lates 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 otherwife, according to the circumstances of the cafe. I. THE king therefore, confidered as the reprefentative of his people, has the fole power of fending embassadors to foreign states, and receiving embaffadors at home. This may lead us into a fhort digreffion, by way of inquiry, how far the municipal laws of England intermeddle with or protect the rights of thefe meffengers from one potentate to another, whom we call embaladors. THE rights, the powers, the duties, and the privileges of embaffadors are determined by the law of nature and nations, and not by any municipal conftitutions. For, as they reprefent the perfons of their respective masters, who owe no fubjection to any laws but thofe of their own country, their actions are not subject to the control of the private law of that ftate, wherein they are appointed to refide. He that is fubject to the coercion of laws is neceffarily dependent on that power by whom thofe laws were made: but an embalador ought to be independent of every power, except that by which he is fent; and of confequence ought not to be fubject to the mere municipal laws of that nation, wherein he is to exercife his functions. If he grofsly offends, or makes an ill ufe of his character, he may be fent home and accused before his mafter; who is bound either to do juftice upon him, or avow himself the accomplice of his crimes. But there is great dispute among the writers on the laws of nations, whether this exemption of embaffadors extends to all crimes, as well natural as pofitive; or whether it only extends to fuch as are mala prohibita, as coining, and not to thofe that are mala in fe, as murder *. Our law feems to have formerly taken in the reftriction, as well as the general exemption. As was done with count Gyllenberg the Swedish minifter to Great Britain. A. D. 1716. i Sp. L. 26. 21. k Van Leeuwen in Ff. 50. 7. 17. Barbeyrac's Fuff. 7. 8. c. 9. §. 9. & 17. Van Pynkershock de foro legator. c. 17, 13, 19. For m For it has been held, both by our common lawyers and civilians, that an embaffador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reafon and nature, he fhall lofe his privilege : and that therefore, if an embaffador confpires the death of the king in whofe land he is, he may be condemned and executed for treafon; but if he commits any other fpecies of treafon, it is otherwise, and he must be fent to his own kingdom". And thefe pofitions seem to be built upon good appearance of reafon. For fince, as we have formerly fhewn, 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 univerfal rule of juftice embassadors, as well as other men, are subject in all countries; and of confequence it is reafonable that, wherever they tranfgrefs it, there they fhall be liable to make atonement. But, however thefe principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the fentiments of the learned Grotius, that the fecurity of embaffadors is of more importance than the pu nishment of a particular crime. And therefore few, if any, examples have happened within a century past, where an embaffador has been punished for any offence, however atrocious in it's nature. IN refpect to civil fuits, all the foreign jurifts agree, that neither an embaffador, or any of his train or comites, can be profecuted for any debt or contract in the courts of that kingdom wherein he is fent to refide. Yet fir Edward Coke maintains, that, if an embaffador make a contract which is good jure gentium, he fhall anfwer for it here. But the truth is, fo few cafes (if any) had arifen, wherein the privilege was either claimed or disputed, even with regard to civil fuits, that our law-books are (in general) quite filent upon 1 Roll. Rep. 175. 33 4 Inft. 153. n 1 Roll. Rep. 185. Fofter's reports. 188. 3 Bulftr. 27. P Securitas legatorum utilitati quae ex pona eft praeponderat. (de jure b & p. 18.4.4.) 94 Inft. 153. it previous to the reign of queen Anne; when an embassador from Peter the great, czar of Muscovy, was actually arrested and taken out of his coach in London, 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 perfons who were concerned in the arreft were examined before the privy council (of which the lord chief juftice Holt was at the fame time fworn a member $) and feventeen were committed to prison: moft of whom were profecuted by information in the court of queen's bench, at the fuit of the attorney general ", and at their trial before the lord chief juftice were convicted of the facts by the jury ", referving the question of law, how far thofe facts were criminal, to be afterwards argued before the judges; which queftion was never determined. In the mean time the czar refented this affront very highly, and demanded that the sheriff of Middlefex and all others concerned in the arrest should be punished with inftant death *. But the queen (to the amazement of that defpotic court) directed her secretary to inform him, "that he could inflict "no punishment upon any, the meaneft, of her fubjects, un"lefs warranted by the law of the land: and therefore was "perfuaded that he would not infift upon impoffibilities y." To fatisfy 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, and afterwards paffed into a law, to prevent and to punifh fuch outrageous infolence for the future. And with a copy of this ac, elegantly engrosled and illuminated, accompanied by a letter from the queen, an embaffador extraordinary was commiffioned to appear at Moscow, who declared "that though her ma"jefty could not inflict fuch a punishment as was required, b "because of the defect in that particular of the former efta"blished conftitutions of her kingdom, yet, with the una"nimous confent of the parliament, fhe had caused a new "act to be paffed, to ferve as a law for the future." This humiliating step was accepted as a full fatisfaction by the czar; and the offenders, at his request, were discharged from all farther profecution. d THIS ftatute recites the arreft which had been made, "in " contempt of the protection granted by her majefty, con"trary to the law of nations, and in prejudice of the rights "and privileges, which embassadors and other public minifters have at all times been thereby poffeffed of, and ought "to be kept facred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic fervant may be arrested, or his goods diftrained or feised, shall be utterly null and void; and the perfons profecuting, foliciting, or executing fuch process fhall be deemed violaters of the law of nations, and disturbers of the public repofe; and fhall fuffer such penalties and corporal punishment as the lord chancellor and the two chief juftices, or any two of them, fhall think fit. But it is exprefsly provided, that no trader, within the defcription of the bankrupt laws, who fhall be in the fervice of any embassador, fhall be privileged or protected by this act; nor fhall any one be punished for arrefting an embaffador's fervant, unless his name be registered with the secretary of ftate, and by him tranfmitted to the fheriffs of London and Middlefex. Exceptions that are strictly conformable to the rights of embaffadors, as obferved in the most civilized countries. And, in confequence of this ftatute, thus declaring and enforcing the law of nations, thefe privileges are d 7 Ann. c. 12. Saepe quaefitum eft an comitum numero et jure habendi funt, qui legatum comitantur, non ut inftru&tior fiat legatio, fed unice ut lucro fuo confulant, inflitores forte et mercatores. Et, quamvis bos faepe defenderint et comitum loco habere voluerint legati, apparet tamen fatis eo non pertine re, qui in legati legationifverficio non funt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibufdam aulis olim receptum fuit, ut legatus teneretur exbibere nomenclaturam comitum fuorum. Van Bynkersh. c. 15. prope finem. now held to be part of the law of the land, and are conftantly allowed in the courts of common law f. II. It is also the king's prerogative to make treaties, leagues, and alliances with foreign ftates and princes. For it is by the law of nations effential to the goodnefs of a league, that it be made by the fovereign power; and then it is binding upon the whole community and in England the fovereign power, quoad hoc, is vefted in the perfon of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, left this plenitude of authority should be abused to the detriment of the public, the conftitution (as was hinted before) hath here interpofed a check, by the means of parliamentary impeachment, for the punishment of fuch minifters as from criminal motives advise or conclude any treaty, which fhall afterwards be judged to derogate from the honour and intereft of the nation. III. UPON the fame 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 fubfifted in every individual, is given up by all private perfons that enter into fociety, and is vested in the fovereign power: 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 fovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the fupreme magiftrate, and putting him against his will in a state of war. Whatever hoftilities therefore, may be committed by private citizens, the ftate ought not to be affected thereby; unless that should juftify their proceedings, and thereby become partner in the guilt. Such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law; hofles hi funt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones funt. And the reason which is given by beyr. in loc. f Fitzg. 200. Stra. 797. R 2 i Ff. 50. 16. 118. Grotius, |