tion, are subject, during the time of their residence there, to the laws of that territory, all nations have, by positive agreement, made an exception in favour of ambassadors; that as by one fiction of positive law, an ambassador is considered as the representative of the nation, which sends him, so, by another like fiction of the same law, he is considered as if he was out of the territory, though he is in it. But there is no occasion to have recourse here to any fictions of a purely positive law of nations. An ambassador, who is appointed by a nation to act for it, is made the representative of the nation, as far as his commission extends, by the same law, which would make any one individual in a state of equality, the representative of any other individual, who had appointed him to act in his stead. All that can be called positive in this whole matter, besides the appointment of an ambassador to be the agent of the nation, from which he comes, is the general consent of mankind to consider the collective body of every state as a moral person. For in consequence of this positive consent, every state will naturally be capable of appointing a proxy to act for it: and as the agent or proxy of an individual person, in the liberty of nature, is the representative of that individual by the law of nature; so the ambassador, proxy, or agent of a nation, is the representative of that nation by the same law of nature, when this law is applied by positive consent to the collective persons of civil societies. Such a law of nations as this, if we look no farther, will, indeed, subject every member of one nation, who resides in the territory of another, to the civil law of this territory, as long as he resides there. But if we attend to the act of the nation, which sends an ambassador, and to the act of the nation which receives him in this character, we shall find that there is a tacit compact between them, which produces an exception from this general rule in favour of ambassadors, without the aid of any purely positive law; in the same manner, as a compact between two individuals will, in respect of the contracting parties, produce such mutual rights and obligations, as would not have subsisted by the mere law of nature. When a nation sends an ambassador, the meaning of this act is, that it sends one of its own members into the territory of another nation to reside there as its own member, and to transact such business for it, as it wants to have done there. And the nation which consents to receive an ambassador, consents to receive him upon the same terms and in the same character, in which the other sends him. This act, therefore, of sending the ambassador on one part, and of receiving him on the other part, amounts to a tacit compact between the two nations, that he shall be considered in the territory of the nation, which receives him, as a member of the nation, which sends him. But if, whilst he resides in the territory of a foreign nation, he is considered as a member of his own; he must be exempted from the jurisdiction of that territory, in the same manner as he would be exempted from it, if he had been at home: because, if the nation, where he resides, claims any jurisdiction over him, it treats him as one of its own members, and not as a member of the nation, from which he comes. The general consequence, from these principles, is, that an ambassador, when he commits any crime, cannot be punished for it by the na tion, where he resides, when he commits it. This nation is bound to treat him, in all respects, as if he was resident in his own country But if he had been resident there, it would have had no jurisdiction over him. He can, therefore, be proceeded against no otherwise than by a complaint to his own nation, which will make itself a party in his crime, if it refuses either to punish him by its own authority, or to deliver him up to be punished by the offended nation. By supporting the exemption of ambassadors from being punished by the nation where they reside, upon this principle of compact, we shall be excused from balancing the general utility, which might arise from inflicting punishment upon them according to the laws, and by the authority of this state, against the general utility which arises from such an exemption. It was necessary for Grotius to examine this question about utility; as he supposes the privileges of ambassadors to depend upon a purely positive law, established by the common consent of mankind. For where mankind are to give them privileges by positive agreement, one way of finding out what sort of privileges are given them, is to find out what sort of privileges will be most beneficial: because mankind are most likely to have agreed to give them such privileges, as will be attended with the most general benefit. But if their privileges arise out of the law of nature, applied to civil societies, in consequence of a tacit compact between the nation which sends them, and the nation which receives them, all doubt about the utility of these privileges is out of the question. For, though the law of nature is founded in the general utility of mankind, yet no considerations of any utility, which nations might obtain by making their compacts about ambassadors different from what they do make them, will outweigh the general utility which arises from strictly observing compacts, and keeping up to the terms of them, after they are made. When one nation sends an ambassador to another, the latter is at liberty to receive him upon what terms it pleases; and to model its compact, and restrain the ambassador's privileges in such a manner as it judges to be most advantageous. But then it will be necessary for the nation, to which he is sent, to express the particular restraints which it designs to lay upon his privileges, and for the other nation to agree to these restraints. For if he is sent generally by the one, as an ambassador, and is received by the other in this character, without any express reserves, the compact, which is between them, will produce such privileges as we have been describing: and the law of nature, upon account of the general utility of keeping compacts, will take from the nation, to which he is sent, the liberty of departing from the terms of the compact which it has made, upon account of any utility that might have accrued to it, if it had made a compact of different terms. What Grotius says here, about human laws, is equally true about human compacts: they admit of an equitable exception in favour of extreme necessity. But this exception will not affect the privilege which ambassadors derive, from compact, of not being punished by the state where they reside, for such crimes as they commit within its territory. For there is no absolute necessity, that a criminal should be punished at all: the law of nature does not enjoin, it only allows, the inflicting of punishment. And there is certainly still less necessity, that he should be punished by any particular person, or at any particular time, or in *Grot. Lib. II. Cap. VIII. § IV. any particular place. But if an ambassador should raise and head an insurrection, or should otherwise make use of open force, it is no breach of the law of nations to oppose him by force, even though he should happen to be killed in the quarrel. Grotius distinguishes here between what is done in the way of defence, and what is done in the way of punishment. Though the law of nations will not allow an ambassador's life to be taken away, as a punishment for a crime, after it is committed, yet this law, since it does not authorize him to do what he pleases, does not oblige the state to suffer him to make use of violence, without endeavouring to stop it. The foundation of this distinction will be evident, if we attend to the principles which we have been es tablishing. The law of nature, in consequence of our consent to receive any person in the character of an ambassador, does not exempt him from all civil jurisdiction: it only exempts him from the civil jurisdiction of our state, whilst it supposes him to be subject to the civil jurisdiction of his own. But where this jurisdiction ceases, the compact, by which his privileges are supported, ceases to bind us. This compact, like all others, becomes a nullity, when the matter of it fails. The matter of it is, that he shall be subject to the jurisdiction of his own state, and not to the jurisdiction of ours: and, consequently, the matter of it fails, where the jurisdiction of his own state ceases. This failure does not, indeed, bring him under our jurisdiction: the only effect of it is to leave us, in respect of him, in the liberty of nature; and to discharge us, at the same time, from the obligation that we have laid our selves under, by compact, to consider him as under the jurisdiction of his own state. In these circumstances, therefore, we have the same right to act against him by force, that individuals have to act against one another in the liberty of nature. Now, the jurisdiction of his own state fails for a time, where he is attempting to injure us; and our danger is so immediate, as not to allow us time to have recourse to his own state to repress his violence: and, consequently, in these circumstances we have a right to make use of such natural means of defending ourselves against it, as his conduct makes necessary. But after an injury has been committed, there is no necessity that the punishment which he deserves, should be inflicted immediately. And since we have time enough before us to apply to the state from which he comes, there is, in respect of inflicting punishment upon him, no failure of the civil ju risdiction to which, by our compact, we have allowed him to be subject: and, consequently, we have no right to inflict punishment upon him ourselves. *Since the privileges of ambassadors are immediately derived from the tacit consent of the nation which receives them in this character, it is plain, that they have no particular privileges in the territory of a state through which they are passing, either whilst they are going from home, or whilst they are returning thither; because they are not sent to this state as ambassadors, nor received by it in this character. If they meet with any ill usage there, the law of nations takes no other notice of it than if any other person, who is a member of a foreign state, had met with the same usage. * Grot. Lib. H. Cap. VIII. § V. *The attendants and the goods of ambassadors would be subject only to the jurisdiction of their own state, if they were at home: since, therefore, whilst they reside with us, they are considered as if they were at home, their attendants and their goods have the same privilege that they themselves have; that is, the privilege of not being subject to our jurisdiction. But this privilege of the attendants of an ambassador, who is received by us, is not a privilege which is any otherwise annexed to their persons, than as they belong to him. As soon as they cease to belong to him, their privileges cease. It is, therefore, in his power to withdraw their privileges: because it is in his power to discharge them from his service, and from all connexion with him, whenever he pleases. But whilst they continue to be parts of his family, their offences, like his, are not punishable by our laws. The method of proceeding against them, is by applying to him to withdraw his protection. And if he refuses to withdraw it, he makes himself a party in their offence; and application is to be made to the state from which he comes, as if the offence had been his own. When an ambassador has contracted any debts in the state where he resides, the civil law of that state cannot take his goods from him, and make them over to his creditors for the payment of such debts: because his goods, as they belong to him, are subject only to the jurisdiction of his own state. The method of recovering what he owes, is the same as if it had been a debt of any foreigner who is resident in his own country; that is, by an application to the state to which he belongs, and by making reprisals upon the state, if justice is denied. It will be proper to observe, that, in the compact which produces the privileges of an ambassador, the nation, which receives him, is a party on one side, and he, in his own person, and the nation which sends him, are distinct parties on the other side: the nation, which receives him, tacitly agrees, by the act of receiving him, both with him and with the nation which sends him, to consider and to treat him as if he was at home. From hence it follows, first, that though he, by misbehaving himself, breaks this compact, as far as he is a party in it, yet this does not discharge the nation, where he resides, from the obligation which it is under by the same compact to the nation from whence he comes. Secondly, it follows from hence, that, where we and any nation have, by mutual agreement, sent ambassadors to each other, if that nation should use our ambassador otherwise than the law of nations allows, yet we are not at liberty, by way of retaliation, to use their ambassador in the same manner. In such a mutual agreement, though their ill treatment of our ambassador is a breach of compact on their side, yet it will not release us from the obligation that we are under towards their ambassador, by the personal compact with him. XXI. The compacts of individuals, which are pri- Public compacts vate compacts, have already been treated of at large. are either treaties But it may be necessary to say something concerning or sponsions. public compacts, which are the compacts of nations. Our author's subject led him to apply the law of nations to compacts of this sort; particularly to such as have relation to war, in more instances than we † Ibid. § VII. * Grot. Lib. II. Cap. VIII. § VIII, IX. shall have occasion to go through. It will be sufficient for our purpose to explain the general principles of this law, and to show the reader, by applying them to a few instances, that there is no other difference in the rules of law, or in the rules of interpretation, when they are applied either to public or to private compacts, besides what arises from the difference between individual persons, who are the parties in private compacts, and collective persons, who are the parties in public ones. Public compacts are divided, in respect of the persons who make them, into treaties, conventions, or leagues, and sponsions or engage ments. Treaties, conventions, or leagues, as they are distinguished from sponsions, are made by those who are authorized by the constitution of a nation to act for it with other nations. But it is not necessary that these constitutional governors should act in their own person. What they do by their deputies, such as envoys, ambassadors, or plenipotentiaries, is their own act; and, consequently, in respect of the nation, it produces the same effect as if they had done it themselves. In public compacts, which sovereign princes, or other constitutional governors of a nation make by their deputies or agents, the law of nature is the same as in promises which individuals make by proxy: what the deputies do under the authority of their public commission, binds their principals, even though they exceed some private instructions which their principals had given them. Where the successors of a sovereign prince are chosen occasionally by the people upon every vacancy of the throne, or are appointed by the standing laws of the society, it is plain that the treaties of the predecessor do not bind them upon account of any immediate authority or power which he has over them. For since the right, which they have to the crown, is not derived from any act of his, but from the act of the state, he cannot have any immediate authority over them, either to limit this right, or to restrain them in the exercise of it. His treaties with foreign nations are made binding upon them by the intervention of the state. He is authorized, by the state, to act for it in consequence of the office, to which it has appointed him. His acts, therefore, will bind the state; because they are, in effect, its own acts. So that if, upon his demise, no successor was to be appointed, and a perfect democracy was to follow, the public, under this new form of government, would be obliged to fulfil his treaties. But since his treaties thus affect the state itself, the right of government, notwithstanding it is transmitted to his successors, not by his own act, but by the act of the state, cannot be transmitted free from the obligation of those treaties by which the state would have been bound if it had exercised this right itself, without transmitting it to any successor. But the power of sovereign princes, thus to bind their successors, by the intervention of the state, is not infinite. Besides the constitutional restraints which may be laid upon them by the established form of government, they are under a general restraint, arising from the ends of civil union. They are ap pointed by the state to act for the attainment of these ends; that is, for the security and advancement of the common welfare: and, consequently, * Grot. Lib. II. Cap. XV. § III. XVI. See Book I. Chap. XII. § XVIII. |