much on this subject, because I have heard in conversation these legal fictions alledged against the adoption of the bill on your table, and because they may perhaps be urged against it here.

But it is neither in the fiction of exterritoriality, nor in that of personal representation that we are to seek for the substantial reason upon which the customary law of nations has founded the extraordinary privileges of ambassadors-It is in the nature of their office, of their duties, and of their situation.

By their office, they are intended to be the mediators of peace, of commerce, and of friendship between nations; by their duties, they are bound to maintain with firmness, though in the spirit of conciliation, the rights, the honour, and the interests of their nation, even in the midst of those who have opposing interests, who assert conflicting rights, and who are guided by an equal and adverse sense of honour; by their situation, they would, without some extraordinary provision in their favour, be at the mercy of the very prince against whom they are thus to maintain the rights, the honour, and the interest of their own. As the ministers of peace and friendship, their functions are not only of the highest and most beneficial utility, but of indispensable necessity to all nations, having any mutual intercourse with each other.

by ufage it is part of the customary law; if by treaty, part of the conventional law of nations. Wherefore the confequences derived from this character respecting Ambasladors, belong neither to the law of nature, nor to the voluntary law of nations; much less do they sanction the gratuitous additions by which they are amplified. Hence no nation is bound to acknowledge them, unless in confequence

of express ftipulation. Wolf. Inftitutes

of the larv of nature and nations. Part. 6, ch. 10, §. 1242.

They are the only instruments by which the miseries of war can be averted when it approaches, or terminated when it exists. It is by their agency that the prejudices of contending nations are to be dissipated, that the violent and destructive passions of nations are to be appeased; that men, as far as their nature will admit, are to be converted from butchers of their kind, into a band of friends and brothers. It is this consideration, Sir, which, by the common consent of mankind, has surrounded with sanctity the official character of ambassadors. It is this which has enlarged their independency to such an immeasurable extent. It is this which has loosed them from all the customary ties which bind together the social compact of common rights and common obligations.

But immunities of a nature so extraordinary cannot, from the nature of mankind, be frequently conferred, without becoming liable to frequent abuse. As ambassadors are still beings subject to the passions, the vices, and infirmities, of man, however exempted from the danger of punishment, they are not exempt from the commission of crimes. Besides their participation in the imperfections of humanity, they have temptations and opportunities peculiar to themselves, to transgressions of a very dangerous description, and a very aggravated character. While the functions of their office place in their hands the management of those great controversies, upon which whole nations are wont to stake their existence, while their situations afford them the means and stimulate them to the employ. ment of the base but powerful weapons of faction, of corruption, and of treachery, their very privileges and immunities concur in

assailing their integrity, by the promise of security even in case of defeat; of impunity even after detection.

The experience of all ages and of every nation has therefore pointed to the necessity of erecting some barrier against the abuse of of those immunities and privileges, with which foreign ministers have at all times, and every where, been indulged. In some aggravated instances the rulers of the state, where the crime was committed, have boldly broken down the wall of privilege under which the guilty stranger would fain have sheltered himself, and in defiance of the laws of nations have delivered up the criminal to the tribunals of the country, for trial, sentence and execution. At other times the popular indignation, by a process still more irregular, has without the forms of law, wreaked its vengeance upon the perpetrators of those crimes, which otherwise must have remained unwhipp'd of justice. Cases have sometimes occurred, when the principles of self preservation and defence have justified the injured government, endangered in its vital parts, in arresting the person of such a minister during the crisis of danger, and confining him under guard until he could with safety be removed: but the practice which the reason of the case and the usage of nations has prescribed and recognized, is, according to the aggravation of the offence, to order the criminal to depart from the territories, whose laws he has violated, or to send him home, sometimes under custody, to his sovereign, demanding of him that jusțice, reparation and punishment,

which the nature of the case requires, and which he alone is enfiled to dispense. This power is

admitted by the concurrent testi, mony of all the writers on the laws of nations, and has the sanction of practice equally universal. It results indeed as a consequence absolutely necessary from the independence of foreign ministers on the judicial authority, and iş perfectly reconcileable with it. As respects the offended nation, it is a measure of self-defence, justified by the acknowledged destitution of every other remedy. As respects the offending minister, it is the only means of remitting him for trial and punishment to the tribunals whose jurisdiction he cannot recuse; and as respects his sovereign, it preserves inviolate his rights, and at the same time manifests that confidence in his justice, which civilized nations, living in amity, are bound to place in each other.*

* It seems it may be said on this fubject that there is no cafe, in which the ordinary tribunals can extend their ju

rifdiction over publick ministers; and this with the more confidence, as I find it is the opinion of Grotius. This is incontestible with regard to common offences; and as for crimes of state, wherein the ambaffador violates the law of nations, particularly if he attempt the life of the prince to whom he is fent, the fovereign alone, or the council of state in his behalf, can take cognizance of it, can arreft the traitor in his house, and afterwards fend him with the proofs to the prince his master for punishment. Wiquefort's Ambaffador, book 1, §. 29.

Princes sometimes oblige ministers to depart from their dominions, and send them away under an armed escort. Queen Elizabeth caused Don Bernardin de Mendoza,ambassador of Spain, and the bishop of Rofs, ambassador from the queen of Scots, to be shipped off. Louis 14th of France fent under guard to the frontiers of Savoy a nuncio from the pope. The king of Portugal difmified in like manner a minifter from the pope, in 1646. And in 1659, under cardinal Mazarin, the refident from the elector of Branden

burg was ordered to quit the kingdoms On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the constitution of the Unites States congress are authorized to define and punish offences against the law of nations, yet this did not imply a power to innovate upon those laws. I could not be ignorant that the legislature of one individual, in the great community of nations has no right to prescribe rules of conduct which can be binding upon all, and therefore in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path; not to vary one jot or one tittle from the prescriptions of immemorial usage, and unquestioned authority. In consulting for this purpose the writers, characterized by one of our own statesmen, in a pamphlet recently laid on our tables, as "the luminaries and oracles to whom the appeal is generally

....

and afterwards put into the bastile; whence he was taken, sent to Calais in custody, and there embarked. In 1667, the queen regent of Spain ordered the archbishop of Embrun, ambaffador of Spain, to withdraw; and would not fuffer him to wait in Madrid for the letters which he expected to receive by the first courier. All he could obtain was to stop at Alcala' until their arrival; and there he received them. Wiquefort,b.1.5.30. An embaffador ought to be independent of every power, except that by which he is fent: and of confequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. If he grossly affends, or makes an ill use of his character, he may be sent home and accused before his master; who is bound either to do justice upon him, or avow himfelf the accomplice of his crimes. Cbrifttan's Blackstone. Vol. 1. p. 253. See also Montesquieu. Sp. L. 26. 21.

made by nations who prefer an appeal to law, rather than to power," I found that they distinguished the offences which may be committed by foreign ministers into two kinds, * the one against the mu nicipal laws of the country, where they reside; and the other against the government or state, to which they are accredited; and that they recommended a correspondent modification of the manner in which they are to be treated by the offended sovereign. The first section of the bill therefore directs the mode of treatment towards foreign ministers, guilty of heinous offences against the municipal laws: for as to those minor transgressions, which are usually left unnoticed by other states, I havé thought no provision necessary fof them. The section points out the mode by which the insulted state or injured individual may ap ply to the chief magistrate of the Union for redress, and by what process the president may obtain reparation from the offender's sovereign, or, in case of refusal, dismiss the offender from the territories of the United States.t

*

Suppose an ambassador guilty of a crime, deserving punishment in a course of justice; where then is he to be accused and punished ?

In this question we must distinguisa between two forts of crimes, of which an ambaflador may have been guilty. Either he has fimply committed an offence, injurious to civil society and the publick tranquillity, fuch as homicide, adultery,

or almost any other of the common crimes, as they may be termed; or he has tranfgreffed against the person of the fovereign, or against the state, which is usually called treason or boftility. Bynkersbock. De fore Legatorum, with Barbeyrac's commentary, chap. 17, §. 6.

† Should an ambassador forget the duties of his station, should he render himself disagreeable and dangerous, from cabals and enterprizes, pernicious to the The second section provides for the case of offences against the government or the nation. If the insult is direct upon the president of the United States himself, it authorises him at once to discard the offender; if the injury be against the nation by any conspiracy, or other act of hostility, it offers the means of removing at once so dangerous a disturber of the publick tranquillity. This also will be found exactly conformable to the directions in Vattel.*

...

tranquillity of the citizens, the state, or prince, to whom he is fent, there are sev

The third section brings me to the consideration of the relation which the bill bears to the constitution of the United States. It contains a regulation, the object of which is at once to prevent all misunderstanding by the offending minister's sovereign of the grounds upon which he should be ordered to depart or sent home; and to mark by a strong line of discrimination the cases when a foreign minister is dismissed for misconduct, from those when he is expelled on account of national differences. In this latter case, by the

ate to the nature and degree of his fault. If he maltreats the subjects of the state, if he commits any acts of injustice or violence towards them, the subjects inju

red are not to feek redress from the common magistracy, the ambaffador being independent of their jurifdiction; consequently those magistrates cannot proceed directly against him. On fuch occafions the fovereign is to be applied to; he demands justice from the ambaffador's master, and, in cafe of a refusal, may order the infolent minister to quit his dominions. Vattel. Book 4, ch. 7, §. 94.

• Should a foreign minister offend the prince himself, be wanting in respect to him, and by his intrigues raise difturbances in the state and court, the injured prince, from a particular regard to the minister's master, fometimes requires that he should be recalled; or if the fault be more heinous, the prince forbids him the court, till he receives an answer from his master; but in important cafes he proceeds so far as to order him to quit his dominions. Every fovereign has an unquestionable right to proceed in this manner; for, being mafter in his own dominions, no foreigner can stay at his court or in his dominions without his permiffion. And though fovereigns are generally obliged to hear the overtures of foreign powers, and to admit their minifters, this obligation ceases entirely with regard to a minifter who, being himself wanting in the duties incumbent on him from his character, becomes dangerous or justly suspected by him to whom he is to come only as a minister of

The

of nations, an order to depart, giv. en to a foreign minister, is equiva lent to a declaration of war. In the European governments, where the power of declaring war, and that of negociating with foreign states, are committed to the same hands, this nice discrimination of the specifick reasons for which a minister may be dismissed, is far less important than with us. power of declaring war is with us exclusively vested in congress; and as the order to depart, when founded on national disputes, amounts to such a declaration, it appears to me by fair inference, that for such cause the president of the United States cannot issue such an order without the express request or concurrence of congress to that effect. It was from this view of the subject that in the present bill, the power vested in the president. to send home a culpable minister is so precisely limited to the cases when the minister shall have deserved that treatment by his per sonal misconduct. This distinction between the causes for which a foreign minister may be sent home has been solemnly recognized, in a remarkable manner, by this government in the treaty with G.

Britain of 19 Nov. 1794, in the 26th article.t

Here, Sir, the sending home a minister for national causes is recognized to be the very test of a rupture, and exactly tantamount to a declaration of war. But the same act, done for the minister's personal misconduct, is acknowledged to be a right of both parties, which they agree to retain'; and it is stipulated that it shall not in that case be deemed equivalent to a rupture. The expressions used imply that the parties did not consider themselves as introducing in this part of the article a new law, but as explaining the old. It is merely declaratory, " for greater certainty," and the previous existence of the right is recognized by the stipulation that both parties shall retain it. This is one of the articles of the treaty which have expired. But, as expressing the sense both of our own nation, and of Great Britain upon the subject to which it relates, it is as effectual as it ever could be. Its provisions are still binding upon both parties, as part of the law of nations, tho' they have ceased to be obligatory as positive stipulations. This view of the subject will also furnish me with an answer to the question which has more than

† ....And for greater certainty, it is declared, that a rupture shall not be deemed to exift, while negociations for accommodating differences fhall be depending, nor until the respective ambassadors or minifters, if fuch there shall be, shall be recalled, or fent home on account of fuch differences, and not on account of personal misconduct, according to the nature and degrees of which, both parties retain their rights either to request the recal, or immediately to send home the ambassador or minister of the other: and that without prejudice to their mutual friendship and good understanding. Treaty with G.Britain, 19 Nov. 1791, art.26. Vol. III. No. 5. 2 L

once been put to me, and which may perhaps be repeated here. It has been asked, whether the first and second sections of the bill are not superfluous? whether the cases are not already provided for, and whether the president does not, beyond all question, possess the power which they purpose to vest in him ?

That the power is beyond all question vested in him, is, Sir, more than I can take upon me to say. Had I thought it beyond all question, I certainly should not have brought forward the bill in its present shape. And I will in candour add, that if, after a due consideration of the subject, the senate should be of opinion, that the power is vested in him beyond all question, they will of course either reject the bill, or reduce it to a mere modification of the manner in which he shall exercise the right, whenever he shall deem it expedient.

By the constitution of the United States, the executive power generally is vested in the president, and he is expressly authorized and directed to " receive ambassadors and other publick ministers." Now Sir, by the general grant of the executive power, according to the writers who have scrutinized and discriminated with the nicest accuracy the powers of government, the power of declaring war would of course be included. Such is the opinion not only of Montesquieu, but of Rousseau, the most republican of writers on laws and constitutions. The practice of all the governments in Europe which ever recognized the division of powers is conformable to this theory. But our constitution has expressly made the declaration of war a le

gislative act, and, by fair inference, whatever is by the custom of na