The illustrious Hugo Grotius Of the law of warre and peace with annotations, III parts, and memorials of the author's life and death.

LXVII. Of not violating Embassadors.

OF not violating * 1.1 Embassadors, is a more difficult question, and va∣riously handled by the most excellent wits of this Age. And first we must consider of the persons of Embassadors, then of their Train and their Goods. Of their persons some think thus, that, by the Law of Nations, onely unjust force is kept from the bodyes of Embassadors; for they con∣ceive priviledges are to be understood by Common right. Others think, force may not be offerd to an Embassador, for every cause, but on this ground, if the Law of Nations be broken by him; which is a very large ground: for, in the Law of Na∣tions the Law of Nature is included, so that the Embassador may now be punisht for all faults, except those which arise meerly out of the Civil Law. Others, restrain this to those Crimes which are

done against the State of the Common∣wealth, or his Dignity, to whom the Em∣bassador is sent. Which also some hold perillous, and would have complaint made to him that sent him, and the Em∣bassador left to his Master's judgment. There are some too that say, the Kings or Nations unconcerned are to be consulted with: which indeed may be a point of prudence, cannot be of right. The rea∣sons which every one brings for his opi∣nion conclude nothing definitely: because this right, not, like natural right, certain∣ly ariseth out of certain reason, but is de∣termined by the will of Nations. Now, it was in the power of Nations, either ab∣solutely to provide for the safety of Em∣bassadors, or with certain exceptions; for on this side may be alleged the utility of punishing great offenders, and on the o∣ther side the utility of Embassages, the fa∣cility whereof is best promoted by secu∣ring them as much as may be. We must therefore see, how far Nations have con∣sented; which cannot be evinced by ex∣amples only; for many are extant on both sides. Wherefore we must have re∣course both unto the judgments of wise men, and unto conjectures. Two judg∣ments I have most illustrious; one of Li∣vy, another of Sallust. Livy, if the Em∣bassadors * 1.2 of Tarquin, who had raised trea∣son at Rome, saith: Although they see∣med to have committed that, for which

they ought to be in the place of enemies, yet the right of Nations prevailed. We see here the right of nations extended even to them that do hostility. The saying of Sallust pertains to the Embassadors train, of whom we shall speak anon, not to the Embassadors themselves: but the Argument will proceed rightly à majori ad minus, that is, from a thing less cre∣dible to that which is more. He saith: Bo∣milcar the Companion of him, who came to * 1.3 Rome on the publick faith, is made guilty rather according to rules of equity, than by the Law of Nations. Equity, that is, the meer Law of Nature suffers punish∣ment to be exacted, where is found a de∣linquent; but the Law of Nations excep∣teth Embassadors and such like, who come upon publick faith. Wherefore, that Embassadors be made guilty, is against the Law of Nations, whereby many things are wont to be prohibited, which, by the Law of Nature, are permitted, Conjecture also goes on this side; for it is more true, that privileges should be so understood, that they may give somewhat beyond Common right. Now, if Embas∣sadors be only secur'd from unjust vio∣lence, therein were no great matter, no∣thing of preeminence. Add, that the se∣curity of Embassadors outweighs the uti∣lity arising from punishment. For pu∣nishment may be taken by him, that sent the Embassador, being willing: and if

he be unwilling, it may by man be exa∣cted of him, as an approver of the crime. Some object, better one be punisht than many involv'd in war. But, if he that sent the Embassador approve his deed, the Embassadors punishment will not free us from the war. Now on the other side, the safety of Embassadors is in a slippry place, if they ought to render a reason of their actions to any other, but him by whom they are sent. For, when the Counsells of them that send and receive Embassa∣dors are for the most part divers, often contrary, it can scarce happen but al∣ways somewhat may be said against an Embassador, that may bear a shew of a crime. And though some are so manifest, that they have no doubt, yet is a gene∣ral danger sufficient for the equity and utility of a general Law. Wherefore my opinion clearly is, that it pleas'd the Nations, that the Common custom, which subjecteth every one being in a strange land to the Law of that land, should ad∣mit an exception in Embassadors, 1. That, as they are accounted, by a certain ficti∣on, for the persons of their Masters (He brought with him a face of the Senate, the authority of the Commonwealth, saith Tul∣ly of an Embassador:) so also, by the * 1.4 like fiction, they should be set as it were without the compass of the land: where∣upon, they are not bound by the Civil Law of that people amongst whom they

live. Wherefore if the offense be such one as may seem possible to be contem∣ned, it is either to be dissembled, or else the Embassador is to be commanded to depart † 1.5 the Country. Which, Polybius saith, was done to him, who had given cause to the Hostages at Rome to escape away, And hence, on the by, we may learn the reason, why, at another time, the Embassador of the Tarentines, for the same offense, was beaten with rods; name∣ly, because the Tarentines being conquerd begun to be under * 1.6 the Romans. If the crime be cruel, and publickly mischie∣vous, the Embassador must be sent † 1.7 to his Master, with a request, that he would punish him, or give him up, as we read, the Galls required, the Fabii should be deliverd to them. But, that which we have said afore, that all human Laws are so temperd, that they bind not in extreme necessity, hath place also here, about the Precept of the sanctimony of Embassa∣dors. Indeed, that hight of necessity is not in the taking of punishment, which also in other cases is taken away by the Law of Nations, as we shall shew here∣after: much less in the place, time and manner of taking punishment, but in the precaution of a great mischief, especially publick. Wherefore that an imminent danger may be withstood, if there be no other remedy, Embassadors may be both apprehended and examined. So the Ro∣man

Consuls apprehended * 1.8 the Embas∣sadors of Tarquin: especiall care being had of their † 1.9 letters, as Livy speaks, that they might not be lost. But, if an Embassador use force of Arms, he may be slain, no doubt: not by way of punishment, but by way of Naturall defense. So might the Galls kill the Fabii, whom Livy stiles vio∣laters of human Law. Therefore in Euri∣pides, Demophon, when the Herald sent by Euristheus endeavour'd to cary away the suppliants by force, apposeth him by force, and when he said,

Dare you strike me a Herald sent? Answers, Yes, if you be violent.

His name was * 1.10 Copreus, and because he proceeded † 1.11 violently and used force, he was slain by the Athenians, as Philostra∣stratus relates in the life of Herod. By a distinction not unlike to this, Cicero re∣solves that question, Whether the son ought to accuse the father being a traytor to his Countrey. For he will have it to be his duty * 1.12, to avert an imminent danger, but not for punishment of the fact, when the danger is past.

Notes

• * 1.1

  Menander Protector de Justino 2. Imp. Ille Avarorum Legatos contra j•…•…s Legationum in vinculis ha∣buit. vide Ern. Cothmannum resp. 32. n. 29. & seq. vol. 5.
• * 1.2

  Quanquam vi∣si sunt commi∣sisse ut hostium loco essent, ju•…•… tamen gentium valuit. Liv.
• * 1.3

  Fit reus mag•…•… ex aquo bono{que} quam ex jure gentium, Bomil∣car Comes ejus qui Romam side publica venerat. Sal. Jug.
• * 1.4

  Senatus facie•…•… secum attule∣rat, auctorita∣tem Reipub. Tull. Phillp. 7.
• † 1.5

  Fecit id. Steph. Poloniae Rex Moscis. Thuan. l. 73. An. 1581. Elizabetha Sco∣to & Hispano Camd Anno 71. & 84.
• * 1.6

  Sic Carolus 5. Legato Ducis Mediolanensis ut subditi sui, imperavit ne à Comitatu suo abscederet. Guicciard. in∣dicat. jam loc.
• † 1.7

  Dion. Ex∣cerpt. Lega∣tionum: Cum juvenes quidam Legati à Car∣thagine Romam venissent ibi{que} contumeliose quaedam fecis∣sent, missi sunt Carthaginem, traditi{que} Car∣thaginiensibus: ab his verò ni∣hil illis nocitum est, sed dimissi sunt incolumes.
• * 1.8

  Pelopidas in vincula conje∣ctus ab Alexan∣dro Phere••, quod Legatus cum es∣set Thessalos ad libertatem conci∣taret. Plutarch. & lat. Scriptor vitae Pelopidae.
• † 1.9

  Vide Serra∣num in Henri∣co. 4.
• * 1.10

  Vide Iliados O.
• † 1.11

  Sic interpre∣tandum quod Theodahatus Gotthus, Ju∣stiniani Lega∣tis dicit apud Procopium Gotthicorum, 1. Sanctum apud homines Legato∣rum nomen, ple∣num{que} honoris. Sed hoc jus Le∣gati sibi inter∣dum servant, quandiu sua mo∣destia Legatio∣nis dignitatem tuentur. Ita enim existimant homines fas esse vel interficere Legatum, si is in Principem ad quem mittitur, sit injuriosus, aut alienum matrimonium violet. Legati ve∣rò, cum ostendissent longissime se abesse ab adulterii suspicione, quorum ne exitus quidem sine custode essent, addunt prudenter: Si Legatus ea dixerit, quae audivit à Principe qui ipsum misit, ea si non sunt commoda, praestare non ipse debet culpam, sed qui eum misit: Ipsi quippe nihil aliud concessum est, quam Ministerio mandato fungi. Vide 〈◊〉〈◊〉 Camdenum indicato jam loco an. 1571.
• * 1.12

  Offic. 3.