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CASES

ON

INTERNATIONAL LAW

INTRODUCTION

SECTION 1.-THE NATURE AND EXTENT OF INTERNA-
TIONAL LAW

I. BRITISH CASES

AN ACT FOR PRESERVING THE PRIVILEGES OF AM-
BASSADORS, AND OTHER PUBLIC MINISTERS
OF FOREIGN PRINCES AND STATES. 1708.

(1 Chitty's Statutes [5th Ed.] Title Ambassadors.)

Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Matueof, ambassador extraordinary of his czarish majesty, emperor of Great Russia, her majesty's good friend and ally, by arresting him, and taking him, by violence, out of his coach in the public street, and detaining him in custody for several hours, in contempt of the protection granted by her majesty, contrary to the law of nations and in prejudice of the rights and privileges which ambassadors and other public ministers, authorized and received as such, have at all times been thereby possessed of, and ought to be kept sacred and inviolable: Be it therefore declared, That all actions. and suits, writs and processes, commenced, sued, or prosecuted, against the said ambassador by any person or persons whatsoever, and all bail bonds given by the said ambassador, or any other person or persons on his behalf, and all recognizances of bail given or acknowledged in any such action or suit, and all proceedings upon or by pretext or colour of such action or suit, writ or process, and all judgments had thereupon, are utterly null and void, and shall be deemed and judged to be utterly null and void, to all intents, constructions and purposes whatso

ever.

SCOTT INT. LAW-1

t

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(Court of King's Bench, 1764. 3 Burr. 1478.)

Mr. Blackstone, Mr. Thurlow, and Mr. Dunning, on behalf of the plaintiffs, showed cause why the bill of Middlesex in each of these causes should not be set aside, and the bail-bond be cancelled.

The rule was made upon affidavits "Of the defendant's being a domestic servant of a foreign minister; and having taken all the proper steps to entitle him to the privilege of such domestics."

The only question was, "Whether the defendant (Christopher Bath) was really and truly and bona fide a domestic servant of Count Haslang, the Bavarian minister;" or, "Whether his service was only colorable, and a mere sham and pretence calculated to protect him from the just demands of his creditors."

*

Lord MANSFIELD. This privilege of foreign ministers and their domestic servants depends upon the law of nations. The act of Parliament of 7 Anne, c. 12, is declaratory of it. All that is new in this act, is the clause which gives a summary jurisdiction for the punishment of the infractors of this law.

The act of Parliament was made upon occasion of the Czar's ambassador being arrested. If proper application had been immediately made for his discharge from the arrest, the matter might and doubtless would have been set right. Instead of that, bail was put in, before any complaint was made. An information was filed by the then attorney-general against the persons who were thus concerned, as infractors of the law of nations, and they were found guilty, but never brought up to judgment.

The Czar took the matter up, highly. No punishment would have been thought by him an adequate reparation. Such a sentence as the court could have given, he might have thought a fresh insult.

Another expedient was fallen upon and agreed to; this act of Parliament passed, as an apology and humiliation from the whole nation. It was sent to the Czar, finely illuminated, by an ambassador extraordinary, who made excuses in a solemn oration.

A great deal relative to this transaction and negotiation appears in the annals of that time; and from a correspondence of the Secretary of State there printed.

But the act was not occasioned by any doubt "Whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and the infraction, criminal; nor intended to vary an iota from it."

I remember in a case before Lord Talbot, of Buvot v. Barbut, in Canc. 16th July, 1736, upon a motion to 'discharge the defendant

SCOTT INT.LAW

(who was in execution for not performing a decree), "Because he was agent of commerce, commissioned by the King of Prussia, and received here as such;" the matter was very elaborately argued at the bar; and a solemn deliberate opinion given by the court. These questions arose and were discussed. "Whether a minister could, by any act or acts, waive his privilege."-"Whether being a trader was any objection against allowing privilege to a minister, personally."— "Whether an agent of commerce, or even a consul, was entitled to the privileges of a public minister."-"What was the rule of decision: the act of Parliament or the law of nations." Lord Talbot declared a clear opinion-"That the law of nations, in its full extent, was part of the law of England.”—“That the act of Parliament was declaratory, and occasioned by a particular incident."—"That the law of nations was to be collected from the practice of different nations, and the authority of writers." Accordingly, he argued and determined from such instances, and the authority of Grotius, Barbeyrac, Binkershoek, Wiquefort, &c.; there being no English writer of eminence upon the subject.

I was counsel in this case, and have a full note of it.

I remember, too, Lord Hardwicke's declaring his opinion to the same effect; and denying that Lord Chief Justice Holt ever had any doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian ambassador.

Mr. Blackstone's principles are right; but as to the facts in the present case, the affidavits on the part of the defendant have outsworn those on the part of the plaintiffs. [And his Lordship, as well as Mr. Justice WILMOT, took notice that the person who drew the affidavits on the part of the defendant had very exactly pursued the course of the cases that had been determined upon questions of this kind; and had taken care to meet and answer all objections that might arise from them.] Lord MANSFIELD observed also, that the defendant was employed in the service of Monsieur Haslang, before the plaintiff took out his writ.

It was not to be expected, he said, that every particular act of the service should be particularly specified; it is enough if an actual bona fide service be proved. And if such a service be sufficiently proved by affidavit, we must not, upon bare suspicion only, suppose it to have been merely colorable and collusive.

As to the latter point, "Of his being a trader"-his having been so in Ireland (and even that seven years ago) will not bring him within the exception of the 5th clause of this act, which provides "That no merchant or other trader whatsoever, within the description of any of the statutes against bankrupts, who hath or shall put himself into the service of any such ambassador or public minister, shall have or take any manner of benefit by that act."

And there is no color for bringing this case within that of Dodsworth v. Anderson, Sir T. Raym. 375, Sir T. Jones, 141; for here is no connection between the goods bought in England and those sold in Ireland. It does not appear that they were the same goods; neither is any time specified, when they were bought, or when they were sold.

PER CUR. Both rules were made absolute, but without costs, by reason of the suspicious circumstances of this case.1

THE MINERVA.

(Vice-Admiralty Court for Bombay, 1806. 1 Robert J. Mackintosh's Memoirs of the Life of Sir James Mackintosh [1835] 317.)

It was that of the Minerva, an American ship taken in a voyage from Providence, in the course of which she touched at the Isle of France, from which place she sailed to Tegall and Manilla, and on her voyage back from this last place to Batavia, she was detained as trading between enemies' ports, in violation of His Majesty's Instructions of June, 1803. Restitution was insisted on by the claimants, on the ground that neither Manilla nor Batavia, nor the Isle of France, were enemies' colonies in such a sense, as to render the trading thereto by a neutral, in time of war, illegal; inasmuch as the trade to these places was open to foreigners in time of peace. For the purpose of ascertaining this last point, commissions had been sent to Calcutta and Madras; and the judge, finding that the trade had been as alleged, open to foreigners, pronounced for restitution, but without costs.

In pronouncing the judgment he [Sir JAMES MACKINTOSH] observed, "that the sole point in the case was, whether Manilla and Batavia were colonies, according to the true meaning of His Majesty's Instructions of 1803; or, in other words, whether they were settlements administered, in time of peace, on principles of colonial monopoly. The word "colony" was here not a geographical, but a political term. His Majesty's Instructions must be construed so as not to be at variance with the principle of public law, maintained by Great Britain, called the rule of 1756. No settlement could be called a colony under that rule, which was open to foreigners in time of peace. As, from the return to the commissions, it appeared that Batavia and Manilla were not such colonies, he did not therefore conceive that trading to them was illegal under the law of nations, as relaxed by His Majesty's Instructions of 1803.

1 In Heathfield v. Chilton, 4 Burr. 2015, 2016 (1767), Lord Chief Justice Mansfield thus restated the views which he had expressed in the principal case: "The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England. And the act of Parliament of 7 Anne, c. 12, did not intend to alter, nor can alter the law of nations."

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