having certain information of a conspiracy to invade the country and dethrone the King, contrived, by Gyllenburg, (h) the Ambassador of Sweden, at that time at peace with Great Britain, they ordered the arrest of that minister, which was acordingly effected. General Wade and Colonel Blakeney, to whom the charge was intrusted, found him making up despatches, which they told him they had orders to seize; and they even insisted upon searching his cabinet, which upon the refusal of his wife to deliver the keys they actually broke open. Gyllenburg complained of these proceedings, as a direct breach of the law of nations, and some of the foreign ministers at the Court of London expressed themselves to the same effect, upon which the Secretaries of State, Methuen and Stanhope, wrote circular letters to them, to assign reasons for the arrest, which satisfied them all except Montleone, the Spanish Ambassador, who, in his answer, observed, that he was sorry no other way could be fallen upon for preserving the peace of the kingdom, than that of the arrest of a public minister and the seizure of his papers, which are the repositories of his secrets, two facts which seemed sensibly to wound the Law of Nations. (i) This proceeding was, however, clearly justifiable as a measure of selfdefence.

Case of the Earl of Holdernesse.

CLXVII. In 1744, the Earl of Holdernesse was sent from England as Ambassador to Venice. Passing through the *States of the [*182] Emperor of Austria, he was arrested, with his servants, by the Austrian officer in command, on the ground that England, though not at war with Austria, was an ally of her enemies, and that orders had been received to allow no Englishman to pass through that territory. The Earl at last obtained a passport, after signing an undertaking that he would submit himself to the Austrian authority if he should be declared a prisoner of war.

This proceeding was a flagrant violation of ambassadorial rights, and was so considered by Austria, who compelled the officer in command to offer an apology in person to the ambassador.(k)

Case of M. Van Hoey.

CLXVIII. After the battle of Culloden, in 1746, the King of France, fearing that the Pretender would be taken and treated as a rebel, persuaded M. Van Hoey, the Dutch Ambassador at his Court (through whose agency certain transactions from time to time had been carried on between the belligerent Courts of London and Versailles) to write to the

(h) See a full report of this case in Martens, C. C. i. 75, under the title, “ Arrestation du Baron de Görtz, ministre de Charles XII. Roi de Swède, sur la réquisition de l'Angleterre, en 1717."

(i) Tindal, (Contin. of Rapin,) b. 28. The proceedings against Gyllenburg are quoted by Bynkershoek to prove his opinion.-De For. Leg. c. xviii.

(k) De Martens, C. C. ii. App. 479.-Le Mercure, Hist. de 1744.

English Secretary of State for Foreign Affairs a letter, entreating that the life of the Pretender might be saved. This interference was greatly resented by England, and the English Ambassador in Holland obtained, in answer to his remonstrances, a severe letter of reproof from the Dutch authorities to M. Van Hoey, who wrote in consequence an apology to the English minister.(1)

Case of Da Sa.

CLXIX. In 1653, Don Pantaleon Sa, brother to the Portuguese Ambassador in England, quarrelled with an Englishman, Colonel Gerhard, about some matter in the New Exchange; *a scuffle ensued, in which Gerhard was severely wounded. The quarrel was renewed [*183] the next day, at the same place; but this time Sa came with fifty followers, all armed to the teeth, with the deliberate intention of destroying his adversary. The result was, that many English were wounded, and one person (a Mr. Greenaway,) accidentally present, killed; that the Guards were called in, and fired upon by the Portuguese, several of whom they took to prison; the rest, with Sa, took refuge in the hotel of the Portuguese Ambassador. The ambassador was afterwards required to deliver up others of the delinquents, which he complied with, and his brother was among them. He interceded for his brother; but Cromwell resolved, if he could, to try him by the law of the land. He therefore, consulted the most eminent of the professors of the civil law, to settle how such a barbarous murder might be punished. But these disagreeing among themselves, he left the decision of the affair to a Court of Delegates, consisting of the Chief Justice and two other Judges, three Noblemen, and three Doctors of the Civil Law. Before these Sa was examined. At first he was supposed to be a colleague in the embassy, and he vaunted himself that he was the King's Ambassador, "and subject to the jurisdiction of no one else." He was made, however, to produce his credentials, by which all that could be proved was, that the King intended, in a little time, to recall his brother, and to give him a commission to manage his affairs in England. This being judged insufficient to prove him an ambassador, he was, without any farther regard to the privilege of that character, ordered, as well as all the rest, to plead to the indictment.

Such is the accurate statement of the affair till it came to a jury, as it appears from the account of Zouch, a civilian of eminence, and himself a delegate in the cause.(m)

[*184]

*It is evident, from this account of the matter, and one of more authority can hardly be met with, that had Sa been actually ambassador, instead of forming part of the suite, the proceedings against him would have been the same with those in the cases cited above. All, therefore, that can fairly be drawn from this precedent, as to the decision

(1) De Martens, C. C. i. 311.

(m) Vide Zouch, Solut. Quæstionis, de Leg. delinq. Jud. Compet. in præf. Sa was tried by a jury under a Commission of Oyer and Terminer.-Hale, Pleas of the Crown, i. 99.

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of the then existing law of England, is, that the suite of an ambassador, if they committed murder, were liable to be tried for it by the Courts of the country. Zouch asserts expressly, that his own opinion upon the main question agreed with that of Grotius and the best authors, as to the exemption of ambassadors themselves; and it should appear, from his Solutio Quæstionis, that if Sa could have proved that he was an actual ambassador, his plea before the delegates would have been allowed.(n)

Conspiracy of Cellamare.

CLXX. The cases which have been hitherto cited have been those in which the representative of England has been a party. They happen to be also among the most important cases on this subject of which there is any record.

There are, however, others in which England was not concerned, and which are of importance for the principle involved in them. Such was the celebrated case of the Conspiracy of the Prince of Cellamare, at the Court of France, in 1718.

The Prince was an ambassador sent to the Court of France from the Court of Spain, by the Cardinal Alberoni, at that time Prime Minister of the latter country. The Prince, *under the direction of Alberoni,

[*185] organized a conspiracy against the existing Government of

France; and the fact having been ascertained by that Government, they gave orders for searching the papers of the ambassador in his presence and at his hotel. Certain of these papers they placed under the joint seal of the King of France and of the ambassador. They afterwards selected those which related to the conspiracy, some of which they published, in justification of their conduct. None of the ambassadors from the other Courts, then resident at Paris, complained of this act as an infringement of the privileges of their order, though a protest from this body has always been usual when any injury has been done to any member of it resident at the same Court.

The Prince was placed under custody until intelligence was received of the safe arrival of the French Ambassador from Madrid, whom Alberoni had intended to detain. When this intelligence arrived, the Prince was conducted, under military escort, to the frontier.

The next year war was declared between the two countries.(0)

CLXXI. It has been held by high judicial authority, that if a foreign minister commit an assault, he is so far deprived of his privilege that battery committed on him by way of self-defence is legal, though even

(n) Ward's Law of Nations, vol. ii. p. 537, who takes his account from Lord Somers' Tracts, 10, 65, et inf.

Mr. Ward remarks, that Zouch, in the course of his work, also examines the Bishop of Ross's case, and the opinions of the English civilians upon it, so often cited, and blames those opinions in the most unequivocal terms. It is true, it ought to be observed, that he differs from Grotius in his opinion on the immunity of the suite.

See also, De Réal, Science du Gouv., i. t. v., and De Martens, C. C. ii. 490.
(0) De Martens, C. C. i. 139.

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such conduct on the part of a foreign minister will not justify an arrest on process.(p)

It is clear that courts of justice cannot inquire whether a person recognized by the Government as a foreign minister was duly appointed as such or not. The recognition of the Government is conclusive upon the judicial tribunal.(g)

*Courts of law have considered that the reasons which neces

sitate the inviolability of the person of the foreign minister [*186]

apply to those of his train or suite, and therefore, that an assault upon, and threats used towards, a Secretary of Legation, are punishable as a criminal violation of International Law.(r)

CLXXII. Hitherto the Rights of Inviolability accruing to the + ambassador in the State to which he is accredited have been considered, but it must frequently happen that on his way to this State he is obliged to pass through the territory of a third State; and the question arises as to whether he is equally protected and inviolable in this territory.(s) It is clear that the third State may refuse to allow an ambassador a passage through her territory for the same reasons that a State may refuse to receive him.

During the Middle Ages no doubt seems to have been entertained as to the strict legality of seizing the Sovereign or his representative, passing without safe conduct, previously granted through such dominions. In all the complaints made during the cruel captivity of Richard I. in Austria, by that monarch himself, by the Pope, and by other mediators, it does not appear that it was ever urged that the Duke of Austria had violated the jus gentium, which, so far as embassies were concerned, was certainly well understood by the Canon Law, and must have been familiar to the Pope.

As late as the year 1464, Louis XI. justified the arrest, in France, of the Ambassador from the Court of Brittany, as he was travelling to the Court of England, to which he was accredited, though at the time there was peace between Brittany and France.

Later still, during the Thirty Years' War, Richelieu arrested, in France, the Elector Palatine, and subjected him to *a very close

imprisonment, assigning as a reason, "the right which all nations [*187]

had to arrest strangers who come into the country without a safe conduct." (t)

(p) United States v. Little, 2 Washington (American) C. C. 205. United States v. Ortega, 4 ib. 531. United States v. Benner, 1 Baldwin's Rep. (Amer.) 240. (9) United States v. Ortega, 4 Washington (Amer.) C. C. 531. Torlade v. Barrozo, 1 Miles (Amer.) 366.

(r) Respublica v. De Longchamps, 1 Dall. (Amer.) 117. Exparte Cabrera, 1 Washington (Amer.) C. C. 232.

(s) Vide ante, p. 181, case of the Earl of Holdernesse.

(t) In reality to prevent his treating with the army of the deceased Duke of Saxe-Weimar (the leader of a sort of army of freebooters) for the possession of

Alsatia.

Ward, i. 275, n. 2, 2, 312, citing Bougeant, Hist. de la P. de Westp. 1. 5, 3, 60.

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The ambassadors(u) of Francis I. passing through Milan on their way to Venice and Constantinople, to which they were accredited, were seized and executed by the Governor of Milan, the officer of Charles V. They had, of course, no passport or safe conduct; but there was a truce subsisting between France and Spain.

Vattel condemns this atrocity, not merely as a wicked murder, which it unquestionably was, but as a scandalous breach of the International Law (contr ela foi et le droit des gens,)(v) and one which therefore called

for the interference of all other States.

*CLXXIII. It may be doubted whether these murders were a violation of the jus legationis, though-regard being had to the fact that these ambassadors were travelling through a country with which their master had a truce, (x) which is, while it lasts, a peace-the doubt is not very reasonable; but there can be no doubt that it was a shameful infringement of general International Law, the utmost rigour of which would only have authorized temporary incarceration upon strong suspicion. We pass by the horrible affair of Patkul, to be shunned as a crime, and not cited as an example.(y)

*In 1756, the English seized, in the Hanoverian territory,

[*188] upon the French Ambassador accredited to Prussia, and con

veyed him to England.

In 1793, the Austrians seized, on the Lake of Chiavenna, the French Plenipotentiaries accredited to Switzerland and Naples.

CLXXIV. It has been deemed right to mention these instances of the practice of nations, but the sound rules which ought to govern this question appear to be:

1. That, in time of peace, the ambassador is of right inviolable in his transit through a third country, but cannot claim the privileges of exterritoriality as a matter of tacit compact, though they would probably be accorded to him by the courts of all nations-and to ambassadors to a Congress they are accorded. The diplomatic agents of foreign powers at Frankfort-on-the-Maine are allowed the same privileges, on their transit, as the members of the German Confederation.(z)

(u) Wicquefort, l. 1, s. 19, p. 433. Vattel, 1. xiv. c. vii. s. 84.

(v) The distinction which Wicquefort would establish between the two is wholly inadmissible. What he should have said was, that the offence was not, under the circumstances, "contra jus legationis." This point is well put in the Traité complet de la Dipl. s. 213.

(x) It is strange that Vattel omits this circumstance.

(y) De Martens, Causes Célèbres, t. ii. App. 467.

(z) Grotius says, 1. ii. c. xviii. 5, 1: "Non pertinet ergo hæc lex ad eos per quorum fines, non acceptâ veniâ, transeunt legati, nam siquidem ad hostes eorum eunt, aut ab hostibus veniunt, aut alioqui hostilia moliuntur, interfici etiam poterunt ... multoque magis vinciri." It is, however, impossible to defend the former proposition, and it is certainly not a principle of the existing International Law.

Vattel, 1. iv. c. vii. s. 84. "Les autres, sur les terres de qui il passe, ne peuvent lui refuser les égards que mérite le ministre d'un souverian, et que les nations se doivent réciproquement; ils lui doivent surtout une entière sûreté."

Merlin, ib. s. iv. s. v. Art. 12.

Wheaton, i. 269. "He is entitled to respect and protection, though not invested with all the privileges and immunities which he enjoys within the dominions of the sovereign to whom he is sent." Miruss, s. 365. Bynkershoek, De F. L. c. ix.

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