[210] CHAPTER XVIII.

Of the Right of Legation.

I. HITHERTO we have spoken of things which are due to us by Natural Law, adding only a few points which belong to the instituted Law of Nations, in so far as, by that, any thing was added to the Law of Nature. It remains to speak of the obligations which that which we call the Instituted Law of Nations has of itself introduced: in which class, the principal head is the Right of Legation. For we everywhere read of the reverence for Embassies; the sacredness of Ambassadors; the Rights of Nations lodged in them by Divine and Human Law; all which belong to those Instituted Laws; with other the like phrases. [See other phrases in the text. Papinius Statius; Cicero.] To violate this is not only unjust, but impious, by the confession of all; as Philip says.

II. 1 But, in the first place, this Law of Nations, whatever it be, applies to those Ambassadors only who are sent by Sovereign Powers to one another. For those who are sent as representatives of provinces, towns and others, are not governed by the Law of Nations, that is, by International Law, but by the Civil Law. An Ambassador, in Livy, calls himself the Public Messenger of the Roman People. And again, the Senate says that the Right of Legation belongs to a foreigner, not to a citizen. And Cicero, arguing that ambassadors should not be sent to Antony, says, For we have not to deal with Hannibal, an enemy of the State, but with a citizen of the State. Virgil explains clearly who are strangers (Æn. VII. 369).

2 Those states which are joined by an unequal league, when they do not cease to be their own masters, will have the Right of Legation: and also those who are only partly subject, for the part in which they are not subject. But kings who have been conquered in a formal war, and deprived of their kingdom, along with their other possessions, lose the right of legation. So P. Æmilius retained the negotiators who came from Perseus, whom he had conquered.

3 But in civil wars, necessity sometimes makes room for this right, 211extra regulam: for instance, when the people is divided into nearly equal parties, so that it is doubtful with which party the right of the supreme authority is: or when two claimants for the succession contend with very balanced pretensions. For in such an event, one nation is, for the time, two nations. Thus Tacitus accuses the Flavians, that the right of Legation, which is sacred even between strangers, they had savagely violated in the case of the Vitellians. Pirates and robbers, who do not make a State, cannot claim the right of legation. Tiberius, when Tacfarinas sent ambassadors to him, was disturbed that a deserter and a robber gave himself the air of an open enemy, as Tacitus says. But sometimes such persons obtain a right of legation by promise given them on good faith, as was the case with a band of fugitives in the Pyrenees.

III. 1 There are two points with regard to ambassadors which we everywhere find referred to the Law of Nations; that they be admitted, and that they be not violated.

Of the first point; Hanno inveighs against Hannibal, that, not admitting the ambassadors of the allies, he had violated the Law of Nations. Which however is not to be understood so absolutely; for the Law of Nations does not prescribe that all ambassadors are to be admitted; but that they are not to be excluded without cause.

The cause may be, on the part of him who sends, of him who is sent, or in the fact that he is sent.

[Examples of the first case.]

2 Melesippus, the ambassador of the Lacedæmonians, was dismissed beyond the borders of the Attic territory, by the advice of Pericles, because he came from an armed enemy [within the territory]. So the Roman Senate declared that no embassy of the Carthaginians could be received while their army was in Italy. The Achæans did not admit the ambassadors of Perseus, when he was organizing a war against the Romans. So Justinian rejected the embassy of Totila, who had often broken his faith; and the Goths at Urbino sent back the ambassadors of Belisarius. So Polybius relates that the ambassadors of the Cynethenses, as being those of a wicked race, wore every where expelled.

Of the second case, we have an example in Theodorus, who was called the Atheist, and whom Lysimachus would not hear, when he was sent by Ptolemy; and the same happened to others on account of some peculiar odium.

The third case occurs when the cause of the mission is either suspected, as when Rabshakeh was sent to Hezekiah: or is not conformable to the dignity of the receiver, or to the time. So the Romans forbad the Etolians to send any embassy, except by permission of the Emperor; commanded Perseus to send, not to Rome, but to Licinius; and ordered the ambassadors of Jugurtha to quit Italy within ten days, except they came to surrender the king and the kingdom. The embassies which may be with the best right excluded, are those resident 212embassies which are now common, but which are not necessary; as we learn from ancient custom, to which they were unknown.

IV. 1 The question of the inviolability of ambassadors is more difficult, and variously treated by the able men of our time. We must first consider the persons of the ambassadors, and then their suite and property.

With regard to the persons of ambassadors, some are of opinion that they are protected only from unjust violence: for that their privileges are to be interpreted by common Law. Others think that force may be put upon an ambassador, not for any cause, but only if he violate the Law of Nations; which is a very wide expression; for in the Law of Nations, Natural Law is included: and so, according to this, an ambassador might be punished for any offense, except those which arise from more Civil Law. Others restrict this to what is done against the state or dignity of the commonwealth to which the ambassador is sent: and others think that even this is dangerous, and that complaints against the ambassador are to be transmitted to him who sent him, and that he is to be left to be judged by him. Some, again, think that kings and nations who are not interested in the question, should be consulted; which may be a matter of prudence, but cannot be a matter of right.

2 The reasons which each of these parties adduce do not conclude anything definitely; because this Law of Nations is not like Natural Law, which flows in a sure way from certain reasons; but this takes its measure from the will of nations. For nations might either altogether refuse to entertain ambassadors, or with certain exceptions. For on the one side stands the utility of punishment against grave delinquents, [even if they be ambassadors,] and on the other, the utility of ambassadors, the sending of whom is facilitated by their having all possible security. We must consider, therefore, how far nations have agreed; and this cannot be proved by examples alone. For there are many each way. We must recur therefore to the judgments of good authorities, and to conjectures, that is, probable arguments.

3 There are two judgments of great note, that of Livy, and that of Sallust. Livy’s is about Tarquin’s ambassadors, who stirred up a treasonable design at Rome: Though they had behaved so that they might have been treated as enemies, the Law of Nations prevailed: here we see that the Law of Nations is extended even to those who act as enemies. The dictum of Sallust pertains to the subordinate members of the legation, of whom we shall have hereafter to speak, not to the ambassador: but the argument proceeds rightly, from the greater, that is, the less credible, to the less, that is, the more credible. He says thus: Bomilcar, his companion, who had come to Rome on the public faith, is put under accusation, rather on the ground of equity, than of the Law of Nations. Equity, that is, mere Natural Law, allows penalties to be demanded when the delinquent can be got hold of; but 213the Law of Nations makes an exception in favour of ambassadors and those who come under the public faith. Hence to put ambassadors under accusation is contrary to the Law of Nations, which forbids many things which Natural Law permits.

4 Conjecture also is on this side. For it is the sounder opinion that privileges are so to be understood, that they give something beyond common rights. But if ambassadors were only protected from unjust violence, there would be in that nothing great, nothing distinguished. Add that the security of the ambassadors may preponderate over the utility which involves a penalty. For punishment may be had through his means who sent the ambassador; and if he will not afford it, may be demanded by war of him as the approver of the crime. Others object that it is better that one should be punished than many involved in war: but if he who sent the ambassador approve of what he did, his punishment will not save us from war.

On the other side, the safety of ambassadors is in a very insecure position, if they have to render account of their acts to other persons than him who sent them. For since the views of those who send the ambassador, and those who receive him, are generally diverse, often contrary, it is scarcely possible that something may not be said against the ambassador which may take the form of an accusation. And though some things of this kind are so manifest that they admit of no doubt, the universal danger suffices to establish the equity and utility of the universal rule.

5 Wherefore I quite think thus: that the common rule, that he who is in a foreign territory is subject to that territory, does, by the common consent of nations, suffer an exception in the case of ambassadors; they being, by a certain fiction, in the place of those who send them: [see Cicero:] and by a similar fiction they are, as it were, extra territorium; and thus, are not bound by the Civil Law of the People among whom they live. Hence, if there be any delict which can be treated lightly, either it is to be overlooked, or the ambassador ordered beyond the borders, as Polybius relates was done to him who, at Rome, had aided the escape of the hostages. On which occasion, in passing, we are given to understand that at another time, the ambassador of the Tarentines, who had committed the same offense, was scourged; but that was done, because the Tarentines had begun to be subject to the Romans. If the crime be more atrocious, and tending to public mischief, the ambassador must be sent back to him who sent him, with a demand that he be punished or surrendered; as the Gauls asked that the Fabii should be given up to them.

6 But, as we have said above, that all human rights are so conditioned, that they do not bind in cases of extreme necessity, so is this true in this doctrine of the inviolability of ambassadors. But that extreme of necessity does not occur in the requirement of punishment; which may also be suspended in other cases by the Law of Nations; as will appear below, where we treat of the established effects of war: 214still less does this necessity operate in the place, time, and manner of taking punishment; but it does hold in precautions against graver evil, especially public evil. Wherefore in order to obviate imminent danger, if there be no other effectual course, ambassadors may both be detained and interrogated. Thus the consuls of Rome apprehended the ambassadors of Tarquin, looking first to the letters which they carried, as Livy says, that they might not escape them.

7 If the ambassador use armed force, he may undoubtedly be killed, not in the way of punishment, but in the way of natural defense. Thus the Fabii, whom Livy calls the violators of human law, might have been killed by the Gauls. So in Euripides, Demophon threatens the Herald. The name of this Herald was Copreus, and because he used violence, he was put to death by the Athenians, as Philostratus relates. Cicero solves, by a not dissimilar distinction, the question, whether a son ought to accuse a father who is betraying his country. For he decides that he may do so, to avert the imminent danger, but not to invoke punishment when the danger is past.

V. 1 But the law which I have stated, of the inviolability of ambassadors, is to be understood to bind him to whom the embassy is sent; and more particularly, if he has received the ambassador, as if from that time a tacit compact had been introduced. But prohibitions may be and are often delivered, that ambassadors are not to be sent; and that if sent, they will be treated as enemies: as notice was given to the Ætolians by the Romans; and as it was in old times announced by the Romans to the Veians, that except they quitted the city, they would be treated as Lars Tolumnius had treated their ambassadors; [who put them to death:] and as was announced to the Romans by the Samnites, that if they presented themselves at any public meeting in Samnium, they would not depart inviolate. This law does not affect those through whose territory the ambassadors pass without having received permission: for in so far as they go to their enemies, or come from their enemies, or in any other way appear as enemies, they may be put to death. As the Athenians dealt with the ambassadors between the Persians and Thebans, and the Illyrians with those between the Essii^* and the Romans: and much more may they be thrown into bonds, as Xenophon did to certain persons, and Alexander to those who were sent from Thebes and Lacedæmon to Darius, and the Romans to the ambassadors of Philip to Hannibal, and the Latins to those of the Volsci.

2 If there be no such cause, and ambassadors [passing through the territory] are ill treated, it is not the Law of Nations, of which we are speaking, which is violated, but the friendship and dignity, either of him who sent them, or of him to whom they go, which is conceived to be violated. Justin says of the letter of Philip, king of Macedon, that his ambassador to Hannibal being carried to Rome, he was dismissed in safety by the Senate, not out of honour to the king, but in 215order that he, as yet doubtful, might not be made an indubitable enemy.

VI. But the embassy, once admitted, has, even with enemies, and much more with a party merely unfriendly, the protection of the Law of Nations. Heralds and negociators are at peace in the middle of war, says Diodorus. The Lacedæmonians who put to death the ambassadors of the Persians, are said thereby to have thrown into confusion the rights of mankind. So Pomponius, Tacitus, Cicero, Seneca, Livy, Curtius. [See the passages.] And with great reason; for in war, many things happen which cannot be transacted except by ambassadors; and peace itself can scarcely be attained in any other way.

VII. It is also made a question, whether by the law of retaliation, an ambassador may be put to death or ill treated, who comes from a person who has perpetrated something of that kind. And certainly there are in histories many examples of such revenge. But histories relate not only what was rightly done, but what wrongly, angrily, passionately. The Law of Nations not only provides for the dignity of the Sender, but for the security of the Sent; and therefore there is a contract with the latter also. Wrong, therefore, is in such case done to him, though none be done to him who sent him. Therefore it was not only magnanimously done of Scipio, but also according to the Laws of Nations, when, after the ambassadors of the Romans had been illtreated by the Carthaginians, he had the Carthaginian ambassadors brought before him, and being asked, What was to be done with them, answered, Nothing like what the Carthaginians had done. Livy adds, that he said that he would do nothing unworthy of the institutions of Rome. Valerius Maximus, in a similar but more ancient fact, ascribes to the Consuls this saying, From such fear, Hanno, the faith of our city liberates you: for there also Cornelius Asina, contrary to the rights of legation, had been thrown into chains by the Carthaginians.

VIII. 1 The suite and the furniture of the ambassadors have also their own sacredness; and so the ancient formula of the Feciales ran: King, do you make me the royal messenger of the Roman People, with my company and equipments? And by the Julian Law, those are held to be guilty of unlawful violence who have done injury, not only to ambassadors, but also to their companions. But these are sacred, in an accessory manner only, and so far as the ambassador chooses: and the ambassador may be required to give them up. But they are not to be taken by force. When this was done by the Achæans to some Lacedæmonians who were in the company of the Roman ambassadors, the Romans exclaimed loudly that the Law of Nations was violated. To this may be referred the judgment of Sallust concerning Bomilcar, which we have quoted above. But if the ambassador will not give them up, the course is to be taken which we have pointed out in speaking of the ambassador.

2 Whether the ambassador has jurisdiction over his own family 216and suite, and whether his house in to be an asylum for all who take refuge there, depends on the concession of the party with whom he resides: for it is not a part of the Law of Nations.

IX. Also the moveable property of an ambassador, which is regarded as an appendage to his person, cannot be taken or impounded for debt; neither by order of a court, nor (as some think) by the royal hand. For all compulsion ought to be removed from an ambassador; that which touches things necessary to him, as well as his person, that he may have full security. Therefore, if he have contracted any debt, and, as may easily happen, has no real property in that country, he is to be asked for it in a friendly way; and if he refuse, he who sent him is to be applied to: and at last, he may be proceeded against in the manner of debtors who are without the territory.

X. 1 Nor is it to be feared, as some think, that on such terms no one will contract with an ambassador. For kings also, who cannot be compelled, do not fail to find creditors: and in some peoples it has been the custom, that he who had given credit on a contract should not have a sentence in his favour by a court: any more than if he brought an action for ingratitude; so that men would be compelled either to receive ready money, or to trust to the naked good faith of the debtor. Seneca expresses a wish for such a state of things. So Appian says this was the Persian practice.

2 Elian relates the same thing of the Indians. Charondas made the like rule; and Plato approves. Aristotle remarks the same. [See.] The arguments against this from the Roman Law do not pertain to ambassadors such as we speak of, but to representatives of provinces and towns.

XI. Wars engaged in on account of ambassadors being ill used, are found in all parts of profane history. Also Scripture mentions the war which, on this account, David undertook against the Ammonites. Cicero says, there is no juster cause of war.