ſtatute 20 Hen. VI. c. 11. ſo far as relates to the making this offence high treaſon, yet ſtill it remains a very great offence againſt the law of nations, and puniſhable by our laws, either capitally or otherwiſe, according to the circumſtances of the caſe.
I. The king therefore, conſidered as the repreſentative of his people, has the ſole power of ſending embaſſadors to foreign ſtates, and receiving embaſſadors at home. This may lead us into a ſhort enquiry, how far the municipal laws of England intermeddle with or protect the rights of theſe meſſengers from one potentate to another, whom we call embaſſadors.
The rights, the powers, the duties, and the privileges of embaſſadors are determined by the law of nature and nations, and not by any municipal conſtitutions. For, as they repreſent the perſons of their reſpective maſters, who owe no ſubjection to any laws but thoſe of their own country, their actions are not ſubject to the control of the private law of that ſtate, wherein they are appointed to reſide. He that is ſubject to the coercion of laws is neceſſarily dependent on that power by whom thoſe laws were made: but an embaſſador ought to be independent of every power, except that by which he is ſent; and of conſequence ought not to be ſubject to the mere municipal laws of that nation, wherein he is to exerciſe his functions. If he groſſly offends, or makes an ill uſe of his character, he may be ſent home and accuſed before his maſter[1]; who is bound either to do juſtice upon him, or avow himſelf the accomplice of his crimes[2]. But there is great diſpute among the writers on the laws of nations, whether this exemption of embaſſadors extends to all crimes, as well natural as poſitive; or whether it only extends to ſuch as are mala prohibita, as coining, and not to thoſe that are mala in ſe, as murder[3]. Our law ſeems to have formerly taken in the reſtriction, as well as the
