may be doubtful whether these are entitled, even in modern times, in point of strict law, to be exempted from being involved in the common lot of their fellow-subjects who may happen to be in the country on the breaking out of war. Still he admits that the approved usage of nations, at the time when he wrote, with the exception of certain Mohammedan states of Asia and Africa, entitled them to be protected from reprisals and sent away in safety.

In chapter xxiii, Bynkershoek examines the important question, whether an ambassador may renounce his privilege of renvoi, and submit to the jurisdiction of the local forum?

He first refers to the maxim of the Roman law that consent gives jurisdiction to an otherwise incompetent tribunal, (Dig. lib. v. tit. i. De Judiciis, leg. i.) which, he says, is applicable provided the parties dispose of their own rights only. An ambassador may certainly renounce any privilege or exemption introduced for the benefit of his embassy, but not without the consent of his sovereign, because it is not a mere private right. In criminal matters, at least, he can never renounce the privilege of renvoi to the forum of his domicil without the express permission of his own sovereign. In civil matters, the ambassador may perhaps consent that the local tribunal shall judge and pronounce, but not execute its sentence to the detriment of the affairs of his legation. This he may do, either by commencing a suit as plaintiff, or defending one commenced against him. Our author states these positions as the result of reasoning applied to the nature and object of the privileges in ques

ing war, such as foreign nations usually deputed to the Roman people; resident ambassadors being then quite unknown; and that the application of this law ought to be strictly confined to the case of a legatus sent after the actual breaking out of hostilities, but before the solemn declaration required by their fecial law. His translator, Barbeyrac, has furnished the answer to this strained interpretation. (Du Juge compétent des Ambassadeurs, ch. xxii. § 6, note (2).)

tion, but confesses he had not been able to collect a sufficient number of precedents to determine what was the approved practice of nations. He therefore seeks for some support to his reasoning in the analogies of the Roman law, the authority of which he is generally disposed to repudiate in these discussions relating to modern international law.f

In his xxivth and last chapter, Bynkershoek reviews the opinion of preceding jurists, most of whom followed the false analogy of the Roman law as to the legati or deputies of provinces, which they confound with the ambassadors of foreign states. He closes a long list of these learned persons with the name of his cotemporary and friend, Barbeyrac, who, in his notes to the translation of Puffendorf's treatise on the Law of Nature and Nations, had stated that ambassadors are not, in general, punishable by the prince to whom they are accredited, but adds, "Lors même que la chose presse, il est permis de se saisir d'abord de la personne de l'Ambassadeur, comme d'un ennemi déclaré, de le tenir en prison, et même de le faire mourir, si cela est nécessaire pour nôtre conservation."s To which last alternative Bynkershock makes no objection, provided it be really necessary to our safety, which he conceives can rarely happen, unless in case the ambassador has taken

f Ego vero, quicquid earum rerum sit, non ausim dicere, legatum, inconsulto principe, juri suo renunciare posse. Ad quid enim legatorum privilegia, quam ut ipsi principibus suis utiles sint, et eorum legatio nulla re impediatur? Magis igitur hæc privilegia pertinent ad causam principis quam ipsius legati, sibi renunciatione sua legatus nocere potest, principi non potest. Atque ita, consulta ratione, forte dicendum est, legatum in causa delicti nunquam privilegio fori renunciare posse in causa civili, non aliter, quam ut adversus eum jus dicatur, non ut sententia executioni mandetur, si quid per eam impediretur legatio, ut in causa criminali tantum non semper impediri solet. Sed ad manum non sunt ea gentium exempla, ut ex jure gentium ea de re possim constituere. Ratione quam dixi argumentum præbet, l. 24, § ult. ff. de Judic. (De Foro Legat. cap. xxiii.) Droit de la Nature et des Gens, liv. 8, ch. 9, § 12, note..

In

up arms against us and is slain in open combat.h another work, written subsequently to his treatise on the Competent Forum of Ambassadors, Bynkershoek has examined incidentally several questions, rather curious than useful, respecting the rights of legation. Among these, however, he considers one, which at the time when he wrote does not appear to have been clearly settled, though it can hardly at this day admit of a doubt, though it is generally avoided in practice by expressly reserving in treaties, and in the full powers under which they are concluded, a ratification by the contracting parties, as essential to their validity. In the second book of his Quastiones Juris Publici, (cap. vii.) he propounds the question, whether the sovereign is bound by the acts of his minister contrary to his secret instructions? According to our author, if this question were to be determined by the ordinary principles of private law, the principal is not bound where the agent exceeds his powers. But in the case of an ambassador, we must distinguish between the general full power, which he exhibits to the prince to whom he is accredited, and his special instructions which he may, and generally does, retain as a secret between his sovereign and himself. He quotes the opinions of Grotius and Gentili, that if the minister has not exceeded the authority given him in his patent credentials, the sovereign is bound to ratify, though the minister may have deviated from his secret instructions. Bynkershoek admits that if the credentials are special, and describe the particulars of the authority conferred on the minister, the sovereign is bound to ratify whatever is concluded in pursuance of this authority.

h Non intercedo, si aliter res salva esse nequeat, salus populi, salus principis, suprema lex esto. Sed fere semper res aliter salva esse potest, si non manu agat legatus, et tumultuaria cæde succumbat. Expulsio vel custodia legati alioquin suffecerit, ut saluti nostræ consulamus. Vides, lector, quot capita, tot fere sententias, tuum erit in hoc depræliantium hominum certamine discernere, quis justius induit arma. (De For. Legat. cap. xxiv.),

But the credentials given to plenipotentiaries are rarely special, still more rarely does the secret authority contradict the public full power, and most rarely of all does a minister disregard his secret instructions. But what if he should disregard them? Is the sovereign bound to ratify in pursuance of the promise contained in the full power? According to our author the usage of nations, at the time when he wrote, required a ratification by the sovereign to give validity to the solemn compacts concluded by his minister, in every instance, except in the very rare case where the entire instructions were contained in the patent full power. He controverts the position of Wicquefort, (lAmbassadeur et ses Fonctions, liv. 2, sec. 15,) condemning the conduct of those princes who had refused to ratify the acts of their ministers on the ground of their contravening secret instructions. The analogies of the Roman law and the usages of the Roman people were not to be considered as an unerring guide in this matter, since time had gradually worked a change in the usage of nations, which constituted the law of nations; and Wicquefort himself, in another passage, had admitted the necessity of a previous ratification. Bynkershoek does not however deny that if the minister has acted precisely in conformity with his public full power, which may be special, or his secret in

i Sed rarum est, quod publica mandata sint specialia, rarius quod arcanum mandatum publico sit contrarium, rarissimum vero, quod legatus arcanum posterius spernat, et ex publico priori rem agat. (Q. J. Pub lib. ii. de Rebus varii Argumenti, cap. vii.)

* Sed quod olim obtinuit, nunc non obtinet, ut mores gentium sæpe solent mutari, nam postquam ratihabitionem usus invaluit, inter gentes tantum non omnes receptum est, ne fœdera et pacta, a legatis inita, valerent, nisi ea probaverint principes, quorum res agitur. Ipse Wicquefort, (eodem opere, 1. i. sect. 16,) necessitatem ratihabitionum satis agnoscit hisce verbis: Que les pouvoirs quelques amples et absolus qu'ils soyent, ayant toujours quelque relation aux ordres secrets, qu'on leur donne qui peuvent étre changés et altérés, et qui le sont souvent, selon les conjonctures et les revolutions des affaires.

Argumenti, cap. viii.)

(Bynkershoek, Q. T. Pub. lib. ii. de Rebus varii

structions which are always special, the sovereign is bound to ratify his acts, and subjects himself to the imputation of bad faith if he refuses. But if the minister exceeds his authority, or undertakes to treat upon points not contained in his full power and instructions, the sovereign is fully justified in delaying or refusing his ratification. The peculiar circumstances of each particular case must determine whether the rule or the exception ought to be applied.'

de Paix per

Saint-Pierre.

During this period of our historial deduction was pub- 17. Projet lished the Projet de Paix perpetuelle of the Abbe Saint- petuelle de Pierre, which the benevolent author, by a kind of pious l'Abbé de fraud attributed to Henry IV, and his minister Sully, with the view of recommending it to the adoption of the sovereigns and ministers, to whom the authority of these great names would be more imposing than the intrinsic merits of the scheme itself. He had been present at the conferences of Utrecht, and having witnessed the difficulties attending the settlement of the terms of peace drew up the projet of a treaty for rendering it perpetual.m He afterwards pub

1 Non tamen negaverim, si legatus publicum mandatum, quod forte speciale est, vel arcanum, quod semper est speciale, examussim sequutus, fædera et pacta ineat, justi principis esse, ea probare, et nisi probaverit, malæ fidei reum esse, simulque, legatum exponere ludibrio; sin autem mandatum excesserit, vel fæderibus et pactis nova quædam sint inserta, de quibus nihil mandatum erat, optimo jure poterit princeps vel differe ratihabitionem, vel plane negare. Secundum hæc damnaverim vel probaverim negatas ratihabitiones, de quibus prolixe agit Wicquefort d. l. ii. sect. 15. In singulis causis, quas ipse ibi recenset, ego nolim judex sedere, nam plurimum facti habent, quod me latet, et forte ipsum latuit. Non immerito autem nunc gentibus placuit ratihabitio, cum mandata publica, ut modo dicebam, vix unquam sint specialia, et arcana legatus in scriniis suis servare soleat, neque adeo de his quicquam rescire possint, quibuscum actum est. (Q. J. Pub. lib. ii. De Rebus varii Argumenti, cap. vii.)

TM Projet de Traité pour rendre la paix perpetuelle entre les souverains chrétiens, pour maintenir toujours le commerce entre les nations et pour affermir beaucoup davantage les maisons souveraines sur le trône, proposé autrefois par Henri le Grand Roi de France, agréé par la Reine Elisabeth, par Jaques I, et par la plupart des autres potentats de l'Europe. (Utrecht, 1713, 3 tomes 12mo.)