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seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, * and Eng- *38 land and France in 1308, and France and Savoy, in 1378;

tution and statute of the United States. But the legislature of New York, by con current resolutions of the 11th of April, 1842, declared their opinion to be, that stealing a slave within the jurisdiction and against the laws of Virginia was a crime within the meaning of the 2d section of the 4th article of the Constitution of the United States. The executive and legislative authorities of Virginia also considered the case to be within the provision of the constitution and the law, and that the refusal was a denial of right. It was contended, that the Constitution of the United States recognizes the lawful existence of slaves as property, for it apportions the representation among the states on the basis of distinction between free persons and other persons; and it provides, in art. 4, sec. 2, for their surrender, when escaping from one state to another: that slaves were regarded by law as property in nearly all the states, and protected as such, and particularly in New York, when the constitution was made; that the repeal of those laws, and renunciation of that species of property, in one state, does not affect the validity of the laws, and of that species of property in another state; and that the refusal to surrender felons who steal that property in Virginia, and flee with it or without it to New York, on the ground that blacks are no longer regarded as property in New York, is a violation of the federal compact, and of the act of Congress founded thereon. This case and that of Holmes, mentioned in a preceding note, involve very grave considerations. I have read and considered every authority, document, and argument on the subject that were within my command, and in my humble view of the questions, I cannot but be of opinion, that the claim of the Canadian authorities in the one case, and of the Governor of Virginia in the other case, were equally well founded, and entitled to be recognized and enforced. In the case from Canada, the jurisdiction of it belonged exclusively to the authorities of Vermont. The United States have no jurisdiction in such cases, except under a treaty provision. The duty of surrendering on due demand from the foreign government, and on due preliminary proof of the crime charged, is part of the common law of the land, founded on the law of nations as part of that law; and the state executive is to cause that law to be executed, and to be assisted by judicial process, if necessary. The statute of New York is decisive evidence of the sense of that state, and it was in every respect an expedient, just, and wise provision, in no way repugnant to the Constitution or law of the United States, for it was "no agreement or compact with a foreign power." The whole subject is a proper matter of state concern, under the guidance of municipal law, (stipulations in national treaties always excepted), and if there be no express statute provision, the exercise of the power must rest in sound legal discretion, as to the nature of the crime and as to the sufficiency of the proof. The law of nations is not sufficiently precise to dispense with the exercise of that discretion. But private murder, as in the Vermont case, is free of all difficulty, and it would be dealing unjustly with the aggrieved foreign government, and be eminently disgraceful to the character of the state and to our constitutional authorities, to give an asylum to fugitives loaded with such atrocity. If there be no authority in this country, state or national, to surrender such a fugitive, then it is idle to talk about the authority of the law of nations as part of the common law. Then "public law, the personification, as it were, of natural justice, becomes a mere nonentity, the beautifu figment of philosophers, and destitute of all real influence on the fortunes of mankird."

and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr. Ward (a) considers these treaties as evidence of the advancement of society in regularity and order. (b)

(a) History of the Law of Nations, ii. 318-320.

(b) By the treaty of amity, commerce, and navigation between Great Britain and the United States, in November, 1795, it was by the 27th article agreed, that persons charged with murder or forgery, seeking an asylum in the dominions of either party, should be delivered up on due requisition, provided the evidence of criminality be sufficient to justify apprehension and commitment for trial, if the offence had been committed in the jurisdiction where the requisition is made. But this treaty, on this and other points, expired by its own limitation after the expiration of twelve years. The provision was happily renewed by the treaty between the United States and the United Kingdom of Great Britain and Ireland, signed at Washington, August 9, 1842, and afterwards duly ratified. This treaty terminates the question, so far as the two countries are concerned, which had long embarrassed the councils and courts in this country. By the 10th article of the treaty it is declared, that the two powers respectively, upon requisitions by the due authorities, should deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum, or should be found within the territories of the other; provided, that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. A similar convention was made between the United States and France, and ratified at Washington, April 12, 1844; but the provision was extended to the crime of an attempt to commit murder, and to rape, and embezzlement by public officers, when the same is punishable with infamous punishment. The treaty provisions would seem to require statute provisions of the several governments to carry the treaties for surrendering fugitives more promptly into effect. The act of 8 and 9 Vict. c. 120, has such a provision in respect to the treaty of Washington, in 1842; without any special provision on the subject, the power and duty of duly carrying into effect treaties of that kind would belong, exclusive of the state authorities, to the courts and magistrates of federal jurisdiction. The legislature of the Kingdom of Belgium, by a law of the first of October, 1833, authorized the surrender of fugitives from foreign countries upon the charge of murder, rape, arson, counterfeiting the current coin or forging public bank paper, perjury, robbery, theft, peculation by public trustees and fraudulent bankrupts; but with the proviso, that the law of the foreign country be reciprocal in the case, and that the judgment or judicial accusation be duly authenticated, and the demand be made within the time of limitation prescribed by the Belgic law. M. Pinheiro-Ferreira severely condemns this law, and contends for protection to the fugitive, and that the tribunals of the country to which he resorts should take cognizance of criminal cases equally as of matters of contract! See Cours de Droit Public, par Le Comm. S. PinheiroFerreira, Paris, 1830, ii. 24-34. Revue Étrangère de Législation, et d'Économie Politique, No. 2, Paris, December, 1833. Some other foreign jurists, of more established reputation, maintain the same doctrine, and hold that crimes committed in one state may, if the criminal be found in another state, be, upon demand, punished there.

7. Ambassadors, Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to the laws of the country to which they are deputed. As they are representatives of their sovereigns, and requisite for negotiations and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions, or perfidious policy, have violated this immunity. Some very honorable examples of respect for the rights of ambassadors, even when their privileges would seem in justice to have been forfeited on account of the gross abuse of them, are to be met with in the ancient Roman annals, notwithstanding the extreme arrogance of their pretensions, and the intemperance of their military spirit. (c) If, however, ambassadors should be so regardless of their duty, and of the object of their privilege, as to insult or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall; or they may be dismissed and required to depart within a reasonable time. (d) We have had instances, within our own times, of all these modes.

Hurtius, de Collis. Leg. P. Voet, de Statut. cited in Story's Comm. on the Conflict of Laws, 516–520. Martens, Law of Nations, b. 3, c. 3, sec. 22, 23. Grotius de Jure B. & P. b. 2, c. 21, sec. 4. The latter says, that every government is bound to punish the fugitive criminal on demand, or deliver him up. But the better opinion now is, both on principle and authority, that the prosecution and punishment of crimes are left exclusively to the tribunals of the country where they are committed. Kames, Princip. of Equity, ii. 326. Merlin, Répertoire, Souveraineté, sec. 5, n. 7, pp. 757, 758. Pardessus, Droit Comm. v. art. 1467. If, indeed, the fugitive is to be tried and punished for a crime committed out of the territory, the punishment must be according to the law of the place where the offence was committed. Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur. Bartholus, cited in Henry on Foreign Law, 47. It is, however, a decided and settled principle in the English and American law, that the penal laws of a country do not reach, in their disabilities or penal effects, beyond the jurisdic tion where they are established. Folliott v. Ogden, 1 H. Black. 123, 135. Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green, 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440.

(c) Livy, b. 2, c. 4; b. 30, c. 25.

(d) In 1797, it was considered by the Attorney-General of the United States, in his letter to the Secretary of State, to be a contempt of the government, for a foreign minister, while a resident minister in the United States, to communicate his sentiments to the people of the United States through the press. His intercourse and correspondence of that kind is to be with the executive department of the govern ment exclusively. Upinions of the Attorneys-General, i. 43.

of dealing with ministers who had given offence, and it is not to be denied, that every government has a perfect right to judge for itself whether the language or conduct of a foreign minister be

admissible. The writers on public law go still further, and *39 allow force to be applied to confine or send away *an ambassador, when the safety of the state, which is superior to all other considerations, absolutely requires it, arising either from the violence of his conduct, or the influence and danger of his machinations. This is all that can be done, for ambassadors cannot, in any case, be made amenable to the civil or criminal jurisdiction of the country; and this has been the settled rule of public law, ever since the attempt made in the reign of Elizabeth to subject the Scotch and Spanish ambassadors to criminal jurisdiction, and the learned discussions which that case excited. (a)1 By fiction of law, an ambassador is considered as if he were out of the territory of the foreign power; and it is an implied agreement among nations, that the ambassador, while he resides within the foreign state, shall be considered as a member of his own country, retaining his original domicile, and the government he represents has exclusive cognizance of his conduct and control of his person. (b) An ambassador is also deemed under the protection of the law of nations in his passage through the territories

(a) Grotius, b. 2, c. 18, sec. 4; Bynk. de Foro Legatorum, c. 8, 17, 18; Vattel, b. 4, c. 7, sec. 92-103; Ward's History, ii. 486-552; Marshall Ch. J., in the case of the Schooner Exchange v. M'Faddon, 7 Cranch, 188; Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, pp. 236-261, has given an analysis or summary of Bynkershoek's treatise De Foro Legatorum, and which is justly regarded as an excellent work and of high authority. It is contained in the 2d volume of Bynkershoek's works, published in 2 volumes, folio, at Leyden, 1767.

(b) Grotius, b. 2, c. 18, sec. 1-6; Wicquefort, de l'Ambassadeur, liv. 1, sec. 27; Vattel, b. 4, c. 7, sec. 81-135; Bynk. de Foro Legat. c. 8. If an ambassador be concerned in trade, his property in that trade is liable to seizure, as in the case of any individual. Bynk. de Foro Legat. c. 14; Vattel, b. 4, c. 8.

1 The general privilege of a minister having no real estate in the foreign country is to be exempt from suit there, although neither his person nor goods are touched, and although the liability arises out of business engaged in there. Magdalena Steam Nav. Co. v. Martin, 2 El. & El. 94. See Valarino v. Thompson, 3 Seld. (7 N.Y.) 576; Halleck, ch. 9, §§ 14, 19, et seq. It has

been held otherwise, if he voluntarily attorns to the jurisdiction in such a case. Taylor v. Best, 14 C. B. 487. But see Valarino v. Thompson, 3 Seld. 576. He cannot waive his immunity from arrest. United States v. Benner, 1 Baldw. 234, post, 182, n. (b). See Wheat. Dana's note, 129; Halleck, ch. 9, § 16 et seq.

of a third and friendly power, while upon his public mission, in going to and returning from the government to which he is deputed. To arrest him under such circumstances would be a breach of his privileges as a public minister. (c) The attendants of the ambassador attached to his person, and the effects in his use, and the house in which he resides, and his domestic servants, are under his protection and privilege, and equally exempt from the foreign jurisdiction, though there are strong instances in which their inviolability has been denied and invaded. (d) The distinction between ambassadors, ministers plenipotentiary, envoys extraordinary, and resident ministers, relates to diplomatic precedence and etiquette, and not to their essential powers and privileges. (e)

(c) Vattel, b. 4, c. 7, sec. 63, 84; Holbrook v. Henderson, 4 Sandf. 619. In this case, Henderson, the minister from the Republic of Texas to France, was arrested in New York for debt, while on his return from France to Texas, by the way of New York, and the court discharged him from the arrest. It was held that an entry into the country in time of peace did not require, for the protection of the person, a passport, though the law assumes that passports may be granted by the government of the United States. Act of Congress, April 30, 1790, sec. 27. Passports, though named in our law, are unknown in practice. The protection is implied by natural and municipal law, and it is the duty of the courts of justice, when cases arise before them, to enforce the law of nations on this subject, as part of the law of the land. The doctrine of international law, as laid down by Vattel, is founded in good sense and public policy, and sustained by the interests and courtesy of nations. Grotius says, b. 2, c. 18, sec. 5, that the obligation to protect ambassadors extends only to the power to whom the embassy is sent, and does not extend to the power through whose territories the ambassador presumes to pass without a passport. But that harsh and narrow rule is now justly exploded.

(d) Rutherforth, b. 2, c. 9; Ward's History, ii. 552, 553; Vattel, b. 4, c. 8, sec. 113; United States v. Hand, 2 Wash. 435. Opinions of the Attorneys-General of the United States, Washington, 1841, i. 89-91. The immunities of a public minister are considered as not extending to debtors, as to debts incurred prior to their entering into the minister's service, nor to fugitive slaves, nor to persons who were under previous duties, as soldiers, sailors, apprentices, minors, a wife, &c., nor does the privilege of immunity protect a laborer engaged to work in the garden attached to the minister's residence. Ib. The duties and privileges of a public minister are detailed at large by Mr. Wheaton, in his elements of International Law, 3d edition, 264-387, and afterwards in his larger work on the History of the Law of Nations in Europe and America, New York, 1845, 236-261; and from his long residence at two of the European courts in a diplomatic character, his authority on the subject acquires additional force.

(e) Martens, 201-207. Vattel, b. 4, c. 6. Chargé d'affaires is a diplomatic representative or minister of the fourth grade; and a resident minister seems not to be equal to a minister plenipotentiary. Nor is a minister plenipotentiary of equal rank and dignity with an ambassador, who represents the person of his sovereign. The great powers, at the Congress of Vienna in 1815 and of Aix la Chapelle in

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