restricted access Chapter VIII - Of the Judge of Embassadors in Civil Cases
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chapter viii 729 pretensions to an excessive height. The pontiff readily allowed that urgent necessity had authorised Henry to violate the security of the states, and to break through all the forms of justice: and could he pretend that this prince, rather than be deficient in respect for the Roman purple, should risk both his crown and his life? chapter viii Of the Judge of Embassadors in Civil Cases. Some authors will have an embassador to be subject, in civil cases, to the jurisdiction of the country where he resides,—at least in such cases as have arisen during the time of his embassy; and, in support of their opinion, they allege that this subjection is by no means derogatory to the embassadorial character: “for,” say they, “however sacred a person may be, his inviolability is not affected by suing him in a civil action.” But it is not on account of the sacredness of their person that embassadors cannot be sued: it is because they are independent of the jurisdiction of the country to which they are sent; and the substantialreasons on which that independency is grounded, may be seen in a preceding part of this work (§92). Let us here add that it is in every respect highly proper, and even necessary, that an embassador should be exempt from judicial prosecution even in civil causes, in order that he may be free from molestation in the exercise of his functions. For a similar reason, it was not allowed among the Romans to summon a priest whilst he was employed in his sacred offices:* but at other times he was open to the law. The reason which we have here alleged for the exemption , is also assigned in the Roman law: “Ideo enim non datur actio (adversus legatum) ne ab officio suscepto legationis avocetur,† ne impediatur * Nec pontificem (in jus vocari oportet) dum sacra facit. [[“One should not bring a priest before the law while he is performing religious rites” (trans. Eds.).]][[Justinian ’s]] Digest. lib. ii. tit. 4, De in Jus vocando, leg. 2. † [[Justinian’s]] Digest. lib. v. tit. 1, De Judiciis, &c. leg. 24, §2.§110. The embassador is exempt from the civil jurisdiction of the country where he resides. 730 book iv: restoration of peace; embassies legatio.*29 But there was an exception as to those transactions which had taken place during the embassy. This was reasonable with regardtothose legati or ministers of whom the Roman law here speaks, who, beingsent only by nations subject to the empire, could not lay claim to the independency enjoyed by a foreign minister. As they were subjects of the state, the legislature was at liberty to establish whatever regulations it thought most proper respecting them: but a sovereign has not the like power of obliging the minister of another sovereign to submit to his jurisdiction: and even if such power was vested in him by convention or otherwise, the exercise of it would be highlyimproper:because,under that pretext, the embassador might be often molested in his ministry, and the state involved in very disagreeable quarrels, for the trifling concerns of some private individuals, who might and ought to have taken better precautions for their own security. It is, therefore, only in conformity to the mutual duties which states owe to each other, and in accord with the grand principles of the law of nations, that an embassador or public minister is at present, by the universal custom and consent of nations, independent of all jurisdiction in the country where he resides, either in civil or criminal cases. I know there have occurred some instances to the contrary: but a few facts do not establish a custom: on the contrary, those to which I allude, only contribute, by the censure passed on them, to prove the custom such as I have asserted it to be. In the year 1668, the Portuguese resident at the Haguewas, byanorderof thecourt of justice, arrested and imprisoned for debt. But an illustrious member of that same court† very justly thinks that the procedure was unjustifiable , and contrary to the law of nations. In the year 1657, a resident of the elector of Brandenburg was also arrested for debt in England. But he was set at liberty, as having been illegally arrested; and * Ibid. leg. xxvi. † M. de Bynkershoek’s Competent Judge of Embassadors, chap. xiii. §1. 29. “Now for that reason a lawsuit is not granted (against an ambassador) in case he is called away...


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  • International law.
  • War (International law).
  • Natural law.
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