Spain, which was not finally decided in favour of the former until the middle of the seventeenth century. The peace of the council of Trent was disturbed by this contest; and it was again renewed at the conferences of Munster, where the ambassadors of the two powers would never see each other, and where the congress, which was to put an end to the wide spread devastations of the thirty years war, had nearly been broken up because it could not be settled which of the two crowns should be named first in the protocols. The contest was at last brought to a termination by the bloody collision which took place at London in 1661 between the French and Spanish embassies, in which several persons of their respective suites were killed and wounded. On this occasion Louis XIV, exacted a solemn reparation in the form of a special embassy from Philip IV, by whom the precedency of France was expressly acknowledged. It continued even after the equality of crowned heads seemed to be generally acknowledged in Europe; for when the English mediators at the congress of Nimiguen in 1676 proposed some rules for the observation of the several ministers indicative of equality, the French ambassadors expressed their acquiescence towards all except the Spaniards, in respect to whom they insisted. on the precedency established by the above arrangement.t Privileges of These disputes respecting precedency in the ceremonial Ambassadors. intercourse of nations were closely connected with the rights and privileges of ambassadors, which came at last to be defined with tolerable accuracy during this period. We have already seen that the earliest institutional writer of merit upon this important subject was Alberico Gentili," who, in 1584, the year following the publication of his trea

8

This event was commemorated by a medal struck on the occasion with the legend: "Jus præcedendi assertum," and below: "Hispanorum excusatio coram xxx Legatis principum."

t Life and Letters of Sir L. Jenkins, tom. i. p. 440.

u Vide ante, Introduction, p. 50.

tise De Legationibus, was consulted together with Hottoman, by the English court, upon the case of Mendoza, the Spanish ambassador, accused of conspiring to introduce foreign troops into England, and dethrone Queen Elizabeth. They both concurred in opinion that an ambassador, though a conspirator against the government of the country where he resided, could not be put to death, but should be referred to his master for punishment. In consequence of this opinion Mendoza was merely ordered to depart the realm, and a commissioner sent by the English government to Spain to prefer a complaint against him.▾

Such also was the opinion of Grotius, who, writing in the beginning of the following century, held that the tacit consent of nations had exempted the persons of an ambassador and his suite from the criminal and civil jurisdiction of the state, by whom he had been received upon this implied condition, in all cases, except those where the just necessity of self defence creates an exception to all human laws.w There is however a remarkable case, which occurred soon after the publication of his work, which seems to militate against the sacred and inviolable character attributed to these persons. It is that of Don Pantaleon Sa, brother to the Portuguese ambassador in England, who was tried, found guilty, and executed for an atrocious murder in the year 1653.

From the account given of this case by Zouch, the pupil and successor of Gentili in the professor's chair at Oxford, and who was also one of the judge delegates by whom the offender was tried, it appears that his plea of exemption as belonging to the ambassador's suite was overruled as insufficient. Had he been the ambassador himself, no doubt it would have been entertained that he must have been remitted to his own native forum for trial according to the

§ 15 Wicquefort, (b. 1598,

opinion of Grotius and other publicists. But the authority of these writers, extending the exemption of extra-territoriality to the ambassador's suite, was rejected by the court, in which judgment Zouch himself concurred.*

The conduct of Cromwell in this anomalous case is condemned by Leibnitz, as an infraction of the law of nations; and Bynkershoek, whose work De Foro Legatorum was published in 1721, states that he had not been able to find after diligent research, more than four cases previous to that period in which an ambassador, or the persons of his suite had been brought to trial and punishment in the country where they were accredited. He adds that all these cases were distinguished by peculiar circumstances, or condemned by the judgment of publicists; and even if they were not, that the examples of the application of the general rule far outweigh these exceptions as evidence of the general usage and opinion of mankind.y

One of the most remarkable works published during the d. 1682,) l' seventeenth century on the subject of the rights and duties Ambassadeur of ambassadors is that of Wicquefort. This author was born at Amsterdam, in 1598, and became minister resident of the elector of Brandenburg at Paris, 1628. He continu

et ses

tions.

fonc

* Rich. Zouchei, Solutio quæstionis veteris et novæ de legati delinquentis judice competente. Oxon. 1657.

y Leibnitz, De Jure Suprematus ac Legationis Principum Germaniæ, cap. vi. p. 14. Bynkershoek, De Foro Legatorum, cap. xviii. "Sic punita vides crimina legatorum et communia, et turbatæ reipublicæ, et quamvis forte disputari posset, esse in his exemplis facta quædam dubia, quæ ad hanc de foro quæstionem non pertinent, largiamur tamen, omnia pertinere, quin et plura forte addi posse, sed ne inde efficiamus, his exemplis jus gentium induci. Utique nemo negat, contra jus gentium committere, qui legatos violaverit, et nihilominus constat, plurimas gentes legatos violasse, sed id ipsis opprobrio, ut sunt qui opprobrio duxerunt illa ipsa, quæ recensui, pœnarum exempla. Hoc ausim adfirmare, exempla, quæ in adversam partem proferuntur, sive numere mus, sive pondere mus, semper et ubique vincere, et vicisse etiam apud illas gentes, quæ alias impetu abreptæ puniverant legatos."

· L'Ambassadeur et ses Fonctions, à Cologne, 1679.

ed in this post until 1658, when Cardinal Mazarin having intercepted his correspondence of an offensive character to the Cardinal's government, ordered him to leave the kingdom, and on his refusing, imprisoned him in the Bastile, from whence he was sent under an escort to Calais and embarked for England. On his return to his native country, Wicquefort was appointed, on the recommendation of the Pensionary John de Witt, historiographer of the republic and secretary interpreter of despatches. Whilst in these employments, Wicquefort received a secret pension from Louis XIV, was named by the Duke of Luneburg his resident at the Hague, and being accused in 1675 of revealing the secrets of the state to foreigners, was tried and sentenced by the supreme court of Holland to imprisonment for life. He remained in prison until 1679, when he escaped through the address and filial devotion of his daughter, and retired to Zell in Hanover where he died at the advanced age of eighty-five, in 1682.

The curiously chequered life of this intriguing adventurer might almost have furnished materials for his once celebrated treatise, which is rather of an historical than didactic character, and was written during his long imprisonment in Holland. He says: "for myself I do not promise a perfect treatise, both because the subject itself is inexhaustible, and because being written to relieve the weariness of a very severe captivity, it must bear marks of my insupportable sorrow, and of those infirmities common. to all men and of which I acknowledge my full share. In my solitude I had no other company than a few books allowed by the indulgence of the fiscal, nor other amusement than that of reading. I thus collected several passages of modern history, which might serve, if not to the composition of a regular methodical treatise, at least to aid those who having besides more capacity than myself, could apply themselves with more assiduity and success. But misfortunes having compelled me to renounce this idea, and having defeated all my plans, I substituted for

my

§ 16. Bynker

this original conception that collection of examples which has been published under the title of Memoires touchant les ministres publics. This work treats so fully of the exemptions, immunities, and privileges attributed to public ministers by the law of nations, that in order to give to it the shape of a regular treatise, it seemed to me to be sufficient to correct in this third edition the confusion and irregularity of the two former. I am quite aware that nothing I can say of it will constitute a science founded upon principles of mathematical demonstration, or from which certain and infallible rules can be inferred: but also I believe the entire work may be reduced to maxims wherein will be found something approaching to moral infallibility.”

Certainly Wicquefort's treatise considered as a scientific work, deserves very little the character of "moral infallibility," which he so complacently attributes to it. It is in fact little more than a collection of historical examples, more or less bearing upon the subject, but arranged without any regard to method and the convenience of reference, and unconnected by any attempt at reasoning from analogy or clear development of principles.

Far different is the character of Bynkershoek's treatise shoek, de foro De Foro Legatorum. The merits of this most excellent

legatorum.

work is enhanced by the fact that it was written in the midst of other engrossing occupations, in great haste, and upon a particular case which had arisen in the supreme court of Holland of which the author was a distinguished member.a

memineris etiam,

a Tam festinante calamo, ut nunc scriptum vides * * me non aliter scribere, quam solent occupatissimi. Præf. in fin. -Bynkershoek's treatise De Foro Legatorum was first published at the Hague in 1721. A translation in French by his cotemporary and friend Barbeyrac appeared in 1723 under the title Traité du Juge compétent des Ambassadeurs, of which Bynkershoek writes in a letter to the translator, 25th Dec. 1722. "Quod libellum meum De Foro Legatorum Gallice verteris, quod sententiam meam tam felliciter expresseris, quod notis tuis eruditis illustraveris, quod denique ubi a me dissentis, tam amice dissereris,

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