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called responsales, who seem to have discharged the functions of resident ambassadors for the affairs of the Church at the court (in Comitatu seu Principis curia) at Constantinople.

The right of sending these officers appears, strictly speaking, to have been a privilege of the Patriarchs only, though occasionally exercised by the Archbishop of Ravenna and other Metropolitans. Afterwards, the Apocrisarius or Responsalis was chiefly employed by the Pope at the court of the Emperor.

The Canon Law makes specific mention of the "legatorum *non [*168] violandorum religio," in its enumeration of the subjects about which the jus gentium was universally admitted to be conversant.(7)

The Church, however, was not always able to enforce the observance of this important part of International Law. And among the many deeds of lawlessness(m) which disfigure the period usually designated as the Middle Ages, are to be found some,(n) though not many, violations of the sacredness of the ambassadorial person.

To these violations the Papal claim of universal dominion and the true spirit of chivalry were alike opposed. The Emperor Frederic I. secured the safety of the Papal legates who had misconducted themselves towards him. The oppressive tax upon foreigners, the droit d'aubaine, was even in France, where it long maintained its footing, remitted in favour of the foreign ambassador. The Crusaders scrupulously respected the character of the ambassador, even in their infidel foe.

CL. The infidel was taught by his Koran the sacredness of embassies,

Apocrisarius, Du Cange,-a very full and careful account.

"Responsalis, nuntius: interdum et Apocrisarius et qui Responsa seu negotia Ecclesiastica peragebat Theodorus Responsalis venerabilis Ecclesiæ Carthaginis, in Constit. Justiniani de Africanâ Ecclesiâ," &c.-Du Cange v. Responsalis, i.

See Nov. 6, c. ii. "Ne Episcopus ultra annum extra Ecclesiam suam degat. Et illud," &c. "Propterea sancimus si quando propter ecclesiasticam occasionem inciderit necessitas, hanc aut per eos qui res agunt sacrarum ecclesiorum (quos apocrisarios vocant) aut per aliquos clericos huc destinatos aut œconomos suos, notam imperio facere, aut nostris administratoribus ut impetrant quod competens est," &c. In c. iii. of the same work: "Ne Episcopi ad comitatum Principis accedent absque systaticis literis." The bishops are ordered, "aut per eos qui vocantur Referendarii sanctissimæ majoris Ecclesiæ (i. e. Constantinople), aut per religiosos Apocrisarios cujusque diœceseos sanctissimorum Patriarcharum suggerere si Imperio," &c.

See also Nov. 123, c. xxv. "De Apocrisariis," c. xxvi. "Ne Episcopi legationis tempore conveniantur."

(7) C. ix. Dist. 1. "Jus Gentium est sedium occupatio, ædificatio, munitio, bella, captivitates, servitutes, postliminia, foedera, paces, induciæ, legatorum non violandorum religio-hoc inde jus gentium appellatur quia eo omnes fere gentes utuntur."

(m) Ward, 1. 280–8.

(n) Pütter, Beiträge zur Völkerrechts Geschichte, 169-173. Miruss, s. 333. After all that has been said on this subject, many of the examples cited resolve themselves into cases where safe conduct in time of war had not been granted, and where the ambassador was seized in his passage through a third country. The passage cited by Ward from Joinville's Life of St. Louis, p. 67, certainly speaks of it being, in the 13th century, the received custom in Christendom as well as heathendom, when war broke out between princes, to detain as a prisoner and slave the ambassador of a prince who happened to die. But this is stated parenthetically, with respect to Christendom, in the account of the Patriarch of Jerusalem being made captive to the Emirs of Egypt, and cannot be taken to be true as a general proposition with respect to the usage of Christian princes.

though he sometimes interpreted the injunction as being applicable only to Mahometan nations, (o) and *the Turk for a long time persisted [*169] in considering the European ambassador as a tolerated spy spy in time of peace, and a hostage to be imprisoned at the breaking out of war. CLI. Lastly, it should be observed, that even during the ages of violence and lawlessness in Europe, it was the principle of the Roman Law, which afterwards took deep root in Christendom, that an injury done to an ambassador should be treated by the Sovereign of the wrongdoer as a crime against the State.

*CHAPTER VI.

EMBASSY-EXTENT OF INVIOLABILITY.

[*170]

CLII. It is not probable that it will ever be necessary to draw the line of demarcation in practice between the Rights of inviolability, founded upon the Law of Nature (jus gentium primævum,) and the Privileges of Exterritoriality, founded upon usage and implied consent (jus gentium secundarium,) and in most Treatises they are treated of together and with little if any distinction.(a)

CLIII. Nevertheless, it concerns the interests of International Jurisprudence, considered as a science, and it may be necessary in practice to establish this distinction. What then are the limits within which this strict Right of Inviolability is circumscribed?

1. To what class of diplomatic agents?

2. To what persons other than the diplomatic agents themselves? 3. To what subject-matter does it extend?

4. At what period of time does it begin?

5. Over what period is it extended?

6. Is it affected by the breaking out of war between the country which sends and that which receives the ambassador?

These are questions which require as precise a solution as the nature of the subject will admit.

First, The Right of Inviolability extends to all classes of public ministers who duly represent their Sovereign or their *State. This may be now considered as an axiom of International Law.(b)

[*171] Secondly,―The right attaches to all those who really and properly belong to the household of the ambassador-such, to use the ordinary description, as accompany him as members of his family or of his suite. (c) Such appears to be the best opinion upon this point, though, as will be seen hereafter, it has been a matter of controversy whether this right

Miruss, s. 333. Merlin, Ministre Public, v. iii.

(a) Miruss, ss. 333-341, is very able and learned upon the point.
(b) Vide post, p. 217, as to their privilege of exterritoriality.
(c) Vide post, pp. 196-7, as to exterritoriality.

attaches under all circumstances in an equal degree to the suite, as to the ambassador himself.(d)

Thirdly, The right applies to whatever is necessary for the discharge of ambassadorial functions, (e) "nam omnis coactio (Grotius says) abesse a legato debet, tam quæ res ei necessarias, quam quæ personam tangit, quo plena ei sit securitas."(f) It seems to follow, therefore, that he is entitled, among other immunities, to an exemption from all criminal proceedings, and to freedom from arrest in all civil suits.

The private effects, and, above all, the papers and correspondence(g) of the ambassador are inviolable.

The questions as to members of his suite who are subjects of the State to which he is sent, and the franchise of his hotel, are reserved for future consideration.

*(h)Fourthly,―The Right attaches from the moment that he [*172] has set his foot in the country to which he is sent, if previous notice of his mission has been imparted to it, or in any case, as soon as he has made his public character known by the production either of his passport or his credentials.

Fifthly, The Right extends, at least so far as the State to which he is accredited is concerned, over the time occupied by the ambassador in his arrival, his sojourn, and his departure.

(i)Lastly, The Right is not affected by the breaking out of war between his own country and that to which he is sent. The Porte, indeed, used, under pretence of securing the European ambassador from the effects of popular violence, but in reality in order to retain him as a hostage, to order his incarceration in the prison of the Seven Towns.

(d) Vide post, p. 182, and note (n) Sa's case.

&

(e) Klüber, s. 203. "Sie erstreckt sich auf alles, was als Bedingung der gesandtschaftlichen Wirksamkeit zu betrachten ist: ganz vorzüglich auf Verrichtung der gesandtschaftlichen Geschäfte." Miruss, s. 335.

(ƒ) Grotius, 1. ii. c. xviii. s. ix. The Edict of the States General in 1679, which is discussed by Bynkershoek in his ninth chapter (De F. L.,) is to the same effect (g) "On regarde donc l'ouverture des lettres en temps de paix, de quelque manière. qu'elle s'exécute, comme une violation du droit des gens; mais la plus odieuse et la plus honteuse contravention à la foi publique, c'est qu'un gouvernement souffre luimême un tel abus dans ces bureaux de poste qui ont reçu les lettres avec la taxe sous le sceau du secret."-De Garden, Traité complet de la Diplomatie, vol. ii. p. 86, &c.

(h) Grot. l. ii. c. xviii. s. vi. "Cæterum admissa legatio etiam apud tanto hostes, magis apud inimicos præsidium habet juris gentium."

Vattel, 1. iv. c. vii. s. 83. "Quoique le caractère du ministre ne se développe dans toute son étendue, et ne lui assure ainsi la jouissance de tous ses droits, que dans le moment où il est reconnu et admis par le souverain à qui il remet ses lettres de créance, dès qu'il est entré dans le pays où il est envoyé, et qu'il se fait connaitre, il est sous la protection du droit des gens: autrement sa venue ne serait pas sure." Martens, 1. vii. c. v. s. 214. De Garden, Traité complet de Diplomatie, vol. ii. p. 142. Merlin, v. iii. Miruss, s. 335. Heffters, ss. 204, 210. Bynk. De F. L. c. ix. (i) Klüber, s. 203. Miruss, s. 336.

*CHAPTER VII.

[*173]

EMBASSY-INVIOLABILITY.

-CRIMINAL LAW.

CLIV. WE have now to consider the very grave and difficult question, whether the inviolability of the ambassador shields him from responsibility to the criminal law of the State to which he is delegated-may he, with impunity, conspire against the Sovereign (crime d'Etat,) or commit outrage on the lives and properties of the subject (délit privé?)

CLV. With respect to criminal offences against the Private Law, these may be of two classes: (1.) against the property, (2.) or the life of individuals. With respect to the former, the reason of the thing and the nature of the ambassador's function unquestionably demand his exemption from the criminal tribunals of the country.

The Sovereign may, according to the gravity of the offence, signify, in various ways, his displeasure, or demand his recall; but he can neither be punished nor arrested. (a)

In 1763, the Ambassador of Holland at the Court of the Landgrave of Hesse-Cassel was accused of mal-administration of a testamentary trust. The Government of Cassel called upon him to render an account, which he refused to do, whereupon he was arrested with a view to obtain from him the necessary documents connected with the trust. But the Landgrave was obliged to send a special embassy to Holland to make apology and reparation for this infraction of International Law.(b)

*CLVI. With respect to graver offences against the Criminal Law, such as murder, the question is more difficult; but the true [174] proposition of International Law upon this subject is as laid down by Grotius, namely, that the guilty person cannot be tried by the foreign tribunals.(c) This doctrine is also supported by Wicquefort(d) Zouch(e) Bynkershoek, (ƒ) and Vattel.(g)

Great authorities in the English law, Coke,(h) Comyns, (i) Hale,(k) Foster, (7) held a contrary doctrine; but Blackstone(m) correctly states that, whatever may have formerly been the opinion, this country follows, as others do, the opinion of Grotius.

CLVII. With respect to crimes against the majesty of the State, such as conspiracies against the Government or the Sovereign thereof, it appears to be now the clear law that no judicial process in the State, against which

(a) De Garden, vol. ii. p. 149.

(b) Ibid, pp. 149, 150.

(c) Grot. 1. ii. c. xviii. 4, 5. Ward, vol. ii. pp. 515–16.

"

(d) Wicquefort (Mr. Ward truly observes) composed his Treatise on Ambassadors to establish this proposition, he being at the time undergoing punishment from Holland, while minister of Luneburgh at the Hague, for betraying the secrets of Holland, in whose service he also was."

(e) Solut. Quæst. De Leg. del. Jud. Comp.

(g) L. ii. s. 94, 5, 6.

(i) Dig. art. Ambassador.

(7) Crown Law, 188. Vide ante, vol. i. p. 21. (m) Comment. i. 253–4.

(f) De Foro Leg. c. 17, 18, 19.

(h) 4th Inst. 15-3.

(k) Pleas of the Crown, i. 99.

the offence has been committed, can be put in motion against the Representative of a Foreign Sovereign.

CLVIII. Such appears to be the best and most generally received opinion; there are not, however, wanting writers who draw a distinction between the commission of mala prohibita and mala in se, and between privata and publica delicta. But the reasons of exemption apply to both cases; namely, first, because the nature of the ambassador's functions *demands the most absolute freedom in every case that may arise,

[*175] “securitas legatorum utilitati quæ ex pœnâ est preponderat.”(n) Secondly, because the ambassador represents the person of another, and is recognized in that capacity by the tacit compact by which he is admitted into the country;(o) it has been nobly said: "ils sont la parole du Prince qui les envoie, et cette parole doit être libre."(p)

It is not meant, however, to convey the impression, either that the ambassador is to escape without punishment, or that the State in which he is discharging his functions is powerless to resist his open violence,(2). or to stay his secret machinations against her public safety,(r) or to redress the rights of a subject whom he may have criminally injured. (s)

It is the duty and the right of the injured State, under these circumstances, to oppose force to force, and in the event of secret machinations, to secure the person of the ambassador and remove him from her borders, and in the case of the privatum delictum, to insist upon his being tried by the tribunals or the proper authorities of his own country.(†) CLIX. One of the questions put to the civilians in the *case

[*176] of the ambassador to Mary Queen of Scots, which has been

already referred to,(u) was :

"Whether, if an ambassador be confederate, or aider, or comforter of any traitor, knowing his treason toward that Prince, towards whom, and in whose realm he pretendeth to be ambassador, is not punishably by the Prince, in whose realm and against whom such treason is committed or confederacy for treason conspired;" and to this they answered, "We do think that an ambassador aiding and comforting any traitor in his treason toward the Prince with whom he pretendeth to be ambassador in his realm, knowing the same treason, is punishable by the same Prince. against whom such treason is committed."

(n) Grot. 1. ii. c. xviii. 4.

Ward, vol. ii. p. 516. Grot. 1. ii. c. xviii. 4, 5. 12-22-24.

Huberus, De J. C. 1. iii. c.

(p) Montesquieu, De l'Espr. des Lois, Pt. II. 1. xxvi. c. 21.

(2) "Quod si vim armatam intentet legatus, sanè occidi poterit, non per modum pænæ sed per modum naturalis defensionis."-Grot. 1. ii. c. xviii. 4, 7.

(7) "Pour ce qui est des crimes d'Etat les mesures les plus sévères à l'égard d'un envoyé, soit qu'il ait agi d'après les instructions de sa cour ou spontanément; à la vérité, il n'est pas permis, dans ce cas même, de lui faire subir une peine corporelle, mais le droit de le faire arrêter et transporter, sous escorte, hors des frontières, est reclamé sans opposition par toutes les puissances."-De Garden, Tr. de Dipl. vol. ii. pp. 150-1.

(s) "Si le délit a causé un scandale publique, le Prince porte ses plaintes au souverain du ministre, demande même le rappel ou la punition du coupable, et il y a des exemples, qu'en pareille circonstance, on a interdit à l'envoyé de paraître à la cour.—Si le fait est avéré, on ne saurait refuser son rappel ou sa punition."— Ib. 150. (†) Klüber, s. 211. Stephen's (Blackstone's) Comm. ii. p. 508. (u) Vide ante, p. 165.

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