is, so far absolute that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences, he pleases; unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go, and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if where its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say in the ordinary course of law; for I do not now speak of those extraordinary recources to first prin[ *251] ciples, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted, by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our law books, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies. which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or some times factiously) gone over to the other extreme; and because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and, in consequence, equally fatal to civil liberty, as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society; society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power; and obedience is an empty name, if every individual has a right to decide how far he himself shall obey. In the exertion, therefore, of those prerogatives which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or [*252] dishonor of the kingdom, the parliament will call his advisers *to a just and severe account. For prerogative consisting (as Mr. 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. the 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. Thus 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 formed by that union, a consistency, splendor and power, that make him feared and respected by foreign potentates; (ƒ) On Gov. 2, § 166. 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 treason; and, although that act was repealed by the statute 20 Hen. VI, c. 11, so far as relates to the making this offence high treason, yet still it remains a very great offence [*253] against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. I. 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 are determined by the law of nature and nations, and not by any municipal 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 to have formerly taken in the restriction, as well as the general exemption. *For it has been held, both by our common lawyers and civilians (7) that an ambas[*254] sador 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, they shall be liable to make atonement. (0) But, however these principles might formerly obtain, the general practice of this country, as well as 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 (g) 4 Inst. 152. As was done with Count Gyllenberg the Swedish minister to Great Britain, A. D. 1717. (i) Sp. L. 26, 21. (k) Van Leeuwen in Ff. 50, 7, 17. Barbeyrac's Puff. 1, 8, c. 9, §9, and 17. Van Byukershoek de foro legator, c. 17, 18. 19. (2) 1 Roll. Rep. 175. 3 Bulstr. 17. (m) 4 Inst. 153. (n) 1 Roll. Rep. 185. (0) Forster's Reports. 188. (p) Securitas legatorum utilitati quæ ex poena est præponderat. (De jure b. & p. 18, 4. 4.) VOL. 1.-21 161 happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature. (8) In respect to civil suits, all the foreign jurists agree that neither an ambassador, or 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 claimed or disputed, even with regard to civil suits, that our law books are (in general) quite silent upon it [*255] 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, (v) reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges; which question was never determined. (9) In (q) 4 Inst. 153. (r) 21 July, 1708. Boyer's Annals of Queen Anne. (8) [In the year 1654, during the protectorate of Cromwell, Don Pataleon Sa, the brother of the Portuguese ambassador, who had been joined with him in the same commission, was tried, convicted, and executed for an atrocious murder. Lord Hale, 1 P. C. 99 approves of the proceeding; and Mr. J. Foster, p. 188, though a modern writer of law, lays it down, that "for murder and other offences of great enormity, which are against the light of nature and the fundamental laws of all society, ambassadors are certainly liable to answer in the ordinary course of justice, as other persons offending in the like manner are;" but Mr. Hume observes upon this case, that "the laws of nations were here plainly violated." 7 vol. 237. And Vattel, with irresistible ability, contends that the universal inviolability of an ambassador is an object of much greater importance to the world than their punishment for crimes, however contrary to natural justice. "A minister," says that profound writer, "is often charged with a commission disagreeable to the prince to whom he is sent. If this prince has any power over him, and especially if his authority be sovereign, how is it to be expected that the minister can execute his master's orders with a proper freedom of mind, fidelity and firmness? It is necessary he should have no snares to fear, that he cannot be diverted from his functions by any chicanery. He 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, § 92, where this subject is discussed in a most luminous manner. The Romans in the infancy of their state acknowledged the expediency of the independence of ambassadors; for when they had received ambassadors from the Tarquin princes whom they had dethroned, and had afterwards detected those ambassadors in secretly committing acts which might have been considered as treason against their state, they sent them back unpunished; upon which Livy observes, et quanquam visi sunt commississe, ut hostium loco essent, jus tamen gentium valuit. Lib. 2, c. 4. When Bomilcar, qui Romam fide publica venerat, was prosecuted as an accomplice in the assassination of Massiva, Sallust declares, fit reus magis ex æquo bonoque quam ex jure gentium. Bell, Jug. c. 35.] When a public minister is guilty of an offence against the existence and safety of the state where he resides, if the danger is urgent, his person and papers may be seized, and he may be sent out of the country. Wheat. Int. law, pt. 3, c. 1, § 15; Halleck Int. Law, 211. See an account of the arrest of Count Gyllenberg, the Swedish minister, in 1717, in Mahon's Hist. of England, vol. 1, c. 8. (9) [In 3 Burr. 1480, Lord Mansfield declares, that "the statute of Queen Anne was not occasioned 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 Lord Talbot, Lord Hardwicke, and Lord Holt, were clearly of the same opinion. But the infraction of the law of nations can only be a misdemeanor, punishable at the discretion of the court by fine, imprisonment and pillory; and therefore, Lord Mansfield says, the persons convicted were never brought up to receive judgment, for "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 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. (w) 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." (x) 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, (y) and afterwards passed into a law, (2) 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 (a) was commissioned to appear at Moscow, (b) who declared "that though her majesty could not inflict such a punishment as was required, *because of the defect in that particular of the former established con[ *256] stitutions 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 satisfaction by the czar; and the offenders, at his request, were discharged from all farther prosecution. (10) This statute (c) 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 chiefjustices, or any two of them, shall think fit. (11.) 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 (w) 17 Sept. 1708. Ibid. (y) Com. Journ. 23 Dec. 1708. (b) 8 Jan. 1709. Boyer, ibid. (x) 11 Jan. 1708. Ibid. Mod. Un. Hist. xxxv, 454 (a) Mr. Whitworth. (10) A secretary of legation is privileged against any civil or criminal prosecution in the courts of the nation to which his superior is accredited. Ex parte Cabrera, 1 Wash. C. C. 232. But, if a privileged person commits an assault upon another, the latter is justified in employing the necessary force for self-defence. United States v. Liddle, 2 Wash. C. Č. 205. (11) By the act of congress of April 30, 1790, 1 Stat. at Large, 117, any writ or process, sued forth, or prosecuted, by any person or persons, in any of the courts of the United States or of any particular state, for the arrest or imprisonment of any ambassador or other public minister, or any domestic servant thereof, or against his goods and chattels, is made utterly null and void, and persons concerned in suing out or prosecuting the same are deemed violators of the laws of nations and disturbers of the public repose, and made liable to imprisonment not exceeding three years, and to fine in the discretion of the court. But no citizen or inhabitant of the United States who shall have contracted debts previons to having entered the service of an ambassador or public minister, which debts remain unpaid, can have any benefit from the act; nor is any one liable to punishment under the act for having prosecuted the servant of an ambassador or other public minister, unless the name of such servant is registered in the office of the secretary of state, and by him transmitted to the office of the marshal of the district in which the minister resides. The same act punishes assaults on ambassadors and other public ministers by imprisonment not exceeding three years, and fine in the discretion of the court. The public ministers of other nations may bring suits as plaintiffs in the courts of the country to which they are accredited, and in the United States the federal courts have jurisdiction of such suits. Const. of U. S., art. 3, § 2. of ambassadors, (d) as observed in the most civilized countries. (12) And, in consequence of this statute, thus declaring and enforcing the law of nations, these [*257] privileges are *now held to be part of the law of the land, and are con stantly allowed in the courts of common law. (e) 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; (f) 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 plentitude of authority should be abused to the detriment of the public, the constitution (as we hinted before) hath here interposed a check, by the means of a parliamentary 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. (13) (d) Sæpe quæsitum 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 sæpe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisre officio 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. (e) Fitzg. 200. Stra. 797. (ƒ) Puff. L. of N. b. 8, c. 9, § 6. (12) [And the exceptions are said to be agreeable to, and taken from, the law of nations. Lockwood v. Coysgarne, 3 Burr. 1676. 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 show 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; 4 Burr. 2016. This privilege extends to the servants of a public minister, being natives of the country where he resides, as well as to his foreign servants: 3 Burr. 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; 1 Bar. and Cres. 562. 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 Burr. 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 colorable and collusive. 3 Burr. 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. Viveash v. Becker, 3 Maule and Sel. 284. See 1 Chitty's Com. L. 69, 70.] (13) By the constitution of the United States the president has power, "by and with the con sent of the senate, to make treaties, provided two-thirds of the senators present concur." Art. 2, § 1. In practice, the president, through the proper minister or secretary of state, first agrees with the foreign power upon the terms of a treaty, and, when it is drawn up in due form, submits it to the senate for ratification. The senate may either ratify the treaty as it stands, or reject it altogether; or that body may ratify it with amendments, in which case the amended treaty must be submitted to the foreign power for concurrence in the amendments. Another clause of the constitution provides that "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Art. 6, § 2. A treaty, although agreed to by the president, does not become binding on the United States until ratified by the senate; but by that ratification it becomes the "supreme law of the land," and as such binds all departments of the government. It has sometimes been claimed, that, when a grant of money is essential to give the treaty effect, the house of representatives can exercise their own judgment to make the grant or refuse it; but though they have the power to refuse, it seems clear that, under the constitution, they have not the right. See the discussions on this subject in the house of representatives, as connected with Jay's treaty with Great Britain in 1794, with the reciprocity convention with the same country at the close of the war of 1812, and with the treaty with Russia for Alaska in 1867. |