that they may be entitled to their exemption.1 The secretaries are peculiarly protected, as being necessary to carry on the business of the embassy; and above all, the secretary of legation, as a responsible person intrusted by the ambassador's government with more or less of his power during his absence or at his death, and by virtue of his appointment a public officer.

The reasons for this exemption in the case of servants, especially of natives of the country whom the foreign minister hires, are of little cogency, since others could be speedily found to take their places; but the exemption is tolerably well established. Should it, however, appear that a criminal was taken into an ambassador's service in order to protect him,2 it is doubtful whether this would be endured, at least it would be a ground of complaint against the employer; and if any of his servants while in his employment carries on a traffic in which he incurs debts, such person loses his privileges; he is considered to sustain two characters, one of which will not shield him from the consequences of acts done in the other.3 An ambassador may also give up his control over domestics hired within the foreign country, but perhaps cannot do this in regard to those whom he has brought with him. At several congresses, as at Münster and Nymwegen, the assembled envoys, in order to check the riotous conduct of their herd of domestics, gave the police over them into the hands of the magistrates of the town.

1 This had become obsolete for a while before Bynkershoek wrote his work De Foro Legatorum. In chap. 16, he says, " Optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum, sed pessimo exemplo id nunc ubique gentium negligitur."

2 But comp. Dana on Wheaton, note 128, where the British government claimed the right to arrest the coachman of the American ambassador for an assault outside of the residence. It was admitted, however, that due notice ought to be given to the ambassador, that he might deliver him up or make arrangements with the police as to search and seizure.

3 Bynkershoek asks whether those who follow in an ambassador's train, "unice ut lucro suo consulant, institores forte et mercatores," are his companions, and decides in the negative. - De For. Leg., § 15, ad caleem.

4 Heffter, § 221; Vattel, iv., 9, § 124.

An ambas

er over

E. From the rule of exterritoriality strictly carried out, and from the necessity of some government over an amsador's pow-bassador's train, it might be argued that jurisdiction suite. over them, criminal as well as civil, ought to be lodged in him. If, however, such power pertained to him, it could only be by the laws of his own country. Fut then a foreign government cannot be expected to permit a stranger to perform the highest acts of criminal justice within its territory, unless it be for the purpose of carrying out military law on a vessel of war, or in an army passing through the land. Hence the jurisdiction of an ambassador in modern times over his train is actually confined to subordinate measures. In criminal cases a follower of his, committing a crime outside of the hotel, is delivered up to him, he gathers and prepares the evidence, and sends the accused home for trial. He exercises voluntary jurisdiction, as far as his suite, and, if permitted by the foreign and his own country, as far as his countrymen sojourning near him are concerned, in receiving and legalizing testaments, authenticating contracts, affixing his seal, and the like. "But the right of contentious jurisdiction," says Heffter, "is nowhere, within my knowledge, conceded to ambassadors at Christian courts, even for the persons of their suite; but they here simply execute requisitions directed to them, especially in regard to the hearing of witnesses, and all this according to the laws of their own country.'

When a crime is committed by a native servant belonging to the foreign minister's household, or when persons attached to the trains of two ambassadors break the public peace by quarrels, the only convenient way of proceeding is to deliver them over to the courts of the country to be tried.

Formerly ambassadors sometimes exercised the power of blood over their retinue. The most noted case of this kind

occurred at London in 1603, when Sully, then Marquis of Rosny, was ambassador there. One of his people having killed an Englishman with whom he had a quarrel at a brothel, Sully assembled a council or jury of Frenchmen, condemned

1 Heffter, § 216.

the man to death, and delivered him up to the English authorities for execution. He was pardoned by James I., whereupon the French claimed that, as he was judged by his own tribunal, the pardon was unauthorized.1

§ 96.

Limits of

leges of am

the privi

An ambassador can claim exemption only for the property which he holds in the foreign country as an official person. If he has another character, as that of a merchant or a trustee, his property so held is subject bassadors. to the laws of the land. Formerly it was not uncommon for merchants to represent the minor princes of Europe at the smaller courts. Bynkershoek says that in his time they made great gains by importing goods free of duty, on the pretense that these were necessary for their own use, and then selling them. But to appoint merchants as ministers in countries where they do business is believed to have become almost obsolete, and this source of gain is cut off by better regulations. (§ 92.)

crimes.

There is now a very general uniformity both of opinion and practice, that ambassadors committing grave crimes Ambassawhether against the state, or against moral order, dors commust be remanded home to their sovereign for judg ment, and that only self-defense will allow the killing of such a functionary. But neither opinion nor practice was so uniform two centuries and more ago, especially in England. The case of Leslie, Bishop of Ross, to which we have already referred, furnishes us with the opinion of English lawyers on the question whether an ambassador, cognizant of and privy to treason, is punishable by the prince, in whose realm and against whom the treason is committed. The answer was, "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." Leslie stoutly protested against all right 1 Ward, ii., 527.

of jurisdiction over him, and was not tried, but was detained for some time in prison and then banished the kingdom. A few years afterwards, a contrary opinion was given by men better informed in the law of nations, Albericus Gentilis and Francis Hotman, in the case of Mendoza, the Spanish minister in England, who had plotted to bring in foreign soldiers and dethrone Elizabeth: they decided that an ambassador who had even been concerned in a conspiracy could not be put to death, but must be remanded to his prince for punishment. And a little after in the reign of James I., when the Spanish ambassadors charged the Duke of Buckingham with a conspiracy against the king, which was regarded as false and libellous, Sir Robert Cotton, being consulted whether any proceedings could be instituted against them, maintained that an ambassador as representing the person of a sovereign prince is "exempt from regal trial: that all actions of one so qualified are made the act of his master until he disavow them: and that the injuries of one absolute prince to another are factum hostilitatis, not treason." And he proposed "that a formal complaint against the ambassador should be sent to the king of Spain requiring such justice to be done upon him as by leagues of amity and the law of nations is usual, which if he refused, it would be a dissolution of amity, and equivalent to a declaration of war." And yet, at the same time when such doctrine now universally regarded as sound, was taught, Coke thinks that "if an ambassador commits a crime which is not merely a malum prohibitum by act of parliament, private law, or custom of the realm, but contra jus gentium, as treason, felony, adultery, he loses privilege, and may be punished in England like any other alien." This opinion had weight with succeeding lawyers. Foster presents a view somewhat similar to this, namely, that although ambassadors owe no allegiance to the sovereign of the country, they are members of society, and therefore bound by the eternal universal law which keeps all civil societies together; and hence may be brought to justice like other offenders, if they commit those enormous offenses, which are against the light of nature

and the well-being of all society. And Sir Matthew Hale expresses the opinion, that if the ambassador or his associates commit any capital offense, save treason, as rape, murder, or theft, they may be proceeded against by indictment in the ordinary course of justice, like other aliens.

The case which seems to have led him to this opinion was the noted one of Sa, although it applied only to the companions of ambassadors. Sa, in 1653, during the commonwealth, being the brother of the Portuguese ambassador and one of his train, fell into a quarrel with one Gerrard, and wounded him, but he was saved from death by the interference of another gentleman standing by. Thereupon, with other Portuguese, fifty in number, Sa came on the next night to the same place, and with his associates killed one person and wounded many. The ambassador was required to deliver up the delinquents, and Cromwell resolved that Sa should be tried by the law of the land. The case was referred to a special court of men learned in the law, who decided that he could be indicted. He was tried before a jury, found guilty, and suffered death. It seems from a statement of the case, that if he had been an ambassador, his privilege would have protected him, but a distinction was made between the principal and the members of his train.

The law of England afforded no sufficient protection to ambassadors until 1708, when, on the occasion of the arrest for debt and the ill-usage of the Russian minister, a very severe law was enacted, by which it rested with the chancellor and chief justices, or any two of them, to inflict such punishment as they should think fit on the person whom they should find guilty of bringing a suit against a minister or his servants.

A little after this, in 1717, Gyllenborg, the Swedish ambassador in England, was engaged in a conspiracy to invade the country and dethrone the first George. He was arrested, his dispatches seized, and his cabinet broken open. The case so far was like many acts of violent infraction of international law, and deserves to be mentioned, only because the secretaries of state maintained, by way of apology to the other