[252] Locke (f) has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. Thus a king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded. The prerogatives of the crown in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or its own domestic government and civil polity. With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagement that must afterwards be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence, is the act only of private men. And so far is this point carried by our law, that it hath been held, (g) that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league. And, by the statute 2 Hen. V. c. 6., any subject committing acts of hostility upon any nation in league with the king was declared to be guilty of high trea son: and, though that act was repealed by the statute 20 Hen. VI. [253] c. 11. so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. The king, therefore, considered as the representative of his people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home. This may lead us into a short digression, by way of inquiry, how far the municipal laws of England, intermeddle with or protect the rights of these messengers from one potentate to another, whom we call ambassadors. The rights, the powers, the duties, and the privileges of ambassadors made, that the responsibility of ministers is merely nominal. Now without entering at all into the question, how far the present state of the representation provides the means of enforcing the responsibility of ministers upon all such occasions, it may be remarked, that if they are not immediately liable to the censures of parliament, they are amenable to the tribunal of public opinion, in a much higher degree than at any former period of our history; and consequently the public welfare is not left entirely at the mercy of a corrupt administration, even should it be established (which it is not) that the house of commons has surrendered its function of protecting the liberties of the people against the encroachments of the crown. The practice of publicly reporting the parliamentary debates, at once submits the conduct of his majesty's ministers to the judgment of the people at large; and though their opinion is never formally expressed, except upon some flagrant departure from the principles of the constitution, or the maxims of good government; yet the consciousness of their subjection to popular animadversion, operates upon the executive as a powerful check against the prosecution of unconstitutional or improvident measures of policy. Chitty. are determined by the law of nature and nations, and not by any munici pal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an ambassador ought to be independent of every power, except that by which he is sent: and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master, (h) who is bound either to do justice upon him, or avow himself the accomplice of his crimes. (i) But there is great dispute among the writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder. (k) Our law seems formerly to have taken in the restriction, as well as the general exemption. For it has been held, both by our common law- [254] yers and civilians, (1) that an ambassador is privileged by the law of nature and nations; and yet if he commits any offence against the law of reason and nature, he shall lose his privilege : (m) and that therefore, if an ambassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom. (n) And these positions seem to be built upon good appearance of reason. For since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural universal rule of justice ambassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that, wherever they transgress it, there they shall be liable to make atonement. (o) But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime. (p) And therefore few, if any, examples have happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature." h As was done with count Gyllenberg, the Swedish minister to Great Britain, 4. D. 1716. iSp. L. 26. 21. k Van Leeuwen in Ff 50. 7. 17. Barbeyrac's Puff. 1. 8. c. 9. § 9 & 17. Van Bynkersboek de foro lega11 Roll. Rep. 175. 3 Bulstr. 27. tor. c. 17. 18. 19. m 4 Inst. 153. o Forster's Reports, 183. n 1 Roll Rep. 185. p Securitas legatorum utilitati quae eu poena est praeponderat. (de jure b. & p. 18. 4. 4.) (1) During the protectorate of Cromwell, in the year 1654, Don Pataleon Sa, the brother of the Portuguese ambassador, who had been joined with him in the same commission, was convicted and executed for murder. Hale, Pl. Cr. 99., and Mr. J. Forster (p 188.), approve of the proceeding; but Mr. Hume observes upon this case, that " the laws of nations were here plainly violated." 7 vol. 237. And Vattel contends, that the universal inviolability of an ambassador, is an object of much greater importance to the world than their punishment for crimes contrary to natural justice. An ambassador (says that profound writer) must have nothing to hope, and nothing to fear, from the sovereign to whom he is sent. Therefore, in order to the success of his ministry, he must be independent of the sovereign's authority, and of the jurisdiction of the country both civil and criminal." B. 4. c. 7. s. 92. If it should be maintained, that this irresponsibi In respect to civil suits, all the foreign jurists agree, that neither an ambassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet sir Edward Coke maintains, that if an ambassador make a contract which is good, jure gentium, he shall answer for it here. (q) But the truth is, so few cases (if any) had arisen, wherein the privilege was either claim ed or disputed, even with regard to civil suits, that our law-books [255] are (in general; quite silent upon it previous to the reign of queen Anne; when an ambassador from Peter the Great, czar of Muscovy, was actually arrested and taken out of his coach in London, (r) for a debt of fifty pounds which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons who were concerned in the arrest were examined before the privy council (of which the lord chief justice Holt was at the same time sworn a member (s), and seventeen were committed to prison; (t) most of whom were prosecuted by information in the court of queen's bench, at the suit of the attorney general, (u) and at their trial before the lord chief justice were convicted of the facts by the jury, (w) reserving the question of law how far those facts were criminal, to be afterwards argued before the judges; which question was never determined. 12 In the mean time the czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death. (x) But the queen (to the amazement of that despotic court) directed her secretary to inform him," that she could inflict no punishment upon any, the meanest, "of her subjects, unless warranted by the law of the land: and therefore was persuaded that he would not insist upon impossibilities." (y) To satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of Peter, a bill was brought into parliament, (2) and afterwards passed into a law, (a) to prevent and punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, an ambassador extraordinary (b) was commissioned to appear at Moscow, (c) who declared, "that though her majesty could not in[256] "flict such a punishment as was required because of the defect in 66 q 4 Inst 159, r 21 July 1708. Boyer's Annals of queen Anne. 25 July 1708. Boyer's Annals of queen Anne. t 25. 29 July 1708. Ibid. u 23 Oct. 1708. Ibid. w 14 Feb. 1708. Ibid. x 17 Sept. 1708, Ibid. y 11 Jan. 1708. Ibid. Mod. Un. Hist. xxxv. 454. z Com. Journ. 28 Dec. 1708. a 21 Apr. 1709. Boyer, Ibid. b Mr. Whitworth. e 8 Jan. 1709, Boyer, Ibid. lity leaves the subjects of the state at an ambassador's mercy, it may be replied, that no mischief can be reasonably apprehended, because, independently of the security which his rank, and his obligation to preserve the honour and integrity of his own government unsuspected, affords, a nation to whom he is sent may expel him from the kingdom, in case of any flagrant misconduct, especially if it should remain unredressed, after it has been represented to his own government. Chitty. (12) In 3 Burr. 1480, lord Mansfield declares, that “the statute of queen Anne was not occa. sioned by any doubt, whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and the infraction criminal, nor intended to vary an iota of it." And he proceeds to say, that lords Talbot, Hardwicke, and Holt, were of the same opinion. The reasons assigned by him for the persons convicted not being brought up for judgment is, because "no punishment would have been thought by the czar an adequate reparation. Such a sentence as the court would have given, he would have thought a fresh insult." The offence being a misdemeanor, could only be punishable by fine, imprisonment, and pillory, at the discrer on of the court. Chitty. "that particular of the former established constitutions of her kingdom, "yet, with the unanimous consent of the parliament, she had caused "a new act to be passed, to serve as a law for the future." This humiliating step was accepted as a full satifaction by the czar; and the offenders, at his request, were discharged from all farther prosecution. This statute (d) recites the arrest which had been made, " in contempt "of the protection granted by her majesty, contrary to the law of nations, "and in prejudice of the rights and privileges, which ambassadors and "other public ministers have at all times been thereby possessed of, and "ought to be kept sacred and inviolable:" wherefore it enacts that for the future all process whereby the person of any ambassador, or of his domestic or domestic servant may be arrested, or his goods distrained or seized, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process, shall be deemed violators of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader within the description of the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an ambassador's servant, unless his name be registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions that are strictly conformable to the rights of ambassadors, (e) as observed in the most civilized countries, And, in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of [257] the land, and are constantly allowed in the courts of common law. (f) 13 d 7 Ann. c. 12. e Saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. Et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officia non sunt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum. Van Bynkersh. c. 15. prope finem." f Fitzg. 200. Stra. 797. (13) A person claiming the benefit of the 7 Ann. c. 12. as domestic servant to a public minister, must be really and bona fide his servant at the time of the arrest, and must clearly shew by affidavit the general nature of his service, and the actual performance of it, and that he was not a trader or object of the bankrupt laws. (2 Stra. 797. 2 Ld. Raym. 1524. Fitzg. 200. S. C. 1 Wils. 20. 78. 1 Bla. Rep. 471. S. C. 3 Burr. 1676, 1731. 3 Wils. 33. and 3 Campb. 47.) For by the law of nations, a public minister cannot protect a person who is not bona fide his servant. It is the law that gives the protection: and though the process of the law shall not take a bona fide servant out of the service of a public minister, yet on the other hand a public minister shall not take a person who is not bona fide his servant, out of the custody of the law, or screen bim from the payment of his just debts. (4 Bur. 2016, 17.) This privilege however has been long settled to extend to the servants of a public minister, being natives of the country where he resides, as well as to his foreign servants (3 Bur. 1676.), and not only to servants lying in his house, for many houses are not large enough to contain and lodge all the servants of some public ministers, but also to real and actual servants lying out of his house. (2 Str. 797. 3 Wils. 35. I Bar. and Cres. 5623.) Nor is it necessary to entitle them to the privilege that their names should have been registered in the secretary of state's office, and transmitted to the sheriff's office (4 Bur. 2017. 3 Term. Rep. 79.) though, unless they have been so registered and transmitted, the sheriff or his officers cannot be proceeded against for arresting them. (See the statute, § 5. 1 Wils. 20. and a modern order.) And it is not to be expected, that every particular act of service should be specified. It is enough if an actual bona fide service be proved, and if such a service be sufficiently made out by affidavit, the court will not upon bare suspicion, suppose it to have been merely colourable and collusive. (3 Bur. 1481.) Where the servant of an ambassador did not reside in his master's house, but rented and lived in another, part of which he let in lodgings, it was held that his goods in that house, not being necessary for the convenience of the ambassador, were liable to be distrained for poor rates. Novello v. Toogood, 1 Bar. and Cres. 554. This act does not extend to consuls, who are therefore liable to arrest. Viveart v. Becker, Maule v. Sel. 284. See I Chitty's Com. L. 69, 70. Chitty. II. It is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes." For it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power; (g) and then it is binding upon the whole community: and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of liamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. 15 III. Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: (h) and this right is given up, not only by individuals, but even by the entire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized volunteers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law: (i) hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt. And the reason which is given by Grotius, (1) [258] why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard (which is matter rather of magnanimity than right), but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that in order to make war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative. IV. But, as the delay of making war may sometimes be detrimental to g Puff. L. of N. b. 8. c. 9. § 6. i Ff. 50. 16. 118. h Puff, b. 2. c. 6. § 1. and Barbeyr. in loc. (14) Com. Dig. Prerogative, B. 2, 3. See the subject of treaties fully considered in Chitty's Commercial L. I vol 38 to 48. 615 to 630 and the several subsisting treaties, id 2 vol. appendis, 1 to 313. (15) Bac. Ab. Prerogative, D. 4. Com. Dig. Prerogative, C. 1, 2, 3. See Peace and War defined, and how legally evidenced, and its consequences. 1 Chitty's Com. L. 392. 3, 4, 414, 5. |