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ecutive of this government? If he has, the evidence of those facts is not only sufficient, but, in our opinion, conclusive, upon the subject of his privileges as a minister.

115. A foreign minister, by committing the first assault, so far loses his privilege, that he cannot complain of an infraction of the law of nations if, in his turn, he should be assaulted by the party aggrieved. This was decided by this court in Liddle's case. It was insisted by the defendant's counsel that it was incumbent on the prosecutor to prove that the public character of MrSalmon was known to the defendant, at the time this transaction took place. If this position could be maintained, still, as it is shewn by the defendant's letters to Mr Salmon, in May, 1824, that he then knew that gentleman to be the Spanish chargé d'affaires; if he had afterwards ceased to be so, it lay on the defendant to prove it. Knowing him once to have been entitled to this character, he acted at his peril, if it should turn out that that character still continued, or if indeed the reverse should not be proved.

116. But in point of law, it is immaterial whether the defendant knew that the person assaulted was the chargé d'affaires, or not. And this point also was decided in the case before referred to of the United States vs. Liddle. [The jury brought in a verdict of guilty on both indictments.]

117. The counsel for the defendant moved for a rule to shew cause, why there should not be a new trial, and gave for the reason that there had been a verdict of guilty upon both indictments, whereas evidence had been given of but one offence.

118. They also moved in arrest of judgement, on the ground that the circuit court had no jurisdiction in this case, it being a case affecting an ambassador, or other foreign minister.

119. On motion of the district attorney, that the defendant should be taken into custody, the court decided that he might be admitted to bail, pending the motion for a new trial and in arrest of judgement. He accordingly gave bail in the sum of 3000 dollars in each case.

NOTES, from Ward's Law of Nations, on "PUBLIC MINISTER'S PRIVILEGES.” Of the sacredness of the persons of ambassadors, we have examples in the oldest histories, and in almost all codes of law; and among the rest, an eminent one in the Jewish story, where David's messengers to Hanan King of the Ammonites, being treated with contempt and insulted by that prince, whom they were sent to console on the loss of his father, it was the cause of dreadful war between the nations, in which seven and forty thousand of the Ammonites were destroyed. So also the great rage expressed by Xerxes against Athens, which ended in the entire destruction of that city in the Persian invasion, was said to be owing to their violence towards his Ambassadors, though coming with an hostile message.

The sack of Rome by Brennus, of Corinth by the Romans, and of Philomela by Frederick Barbarossa in the thirteenth century, was the consequence of the same sort of conduct. Hence, also, those various marked passages in the digest, and the works of the different Roman lawyers, which all tend, in the most explicit terms, to enforce this necessary doctrine. The Arabians, the Chinese, the Indians and the Mexicans, are all found to unite in it, nor is there scarce a point in morality more generally received; the exceptions to it being few in number, and chiefly to be found among the Turks.

It being found in England in the beginning of the 17th cent. that there was no legal punishment for those who violated the privileges of an Ambassador; 7th of Ann. C. 12. was passed, by which the matter was put out of doubt; and whoever now dares to sue out any process against any public minister, or his domestics, are deprived of their trial by jury, and if convicted of the same by the oath of one or more witnesses, before the lord chancellor, and the two chief justices, or any two of them, they are to be deemed violators of the law of nations, and disturbers of the public repose, and to suffer such pains and penalties and corporal punishment, as the said lord chancellor and chief justices or any two of them shall judge fit to be imposed and inflicted. Thus the magistrates, according to Blackstone, [Commentaries, 4, 71] have an unlimited power to proportion the punishment with the crime.

[1.] The occasion of the statute was the well known arrest of the Russian ambassador on 21st July, 1708, who being upon the eve of his departure, and indebted to Thomas Morton, a laceman, and various other tradesmen, they resolved to arrest him according to the ordinary forms of law. This was done with some circumstances of aggravation, for the ambassador, thinking himself attacked by ruffians, defended himself, but was overpowered and ill used by the bailiffs, who carried him to a spunging-house, where he was detained till the Earl of Fa versham bailed him. He immediately complained to the queen, of this violation of the law of nations, and the Count de Gallas, and the Baron Spanheim, ambassadors of Sweden and Prussia, together with several other foreign ministers, joined in the complaint. The queen was indignant at the affront, and Morton, the attorney, and all who were concerned in the arrest, to the number of seventeen, were committed to custody and ordered to be prosecuted with the utmost severity of the law. Most of them were brought to trial, on an information of the attorney general, and were found guilty of the facts, though the question how far those facts were criminal, was reserved to be argued before the judges; which question was never determined. Mr. Boyle, the secretary of state, writing to the ambassador, speaks of the attempt as "desperate and dismal," and the privy council were several times summoned of his satisfaction. As far as punishment, however, was concerned, none could be obtained, and the affronted minister was forced to be content with his liberty, the reimbursement of his expenses, and the enaction of a law, by which the above mentioned provisions were made in future. The preamble, however, having merely observed, that the Muscovite ambassador had been taken out of his coach by violence, in contempt of the protection granted by her majesty, with out taking notice of the breach of the law of nations, (Black. Comment. 1.) "which is superior and antecedent to all municipal laws; the foreign ministers in London met again together, and procured the addition of these words," contrary to the law of nations and in

prejudice to the rights and privileges which ambassadors, and other public ministers, authorised and received as such, have at all times been thereby possessed of, and which ought to be kept sacred and inviolable." With this act of parliament elegantly engrossed, and an apology for not being able to punish the persons of those who had affronted his minister, the czar, who at first insisted upon their deaths, was at length induced to be content; and thus ended this delicate affair.

Comyns, though he mentions not the punishment of their infraction, yet seems to hold that all process against ambassadors was void,even before the 7th Anne; since in laying down the law of ambassadors, he quotes the opinion of Grotius, concerning their immunity, before he comes to mention the statute. And it is therefore not improbable, that he thought that opinion was a part of the common law of England, although much elucidated and strengthened by the statute. Blackstone asserts in terms, that the common law of England recognizes the rights of ambasssadors in their full extent, by immediately stopping all legal process, sued out through the ignorance or rashness of individuals, which may intrench upon the immunities of a foreign minister, or any of his train; the more effectually to enforce which, he continues, when violated through wantonness or insolence, it is declared by the statute 7th Ann, &c. &c. Hence it should appear, that in his opinion, the statute did not create any new law, except as far as the punishment of the persons violating the law of nations, was concerned; and that the rest was merely declaratory of what the common law had always been.

[2] Whichever way this may be, in other times probably the violators of law would have been severely punished, even without such a statute, as may be collected from the following case: In the year 1627, one Philip Weiseman, a German, who was a kind of Purveyor to foreigners in England, having bargained to defray the ambassador of Denmark's expences at a certain rate from Paris to London, made some unreasonable demand upon him on his arrival at the latter place, and that, says Finet, "with much touch to his honor." The ambassador complained to the lord chamberlain, who acquainted the king, order was made for the lord president of the council, the lord Chamberlain, and the vice-chamberlain "to hear and determine" the business. The cause was examined, and the following record and sentence was the consequence:

"Henry, earl of Manchester, president of the privy council of his majesty of Great Britain; Phillip, earl of Montgomery, Great Chamberlaine, and of the council of state, to his said majesty, being commissioners and deputies for his said majesty, to hear the protestation which the Lord Rosenbranck, ambassador extraordinary to his majesty of Denmark, shall make against Phillip Weiseman, for certaine injuries and calumnies which he should speak and write against his person, in prejudice of the honour of the king his master, and of his own particular reputation, having by express commandment from his majestie adjourned, and examined the foresaid Phillip Weiseman, and having understood at the same time, by confrontation, some of the domestiques of the said lord ambassador, and others; as also examined his letter to the said lord ambassador: we finde that the said Phillip, without any reason or cause, having received more monies than were agreed upon, according to his own confession, hath maliciously and impudently blazed abroad, such words and writings without having regard to the honour of the person whom he presents, or to his own particular quality: Therefore we have inordered that he be put in safe custody, untill he give satisfaction to the aforesaid ambassador, if he thinks it not fit to bring him before the king his master, to be punished according to his demerit. In faith whereof we signe this present instrument this 14th of April, 1627. Manchester-Montgomery-Carleton."

The fellow, continues Finet, persisting stuborne and most averse from submission, was after four or five days restraint in the house of a messenger, delivered by a warrant from the lord president, and the lord Chamberlaine, from the messenger's hands to the embassador's; who, causeing him to be imprisoned in the Counter, by virtue of the said warrant, which gave him power to dispose of him; he was upon the point of being sent to Hamburg; but his

stomach lessening, and his submission made with acknowledgment of his guilt, both by word and writing, he was at last set at liberty.

[3.] In the year 1584, not long after the opinions delivered in the bishop of Ross's case, Mendoza, the Spanish ambassador in England, having conspired to introduce foreign troops, and dethrone the queen, it was a matter of difficulty how he should be punished. Had the council thought the opinions of Lewis Dale, and the other civilians good law, they probably would have acted upon them; for here was a case, precisely similar to that on which they had been consulted. They however took the opinions of the celebrated Albericus Gentilis, then in England, and of Hottoman in France, who both asserted that an ambassador, though a conspirator, could not be put to death, but should be referred to his principal for punishment; or, (according to Hottoman) sent away by force out of the country. In consequence of this Mendoza was simply ordered to depart the realm, and a commissioner sent to Spain to prefer a complaint against him.

[4.] Three years afterwards there was a conspiracy not only to dethrone the queen, but to put her to death. The circumstances are these: L'Aubespine, the French ambassador, being wholly devoted to the Queen of Scots, endeavored to procure the assassination of Elizabeth. For this purpose he tampered both by himself, and secretary, with William Stafford, a man about the court. Stafford refused to be concerned in it himself, but recommended Moody, a noted ruffian, then in Newgate, to be the instrument. With this man conferences were held by Trappy and Cordalion, both of them secretaries to L'Aubespine. It was proposed to take off the queen by poison, or to blow her up by firing twenty pounds weight of gunpowder under her bed. Neither method was approved by Trappy, "who wished for such another resolute fellow as had assassinated the Prince of Orange." In this state of the affair Stafford revealed the plot. Trappy was arrested, and both he and Stafford confessed the whole before the council. The ambassador was sent for, but said "he would not hear any accusation to the prejudice of the privileges of ambassadors.” When Stafford was brought in, however, he assented to his knowledge of the matter, but said it was first propounded by him. Stafford, on the contrary, protested on his salvation that the first he knew of it was from the ambassador. Lord Burleigh then reproached him with the design; yet never thought of trying him. All that we can find is, that he bade him beware how he committed treason any more; that the queen would not by punishing a bad ambassador, prejudice the good; and that he was not acquitted from the guilt of the offence, though he escaped the punishment.

[5.] In 1601, the Compte de Rochpot, being ambassador from France to Spain, his servants had a quarrel with some Spaniards at Valladolid, in which two of the latter were slain, of whom also one was a priest. The magistrates seized the criminals with a view to try them, but upon Rochpot's complaint, and retiring from Spain, they were delivered into the hands of the Pope, at Rome, and finally released.

[6.] Henry IV. of France, having given a promise of marriage to Mademoiselle D'Entragues, and afterwards marrying Mary de Medecis, the Spanish Ambassador De Zuniga, after the birth of the Dauphin, plotted with the father of the lady, and the Compte D'Auvergne, to carry her off to Spain, together with her son by Henry, whom they meant to consider as the real Dauphin. The plot was discovered: D'Entragues and D'Auvergne were tried and imprisoned; but though the crime of the ambassador was manifest, the king would not suffer him to be punished.

[7.] The Spaniards had before this, in time of full peace, plotted with Merargues, Syndic of Provence, for the surprise of the city of Marseilles. The affair was carried on by Merargues and Brunceau, secretary of the Spanish embassy, under whose garters a paper containing the particulars of the treason was discovered. Merargues was tried and put to death, but the Spanish ambassador demanded Brunceau as his secretary, and under the protection of the law of nations; and the King, Henry IV. having consulted the most able jurists at Paris, delivered him up with an order for him to depart the kingdom.

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[8.] In 1603, the Duc de Sully, then Marquis de Rosney, being ambassador at London, one of his retinue quarrelled at a brothel with some English, one of whom he killed. The populace rose, but were quieted by the Lord Mayor, who demanded justice. Justice, however was not done by the magistrate, but by Sully himself; who assembled a council of Frenchmen, condemned the man to death, and not till then, delivered him to the civil power. James I. pardoned him, but no attempt was made to try him by the English law, and Sully delivered him up solely for execution.

[9.] In 1618, Alphonso de la Cueva, Marquis de Bedmar, ambassador of Spain, contrived the famous conspiracy against Venice. It is needless to go into particulars of that celebrated plot. Suffice it to say, that the town was to be set on fire, the citizens and nobles murdered and the government overturned. The facts were proved against Bedmar; arias and fireworks were found in his house, and letters concerning their application. But though the populace endeavored to destroy him, the senate protected him from violence, and contented themselves with sending him to Milan, and requesting the king of Spain to recal him. [10.] In the reign of king James I. of England, the Spanish ambassadors Inoyosa and Colonna, endeavored to breed a disturbance in the country, by informing the king that the Duke of Buckingham meant to imprison him by means of the parliament, and to transfer the regal authority to the Prince of Wales. Both the court and the parliament deemed this a scandalous libel, but knew not how to proceed with the ambassadors.

[11] Sir Robert Cotton, who was consulted, wrote a tract called "A Relation of the Proceedings against Ambassadors who had miscarried themselves," in which he asserts "that an ambassador, representing the person of a sovereign prince, he is by the Law of Nations, exempt from regale tryale; 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, is factum hostilitatis, not treason, so much doth public conveniency prevail against a particular mischief." He then states various examples of ambassadors who have had violence put upon them by way of prevention, rather than punishment; none of them amounting even to a design to try them; and then recommends that some of the chief secretaries should wait upon the ambassador of Spain, and by way of advice, desire him to keep his house, for fear of the people; that the Prince of Wales and Duke of Buckingham should complain of the calumny in parliament; that both houses should, in consequence, wait upon the ambassador, to request to know the authors of it, in order to try them legally in parliament; that if he refused, he should then be confined to his house, and a formal complaint sent against him to the king of Spain, requiring such justice to be done upon him, as by the leagues of amity and the law of nations is usual. If the king refused, it would then be "transactio criminis upon himself, and an absolution of all amity, amounting to no less than war denounced." This was the opinion of the English court, complaint was made to the king of Spain, and the ambassador allowed to depart.

[12.] In 1657, a domestic of Monsieur de Thou, ambassador at the Hague, endeavoring to commit violence upon a woman in the streets, he was detected by the patrol and carried to the guard house, in order to be delivered to the civil tribunal. He was, however, demanded by De Thou, of the deputies of Holland, as a privileged person, and restored by the municipal power to receive justice from the hands of his master.

[13.] In 1666, a hunting party being made by the court at Vienna, a gentleman in the suite of the Spanish Ambassador, endeavored to press into a place reserved for the nobility, and was stopped by the count de Kevenhuller, who being treated with impertinence, gave him several strokes with a cane. The affront produced a serious affray some days afterwards, the ambassador's train in revenge setting upon the Count in his coach, firing into it with pistols, and piercing it with swords, by which the coachman was wounded, and the Count scarce able to save himself. The guard arriving, the Spaniards retreated to the Hotel de Ville, where they defended themselves till two were disabled, and then yielded. The ambassador flew

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