[*164] CXLVIII. (a)Ir 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 pulsásset contra jus gentium id commissum 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 enim [*165] set, Quintus Mucius dedi hostibus, quorum erant legati, solitus juri gentium conveniens esse. Itaque eum qui legatum "pulsâs 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) (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 ferè omnium gentium videatur audire, cumque etiam id jus, quod certâ ratione in quibusdam legatis constitutum est, ad omnes alios imprudentia quorumdam traduxerit." (b) "Tantum non erant procuratores et mandatorii."-Bynk. ib. (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 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 contracted * legationis tempore," on the ground that a facility would other[*166] wise 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 an action, and not be amenable to one brought against himself.(g) Upon the same ground, viz., "ne ab officio suscepto 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 *inde quod de illis prædicatur sæpe et de his prædicari poterat, at non semper et ubique."(h) [*167] CXLIX. The Christian Church appears to have afforded the earliest + instance of resident ambassadors, (i) as she probably did of representative assemblies. We read in the Novells of Justinian of apocrisiarii,(k) sometimes also 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. (g) Vide post, p. 192, &c., and 201. 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 selfdefence. Vide post, p. 182. (h) Bynk. c. vi. (i) Heffters, s. 199. (k) "Apocrisarius, ambasciatore o procuratore, droкpicápios, legatus alicujus vel procurator qui pro eo respondet, ab droкpívoμat, respondeo."-Forcellini, Lexicon. + 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.(?) 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 Ecclesia," &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." (1) C. ix. Dist. 1. "Jus Gentium est sedium occupatio, ædificatio, munitio, bella, captivitates, servitutes, postliminia, fœdera, 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 192 *CHAPTER VI. EMBASSY-EXTENT OF INVIOLABILITY. [*170] Quotatio per Herodoties: 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? 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 (0) Miruss, s. 333. Merlin, Ministre Public, v. iii. (a) Miruss, ss. 333-341, is very able and learned upon the point. VIT.136. + + 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. (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. 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. (f) 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 (9) "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 abuş 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. 1. 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. (1) Klüber, s. 203. Miruss, s. 336. |