The Rights of War and Peace

by Hugo Grotius

There may often be the best reasons for a sovereign's refusing to allow of a RESIDENT minister at his court; a practice, so general in the present day, but totally unknown to the ages of antiquity.

IV. As to the personal exemption of ambassadors from arrest, constraint, or violence of any kind, it is a subject of some difficulty to determine, owing to the varieties of opinion entertained by the most celebrated writers on the question. In the consideration of this matter, our attention is directed in the first place to the personal privileges and exemptions of ambassadors themselves, and next to those of their attendants, and their goods. With respect to their persons, some writers are of opinion, that it is ONLY from UNJUST VIOLENCE, and ILLEGAL CONSTRAINT, that the law of nations protects ambassadors. For they imagine that their privileges are to be explained according to the common principles of the law of nature. Others again suppose that ambassadors are not amenable to punishment for ALL offences, but only for such as amount to a transgression of the law of NATIONS, the principles of which are of such general extent, as to include the law of nature: consequently there can be no offences for which an ambassador is not punishable, except for those actions that are made such by the positive rules of MUNICIPAL or CIVIL LAW.

Others again consider these public representatives of states and crowned heads, as only liable to punishment for offences affecting the dignity or governments of the sovereigns to whom they are sent. While, on the other hand, there are some writers who maintain that for any state to punish an ambassador for ANY CRIME WHATEVER is highly dangerous to the independence of foreign powers; but that all offenders of that description ought to be left to the laws of their respective countries, to be punished or not according to their deserts, upon due complaint being made to the sovereigns by whom they were sent.

Some few writers, indeed, in laying down the rule to be observed in such cases, have decided that an appeal should be made to other independent and disinterested powers, which may be considered rather as a matter of DISCRETION, than of ABSOLUTE RIGHT. But the advocates of all these various systems have come to no definite conclusion in support of their favourite opinions. For this is a right which cannot, like the law of nature, be established upon unchangeable rules, but derives all its efficacy from the will of nations. Nations if they had thought proper, certainly might have laid down ABSOLUTE rules of security for ambassadors, or coupled them with certain exceptions. The argument is supported on one side by the urgent necessity of heinous crimes being punished, and on the other, the utmost latitude of exemption is favoured on account of the utility of embassies, the facility of sending which ought to be encouraged by every possible privilege, and security. To settle the point therefore, we must consider how far nations have agreed among themselves upon these principles; the proofs of which can only be found in the evidence of history.

Many instances may be produced in favour of both opinions. And in cases like this, the opinions of those celebrated for their judgment and knowledge will be of no small weight, but in some cases we must rest upon conjectures. On this subject the two eminent historians, Livy and Sallust, may be quoted as authorities, the former of whom, in mentioning the ambassadors of Tarquin, who had been guilty of fomenting treasonable conspiracies at Rome, says, "that although they deserved to be treated as enemies for their guilty conduct, yet the privilege, which they derived from the law of nations, prevailed over every other consideration." Here we see that the rights of ambassadors could not be annulled even by the most criminal acts of hostility. But the observation made by Sallust, relates rather to those who come in the train of an embassy than to ambassadors themselves. The law of nations surely then will not deny the same privilege to a principal, which it evidently allows to those who form but a subordinate part in the public mission. The historian says, that "Bomilcar was arraigned and tried rather upon principles of equity and natural justice, than in conformity to the law of nations, as he belonged to the train of Jugurtha; who had come to Rome under the pledge of public faith."

Equity and natural justice require punishment to be inflicted on ALL offenders, whereas the law of nations makes an exception in favour of ambassadors, and those who have the public faith for their protection. Wherefore to try or punish ambassadors, is contrary to the law of nations, which prohibits many things, that are permitted by the law of nature.

The law of nations, thus deviating from the law of nature, gives rise to those interpretations and conjectures, which reconcile with the principles of justice a greater extension of privileges than the law of nature strictly allows. For if ambassadors were protected against nothing more than violence and illegal constraint, their privileges would confer no extraordinary advantage. Besides, the security of ambassadors is a matter of much greater moment to the public welfare than the punishment of offences. Because reparation for the misconduct of an ambassador may be looked for from the sovereign, by whom he is sent, unless that sovereign chuses to expose himself to hostilities by approving of his crimes. An objection to such privileges is made by some, who assert, that it is better for one person to be punished than for whole nations to be involved in war. But if a sovereign has SECRETLY given his sanction to the misconduct of his ambassador, his APPARENT intentions to punish that ambassador will not deprive the injured power of the right to seek redress by commencing hostilities.

On the other hand, the right of ambassadors would rest upon a very slippery foundation if they were accountable, for their actions, to any one but their own sovereigns. For as the interests of powers sending, and of those receiving ambassadors, are in general different, and some times even opposite, if a public minister were obliged to consult the inclinations of both, there would be no part of his conduct, to which they might not impute some degree of blame. Besides although some points are so clear, as to admit of no doubt, yet universal danger is sufficient to establish the equity and utility of a general law. For this reason it is natural to suppose, that nations have agreed, in the case of ambassadors, to dispense with that obedience, which every one, by general custom, owes to the laws of that foreign country, in which, at any time, he resides. The character, which they sustain, is not that of ordinary individuals, but they represent the Majesty of the Sovereigns, by whom they are sent, whose power is limited to no local jurisdiction. As Cicero, in his eighth Philippic, speaking of a certain ambassador, says, "he carried with him the Majesty of the Senate, and the authority of the State." From hence it is concluded, that an ambassador is not bound by the laws of the country, where he resides. If he commit an offence of a trivial nature, it may either be suffered to pass unnoticed, or he may be ordered to leave the country.

Polybius relates an instance of an ambassador, who was ordered to leave Rome, for having assisted some hostages in making their escape. Hence it is obvious why the Romans inflicted corporeal punishment upon an ambassador of Tarentum, because the Tarentines were at that time their own subjects, by right of conquest.

If a crime is of a notorious nature, affecting the government, an ambassador may be sent home, and his sovereign required to punish, or deliver him up, as we read of the Gauls having done to the Fabians. But, as we have before occasionally observed, all human laws are framed upon such principles, as, in cases of extreme necessity, to admit of equitable relaxations, among which the privileges of ambassadors may be reckoned. But these extreme cases of necessity may, according to the law of nations, as will be seen hereafter, in discussing the effects of just and solemn war, prevent punishment in CERTAIN cases, though not in ALL. For it is not the act of punishment itself, which is objected to, either in respect to time, or manner, but the exemption is created to prevent the greater public evil, which might arise from the punishment of the offender. To obviate therefore any imminent danger, if no other proper method can be devised, ambassadors may be detained and interrogated. Thus the Roman Consuls seized the ambassadors of Tarquin, previously taking care to secure their papers, to prevent the evidence, which they might afford, from being destroyed. But if an ambassador excites and heads any violent insurrection, he may be killed, not by way of punishment, but upon the natural principle of self-defence. The Gauls therefore might have put to death the Fabii, whom Livy calls violators of the law of nature.