarily subject himself to it.
But if an ambassador chooses to renounce a part of his independency, and to subject himself in civil affairs to the jurisdiction of the country, he is undoubtedly at liberty to do so, provided it be done with his master's consent. Without such consent, the ambassador has no right to renounce privileges in which the dignity and service of his sovereign are concerned, — which are founded on the master's rights, and instituted for his advantage, not for that of the minister. It is true, indeed, that the ambassador, without waiting for his sovereign's permission, acknowledges the jurisdiction of the country when he commences a suit as plaintiff in a court of justice. But the consequence, in that case, is inevitable; and besides, in a civil cause, on a point of private interest, no inconvenience attends it; since the ambassador has it at all times in his power to avoid commencing a suit, or may, if such a step be necessary, intrust the prosecution of his cause to an attorney or lawyer.
Let us here add, by the way, that an ambassador ought never to institute a prosecution on a criminal charge. If he has been insulted, he should make his complaint to the sovereign; and the delinquent is to be prosecuted by the public.
§ 112. A minister who is a subject of the state where he is employed.
It may happen that the minister of a foreign power is at the same time a subject of the state where he is employed; and in this case, as a subject, he is unquestionably under the jurisdiction of the country in every thing which does not directly relate to his ministry. But the question is, to determine in what cases those two characters, of subject and foreign minister, are united in the same person. To produce such union, it is not sufficient that the minister was born a subject of the state to which he is sent; for unless the laws expressly prohibit every citizen to leave his country, he may legally have renounced his country, and placed himself in subjection to a new master. He may, likewise, without renouncing his country for ever, become independent of it during the whole time that he spends in the service of a foreign prince; and the presumption is certainly in favour of such independency: for the state and functions of a public minister naturally require that he should depend only on his master (§ 92), on the prince who has intrusted him with the management of his affairs. Whenever, therefore, there does not exist any circumstance which furnishes a proof or indication to the contrary, a foreign minister, though antecedently a subject of the state, is reputed to be absolutely independent of it during the whole time of his commission. If his former sovereign does not choose to allow him such independency in his dominions, he may refuse to admit him in the character of a foreign minister, as is the practice in France, where, according to Monsieur De Callieres, "the king no longer receives any of his own subjects as ministers of foreign princes."6
But a subject of the state may still continue its subject, notwithstanding his acceptance of a commission from a foreign prince. His subjection is expressly established when the sovereign acknowledges him as minister only, with a reserve that he shall remain a subject of the state. The states-general of the United Provinces, in a decree of the 19th of June, 1681, declare, "That no subject of the state shall be received as ambassador or minister of another power, but on condition that he shall not divest himself of his character or subject, even with regard to jurisdiction both in civil and criminal affairs, — and that whoever, in making himself known as ambassador or minister, has not mentioned his quality of subject of the state, shall not enjoy those rights or privileges which peculiarly belong to the ministers of foreign powers."7
Such a minister may likewise 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, independent of the declaration above mentioned, those Dutch merchants who obtain the title of residents of certain foreign princes, and nevertheless continue to carry on their commerce, thereby sufficiently denote that they remain subjects. Whatever inconveniences may attend the subjection of a minister to the sovereign with whom he resides, if the foreign prince chooses to acquiesce in such a state of things, and is content to have a minister on that footing, it is his own concern; and should his minister, on any ignominious occasion, be treated as a subject, he has no cause of complaint.
It may likewise happen that a foreign minister shall become a subject of the sovereign to whom he is sent, by accepting of a post under him: and in this case he cannot lay claim to independence, except in such things alone as directly relate to his ministry. The prince by whom he is delegated, in allowing of this voluntary subjection, agrees to risk the inconveniences that attend it. Thus, in the last century, the baron De Charnacé and the count D'Estrades were ambassadors from France to the States General, and at the same time officers in their high mightinesses' army.
§ 113. Immunity of the minister extends to his property.
The independency of a public minister is the true reason of his exemption from the jurisdiction of the country in which he resides. No legal process can be directly issued against him, because he is not subject to the authority of the prince or the magistrates. But it is asked whether that exemption of his person extends indiscriminately to all his property? In order to solve this question, we must consider by what circumstances property may be subjected to, and by what others it may be exempted from, the jurisdiction of a country. In general, whatever lies within the extent of a country, is subject to the authority and jurisdiction of the sovereign (Book I. § 205, and Book II. §§ 83, 84). If any dispute arises concerning effects or goods within or passing through the country, it is to be decided by the judge of the place. In virtue of this dependence, the mode of stoppage or seizure has been established in many countries, for the purpose of compelling a foreigner to repair to the spot where the seizure has been made, and there to answer questions that are to be put to him, though not directly relating to the effects seized. But a foreign minister, as we have already shown, is independent of the jurisdiction of the country; and his personal independence in civil cases would be of little avail, unless it extended to every thing which he finds necessary in order to enable him to live with dignity, and quietly to attend to the discharge of his functions. Besides, whatever he has brought with him, or purchased for his own use as minister, is so connected with his person as to partake of the same fate with it. Since the minister entered the territory on the footing of independence, he could not have it in contemplation to subject his retinue, his baggage, or his necessaries, to the jurisdiction of the country. Every thing, therefore, which directly belongs to his person in the character of a public minister, — every thing which is intended for his use, or which serves for his own maintenance and that of his household, — every thing of that kind, I say, partakes of the minister's independency, and is absolutely exempt from all jurisdiction in the country. Those things, together with the person to whom they belong, are considered as being out of the country.
§ 114. The exemption cannot extend to effects belonging to any trade the minister may carry on;
But this exemption cannot extend to such property as evidently belongs to the ambassador under any other relation than that of minister. What has no affinity with his functions and character cannot partake of the privileges which are solely derived from his functions and character. Should a minister, therefore, (as it has often been the case,) embark in any branch of commerce, all the effects, goods, money, and debts, active and passive, which are connected with his mercantile concerns, — and likewise all contests and lawsuits to which they may give rise, — fall under the jurisdiction of the country. And although, in consequence of the minister's independency, no legal process can, in those lawsuits, be directly issued against his person, he is, nevertheless, by the seizure of the effects belonging to his commerce, indirectly compelled to plead in his own defence. The abuses which would arise from a contrary practice are evident. What could be expected from a merchant vested with a privilege to commit every kind of injustice in a foreign country? There exists not a shadow of reason for extending the ministerial immunity to things of that nature. If the sovereign who sends a minister is apprehensive of any inconvenience from the indirect dependency in which his servant thus becomes involved, he has only to lay on him his injunctions against engaging in commerce, — an occupation, indeed, which ill accords with the dignity of the ministerial character.
To what we have said, let us add two illustrations: — 1. In doubtful cases, the respect due to the ministerial character requires that things should always be explained to the advantage of that character. I mean that, when there is room for doubt whether a thing be really intended for the use of the minister and his household, or whether it belongs to his commerce, the decision must be given in favour of the minister: otherwise there would be a risk of violating his privileges. 2. When I say that we may seize such of the minister's effects as have no relation to his public character, particularly those that belong to his commercial concerns, this is to be understood only on the supposition that the seizure be not made for any cause arising from his transaction in quality of minister, as, for instance, articles supplied for the use of his family, house-rent, etc., because any claims which may lie against him in that relation cannot be decided in the country, and consequently cannot be subjected to its jurisdiction by the indirect mode of seizure.
§ 115. nor to immovable property which he possesses in the country.
All landed estates, all immovable property, by whomsoever possessed, are subject to the jurisdiction of the country (Book I. § 205, and Book II. §§ 83, 84). Are they to be exempted from it on the single ground that their owner has been appointed ambassador by a foreign power? There can exist no reason for the exemption in such case. It is not in his public character that the ambassador possesses that property; nor is it attached to his person, so as, like himself, to be reputed out of the territory. If the foreign prince apprehends any ill consequences from that state of dependency in which his minister may stand on account of some of his possessions, he may make choice of another person to fill the office. Let us conclude, therefore, that immovable property possessed by a foreign minister does not change its nature in consequence of the character conferred on the owner, but continues subject to the jurisdiction of the state in which it lies. All contests and lawsuits concerning that property are to be earned before the tribunals of the country; and those same tribunals may decree its seizure in order to satisfy any legal claim. It is, however, easily conceived, that, if the ambassador lives in a house, of his own, that house is excepted from the rule, as actually serving for his immediate use; — it is excepted, I mean, in whatever may affect the present use which the ambassador makes of it.(201)
It may be seen, in Monsieur de Bynkershoek's treatise,8 that custom coincides with the principles laid down in this and the preceding sections. In suing an ambassador in either of the two cases just mentioned, — that is to say, on the subject of any immovable property lying in the country, or of movable effects which have no connection with the embassy, — the ambassador is to be summoned in the same manner as an absent person, since he is reputed to be out of the country, and his independency does not permit any immediate address to his person in an authoritative manner, such as sending an officer of a court of justice to him.
§ 116. How justice may be obtained against an ambassador.
By what mode, then, may satisfaction be obtained of an ambassador who refuses to do justice to those who have dealings with him? It is asserted by many that he must be sued before the tribunal to whose jurisdiction he was subject antecedently to his appointment as ambassador. In this there appears to me an impropriety. If the necessity and importance of his functions set him above all prosecution in the foreign country where he resides, shall any man be allowed to molest him in the performance of his ministerial duties by summoning him to appear before the tribunals of his own country? The interest of the public service forbids such a procedure. It is absolutely necessary that the minister should solely depend on his sovereign, to whom he belongs in a peculiar manner. He is an instrument in the hand of the conductor of the nation; and no circumstance whatever ought to be permitted to divert or obstruct his services. Neither would it be just that the absence of a person who is intrusted with the interests of the sovereign and the nation should prove detrimental to him in his private concerns. In all countries, those who are absent on the service of the state enjoy privileges which secure them from the inconveniences attendant on the state of absentees. But these privileges of the ministers of the state should, as far as possible, be so modelled and tempered as not to be unreasonably burdensome or injurious to private persons who have dealings with them. How then are those different interests — the service of the state and the administration of justice — to be reconciled? All private persons, whether citizens or foreigners, who have any demands against a minister — if they cannot obtain satisfaction from himself — should apply to his master, who is obliged to do them justice in such manner as may be most consistent with the public service. It rests with the prince to determine whether it be most proper to recall his minister, to appoint a tribunal before which he may be sued, or to order an adjournment of the cause, &c. In a word, the good of the state does not allow that any person whatever should have it in his power to disturb the minister in his functions, or to divert his attention from them without the sovereign's permission; and the sovereign, whose duty it is to distribute impartial and universal justice, ought not to countenance his minister in refusing it or wearying out his adversaries by unjust delays.
1. Nec pontificem (in jus vocari oportet) dum sacra facit. Digest, lib. ii. lit. 4. De in Jus vocando, leg. 2.
2. Digest. lib. v. tit 1, de Judiciia, &c. leg. 24, § 2.
3. Ibid. leg. xxvi.
4. M. de Bynkershoek's Competent Judge of Ambassadors, chap. xiii § 1.
5. Ibid. — It is not long since the world witnessed the circumstance of a foreign minister in France being pursued by his creditors, and refused a passport by the French court. See Journal Politique de Bouillon, Feb. 1, 1771, p. 54, and Jan. 15, p. 57.
6. Manner of Negotiating with Sovereigns, chap. vi.
7. Bynkershoek, ubi supra, chap. xi.
(201) As to this point, and the exemption from a distress, see Novello v. Toogood. 1 Barn. & Cress. 554-2; Dowl. & Ry. 823, S.C. — C.
8. On the competent Judge of Ambassadors, chap. xvi, § 6.
OF THE AMBASSADOR'S HOUSE AND DOMESTICS.
§ 117. The ambassador's house.(202)
THE independency of the ambassador would be very imperfect, and his security very precarious, if the house in which he lives were not to enjoy a perfect immunity, and to be inaccessible to the ordinary officers of justice. The ambassador might be molested under a thousand pretexts; his secrets might be discovered by searching his papers, and his person exposed to insults. Thus, all the reasons which establish his independence and inviolability, concur likewise in securing the freedom of his house. In all civilized nations, this right is acknowledged as annexed to the ambassadorial character; and an ambassador's house, at least in all the ordinary affairs of life, is, equally with his person, considered as being out of the country. Of this, a remarkable instance occurred, not many years ago, at Petersburgh. On the 3d of April, 1752, thirty soldiers, with an officer at their head, entered the house of baron Greiffenheim, the Swedish minister, and carried off two of his domestics, whom they conducted to prison, under a pretence that those two men had clandestinely sold liquors, which the imperial farm alone has the privilege of selling. The court, incensed at such a proceeding, caused the authors of this act of violence to be immediately taken into custody, and the empress ordered satisfaction to be made to the offended minister; she likewise sent to him and to all the other foreign ministers, a declaration, in which she expressed her concern and resentment at what had happened, and communicated the orders which she had given to the senate to institute a prosecution against the commissioner of the office established for the prevention of the clandestine sale of liquors, he being the chief delinquent.
The house of an ambassador ought to be safe from all outrage, being under the particular protection of the law of nations, and that of the country; to insult it, is a crime both against the state and against all other nations.
§ 118. Right of asylum.
But the immunity and freedom of the ambassador's house is established only in favour of the minister and his household; as is evident from the very reasons upon which it is grounded. Can he take advantage of the privilege, in order to convert his house into an asylum, to afford shelter and protection to the enemies of the prince, and to malefactors of every kind, and thus screen them from the punishments which they have deserved? Such proceedings would be contrary to all the duties of an ambassador, to the spirit by which he ought to be animated, and to the lawful purposes for which he has been admitted into the country. This is what nobody will presume to deny. But I proceed further, and lay it down as a certain truth, that a sovereign is not obliged to tolerate an abuse so pernicious to his state, and so detrimental to society. I grant, indeed, that when there is question only of certain ordinary transgressions, and these committed by persons who often prove to be rather unfortunate than criminal, or whose punishment is of no great importance to the peace of society, the house of an ambassador may well serve as an asylum for such offenders: and it is better that the sovereign should suffer them to escape, than expose the ambassador to frequent molestation under pretence of a search after them, and thus involve the state in any difficulty which might arise from such proceedings. And as the house of an ambassador is independent of the ordinary jurisdiction, no magistrate, justice of the peace, or other subordinate officer, is in any case entitled to enter it by his own authority, or to send any of his people to enter it, unless on occasions of urgent necessity, when the public welfare is threatened with imminent danger which admits of no delay. Whatever concerns a point of such weight and delicacy, — whatever affects the rights and the dignity of a foreign power, — whatever may embroil the state with that power, — is to be laid immediately before the sovereign, and to be determined either by himself in person, or, under his direction, by the privy council. Thus, it belongs to the sovereign to decide, on occasion, how far the right of asylum, which an ambassador claims as belonging to his house, is to be respected: and if the question relates to an offender whose arrest or punishment is of great importance to the state, the prince is not to be withheld by the consideration of a privilege which was never granted for the detriment and ruin of states. In the year 1726, the famous duke de Ripperda having sheltered himself in the house of lord Harrington, ambassador from England, the council of Castile decided "that he might be taken out of it, even by force; since, otherwise, those regulations which had been made for the purpose of maintaining a more regular and intimate correspondence between sovereigns would, on the contrary, operate to the subversion and utter ruin of their authority; — and that, if persons who had been intrusted with the finances, the power, and the secrets of the state, were, when guilty of violating the duties of their office, allowed to take shelter under a privilege which had been granted to the houses of ambassadors in favour only of ordinary offenders, — such an extension of the right of asylum would be productive of consequences the most pernicious and detrimental to all the powers on earth, who, if the practice once became established, would be reduced to the necessity, not only of enduring the presence of every man who was plotting their destruction, but even of seeing him supported in their own court,"1 — Nothing could be said on this head with greater truth and judgment.
The abuse of the privilege has nowhere been carried to a greater extent than at Rome, where the ambassadors of crowned heads claim it for the wholeward in which their house is situated. The popes, once so formidable to sovereigns, have for above two centuries been in their turn under a necessity of observing the most delicate and cautious circumspection in their conduct towards them. It is in vain that they have endeavoured to suppress, or at least to reduce within proper bounds, an abusive privilege, for which, prescription, however great its antiquity, ought not to be allowed as a sufficient plea in opposition to justice and reason.
§ 119. Exemption of an ambassador's carriages
An ambassador's carriages and equipages are equally privileged with his house, and for the same reasons: to insult them is an attack on the ambassador himself, and on the sovereign whom he represents. They are independent of all subordinate authority — of guards, custom-house officers, magistrates and their agents, — and must not be stopped or searched without a superior order. But in this instance, as in that of the ambassador's house, the abuse is not to be confounded with the right. It would be absurd that a foreign minister should have the power of conveying off in his coach a criminal of consequence, — a man, in the seizure of whose person the state were highly interested; and that he should do this under the very eyes of the sovereign, who thus would see himself defied in his own kingdom and court. Where is the sovereign who would suffer this? The marquis de Fontenay, the French ambassador at Rome, sheltered the Neapolitan exiles and rebels, and at last undertook to convey them out of Rome in his own carriages: but the carriages were stopped at the city gates by some Corsicans of the pope's guard, and the Neapolitans committed to prison. The ambassador warmly complained of the procedure: but the pope answered "that his motive had only been that of arresting men whom the ambassador had assisted in escaping from confinement; and that, since the ambassador took the liberty of harbouring villains, and affording protection to every criminal in the papal territory, — at least he, who was sovereign of the state, ought to be allowed to have them retaken wherever they could be found; as the rights and privileges of ambassadors were not to be carried to such lengths." The ambassador replied, "that it would not appear, on examination, that he had granted an asylum to any subjects of the pope, but solely to some Neapolitans, whom he might very lawfully shelter from the persecutions of the Spaniards."2 By this answer, the minister tacitly conceded that he would not have been authorized to complain of the stoppage of his carriages, if he had employed them for the purpose of favouring the escape of any of the pope's subjects, and aiding criminals to elude the pursuit of justice.
§ 120. of his retinue.(203)
The persons in an ambassador's retinue partake of his inviolability; his independency extends to every individual of his household: so intimate a connection exists between him and all those persons, that they share the same fate with him; they immediately depend on him alone, and are exempt from the jurisdiction of the country, into which they would not have come without such reservation in their favour, The ambassador is bound to protect them; and no insult can be offered to them, which is not at the same time an insult to himself. If the domestics and household of a foreign minister were not solely dependent on him, it is evident at first sight, how easily he might be harassed, molested, and disturbed in the exercise of his functions. These maxims are at present everywhere adopted and confirmed by custom.
§ 121. of his wife and family
The ambassador's wife is intimately united with him, and more particularly belongs to him than any other person of his household. Accordingly, she participates in his independence and inviolability; she even receives distinguished honours, which, in a certain degree, cannot be refused to her without affronting the ambassador; and for which there exists, in the generality of courts, an established ceremonial. The respect due to the ambassador extends likewise to his children, who also partake of his immunities.
§ 122. of the secretary of the embassy.
The ambassador's secretary is one of his domestics: but the secretary of the embassy holds his commission from the sovereign himself; which makes him a kind of public minister, enjoying in his own right the protection of the law of nations, and the immunities annexed to his office, independently of the ambassador, to whosc orders he is indeed but imperfectly subjected, — sometimes not at all, and always in such degree only as their common master has been pleased to ordain.
§ 123. of the ambassador's couriers and despatches.
Couriers sent or received by an ambassador, his papers, letters, and despatches, all essentially belong to the embassy, and are consequently to be held sacred; since, if they were not respected, the legitimate objects of the embassy could not be attained, nor would the ambassador be able to discharge his functions with the necessary degree of security. The states-general of the United Provinces decided, while the president Jeannin resided with them as ambassador from France, that, to open the letters of a public minister is a breach of the law of nations.3 Other instances may be seen in Wicquefort. That privilege, however, does not — on certain momentous occasions, when the ambassador himself has violated the law of nations, by forming or countenancing plots or conspiracies against the state — deprive us of the liberty to seize his papers for the purpose of discovering the whole secret, and detecting his accomplices; since, in such an emergency, the ambassador himself may lawfully be arrested and interrogated (§ 99). An example is furnished us in the conduct of the Roman government, who seized the letters which a treasonable junto had committed to the hands of Tarquin's ambassadors (§ 98).
§ 124. The ambassador's authority over his retinue.
The persons in a foreign minister's retinue, being independent of the jurisdiction of the country, cannot be taken into custody or punished without his consent. It would, nevertheless, be highly improper that they should enjoy an absolute independence, and be at liberty to indulge in every kind of licentious disorder, without control or apprehension. The ambassador must necessarily be supposed to possess whatever degree of authority is requisite for keeping them in order;4 and some writers will have that authority to include even a power over life and death. When the marquis de Rony, afterwards duke De Sully, was in England as ambassador extraordinary from France, a gentleman of his retinue committed a murder, which caused a great noise among the people of London. The ambassador assembled some French noblemen who had accompanied him on his mission, tried the murderer, and sentenced him to lose his head. He then acquainted the lord mayor of London that he had pronounced sentence on the criminal, desiring that magistrate to furnish him with an executioner and proper attendants to have the punishment inflicted. But he afterwards consented to deliver up the criminal to the English, in order that they might execute justice on him as they thought proper: and Monsieur De Beaumont, the French ambassador in ordinary, prevailed on the British monarch to pardon the young man, who was related to that minister by the ties of consanguinity.5 It rests entirely at the option of the sovereign to invest his ambassador with such an extensive power over the persons of his suite; and the marquis de Rony was confidently certain of having his conduct approved by his master, who did, in fact, express his approbation of the whole transaction. In general, however, it is to be presumed that the ambassador is possessed only of a coercive power sufficient to restrain his dependents, by other punishments which are not of a capital or infamous nature. He may punish the faults committed against himself and against his master's service, or send the delinquents to their sovereign, in order to their being punished. But should any of his people commit crimes against society, which deserve a severe punishment, the ambassador ought to make a distinction between such of his domestics as belong to his own nation, and others who are subjects of the country where he resides. The shortest and most natural way with the latter, is to dismiss them from his service, and deliver them up to justice. As to those of his own nation, if they have offended the sovereign of the country, or committed any of those atrocious crimes in whose punishment all nations are interested, and whose perpetrators are for that reason, usually surrendered by one state when demanded by another, — why should he not give them up to the nation which calls for their punishment? If the transgression be of a different kind, he is to send them to his sovereign. Finally, if the case be of a doubtful nature, it is the ambassador's duty to keep the offender in irons till he receives orders from his court. But if he passes a capital sentence on the criminal, I do not think he can have it executed in his own house; an execution of that nature being an act of territorial superiority which belongs only to the sovereign of the country. And although the ambassador, together with his house and household, be reputed out of the country, that is nothing more than a figurative mode of speech intended to express his independency, and all the rights necessary to the lawful success of the embassy: nor can that fiction involve privileges which are reserved to the sovereign alone, — which are of too delicate and important a nature to be communicated to a foreigner, and, moreover, not necessary to the ambassador for the due discharge of his functions. If the offence has been committed against the ambassador or against the service of his master, the ambassador may send the delinquent to his sovereign. If the crime concerns the state where the minister resides, he may try the criminal, and, if he finds him worthy of death, deliver him up to the justice of the country, as did the marquis de Rony.
§ 125. When the rights of an ambassador expire.
When the commission of an ambassador is at an end, — when he has concluded the business for which he came into the country, — when he is recalled or dismissed, — in a word, when he is obliged to depart on any account whatever, his functions cease: but his privileges and rights do not immediately expire: he retains them till his return to his sovereign, to whom he is to make a report of his embassy.6 His safety, his independence, and his inviolability are not less necessary to the success of the embassy in his return, than at his coming. Accordingly, when an ambassador departs on account of a war arising between his master and the sovereign at whose court he was employed, he is allowed a sufficient time to quit the country in perfect security: and, moreover, if he was returning home by sea, and happened to be taken on his passage, he would be released without a moment's hesitation, as not being subject to lawful capture.
§ 126. Cases when new credentials are necessary.
For the same reasons, the ambassador's privileges still exist at those times when the activity of his ministry happens to be suspended, and he stands in need of fresh powers. Such a case occurs in consequence of the death of the prince whom the minister represents, or of the sovereign at whose court he resides. On either occasion it becomes necessary that the minister should be furnished with new credentials. The necessity, however, is less cogent in the latter than in the former case, especially if the successor of the deceased prince be the natural and necessary successor; because, while the authority whence the minister's power emanated still subsists, it is fairly presumable that he retains his former character at the court of the new sovereign. But if his own master is no more, the minister's powers are at an end; and he must necessarily receive fresh credentials from the new prince, before he can be authorized to speak and act in his name. In the interim, however, he still continues to be the minister of his nation, and, as such, is entitled to enjoy all the rights and honours annexed to that character.
§ 127. Conclusion.
At length, I have reached the end of my proposed career. I do not flatter myself with the idea of having given a perfect, full, and complete treatise of the law of nations; nor was that, indeed, my design; for it would have been too great a degree of confidence in my own abilities to have made such an attempt on a subject so extensive and so copious. I shall think I have done a great deal, if my principles are approved as solid, luminous, and sufficient to enable intelligent persons to give a proper solution on any minute questions that may arise in particular cases; and shall be happy if the result of my labours proves in anywise serviceable to those men in power who love mankind and respect justice, — and furnishes them with weapons for the purpose of defending the cause of right, and compelling the unjust to observe at least some measures, and to keep within the bounds of decency.
(202) How far exempt from a distress. see Novello v. Toogood, 1 Barn. & Cres. 554, 2 Dowl. & R. 833, S.C. Modern acts usually subject the landlord of a house tenanted by an ambassador to the payment of poor-rates and taxes. — C.
1. Memoirs of the Abbé De Montgon, vol. 1.
2. See Wicquefort's Ambassador, book i, § 28, towards the end.
(203) Privileged from an arrest. 7 Anne. c. 12; and see cases, Chitty's Col. Stat. 13; 13 Price Rep. 805. — C.
3. Wicquefort, book i. § 27.
4. It is his duty to watch over their conduct, and to exert his authority in order to prevent them from transgressing the bounds of their station, and committing actions which may give just offence to the sovereign at whose court he resides, — an event which may sometimes be productive of very serious and disagreeable consequences. The French court having sent the count De Harcourt to England to mediate an accommodation between Charles I. and his parliament, several gentlemen of that minister's suite repaired to the royal army, and fought against the parliamentarians; on which account the parliament immediately declined all further negotiation with the count De Harcourt. Duport's Hist. of Conspir. vol. iv. p. 261. Edit. A.D. 1729.
5. Sully's Memoirs, vol. vi. chap i.
6. "It was at that time," says Joinville," an established custom, as well in pagan as in Christian countries, that, when two princes were at war, if one of them happened to die, the ambassadors whom they had mutually sent to each other remained prisoners and slaves." — p. 72, edit. A.D. 1797.