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• The Rights of War and Peace Book Ii
• Chapter I: Of the Causes of War; and First, of the Defence of Persons and Goods.
• Chapter II: Of Things Which Belong In Common to All Men.
• Chapter III: Of the Original Acquisition of Things; Where Also Is Treated of the Sea and Rivers.
• Chapter IV: Of a Thing Presumed to Be Quitted, and of the Right of Possession That Follows; and How Such a Possession Differs From Usucaption and Prescription.
• Chapter V: Of the Original Acquisition of a Right Over Persons; Where Also Is Treated of the Right of Parents: of Marriages: of Societies: of the Right Over Subjects: Over Slaves.
• Chapter VI: Of an Acquisition (possession Or Purchase) Derived From a Man’s Own Deed; Where Also of the Alienation of a Government, and of the Things and Revenues That Belong to That Government.
• Chapter VII: Of an Acquisition Derived to One By Vertue of Some Law; Where Also of Succeeding to the Effects and Estate of a Man Who Dies Without a Will.
• Chapter VIII: Of Such Properties As Are Commonly Called Acquisitions By the Right of Nations.
• Chapter IX: When Jurisdiction and Property Cease.
• Chapter X: Of the Obligation That Arises From Property.
• Chapter XI: Of Promises.
• Chapter XII: Of Contracts.
• Chapter XIII: Of an Oath.
• Chapter XIV: Of the Promises, Contracts, and Oaths of Those Who Have the Sovereign Power.
• Chapter XV: Of Publick Treaties, As Well Those That Are Made By the Sovereign Himself, As Those That Are Concluded Without His Order.
• Chapter XVI: Of Interpretation, Or the Way of Explaining the Sense of a Promise Or Convention.
• Chapter XVII: Of the Damage Done By an Injury, and of the Obligation Thence Arising.
• Chapter XVIII: Of the Rights of Embassies.
• Chapter XIX: Of the Right of Burial.
• Chapter XX: Of Punishments.
• Chapter XXI: Of the Communication of Punishments.
• Chapter XXII: Of the Unjust Causes of War.
• Chapter XXIII: Of the Dubious Causes of War.
• Chapter XXIV: Exhortations Not to Engage In a War Rashly, Tho’ For Just Reasons.
• Chapter XXV: Of the Causes For Which War Is to Be Undertaken On the Account of Others.
• Chapter XXVI: Of the Reasons That Justify Those Who Under Another’s Command Engage In War.

CHAPTER XVIII

Of the Rights of Embassies.

I.That certain Obligations arise from the Law of Nations, such as the Rights of Embassies.I. We have hither to treated of those Rights that belong to us by the Law of Nature, adding some Few that arise from the voluntary Law of Nations, as it is an Addition to the Law of Nature. Let us now come to consider, what Obligations that Law of Nations which we call voluntary, doth of itself lay us under. Whereof the chief Head is, Of the Rights of Embassy.1 For in all Authors Mention is made of The sacred Rights of Embassies, of2the sacred Character<377> of Embassadors, of the Right of Nations due to them, a Right both divine and human: The Right of Embassy is accounted by all Nations sacred, it is called The sacred League of Nations, and the human League; and the Persons of Embassadors are stiled Sacred.

• A Name that Nations always sacred held.

• Statius.

And Cicero, in his Book of the Answers of Soothsayers, I am of Opinion, says he, that the Rights of Embassadors are guarded by all Laws both divine and human. Wherefore, to violate this Right Is not only unjust3but impious, as it is acknowledged by all, says Philip, in his Epistle to the Athenians.

II.Among whom this takes Place.II. 1. But first of all we must take Notice, that whatever be the Privileges of this Sort of Right of Nations which we are now to treat of, they belong only to those Embassadors who are sent by sovereign Powers to each other: For as to such as are sent by Provinces, Cities, or any other subordinate Powers, we are to judge of their Privileges, not by the Law of Nations, which is common to different Nations, but by the Civil Law. An Embassador, in Livy, calls himself The publick Messenger of the People of Rome.1 And in another Place of the same History, the Roman Senate declares,2 that The Right of Embassy is not granted to a Citizen, but to a Foreigner. And Cicero, to shew that they ought not to send Embas-<378>sadors to Anthony, says,3We have not to do with Hannibal a publick Enemy, but with a Citizen. Now what is meant by a Foreigner, no Lawyer could have shewn us more plainly than Virgil has done,

• For every Land not subject to our Yoke,
• I foreign call.4

2. Those, therefore, that are5 joined in Alliance, tho’ it be upon very unequal Terms, since they do not cease to be independent, shall have the Right of sending Embassadors: Nay, even those who are partly subject, and partly free,6 for that Part where they are free.7 But Kings that are conquered in a declared open War, lose, together with their other Privileges, the Right of sending Embassadors.8 Therefore Paulus Aemilius kept the Heralds of Perseus, whom he had subdued, Prisoners.9

3. But in Civil Wars, Necessity does sometimes make Way for this Right, tho’ irregularly.10 As suppose a Nation be divided into two Parties, so equal that it is hard to judge whether Side can be called the Government; or when two Persons, with very equal Titles, contend for the Succession to the Crown. For in such Cases, one Nation may for the Time be accounted two. Thus are11 those of Vespasian’s Party accused by Tacitus, that in their Civil Sedition they had violated the Rights of Embassadors, in those sent by Vitellius, Rights sacred even amongst foreign Nations. Pirates and Robbers, that do not constitute a settled Government, have no Right of Nations belonging to them. Tiberius, when Tacfarinas sent Embassadors to him, was highly provoked, that a Traitor and a Rogue should pre-<379>sume to treat with him, after the Manner of an Enemy, as Tacitus relates.12 Yet even such Men have sometimes the Privilege of sending Embassadors granted them by a Treaty; as had formerly the Outlaws and Highwaymen in the Pyrenaean Mountains.13

III.Whether an Embassy is always to be admitted.III. 1. But there is a two fold Right, we find, attributed to Embassadors, viz. first1 to be admitted, and then to have no Violence offered them. Concerning the first there is a Passage in Livy, where Hanno, the Carthaginian Senator, thus inveighs against Hannibal.2Our good General refused to admit into his Camp, Embassadors that came from your Allies, and on their Behalf; he has broke the Law of Nations. Which yet is not to be taken in so large a Sense as if none were to be denied Admittance.3 For4 the Law of Nations does not require that all Embassadors should be admitted, but that none should be rejected without Cause. Now Admittance may be denied, either on Account of the Potentate sending, the Person sent, or the Subject of the Embassy.

2. Melesippus, the Spartan Ambassador, was commanded, by the Advice of Pericles, to depart out of the Athenian Territories,5 because he came from an armed Enemy. So6 the Roman Senate denied the Carthaginian Embassadors Admittance while their Army was in Italy. And so did the Achaians to those of Perseus,7 while he was making warlike Preparations against the Romans. The like did Justinian8 to the Embassadors of Totilas; and the Goths in Urbin to those of Belisarius.9 And Polybius tells us, that the Embassadors of the Cynethians were driven out, wherever they went, as representing a vile Nation.10 An Instance of the second Cause we have in Theodore, sir named the Atheist, to whom Lysimachus de-<380>nied Audience, when he came upon an Embassy from Ptolomy.11 And others have met with the like Treatment, only through personal Hatred. The third Cause we have mentioned, takes Place12 when either the Design of the Embassy is suspected, as was deservedly that of Rhabshakeh, the Assyrian, to Hezekiah, to stir up the People to Sedition;13 or when it is not suitable to the Dignity of the Potentate to whom it is sent; or when the Circumstances of the Times, and the Situation of Affairs, do not permit it. So the Romans14 forbad the Aetolians to send any Embassy without their General’s Permission; nor was Persaeus permitted to send any Embassadors to Rome, but only to Licinius;15 and, in like Manner, when Jugurtha sent his Embassadors to Rome, they ordered16 that they should depart out of Italy within ten Days, unless they were come to deliver up their King and Kingdom. And thus may those Embassadors in Ordinary, that are continually resident at most Courts, deservedly be rejected as unnecessary, and a new upstart Custom, not known to former Ages.17

IV.That Defence is lawful against Embassadors by Way of preventing Mischief, but not by Way of Punishment.IV. 1. Concerning the latter Right of Embassadors, viz.1 that no Violence is to be offered them, the Question is more difficult, and variously handled by the great Men of the Age. Let us speak first of the Persons of Embassadors, and then of their Retinue and Goods. As to their Persons, some think that they are only protected from unjust Violence by the Law of Nations, imagining that their Privileges are to be explained by common Right. Others, that Violence ought not to be offered to an Embassador for every Cause, but only when he violates the Law of Nations, which is extensive enough; for in the Law of Nations that of Nature is included; so that, at this Rate, an Embassador may be punished for any Crime, except such as are committed against the Civil Law only. There are others of Opinion, that Violence is never to be offered to an Embassador, unless he be found to act against the Government, or the Dignity of the Potentate to whom he is sent; tho’ some think even this to be of dangerous Consequence, that Complaint should rather be made to his Principal, and that it should be left to him to punish his Embassador according to his Pleasure. Others would have us appeal to Kings and Nations that are entirely disinterested, and to be determined by their Arbitration; which indeed may be done in Point of Prudence, but cannot be claimed as a Right.

2. Nothing of Certainty can be concluded from the Reasons each of these give to confirm their Opinions; for this Right is not grounded upon sure and infallible Principles, as a Right of Nature, but takes its Measures from the Will and Pleasure of Nations.2 And they were at Liberty to have provided for the absolute Security<381> and Protection of Embassadors in all Cases, or only with such and such Reserves and Exceptions: For if, on one Side, it be useful to punish great and capital Offenders; it is on the other Side advantageous to facilitate Embassies, which cannot be better done than by procuring to Embassadors the greatest Security possible. We are therefore to consider how different Nations have agreed in this Point; which cannot be proved by Instances only. For Instances enough may be alledged on both Sides. We must therefore have Recourse both to the Opinions of wise Men, and Conjectures of the Will and Pleasure of Nations.<382>

3. We have two most famous Opinions; the one of Livy, the other of Sallust. That of Livy is upon the Embassadors of Tarquin, who had promoted a Conspiracy in Rome; Altho’, saith he, they seemed to have done such Things, as deservedly to denominate them Enemies, yet the Law of Nations prevailed in their Favour.3 Here we see the Law of Nations extended even to those Embassadors that commit Acts of Hostilities.4 The Saying of Sallust may more properly be attributed to the Attendants of Embassadors (of whom below) than to themselves. But the Argument holds good, a majori ad minus, i.e. from a Thing less credible to one more so. Bomilcar, saith he, an Assistant in the Embassy sent to Rome, was adjudged a Criminal rather by the Rules of Equity, than of the Law of Nations.5 Where Equity is to be understood of the Law of Nature, which suffers every Offender to be punished, that can be convicted, but the Law of Nations makes Exceptions in behalf of Embassadors and Persons of publick Characters. And therefore to proceed against Embassadors as Criminals is to act against the Law of Nations, which prohibits several Things that the Law of Nature allows.

4. There are also probable Conjectures on this Side of the Question. For it is most likely that the Privileges of Embassadors should include in them some greater Right, than what is due to all People in common.6 But if an Embassador were only to be protected from unjust Violence, this would be nothing extraordinary or peculiar. Besides the Protection of an Embassador from Punishment outweighs the Benefit, that could accrue to the Publick by his Punishment. For the Power, from whom he came7 may voluntarily punish him; and if he refuses to do it, then War may be levied against him, as an Approver of the Crime. Some object, that<383> it is better that one should be punished, than a Multitude involved in War. But if the Potentate approve of the Fact of his Embassadors,8 his Punishment will not keep off the War. Besides, the Safety of Embassadors is but very slenderly provided for, if they be obliged to give an Account of their Actions to any but their Principals. For since the Reasons of State in those that send, and those that receive the Embassador, are commonly different, nay, often quite contrary, it could scarce ever happen, that something might not be laid to the Embassador’s Charge, that would carry the Colour of a Crime.9 And tho’ some Crimes be so manifest as to admit of no doubt, yet the Danger, there generally is, in punishing Embassadors, is sufficient Reason for a general Law against punishing them at all.

5. Wherefore I am fully persuaded, that tho’ it has prevailed as a common Custom every where, that all People that reside in Foreign Countries, should be subject to the Laws of those Countries; yet that an Exception should be made in Favour of Embassadors, who, as they are, by a Sort of Fiction, taken for the very Persons whom they represent, (he brought along with him, saith Cicero of a certain Embassador, The Majesty of a Senate, and the Authority of a Commonwealth)10 so may they by the same kind of Fiction be imagined to be out of the Territories of the Potentate, to whom they are sent.11 Hence it is, that they are not subject to the Laws of the Country, where they reside. Wherefore if any slight Crime be committed by an Embassador, it is either to be connived at, 12 or he is to be commanded to depart out of the Kingdom, as was done to him, saith Polybius,13 who procured the Escape of the Hostages from Rome. Hence we may take Notice by the Way, that an Embassador of the Tarentines,14 who had been guilty of the same Crime, was scourged for it; but this was done at a Time15 when the Tarentines being conquered by the Romans were become their Subjects. But in case the<384> Crime be great, and tending to endanger the publick Safety,16 the Embassador is to be remitted to his Principal, with a Demand, either that he punish him himself, or deliver him up to be punished; as we read of the Gauls,17 That they demanded the Fabii to be delivered up to them.

6. But what I have observed already of human Laws, viz. That they are so made as not to oblige in Cases of extreme Necessity, will also hold good in this Maxim of the Law of Nations, which renders the Persons of Embassadors sacred and inviolable.18 But these Cases of extreme Necessity do not consist in exacting Punishment, which in several other Cases may be exempted by the Law of Nations, as will appear afterwards, when we come to treat of the Effects of an open and declared War; much less in the Place, Time or Manner of inflicting the Punishment, but in preventing some horrid Design, especially against the Publick. Where-fore, to prevent any imminent Danger,19 an Embassador may be both arrested and examined.20 As were Tarquin’s Embassadors by the Roman Consuls, special Care being taken that the Letters and Papers then in their Custody should not be put out of the way or lost.21

7. But if an Embassador make an Assault with Arms, it is lawful to kill him, not indeed by Way of Punishment, but in our own Defence. So the Gauls might have killed the Fabii, whom Livy calls Violators of Human Right.22 Wherefore Demophon (in Euripides) resisted Eurystheus’s Herald by Force, when he attempted by Violence to carry off the Suppliants; and when the Herald demanded of him,

• Dar’st thou an23Herald strike who’s hither sent?

He answered,

• Yes, if that Herald offers Violence.

The Herald’s Name was Copreus, and24 because he offered Violence, he was slain<385> by the People of Athens, as Philostratus25 records in the Life of Herod. The same Way does Cicero resolve this Question, whether a Son ought to accuse his own Father, who is a Traytor to his Country.26 If the Danger be imminent, he ought by Way of Prevention, but if the Danger be past, he ought not by Way of Punishment.

V.That he to whom the Embassador is not sent is not bound to observe the Rights of Embassy.V. 1. But this Law, which we have been speaking of concerning the Protection of Embassadors from Violence, only obliges him, to whom the Embassy is sent, and that only upon Condition he admits it, as if from that Time a Sort of tacit Agreement commenced between them. But one may, and often doth, forbid Embassadors to be sent; or treat them as Enemies, if they come without his Permission. So were the Aetolians threatned by the Romans;1 and at another Time they ordered the Veientine Embassadors,2 to depart immediately out of their City, otherwise they would shew them no more Mercy, than Tolumnius their King had shewn to the Roman Embassadors, whom he commanded to be put to Death. So did the Samnites threaten the Romans, that if they came into the Council of Samnium, they should not depart in Safety.3 This Law therefore doth not oblige those, thro’ whose Territories Embassadors presume to pass without their Passport. For4 if they be going to their Enemies, or coming from their Enemies, or attempting in any other manner Acts of Hostility, they may lawfully be killed. Thus did the Athe-<386>nians serve the Embassadors,5 that were going between the Persians and Spartans, and so did the Illyrians those between the Issians and the Romans; and much more may they be imprisoned; as Xenophon6 ordered some to be committed; Alexander those, who were sent from7Thebes and Sparta to Darius; the Romans,8 those of Philip to Hannibal; and the Latins, those of the Volsci.9

2. But suppose Embassadors do meet with bad Treatment, without any such Reason,10 yet that Law of Nations, whereof we treat, shall not be esteemed violated thereby, but only the Friendship and Dignity, either of the Potentate that sent the Embassador, or of him to whom he goes. Thus writes Justin, of Philip II. King of Macedon. He sent an Embassador with Letters to make an Alliance with Hannibal, who being apprehended and brought before the Roman Senate, was dismissed in Safety, not out of Regard to the King his Master, but for fear they should make him, who before was doubtful, their professed Enemy.11

VI.That even an Enemy to whom the Embassador is sent is bound.VI. But if the Embassy be admitted, the Law of Nations gives Protection to Embassadors,1 even from a declared Enemy, much more from one who intends us Evil, without having yet taken Arms. Heralds enjoy Peace in the midst of War, said Diodorus Siculus.2 The Spartans, who had killed the Heralds of the Persians, are said to have subverted the Rights of all Men.3If any one strike an Enemy’s Embassador, he shall be adjudged guilty of a Breach of the Law of Nations, saith Pomponius, because Embassadors are held Sacred.4 Tacitus calls this Right, whereof we now speak, the Right of Enemies, the sacred Right of Embassy, the Right of Nations.5 So likewise Cicero,6Ought not Embassadors to be free from Danger, even in the midst of their Enemies? And Seneca,7He violated Embassies, having no Regard to the Law of Nations. And when the People of Fidenae put the Roman Embassadors to Death, Livy calls it Murder, violating the Law of Nations, a Wickedness, an horrid Fact, an impious Piece of Butchery.8 And in another Place, when their Embassadors were brought in Danger, They had not left among them, says he, so much as the Rights of War.9 So Curtius, He sent Heralds to them with Proposals of Peace, whom they slew and threw head-long into the Sea, contrary<387> to the Law of Nations.10 And with abundance of Reason do these Authors express themselves thus: For even in War many Incidents happen, which cannot be negotiated but by Embassadors, and Peace can scarce ever be made without them.11

VII.Embassadors not subject to the Law of Retaliation.VII. Another Question is commonly started, viz. whether an Embassador may be put to Death, or have any Violence in any other manner offered him, by the Law of Retaliation, for what his Principal had done to any Embassador sent to him from that Court. And indeed there are many Instances to be met with in Histories of Revenge taken after this Manner. And no wonder; for not only just and lawful Actions, but unjust, passionate, out ragious ones are mentioned in Histories. Provision is made by the Law of Nations, not only for the Honour of the Potentate who sends the Embassador, but for the Safety of him who is sent: So that there is a Sort of tacit Covenant also between the Embassador, and the Potentate to whom he goes. He may therefore have an Injury done him, when none is done to his Principal. And so that Action of Scipio’s did not only argue a Greatness of Soul, but was likewise conformable to the Law of Nations, who when the Carthaginian Embassadors were brought before him, and he was asked what should be done to them (soon after the Roman Embassadors had been very hardly used at Carthage) answered,1Nothing like what the Carthaginians did. Livy adds, that he said, He would do nothing unworthy of the Roman Maxims.2 In a like Case, but a much more antient one, these Words, says Valerius Maximus, were spoken by the Roman Consuls, The Faith of our City, O Hanno, frees thee from that Fear.3 For at that Time Cornelius Asina, contrary to the Right of Embassy, was put in Chains by the Carthaginians.

VIII.That the Rights of Embassy are to be extended even to the Attendants of Embassadors, if the Embassadors please.VIII. 1. The Attendants likewise and Baggage of Embassadors are in some Measure to be accounted Sacred. Hence amongst the antient Romans, when an Herald was sent to make any Treaty, he said to the King:1Dost thou admit me, O King, as the Royal Messenger of the People of Rome, together with my Attendants and Baggage? And by the Julian Law,2 not only those who did the Embassador himself, but even those that did his Attendants any Injury, were declared guilty of a publick Violence. But3 these Privileges only belong to them by Way of Accessory; and consequently no longer, than the Embassador pleases. Therefore if his Attendants commit any great Crime, he may be required to deliver them up to Justice.4 For they are not to be taken from him by Force; which being once done by the Achaians to some Spartans who were in the Roman Embassador’s Retinue, the Romans cried out, They have broke the Law of Nations.5 Whereunto we may also refer the Opinion of Sallust concerning Bomilcar before quoted. But if the Embassador shall refuse to deliver him up, then are we to proceed in the same Manner as is prescribed against the Embassador himself.

2. But whether the Embassador himself shall have Jurisdiction over his own Family,6 or may make his House a Sanctuary for all such as fly thither for Refuge,<388> depends upon the Concession of the Prince, in whose Dominions he resides. For the Law of Nations does not give him these Privileges.7

IX.And to their moveable Goods.IX. That the Moveables or Furniture of an Embassador, which are all reckoned Dependences of his Person, cannot be seized upon by Way of Pledge, or for discharge of a Debt either by Course of Law, or even, as some pretend, by the King’s own Authority and Hand, is the best grounded Opinion. For no Kind of Compulsion or Violence is to be offered either to him or his, that he may enjoy an absolute Security or Protection. And therefore, if he shall contract any Debt, and have no real Estate in the Country (as it commonly happens) to discharge it with, Application is to be made to him in a friendly Manner for the Payment of it, and if he refuse to pay it, Application is in like Manner to be made to his Principal. And if he likewise refuse to pay it, then must we in the last Place have resort to such Remedies,1 as are provided against Debtors residing in foreign Countries.

X.Instances of an Obligation without the Right of Compulsion.X. 1. Neither is there any Reason to fear (as some may imagine) that if Embassadors have such Privileges, no Body will give them Credit. For Kings, that cannot be compelled, never want Creditors; and Nicolaus Damascenus1 says, it was a Custom among some Nations, that for Contracts made upon Trust, no Remedy was provided by Law, no more than against Men that prove ungrateful: So that People in those Countries were either obliged to sell nothing, but what they were paid for immediately, or to depend upon the bare Word and Honesty of the Buyer. And2Seneca wishes this Custom would prevail in all Places. Would to GOD, saith he, that we could persuade Men, not to require their Debts, but only of those, who were willing to pay them: I wish that the Buyer could not be bound to the Seller by any Covenant, and that Compacts and Bargains were not kept under Hand and Seal; but that Honesty and Conscience were Security for their Performance. Appian relates of the Persians, That they hated τὸ κιχράσθαι, &c.3The lending and borrowing of Money, accounting it an Inlet to a thousand Frauds and Falshoods.

2. Aelian reports the same Thing of the Indians; with whom agrees Strabo4 in these Words, Δίκην δὲ μὴ εἰ̂ναι, &c. That there are no Courts of Judicature, but for Murders and Injuries, it not being in a Man’s Power to hinder these. But as to Contracts and Agreements, it is in the Choice of every one to make them, or refuse them; and therefore if any Man breaks his Word, we are to bear it with Patience. And this ought to make us cautious, whom we give Credit to, but not to fill the City with Law Suits. It was also enacted by Charondas, that no Man should have his Action at Law against him, whose Promise he thought fit to take for what he sold him: Which5Plato likewise approves of. And Aristotle6 observes παρ’ ἐνίοις δὲ, &c. That in some Countries there is no Law against Breach of Contracts; for they think, that a Man ought to be content with the Credit of the Person whom he thinks fit to trust. And in another Place,7 ἐνιαχον̂ τ’ εἰσὶν, &c. There are Laws in some Countries against seeking Redress for the Breach of voluntary Contracts, as if he, with whom we have made any Contract, and whose Word we have taken, were only privately to be dealt with. What is alledged against this Opinion out of the Roman or Civil Law, does not belong to our Embassadors, but only to Deputies of Provinces or Towns.8

XI.How great this Right of Embassy is.XI. Profane Histories1 are full of Instances of Wars, undertaken for the ill<389> Usage of Embassadors; and2 in the Holy Scriptures we read of a War made by King David against the Ammonites, upon that Account. Neither can there be a juster Cause, as Cicero pleads against Mithridates.3

[1 ]The Rights of Embassies are in some Manner grounded on the Law of Nature, which authorises all that is necessary for procuring or maintaining Peace and Friendship among Men. See Pufendorf, B. II. Chap. III. § 23. As to such Rights as are not necessary for that End, if Embassadors can claim them, it is only because the Custom being introduced of allowing Embassadors to enjoy such Rights, whoever receives an Embassy, is, and may be, supposed to receive it on that Foot, unless he expressly declares he will not submit to the established Custom, as he is at full Liberty to dispense with it, when he excuses others on the same Score.

[2. ]Pomponius, L. si quis. D. de legationibus, If any one shall strike an Embassador, tho’ sent from an Enemy, he is thought to violate thereby the Law of Nations, because Embassadors are accounted sacred. And for this Reason, if, whilst Embassadors of any Nation are resident with us, War be declared against their Principals, they still remain at Liberty. For this is agreeable to the Law of Nations. And therefore Quintus Mucius used to say, that he who struck an Embassador, ought to be delivered up to the Enemy that employed him. By the Julian Law against publick Violence, not only those who insult an Embassador, but such as insult any of his Retinue, are declared liable to the Penalty. As Ulpian replies in L. lege Julia, D. ad legem Juliam de vi publica.Josephus, Antiq. Hist. Lib. XV. mightily cries up the sacred Privileges of Embassadors, who, he says, are honoured with the same Name as the Angels and Messengers of GOD. Varro, Lib. III. De Lingua Latina, The Persons of Embassadors are sacred.Cicero, Verr. III. The Rights of Embassadors are secured both by a divine and human Guard, and the very Name ought to be so sacred and venerable, as to be safe and inviolable, not only amongst Allies, but amidst the Arms of contending Foes. The Author of Pelopidas’s Life, When he thought himself secured by the Rights of Embassy, which every Nation used to regard with the profoundest Reverence.Diodorus Siculus, (in Excerpt. Peires. N. 248.) calls this, τω̂ν πρεσβευτω̂ν ασυλίας, A Privilege of Security, that the Sacredness of Embassadors intitles them to. In Statius,

• An Embassador,
• Whene’er he will, returns in Safety.
• Thebaid. Lib. II. (v. 373, 374.)

And again,

• Embassador is a Name,
• By ev’ry Age in Veneration had.
• Ibid. (v. 436).

St. Chrysostom, καὶ οὐδὲ τη̂ν κοινὸν, &c. Without any Manner of Regard to the common Law of Mankind, that never suffers an Embassador to be insulted.Servius, upon Aeneid X. ver. 101. By the Right of Nations screened from every Injury. Not to set down all the Passages to this Purpose, see Livy, of the Laurentes.Dion Chrysostom, De lege & consuetudine.Velleius Paterculus, init. Lib. II. Menander Protector. Felix’s Epistle to Zeno, in Append. Cod. Theod. by Sirmundus. Totilas, in Procopius, Gotth. III. Πα̂σι μὲν, &c. To speak in general, it is an established Custom, even with all the Barbarians in the World, to reverence the Character of Embassadors. The same has Scaffnaburgensis related of the barbarous and uncivilized People. Aimonius attributes these Expressions to King Clodovaeus, And lastly, by the united Force of divine and human Laws, which ordain, that those who are commissioned the Mediators and Composers of Hostilities, shall themselves be free from Hurt and Molestation. For in War and Arms it is an Embassy alone that can sollicit Peace; and the Person employed in that friendly Service is no longer an Enemy. See also Radevicus, in Append. See Cromerus of the Polanders, Lib. XX. Leunclavius of the Turks, Lib. VIII. Mariana of the Moors, Lib. XII. Grotius.

What our Author here quotes from Varro is not in that Writer. The bare Manner of quoting him makes one immediately suspect some Mistake; for what is now extant of the Piece De Lingua Latina, begins with the fourth Book. I am satisfied I have discovered the Origin of this false Quotation, and it will hence appear, that the greatest Men sometimes quote on the Credit of others. Denis Godfrey, in a Note on the Digest. Lib. L. Tit. VII. De Legationibus, Leg. XVII. copying what Cujas has said in his Observations, Lib. XI. Cap. V. takes the Words of that famous Lawyer for a Passage from the Roman Author. Cujas there observes, that the Priests called Feciales, took Cognizance of such Cases as related to the Violation of the Rights of Embassadors; and refers to Varro, Lib. III. De vitâ populi Romani. After which he adds, Nor is this to be wondered at; since, as we have said, the Bodies of Embassadors are sacred. The Transcriber took these for the very Words of the Latin Author; and in Order to correct his Original, quotes the third Book of Varro’s Work now extant; not knowing that the Passage in View belongs to a Work that is lost; of which Nonnius Marcellus has preserved this Fragment, under the Word Feciales. They (the Romans) ordered, that if any Violation was offered to the Embassadors of any Nation, the Offenders, tho’ of the Nobility, should be delivered up to the State thus injured; and twenty Feciales were appointed for taking Cognizance of, and judging in such Matters. p. 529. Edit. Mercer. Our Author, who had read Godfrey’s Note, was the more easily induced to trust him, as he might have remembered to have read the like Words elsewhere. For Asconius, a Commentator on Cicero, writing on those Words of the Orator, For the Character of an Embassador ought to be such, that he may be safe; not only among Allies, but even among the Arms of the Enemy; says, The Orator added the last Words invidiously, when speaking of Magistrates. For, continues he, the Persons of Embassadors are preserved inviolable by the Law of Nations, in making Treaties, or regulating the Terms of Peace and War. In Verrem. I. Cap. XXXIII. Godfrey, quoting the Passage of Cicero, gives it thus, Ought not Embassadors to be safe among Enemies? Our Author cites it exactly in the same Manner below, § 6. which leaves no Room for doubting what gave Occasion to the Mistake under Consideration.

[3. ]Ἔργον ἄσεβες, A wicked irreligious Thing, says Plutarch, in his Life of Aemilius, relating what Gentius had done. Josephus, Antiq. Hist. Lib. XV. Τον̂το τὸ ὄνομα, &c. This awful Name is able to reconcile one Enemy to another. And therefore what can be a greater Act of Impiety than to murder Embassadors, who are interceding only for what is just and reasonable?Grotius.

[1 ]Lib. I. Cap. XXXII. Num. 6.

[2. ]Lib. VI. Cap. XVII. Num. 8.

[3. ]Orat. Philip. V. Cap. X. See Boecler’s Note on Velleius Paterculus, Lib. II. Cap. VII.

[4. ]Aeneid. Lib. VII. ver. 369, 370.

[5. ]Cromerus XXX. Grotius.

[6. ]As the Carthaginians, mentioned Chap. XV. § 7. Num. 5. To this Article are referred feudatary Princes, as those of Germany are in Regard to the Emperor.

[7. ]To this may be added, a remarkable Instance which our Author himself has given in his Letters, I. Part. Epist. 364. viz. that of the Chancellor Oxienstiern, who, tho’ a Subject, after the Death of Gustavus, received so great a Power from the States of Sweden, that he was authorized to send Embassies as he thought proper, for making War and Peace, &c. As the Case was extraordinary, our Author, in the Letter now quoted, among other Instances, produces that of Embassadors, who being sent from Flanders by the Archduke, by Vertue of a Power received from Madrid, were received in France and England, as Embassadors of the King of Spain. See what he says further in that Letter, where he tells the Chancellor how he answers the Objections proposed to him on that Occasion, when he was sent to Paris, with the Character of Embassador from the Crown of Sweden.

[8. ]This Question is useless, in Regard to the Conqueror; who will be far from even enquiring whether he ought to receive Embassadors from him whom he has deprived of his Kingdom. But as a Conqueror, who had entered into the War for some Reasons manifestly unjust, doth not by his Victory acquire a true Right over the conquered Kingdom, till the lawful Sovereign renounces all his Pretensions in some Manner or other, the other Powers, as long as they can do it without some great Inconveniency, ought still to acknowledge him for the true King, who really is so; and consequently are obliged to receive his Embassadors, and allow them all their Rights and Privileges. In that Case the Conqueror is to them the same as the Usurper, mentioned by our Author, Chap. XVI. § 17. The Difference he makes between them is grounded only on the Effects which he improperly ascribes to his pretended Law of Nations, as we shall shew in the proper Place.

[9. ]We have this Fact from Livy, Lib. XLIV. Cap. XLV. Num. 1. and Cap. XLVI. Num. 1. But says Gronovius, the Roman General did not detain the Heralds of Perseus, because that Prince being deprived of his Kingdom, had then no Right to send Embassadors; it was because, thinking him self in a Condition of really depriving him of his Kingdom, he would not hearken to any Proposals of Peace; and because those Ambassadors came without Leave, which it was customary to ask. See Livy, Lib. XXXII. Cap. XI. and Lib. XXXVII. Cap. XLV. So that no Injury was done them. Paulus Aemilius contented himself with returning Perseus no Answer by their Mouth. I find, however, that Perseus sending afterwards three Embassadors with Letters, Paulus Aemilius sent them back without any Reply, because Perseus still took the Title of King, Lib. XLV. Cap. IV. Whence it follows, that he must not have considered the Embassadors of that Prince as invested with the Privileges they might have before enjoyed, but looked on their Persons as sacred and inviolable only as far as he pleased.

[10. ]See Johannes Mariana, Lib. XXII. 8. about the Embassadors of the City of Toledo to the King; and Crantzius, about the People of Flanders. Saxon. XII. 33. Grotius.

[11. ]And Magnentius, in Zosimus, Lib. II. Μαγνέντιος δε, &c. Magnentius was a pretty While considering with himself, whether he should dismiss Philip without giving him an Answer, or detain him, contrary to the Privilege of Embassadors. This Philip was come from Constantius.Grotius.

The Thing did not actually happen, but all Things seemed disposed for the Fact. See the Historian, Hist. Lib. III. Cap. LXXX. Num. 4. Edit. Rycq. The Passage quoted from Zosimus, is Lib. II. Cap. XLVII. Num. 3. p. 217. Edit. Cellar.

[12. ]Annal. Lib. III. Cap. LXXIII. Num. 2.

[13. ]De Bell. Civil. Lib. III. Cap. XIX. Num. 2. See the Notes of Cellarius on the Place.

[1 ]Donatus, on the Prologue to Hecyra, To be admitted to Audience is a Right the Law of Nations has given Embassadors. Grotius.

The other Right is mentioned immediately after, and I am surprized that our Author has not taken Notice of it. It is not allowable to offer Violence to an Embassador; therefore, for his own Security, he calls himself, not the Speaker of a Prologue, but an Embassador.

[2. ]Lib. XXI. Chap. X. Num. 6.

[3. ]We are farther to observe, with Thomasius, that even when there is an Obligation of admitting Embassadors, it is a bare Duty of Humanity; so that the Refusal alone can never be considered as a real Injustice. See that Author’s Institut. Juris prudentiae Divinae, Lib. III. Cap. IX. Num. 15, &c. as also his Notes on Huber, De Jure Civitatis, Lib. III. Sect. IV. Cap. II. § 10. where he quotes a Treatise which he much values, but which I have not seen, published under a feigned Name, and entitled Justini Presbeuta, Discursus de Jure Legationis Statuum Imperii, Eleutheropol. 1700.

[4. ]See Camden in the Year MDLXXI. The fourth Question proposed there. Grotius.

[5. ]Pericles was of Opinion, that no Herald or Embassador should be received from the Lacedemonians, while they remained in Arms. Thucydides, Lib. III. Cap. XII. Edit. Oxon. The Lacedemonians had refused to make up the Quarrel in an amicable Manner; as appears from the Conclusion of B. I. and the Athenians still continued to offer them that Way, for they told Melesippus, that when the Lacedemonians had laid down their Arms, and were returned to their own Country, they might then send them Embassadors, who should be well received. It was evidently their Resolution to come to a War; and Melesippus was considered as one sent only in the Character of a Spy; for which Reason he was conducted out of the Country, by Persons who had Orders to see he spoke to nobody in his Journey. See an Example of the like Sort in Appian, Bell. Mithr. p. 311. Edit. Amst. (181. Edit. H. Steph.) and in Aristides, the Rhetorician, Orat. Panathen. Thom. I. p. 250. Edit. P. Steph. Our Author means, that in Circumstances like that, there is good Reason for refusing Audience to the Embassadors of a Power, which has taken up Arms. He had no Design of laying it down as a general Rule, that Embassadors from an armed Enemy may always be refused, as Ziegler and others ridiculously understand him. He was not apt to fall into such a gross Self-Contradiction.

[6. ]See Servius upon the eighth Aeneid, concerning this Custom of the Romans.Grotius.

Our Author here means the Custom of enquiring whence the Embassadors came, and what was their Business, before they received them. The following Passage is what he had in View; at least I know no other that can be meant. Ille intra tecta vocari imperat. He (King Latinus) acted differently from the Roman Custom. For if News was brought of the Arrival of some unknown Embassadors, first Enquiry was made into their Business, after which the inferior Magistrates went out to them; and lastly, the Senate informed themselves of their Demands without the Walls of the City; and thus, if it appeared proper, they were admitted. On Verse 168.

[7. ]Livy, Lib. XLI. Cap. XXIX. Num. 20.

[8. ]Procopius, Gothic. Lib. III. Cap. XXXVII.

[9. ]Idem. Lib. II. Cap. XIX. Where, however, another Reason is alledged.

[10. ]The People through whose Country they passed, would not suffer them to enter their Towns; and some, looking on the Places through which they passed, as defiled, made great Purifications. This is what the Historian says, without mentioning the Reception they met with from the States to which they were sent. Lib. IV. Cap. XX. p. 402. and Chap. XXI. p. 404, 405. Edit. Amst.

[11. ]Lysimachus gave him Audience; but bid him Take Care he came not a second Time. To which the Philosopher answered, that He would not, unless Ptolomy sent him. This Account we find in Diogenes Laertius, Lib. II. § 182. Edit. Amst.

[12. ]So Andrew Burgus Caesar’s Ambassador, was denied Admittance into Spain,Mariana, Lib. XXIX. There is another Instance of this in Cromerus, Lib. XX. Grotius.

[13. ]In the Retreat of the ten thousand Greeks, of which Xenophon has left us the History, the Generals resolved that they would receive no Heralds while they were in an Enemy’s Country. They were moved to this Resolution, by their having found, that, under Pretence of Embassies, Spies had been sent among them, who corrupted the Soldiers, and caused several of them to revolt. De Expedit. Cyri, Lib. III. Cap. III. § 4. Edit. Oxon.

[14. ]Livy, Lib. XXXVII. Cap. XLIX. Num. 3.

[15. ]Idem. Lib. XLII. Cap. XXXVI. Num. 5, 6. This and the foregoing Instance relate rather to the Manner of receiving an Embassy, than the Reasons for refusing it.

[16. ]The Emperor Charles V. commanded the Embassadors of France, Venice, and Florence, sent to declare War against him, to be conducted to a Place thirty Miles distant from his Court. Guicciardini, Lib. XVIII. Bellajus, Lib. III. Grotius.

The Fact mentioned in the Text of our Author, is recorded by Sallust, Bell. Jugurth. Cap. XXX. Edit. Wass. The Example produced in the Note is not to the Purpose. The Question there turns on Embassadors, who were actually with Charles V. whom he put under an Arrest, till he had Advice, that his Embassadors in England and France were safe.

[17. ]See Mr. Thomasius’s Jurisprud. Divina, Lib. III. Cap. IX. § 25, &c.

[1 ]Menander Protector, speaking of the Emperor Justin the Second, Ὁ δὲ παρὰ τὸν κοινὸν τω̂ν πρεσβυτέρων θεσμὸν εἰ̂κεν ἐν δεσμοɩ̂ς, But he, contrary to the common Rights of Ambassadors, put them in Chains. See Ern. Cothm. Resp. XXXII. Num. 29, &c. Vol. V. Grotius.

On the contrary, Bajanus, King of the Avari, imprisoned the Embassadors of Justin II. as the Greek Author relates the Matter, Excerpt. Legat. Just. Justinian. & Tiber. Cap. IX. where we find the Words quoted by our Author.

[2. ]In Reality, if the Consent of Nations was the only sure Foundation of the Rights of Embassadors, it would be hard to prove the Maxim in Question, and shew how far it extends. But our Author had not sufficiently consulted the Principles of the Law of Nature, which would have furnished him with clear and certain Reasons. See what Mr. Thomasius says on the Subject; who, in my Opinion, has treated it better than any one, in his Juris prudentia Divina, Lib. III. Cap. IX. § 36, &c. He first distinguishes between Embassadors, who have done nothing amiss, from those who have behaved themselves ill; and then such as are sent by one Power to another, with which it is at Peace, from those who come from an Enemy, First then, there is no Difficulty in Regard to Embassadors, who coming to a State with which their Master is at Peace, have injured no Man. The most common and most evident Maxims of the Law of Nature require they should be perfectly secure; so that, if such an Embassador be insulted or affronted in any Manner whatsoever, his Master has a just Reason for declaring War. The holy King David furnishes us with an Instance of this Kind. 2 SamuelCap. X. As to Embassadors who come from an Enemy, and who have done nothing amiss, there Security depends entirely on the Laws of Humanity, before they are admitted as Embassadors. For an Enemy, as such, has a Right to annoy his Enemy. So that, independently of Agreements or Treaties, by which a Prince or State becomes in some Sort a Friend for a Time, they can be obliged to spare the Embassador of an Enemy only by Vertue of the Sentiments of Humanity, which we ought always to retain, and which oblige us to have a Regard for whatever tends to the Preservation of Peace. When therefore some Act of Hostility is committed on an Embassador sent by an Enemy, before he is admitted as such, no fresh Cause of a War is given; only that, which the Enemy before had, is thereby confirmed, supposing the War just and lawful. I make this Supposition, because if the War was unjust, that is, if he who sent the Embassador had really injured him to whom he sent him, and thus given him Reason for taking Arms against him; the Acts of Hostility committed by the latter on the Embassador of the former, do not make the Right change Sides; unless the Aggressor sent his Embassador to offer his Enemy a reasonable Satisfaction; for then this ought to be considered as a Case of Necessity, which carries an imperfect Obligation with it. But when an Enemy’s Embassador is once admitted, the Power thus admitting him does thereby manifestly engage itself, tho’ usually in a tacit Manner, to give and procure him entire Security, while he behaves himself well. So that if this Engagement is broke through, a just Cause of War is given, or at least the Right is transferred to the other Side; because all Agreements give a perfect Right. Nor are Heralds, who are sent to declare War, to be excepted in this Case, provided they do it in an inoffensive Manner. For, according to the Custom of civilized Nations, this Declaration implies a tacit Protestation that we design to use the Way of Arms in a Manner conformable to right Reason, and with an Intent to procure a good Peace. So much for innocent Embassadors. But Secondly, in Regard to such as have rendered themselves culpable in any Manner, they have committed the Fault either of their own Head, or by their Master’s Order. If the former, they forfeit their Right to Security, when the Crime is evident and heinous. For no Embassador whatever can enjoy more Privilege than his Master would have had in the same Case; and such a Crime would not be pardoned in the Master. By heinous Crimes we are to understand such as tend either to disturb the Government, to take away the Lives of the Subjects of the Prince to whom the Embassador is sent, or to do them some considerable Prejudice in their Honour and Estates; particularly if the Persons thus injured are dear to the Prince. When the Crime directly affects the State, or him who is at the Head of it; whether the Embassador has actually used Violence or not, that is, whether he has excited the Subjects to Sedition, has himself conspired against the Government, or favoured the Plot; or whether he has taken Arms with the Rebels or the Enemy, or engaged his Retinue so to do; Revenge may be taken on him, even by killing him, not as a Subject, but as an Enemy. For his Master himself would have no Room to expect better Treatment. If he makes his Escape, his Master is obliged to give him up, on Demand. But, if the Crime, how manifest and heinous soever it may be, affects only a private Man, the Embassador ought not, on that Account alone, to be considered as an Enemy to the Prince or State; but as, if his Master had been guilty of any Crime of the same Nature, Satisfaction ought to be demanded of him, and Arms are not to be taken against him till he had refused it; the same Reason of Equity requires that the Prince, at whose Court the Embassador commits such a Crime, should send him back to his Master, desiring him either to give up the Offender or punish him. For to detain him in Prison, till his Master shall either recal him in order to punish him, or declare that he abandons him, would be to testify a Diffidence of the Master’s Justice, and in some Sort affront him, because the Embassador still represents him. Besides, when a Man has no Right to punish another, he has, commonly speaking, no Right to seize his Person. The Case is different when the Crime is committed by his Master’s Order; for then it would be imprudent to send the Embassador back; because there would be good Reason to believe that the Prince who commanded the Commission of the Crime will be far from either surrendering or punishing the Offender. The Person of the Embassador therefore may be secured till the Master shall repair the Injury done both by the Embassador and himself. As to those who do not represent the Prince’s Person, such as bare Messengers, Trumpets, &c. they may be killed on the Spot, if they come to abuse a Prince by Order of their Master. Nothing is more absurd than what some maintain, viz. that all the Ills done by Embassadors by Order of their Master ought to be charged on their Master only. Were it so, Embassadors would have more Privilege in the Country of another Prince than their Master himself, should he appear there. And, on the other hand, the Sovereign of the Country would have less Power in his own Dominions, than a Master of a Family has in his own House.

[3. ]Lib. II. Cap. IV. Num. 7.

[4. ]I think this Passage supposes the contrary. The Historian had said that the Conspirators being committed to Prison, there was some Debate whether the Embassadors should be treated in the same Manner. Now, would this have been a Question, if it had been a settled Maxim that an Embassador is screened by his Character, tho’ he commits Acts of Hostility? The very Words quoted by our Author insinuate that the Law of Nations doth not extend so far as to impose an Obligation of sparing an Embassador, who commits Acts of Hostility; as if the Historian had said, tho’ it was evident that the Conduct of the Embassadors was such as authorised their being treated as Enemies, yet the Romans were pleased to allow them the Privilege which they would otherwise have enjoyed by the Law of Nations, but of which they had rendered themselves unworthy. So that here is an Exception to the Rule, which declares Embassadors forfeit their Rights the Moment they engage in any Plot, Treason, or such like Conspiracies. I had written this long before I read a Dissertation of the late Mr. Cocceius, De Legato Sancto, non impuni, published at Francfort on the Oder in 1691. where I had the Pleasure to see that celebrated Lawyer explain this Passage and that of Sallust almost in the same Manner. Sect. III. § 2, &c.

[5. ]Bell. Jugurth. Cap. XXXIX. Edit. Wass. (XXXIV. Vulg.) This Passage likewise is misapplied by our Author; the true Sense of it is given by the Commentators. The Historian means tho’, in strict Justice, Bomilcar might have been put to Death, according to the Law of Nations, on Account of Massiva’s Assassination, without being allowed Time to plead his own Cause; yet in order to use him with Tenderness (ex aequo bonoque fit reus, &c.) he was allowed that Favour, which brought him off, as appears by the Sequel of his Story. Thus those Words, Comes ejus, qui Romam fide publicâ venerat, an Assistant in the Embassy sent to Rome, are so far from signifying that, because he was in the Retinue of a Person who came with a safe Conduct, nothing could be done to him by the Law of Nations; that, on the contrary, they insinuate, that, having committed so heinous a Crime, he had thereby rendered himself the more worthy of speedy Punishment as he came under the Protection of the publick Faith. Consult Mr. Cocceius, as quoted in the foregoing Note. Thus the two Passages, quoted by our Author, rather prove the contrary of what he concludes from them; tho’ his Application of them is approved of by Wicquefort, in his Embassador, B. I. Chap. XXVII. Tom. I. p. 821, 822. Edit. Hague 1681. In Reality, on examining all that the Antients have said concerning the Security of Embassadors, it will appear that this Security relates chiefly, if not solely, to those who do not misbehave themselves, and consists only in this, that the Right of War cannot be employed against them, or any other Method be taken with them, which would otherwise justify falling on the Subjects of the Power, from whom they are sent.

[6. ]True. But this is not to be extended beyond what the Design and Custom of Embassies require. Now in Order to this, it is sufficient, that we cannot consider an Embassador as having forfeited his Privileges for all Sorts of Crimes, but only for such as are incontestable and heinous.

[7. ]The Question does not here turn on the Advantage that may result from the Punishment, when the Crime is once committed, but on what is necessary to be done for preventing the Commission of it. The Security of Embassadors ought so to be understood, that it implies nothing contrary to the Security of the Powers to whom they are sent, and who neither would nor ought to receive them on other Terms. Now who does not see that Embassadors would be less bold in attempting any Thing against the Sovereign or Members of a foreign State, if they were apprehensive that, in Case of Treason, or any considerable Misdemeanour, the Sovereign of the Country might do himself Justice, than if they have nothing to fear but Correction from their Master, which they may easily avoid, either because they are often secure of his Connivance or tacit Approbation, or because they hope to find Means, to retire elsewhere before he can be apprised of their Crimes.

[8. ]It is a Matter of Prudence to consider whether there is Room to believe the Embassador’s Master will approve of his Conduct or not. But, in Regard to the Right, the Uncertainty in this Case privileges a Prince to punish a Crime, for which he is not assured of having Satisfaction any other Way, and which might be capable of engaging him in a War, if he was obliged to wait till he knew what the Master of the Embassador would do in the Affair. Our Author doth not however here advise undertaking a War on the Prince, for revenging his not punishing his Minister; as Cocceius understands him in the Dissertation above quoted, Cap. III. § 8. He only means, in Answer to the Objection before us, that, even supposing the Prince might punish the Embassador (which he denies) a War will not always be avoided by that Means; because the Embassador’s Master may approve of his Conduct, even tho’ the Offender is punished. Now, in that Case, either he would endeavour to do himself Justice for such Punishment, as an Outrage committed on the Person who represented him; or there would be just Reason for taking his Approbation as an Affront, and consequently for declaring War against him on that Account, if it be otherwise judged convenient to undertake it; which our Author without Doubt supposes. On that Foot then his Answer is not amiss. But it must be allowed that the Objection, and consequently the Answer, are nothing to the Purpose; for the Reason given in the preceding Note.

[9. ]This Inconveniency would be to be feared, if a Right was given, to the Power to whom an Embassador is sent, of punishing the least Fault, and without distinguishing the Cases, mentioned Note 2. But even supposing the worst, the Inconveniency will be at least counterpoised by the Dangers to which a State would be exposed, if the Ministers of foreign Powers might always flatter themselves with the Hope of not being punished by the Sovereign at whose Court they reside. Here a strict Regard is to be had to what is required by the Security and Interest both of him who sends, and of him who receives Embassadors. The Design and Effect of Embassies equally demand this Attention.

[10. ]Orat. Philipp. VIII. Cap. VIII.

[11. ]This holds good while the Embassadors have done nothing by which they forfeit the Right of Security and Independence, which the Design of their Employ requires. Mr. Cocceius in his Dissertation more than once quoted, Sect. II. maintains, however, that all Embassadors are subject to the civil and criminal Jurisdiction of the foreign Power, in whose Country they exercise the Function of their Character. But he reasons either on Prejudices taken from what the Roman Law ordains in Regard to another Sort of publick Ministers, sent to their own Sovereign; or on Principles which do not destroy the Foundation of the Right in Question, viz. That, as a Prince will be far from purposely subjecting himself to the Jurisdiction of another, neither can it be grounded that he would subject himself to it in the Person of his Embassador, who represents him. See Pufendorf, B. VIII. Chap. IV. § 21. and Chap. XI. §3.

[12. ]Stephen, King of Poland, did so to the Muscovites,Thuanus, Lib. LXXIII. Anno MDLXXXI. And Elizabeth to the Scot and Spaniard. You have both these Instances in Cambden at the Year MDLXXI. and LXXXIV. Grotius.

[13. ]In all Probability our Author has here copied Alberic Gentilis, who relates this Fact in his Treatise De Legationibus, Lib. II. Cap. XXI. But I find nothing like it in Polybius, not even in the Fragments collected from all Parts with extraordinary Diligence, tho’ Gentilis on this Occasion says Ut in selectis habetPolybius.

[14. ]He was afterwards thrown down from a Rock together with all the Hostages that were retaken. See Livy, Lib. XXV. Cap. VII.

[15. ]So Charles V. commanded the Embassador of the Duke of Milan, as his Subject, not to stir from his Court. Guicciardin, Lib. XVIII. Grotius.

[16. ]Dionin excerpt. legat. ὅτι νεανίσκοι τινὲς, &c. When certain young Gentlemen of the Carthaginians were come Embassadors to Rome, and there acted some unbecoming Things; they were remitted to Carthage. The Carthaginians delivered them up. But the Romans inflicted no Punishment on them: They were dismissed.Grotius.

[17. ]The Gauls had not those Embassadors in their Power, so that they were not in a Condition to do themselves Justice. Livy, Lib. V. Cap. XXXVI. Num. 8.

[18. ]It appears, from what has been said in the preceding Notes, that it is not requisite to wait for the last Extremity in this Case.

[19. ]Mr. Cocceius, in the Dissertation so often quoted, makes his Advantage of this against our Author, as if he had thereby acknowledged that an Embassador is subject to the Jurisdiction of the Power, to whom he is sent. For, says he, to arrest and examine a Man are juridical Acts of a Judge in Regard to one under his Jurisdiction. But the Consequence is far from being just; for the Detention and Interrogatories, which, out of the Case of extreme Necessity here supposed, may be considered as Acts of Jurisdiction, are here only a Means absolutely necessary, for Security against the evil Designs of the Embassador. A just Self-Defence authorises us to do all that, without which we cannot shelter ourselves from Danger. And the Prince, who orders an Embassador guilty of Treason to be arrested, no more exercises an Act of Jurisdiction by so doing, than a private Man, who kills an unjust Aggressor, in Defence of his own Life, exercises the Power of Life and Death.

[20. ]Pelopidas was imprisoned by Alexander Pheraeus, because when he was Embassador he excited the Thessalians to assert their Liberty. Plutarch and the Latin Writer of Pelopidas’s Life. Grotius.

Pelopidas was not Embassador to Alexander, but to the Thessalians. So that this relates to another Question.

[21. ]See Serranus in Henry IV. Grotius.

Our Author probably means to speak of the Letters and Papers belonging to the Secretary of the Spanish Embassador, who was put under an Arrest with Mairargues, when the treasonable Designs of the Person last mentioned were discovered. But the Life of Henry IV. here quoted was not written by Mr. De Serres (Serranus) as every one knows; since his History comes down no lower than Charles VII. It is the Work of his Commentator Monliard. Our Author probably had read the Latin Translation of that Work, printed at Francfort in 1627. in which the Whole passes without Distinction under the Name of John De Serres, tho’ the History is continued to the Year 1625. The Fact, here mentioned, may be seen p. 844. of that Book.

[22. ]See the Passage quoted Note 17. of this Paragraph.

[23. ]This Objection is made by the Chorus in our Editions; and I know not by Vertue of what Authority it is attributed to the Herald, both here and in his Excerpta ex Tragoed, & Com. Graec. p. 317.

[24. ]And in this Sense must we take what Theodahatus the Goth says to Justinian’s Embassadors in Procopius, Gothic. I. σεμνὸν μὲν τὸ χρη̂μα, &c. All the World look upon the Character of Ambassadors to be in every respect Sacred and Honourable, which Honour they may justly claim as long as by their good Behaviour they maintain the Dignity of their Employment. But Men generally agree, that it is lawful to kill an Embassador, if he affronts or is injurious to the Prince he is sent to, or if he attempts another Man’s Bed. But here, when the Embassadors had proved that it was scarce possible to suspect them of Adultery, since they never stirred abroad without a Guard, they very prudently subjoin, τοὺς λόγους δὲ ὅσους, &c. As for what the Embassador speaks, if it be nothing but what he has received from his Principal, tho’ the Message be not altogether so grateful as it ought, he is no ways culpable, but he who employed him must bear the blame; for the Embassador does in this Case only discharge the Commission he was entrusted with. See Camden too in the aforesaid Passage of the Year MDLXXI. Grotius.

The Maxim here laid down by the King of the Goths, if considered in itself is evidently contrary to our Author’s Notions, and agreeable to the Principles we have laid down in the foregoing Notes. It is another Question, whether it was well applied in the Case then in Hand. The contrary appears from the Sequel of the History. As to the second Case, relating to the Excuse made by the Embassadors, the Reason by them alledged is to be understood with some Restriction. If an Embassador has received Orders to make some Proposal or Declaration, which he very well knows must be disagreeable to the Power, to whom he is sent, and which he sees implies, either in itself or in that Power’s Way of thinking some Injustice, or even something abusive, provided he deliver his Commission in a civil Manner, he ought to be considered only as an Instrument, and is only to be dismissed, without the least Violence; particularly, if he expresses some Concern at being charged with so odious a Commission. But if he himself insults the Power, to whom he is sent, with Words or otherwise, it would be to no Purpose for him to pretend, he does it by his Master’s Orders; that Excuse will only more strongly authorize that Power to call him to an Account for it, because, as he had acted by Order, there would be no Room to hope for any Satisfaction from his Master.

[25. ]That Author says that the Herald attempted to force from the very Altar some Heraclides who had fled to Athens; and that the same Athenians, who put him to Death, made publick Mourning for him. De Vit. Sophist. Lib. II. in Herod. Cap. V. p. 550, 551. Edit. Olear.

[26. ]His Words are these: “If a Father plunders Temples, or makes an Attempt on the publick Treasury, shall his Son impeach him to the Magistrates? That indeed would be a Crime; he ought rather to appear in his Father’s Defence, if he is accused. But ought not one’s Country to be considered preferably to all other Duties and Obligations? Most certainly; but it is an Advantage to our Country that Children should be dutiful to their Parents. If the Father endeavours to seize on the Government, or betray his Country, shall his Son be silent? He shall entreat his Father to desist; if Intreaties have no Effect on him, he shall represent to him the Enormity of his Crime and even employ Menaces. At last; if the Ruin of his Country is concerned in the Affair, he shall prefer the Safety of his Country to his Father’s Life.” De Offic. Lib. III. Cap. XXIII.

[1 ]The Passage has been already quoted Note 14. on the third Paragraph.

[2. ]On the contrary, it appears that the Veians made that Compliment to the Embassadors from Rome; as the learned Gronovius has observed. See Livy, Lib. IV. Cap. LVIII. Num. 6, 7. And, to shew that this is a real Mistake of the Author, and not a bare Fault in the Writing, I shall here add that, in the first Editions we read only, & olim Veientibus edictum, &c. that published in 1632. reads, & olim à Romanis Veientibus edictum, &c. because our Author afterwards added another Example: & Romanis à Samnitibus, si quod, &c. The first Addition would have been unnecessary, if he had not all along thought that the brutish Answer was made by the Romans. So that he never perceived his Mistake, as appears from another in the Close of the seventh Paragraph: For telling the same Story of two Things which happened at different Times, he, in the first Edition, ascribed to Scipio alone what he relates on the Credit of Livy and Valerius Maximus. But he afterwards distinguished the Facts and Persons, as they appear in the two Authors quoted. This Remark is of some Use for justifying the Liberty and the Care I have taken to correct such Inaccuracies in several Places, into which our Author has fallen in this and the following Chapter more frequently than in any other of the whole Work.

[3. ]Livy, Lib. X. Cap. XII. Num. 2.

[4. ]The Sicilians in Alliance with the Athenians seized upon the Embassadors of Syracuse which were sent to some other States; Thucydides, Lib. VII. So too the Argives seized the Embassadors sent by a few factious People from Athens, and brought them to Argos. Id. Thucyd. Lib. VIII. And the Epirots intercepted the Aetolian Embassadors going to Rome, and extorted from them a Ransom: One of them only was, at the Request of the Romans, set at Liberty without paying any Thing, Polyb. excerpt. legat. Num. 27. See the Opinions of Paruta, Lib. XI. and of Bezar, Lib. XXI. about the French Embassadors to the Turk, whom the Spaniards took upon the Po, and murdered. And Crantzius, Saxon XII. about the Embassadors of the States of Flanders to the French King, whom Maximilian apprehended. Belisarius’s good Nature and Clemency are mightily applauded for sparing Gelimer’s Embassadors who had been sent into Spain, and were returned to Carthage which was then under the Roman Jurisdiction. Procopius, Vandal I. Grotius.

The Second of these Instances is not related with the utmost Exactness. They were the Parilians, or Men of a certain Ship of the State, who being employed in transporting those Embassadors, delivered them up to those of Argos.

[5. ]These Embassadors did not pass through the Territories of the Athenians; they were betrayed and put under an Arrest in Thrace, and from thence conducted to Athens. See Thucydides, Lib. II. Cap. LXVII.

[6. ]It was not known whither those Embassadors were going. The Historian only says, that they were put under a strong Guard, to be used as Guides. De Expedit. Cyri. Lib. VI. Cap. III. § 7.

[7. ]They were with Darius before the Battle, and were taken in that Battle. Alexander released them. See Arrian, De Expedit. Alexandri, Lib. II. Cap. XV.

[8. ]See Appian. Excerpt. legat. Num. 19. Grotius.

[9. ]Those Embassadors were sent to the Latins themselves, in order to engage them in an Alliance against the Romans, and the Latins conducted them to Rome in Chains. This Account is given us by Dionysius Halicarnassensis, from whom our Author without doubt took this Instance. Antiq. Roman. Lib. VI. Cap. XXV. p. 346. Edit. Oxon. (p. 361. Edit. Sylb.)

[10. ]It is quite another Thing, if any one shall, out of his own Territories, contrive to surprize the Embassadors of another State; for this would be a direct Breach of the Law of Nations. And this Affair is contained in the Thessalians Speech against Philip in Livy. Grotius.

[11. ]Lib. XXXIX. Cap. IV. Num. 1, 2.

[1 ]See some Passages just now cited at § 1. And Donatus upon that of the Eunuch, Convenire & Colloqui, go and have a little Chat. This is to be understood, as if he had said, Good Mr. Soldier, by your Favour permit me to do what any Enemy, even in the height of War and Hostilities, is allowed.Grotius.

[2. ]Our Author probably had in View the Passage where the Historian, speaking of the God Mercury, says the Antients attributed to him the Invention of Embassies, and Treaties made between Enemies, as well as the Caduceus, by Vertue of which those who go to treat with the Enemy are allowed to return in Safety. Biblioth Histor. Lib. V. Cap. LXXV. p. 235, 236. Edit. H. Steph.

[3. ]Herodotus, Lib. VII. Cap. CXXXVII.

[4. ]Digest. Lib. L. Tit. VII. De Legationibus, Leg. XVII.

[5. ]Annal. Lib. I. Cap. XLII. Num. 3.

[6. ]The Passage is quoted above, in what I have added on Note 2. on the first Paragraph.

[7. ]De Irâ, Lib. III. Cap. II.

[8. ]Lib. IV. Cap. XVII. Num. 4.

[9. ]Idem, Lib. XXIV. Cap. XXXIII. Num. 2, 3.

[10. ]Lib. IV. Cap. II. Num. 15.

[11. ]This Remark is made by Philo the Jew, De Legat. ad Caium, p. 1006. Edit. Paris.

[1 ]Diodorus Siculus, in Excerpt. Peiresc. Σκιπίων, οὐκ, ἔϕη, δεɩ̂ν πράττειν ὃ τοɩ̂ς καρχηδονίοις ἔγκαλουσιν, Scipio said they ought not to do that themselves which they condemned the Carthaginians for: And accordingly the Romans, tho’ they knew what the Carthaginians had done, let them go. See Appianus. And Constantius dismissed Titian sent to him from Magnentius, tho’ Magnentius had detained Philip sent from Constantius.Zozimus, Lib. II. See also some Stories in Cromer, Lib. XIX. and XXI. and Paruta about the Embassadors of Venice stopt in their Journey to France, Lib. VII. Grotius.

[2. ]Lib. XXX. Cap. XXV. Num. 10.

[3. ]Lib. VI. Cap. VI. Num. 2.

[1 ]Livy, Lib. I. Cap. XXIV. Num. 5.

[2. ]Digest. Lib. XLVIII. Tit. VI. Ad Leg. Jul. de vi publicâ. Leg. VII.

[3. ]See Fraxinus Canaeus’s Epistles, p. 75. and 279. Grotius.

[4. ]Serranus in Henry IV. Grotius.

In the same Place, which I have quoted in Note 20. on Paragraph 4. which, however, doth not belong to that Author, but to his Continuator.

[5. ]This Instance is both ill related and misapplied. The Achaians, not being satisfied with the Proposals made to them by the Embassadors sent from Rome, to put an End to the Difference between them and the Spartans, arrested all at Corinth, whom they suspected to be Spartans, and even went to the House of Orestes, one of the Embassadors, to take by Force those who had retired thither. The Embassadors complained of this Treatment, as an Attempt by which the Achaians made a Rupture with the Romans. We have this Account from Pausanias, Lib. VII. Cap. XIV. p. 219. Edit. Graec. Wech. 1583. So that this relates to the Right of Refuge, spoken of at the End of this Paragraph.

[6. ]In this Case there is commonly a Distinction of Crimes made. See Paruta, Lib. X. where the King of France very much resenting something of this Nature, is entirely satisfied. See the same Author, Lib. IX. Grotius.

[7. ]On this Subject see an excellent Dissertation by Mr. Thomasius, De Jure Azyli Legatorum aedibus competente, which is the Sixteenth of those printed at Leipsic.

[1 ]That is, an Embassador’s Goods may be seized, wherever they are found, and the Right of Reprisal may be used, of which our Author treats B. III. Chap. II.

[1 ]That Author speaks of the Indians, in Stobaeus, Florileg. Serm. XLIV.

[2. ]De beneficiis III. 15. Grotius.

[3. ]This Herodotus in his Clio has called τὸ ὀϕείλειν χρέος. Grotius.

[4. ]Lib. XV. p. 1085. Edit. Amst. (709. Paris.)

[5. ]S. De legibus.Grotius.

[6. ]Ethic. Nicom. Lib. VIII. Cap. XV.

[7. ]Ibid. Lib. IX. Cap. I.

[8. ]What our Author observes here in regard to the Persians, on the Testimony of Herodotus and Appian of Alexandria, is nothing to the Purpose. They speak of Persons who run in Debt; but do not in the least insinuate that the Persians had no Action at Law to oblige Payment.

[1 ]The Romans did upon this Account make War upon the Senones;Appian. Excerpt. legat. IV. and X. upon the Illyrians and the Genoese;Polybius, Excerpt. legat. CXXV. and CXXXIV. upon the Issians;Dion. Excerpt. legat. XII. upon the Corinthians;Livy, Lib. III. upon the Tarentines;Dionysius Halicarn. Excerpt. legat. IV. You have several Examples of the French and Germans in Aimonius, Lib. III. Cap. LXI. and LXVIII. and in Withikind, Lib. II. Grotius.

In the Instance here produced from Dion Cassius, our Author has changed the Persons. The Issians were only the Occasion of the War, which the Romans declared against Teuta Queen of Illyrium, on her abusing and even putting to Death the Embassadors sent to her from Rome, to intercede in Favour of the Island of Issos. The Fact is related at large in Polybius, tho’ with some Difference of Circumstances. Hist. Lib. II. Cap. VIII. &c.

[2. ]See Chryst. ad Stagir. Lib. III. Grotius.

[3. ]See his Oration, Pro Lege Maniliâ, Cap. V.