The enquirer. [volume] (Richmond, Va.) 1804-1815, 1812-03-10


eAprcsscd or implied. il wodid iysS sen, /.
Question which does net aprearto be FER
iec,ly settled, decision or wh,ch Is nc, ne.
cess,try TO any conclusion 20 which Inc crur;
alty Come IN tne case u..der confederation
II he did n&' thereby expose himself to lii,
territorial jurisdicti.si ot the sovereign whose
domnions hc had entered, it would seem
to be because all soverc;gns implicitly en-
I, gage lot 10 avail themselves OF I po,;er o
yer their equals, which a romantic conf
dc'ce IN their magnanin.ity has placed i'll
then hands.
"a. y second case, standing on the same
principles with the first, is the Immunity
which all civilized nations allow to foreign
ministers.
Whatever may be the principle on which
this Immunity is established, whether we
consider him as in the place of the sove-
reign lie represents, Oh by political fiction
suppose bim to be cxtra-territorial, and,
therefore, in points* Jaw, not within the iu-
risticton of the sovereign at whose Court he
resides still the immunity itself is granted
oy the governing power of the nation to
which the minister is deputed. This fiction
OF eX-territorial could not be erected and
supported against the will OF the sovereign
OF the territory. He is supposed to assent
to it.
The consent is not expressed. 1t is true
that IN seine countries, and in this among
others, special law is enacted f,r tho case
isn't the law obviously proceeds Oh the idea
OF prescribing the punishment of an act pre-
viousiy unlawful, not of granting to IA foreign
minister privilege which he would not
otherwise possess.
The assent OF the sovereign to the very
important and extensive exemptions from
territorial jurisdiction which arc admitted
t. attach to foreign ministers, isimplied from
the considerations that, without such exemp-
ton, every sovereign would hazard his own
mgnity ny employing public minister "a
broad. His minister would owe temporary
and local allegiance 20 a foreign prince, and
would be less competent to the objects ofhis
MISSION. A sovereign committing the inte-
rests OF his nation with foreign power to the
care OF person whom he has selected for
that purpose, cannot intend to SUBJECT his
minister in any degree to that power !; and,
therefore, consent to receive him, implies
consent that he shall possess those priv
leges which his principal intended he should
retan-priviledges which are essential to
the dignity of his sovereign, and to the du-
ties he is bound to perform.
In what cases minister, by infracting the
laws OF the country in which he resides, NAV
subject himself to other punishment than
VIII De inflicted by his own sovereign,is an in
qriry foreign to the present purpose. If his
crimes be such as to render him amenable
to the local jurisdiction, it must be because
they forfeit the privileges annexed to his
character and the minister, by violating
the condition under which he was received
as the representative of foreign sovereign,
has surrendered immunities granted on those
conditions; or, according to the true meaning
OF the original assent, has ceased to be enti-
tied to them
Sd. A. Sd case in which sovereign is IN
derssood to cede portion of his territorial ju-
rlsdicton is, when he allows the troops of
foreign prince to pass through his dominions.
In such case, without any express declara-
ton waving Jurisdiction overt ht army to
which this right of passage has been granted,
the sovereign who should attempt to .exer-
else 1t would certainly be considered az vio-
lating his faith. BY exercising it, the pur-
pose tor which the free passage was gran
ted would be defeated, and portion of the
military force of a foreign independent natl
on would be diverted from those national OBJ
Jects and duties to which it was applicable,
and would be Withdrawn from the control of
the sovereign whose power and whose safety
might greatly depend on retaining the ex
elusive command and disposition of this
force. he grant of a free passage there
tore implies waving of all jurisdiction over
the troops during their passage, and permits
the foreign general to use that discipline and
TO lniilct those punshments which the go
vernment OF his army may require.
But II, without such express permit, an ar
my should be led through the territories of
foreign prince, might the jurisdiction of the
territory be rglitf,lly exercised over the ndi-
viduals composing this army!
Without doubt a military force can never
gain immunities of any other description
than those which war gives, by entering a
foreign territory against the will of its sove-
reign. But if his consent, instead of being
expire 'sed by a particular license, be ex-
pressed by a general declaration that foreign
troops may pass thro' a specified tract of
country, distinction between such general
permit and particular licence is not per-
ceivcd. 1t would seem reasonable that eve
ry Immunity which would be conferred by a
special licence, would be in like manner con-
ferred by such general permit.
we have seen that licence to pass
thro' territory implies immunities not ex-
pressed, and it is material to enquire why
the icence itself may not be presumed.
1t is obvious that the passage of an army
through a foreign territory Will probaly be
at all times inconvenient and injurious, and
would often BE- imminently dangerous to the
sovereign through whose domiDions it pas
SEQ. Such practice would break down
some o. the most decisive distinctions be-
tween peace and war, and would reduce "a
nation to the necessity OF resisting by war
an act not absolutely hostile in it's character
or OF exposing itself to the stratagems
ana frauds OF a power whose integrity