to the Romans the very remarkable institution of the Collegium Feciale.

CXLVII. The concourse of lawless adventurers and freebooters who laid the foundations of imperial Rome, built, out of the resources of their own genius, the chief foundations of their domestic society. The principles of civil obedience, the acknowledgment of the relations of family, the administration of justice, the ordinances of religion, the institution, in fine, of the State, seem, according to the doubtful notices of their early annals, to have found their chief root in their own character, as developed by the exigencies of their condition (p).

This was not the case, however, with respect to the acknowledgment and observance of the rules of right and the principles of justice in their intercourse with other communities. That the necessity of any such rules and principles should, even in the infancy of her existence, have been recognised by Rome, and that this recognition should have been made a part of her constitution, is a fact which distinguishes her from all other nations, and which, at the time, gave early presage of that extraordinary sagacity which characterised her subsequent career. That such necessity should have been felt was most remarkable; that it should have been supplied from without, and not, like the other parts of her constitution, from within--that a regular code of rites and observances, respecting a branch of International Law, should have been at once imported into Rome from a foreign source, is also a circumstance of great peculiarity. The account is given by Livy (q):-" Ut tamen quoniam Numa "in pace religiones instituisset, a se (Anco Martio) bellica "ceremoniæ proderentur, nec gererentur solum, sed etiam "indicerentur bella aliquo situ, jus ab antiqua gente

(p) Geist des römischen Rechts, u. s. w., von Rudolph Thering: Leipzig,

(2) Lib. I. c. 32.

Equicolis, quod nunc Fetiales habent descripsit quo res "repetentur" (r).

The Fecial institution lasted as long as the free Republic. It withered in the civil wars; and though the name and the title of its chief officer, that of Pater Patratus, existed in the time of the first Cæsars, all trace of both name and thing disappears in the reign of Tiberius.

The office and functions of the ambassador, however, retained the sacred inviolability which had been among the attributes of the Feciales.

(r) "Legati nomen fecialis tenet cum ad foedus feriendum aut indicendum bellum profiscebatur, ad jubendum alicunde aliquem decedere, ad aliquem dedendum.”—Alber. Gentilis, 1. i. c. 12, De Jure Feciali et Patre patrato.

Grot. ubi sup. s. 10, in fine.

Vide ante, vol. i. App. ii. p. 539.

CHAPTER V.

AMBASSADORS-ROMAN LAW.

CXLVIII. (a) IT is necessary to notice certain passages relating to the jus legationis, which occur in the Digest of Justinian, for two reasons:-First, because, though often misapplied, they have furnished materials for writers on this branch of international jurisprudence. Secondly, because they do contain principles, and, in one instance at least, a direct enactment, applicable to the present subject.

The " legati" mentioned in the Roman Law were not ambassadors from foreign independent States, but delegates (b) from provinces or municipalities subject to the Roman empire. It is to these officers that the passages in the Digest apply, with one very memorable exception. That exception is to be found in the opinion of Pomponius, set forth under the title "De Legationibus." "Si quis" (he says) "legatum hostium pulsâsset contra jus gentium id com"missum esse existimatur, quia sancti habentur legati: et ❝ideo cum legati apud nos essent gentis alicujus cum bellum "eis indictum sit, responsum est, liberos eos manere. Id

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enim juri gentium conveniens esse. Itaque eum qui legatum

(a) Bynkershoek devotes a whole chapter to this subject (De Foro Leg. c. vi.), which begins, "Quamvis non de Populi Romani, sed de Gentium jurisprudentia agamus, non abs re tamen erit de Jure Romano quædam præmonuisse, cum qui id audit, vocem fere omnium gentium videatur audire, cumque etiam id jus, quod certa ratione in quibusdam legatis constitutum est, ad omnes alios imprudentia quorumdam traduxerit."

(b) "Tantum non erant procuratores et mandatorii.”—Bynk. ib.

pulsâsset, Quintus Mucius dedi hostibus, quorum crant "legati, solitus est respondere" (c).

It is impossible to deny that here is a plain and direct incorporation of that important part of International Law which relates to ambassadors, into the Municipal Law of Rome.

But in every other instance the Justinian law respecting "legati" applies, as has been observed, to a class of deputies or delegates from portions of the empire.

With respect to Criminal Jurisdiction, these laws pronounced the legate and the members of his suite to be justiciable at Rome for offences committed during their legation, though for offences previously committed they might claim to be tried at home (domum revocare) (d); and this law was chiefly relied upon by the civilians, as warranting their opinion that Leslie, Bishop of Ross, the Ambassador of Mary Queen of Scots, was justiciable in England for seditious practices committed in that kingdom. This obvious misapplication of the Roman Law has been commented upon by most subsequent jurists (e).

With respect to Civil Jurisdiction, the Justinian laws conferred on legates the privilege of claiming to have civil actions brought against them on account of obligations contracted before the period of their legation, remitted to their domestic tribunal (revocandi domum), on the ground that the business of their legation might be otherwise delayed or impeded (ƒ). But this privilege was not extended to obligations con

(c) Dig. L. t. vii. s. xvii. de Legationibus.

Tit. Ixiii. Cod. de Legationibus.

(d) Bynk. c. vi.

(e) Queen Elizabeth's council were wiser than her lawyers, as Wicquefort observes: "Et de fait" (he adds) "il y a lieu de douter s'ils ne s'étoient point trompés en ce qu'ils répondent sur le premier article: et si les Lois romaines, sur lesquelles ils se fondent, ne doivent pas estre appliquées à ces ambassadeurs, que les villes municipales, ou les colonies romaines, envoyaient au Sénat ou à l'Empereur."-L'Ambassadeur et ses Fonctions, 1. i. c. xxvii.; et vide post.

(f) Bynk, ubi supr.

tracted "legationis tempore," on the ground that a facility would otherwise be given them of fraudulently possessing themselves of the property of other persons.

By the Roman Law a person might "domum revocare" actions brought against him at Rome for obligations contracted not at his own home, but "intra provinciam ;” but if, being himself the plaintiff, he remitted the cause home, he was compelled in his turn to defend himself there against all actions that might be brought against him.

The Roman Law, however, would not allow the legate to bring such actions, because he could not in his turn, on account of the avocations of his legation, be subject to actions at the suit of others. During the time of his legation, therefore, he could neither be plaintiff, or agent for another in a civil action-a rule which Bynkershoek is strongly of opinion ought to be adopted by International Law with respect to ambassadors. It is manifestly unjust, he thinks, that an ambassador should be, as by International Law he is, permitted to bring a action, and not be amenable to one brought against himself (g). Upon the same ground, viz., “ne ab officio sus"cepto legationis avocetur," no action in rem could be brought against a legate, respecting any possession acquired by him previously to his legation.

The Roman Law therefore, relating to legates, bore some resemblance to, and was not without its effect upon, International Law respecting ambassadors; though the circumstances of the legate being the subject of the Prince to whom he was sent, and of his being the deputy from a portion of the same kingdom, materially affected the introduction of the principles of the former into the latter law. "Inter "utrosque," (Bynkershoek says) "fuit aliqua similitudo et

(g) Vide post, p. 208, &c. Courts of justice have held that a Plaintiff Ambassador is liable to counter-demands in a court of justice, and that a prior assault by a Foreign Minister will excuse a battery committed on him in self-defence.

Vide post, p. 207.