of the State to which he is sent, and the franchise of his hotel, are reserved for future consideration.

(i) Fourthly,-The Right attaches from the moment that he 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.

(j) 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 Towers.

(1) 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 connaître, il est sous la protection du droit des gens: autrement sa venue ne serait pas sûre.”

Martens, 1. vii. c. v. s. 214.

De Garden, Traité complet de la Diplomatie, vol. ii. p. 142.
Merlin, v. iii.

Miruss, s. 335.

Heffter, ss. 204, 210.

Bynk. De F. L. c. ix.

(j) Klüber, s. 203.

Miruss, s. 336.

CHAPTER VII.

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).

(a) De Garden, vol. ii, p. 149.
(b) Ibid. pp. 149, 150.

CLVI. With respect to graver offences against the Criminal Law, such as murder, the question is more difficult; but the true 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 (j), Foster (k), held a contrary doctrine; but Blackstone (1) 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 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, "securitas legatorum utilitati quæ ex pœna est

(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 Lüneburg at the Hague, for betraying the secrets of Holland, in whose service he also was."

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

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

(h) 4th Inst. 153.

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

(g) L. ii. ss. 94, 95, 96.

(i) Dig. art. Ambassador.

(k) Crown Law, 188. Vide ante, vol. i. p. 21. (1) Comment. i. 253, 254.

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præponderat" (m). Secondly, because the ambassador represents the person of another, and is recognised in that capacity by the tacit compact by which he is admitted into the country (n); it has been nobly said: "ils sont la parole "du Prince qui les envoie, et cette parole doit être "libre "(o).

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 (p), or to stay his secret machinations against her public safety (q), or to redress the rights of a subject whom he may have criminally injured (r).

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 (s).

(m) Grot. 1. ii. c. xviii. 4. (n) Ward, vol. ii. p. 516. Grot. 1. ii. c. xviii. 4, 5.

Huberus, De J. C. 1. iii. c. 12, 22, 24.

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

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

(q) "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.

(2) "Si le délit a causé un scandale public, 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 pareiile 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.

(8) Klüber, s. 211.

Stephens' (Blackstone's) Comm. ii. p. 498 (ed. 1858).

CLIX. One of the questions put to the civilians in the case of the ambassador to Mary Queen of Scots, which has been already referred to (t), 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, he is not punishable 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."

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The opinion of the five civilians at first was considered as decisive against the Bishop, but he replied with firmness that he had entered England under a safe conduct, and with the full privileges of an ambassador. Lord Burleigh said that no privilege could protect an ambassador offending against the public majesty of the Prince in whose court he was resident, and that such conduct rendered him liable to a penal action. But the Bishop still insisted upon the privileges of an ambassador, and observed, with equal courage and truth, that they had never been violated via juris sed viâ facti, never by regular form of trial, but by violence.

He was detained for some time in prison, and then banished from the country, but the Duke of Norfolk and other conspirators were put to death.

This case has formed the text of all future discussions upon the subject of the inviolability of ambassadors. The opinion of Elizabeth's civilians has been deservedly and generally rejected, by the authority of the best writers, as well as by the practice of the most civilised States (u).

(t) Vide ante, p. 195.

(u) Bynk, De Foro Leg, c. vi.