HomeHistorical Documents

William Blackstone, Commentaries on the Laws of England
1:247--48, 3:68--7

(1765  1768)

In respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet sir Edward Coke maintains, that, if an embassador makes a contract which is good jure gentium, he shall answer for it here. And the truth is, we find no traces in our lawbooks of allowing any privilege to embassadors or their domestics, even in civil suits, previous to the reign of queen Anne; when an embassador from Peter the great, czar of Muscovy, was actually arrested and taken out of his coach in London, in 1708, for debts which he had there contracted. This the czar resented very highly, and demanded (we are told) that the officers who made the arrest should be punished with death. But the queen (to the amazement of that despotic court) directed her minister to inform him, "that the law of England had not yet protected embassadors from the payment of their lawful debts; that therefore the arrest was no offence by the laws; and that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land." To satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of Peter, a new statute was enacted by parliament, reciting the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador's servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions, that are strictly conformable to the rights of embassadors, as observed in the most civilized countries. And, in consequence of this statute, thus enforcing the law of nations, these privileges are now usually allowed in the courts of common law.

III. The maritime courts, or such as have power and jurisdiction to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law, are only the court of admiralty, and it's courts of appeal. The court of admiralty is held before the lord high admiral of England, or his deputy, who is called the judge of the court. According to sir Henry Spelman, and Lambard, it was first of all erected by king Edward the third. It's proceedings are according to the method of the civil law, like those of the ecclesiastical courts; upon which account it is usually held at the same place with the superior ecclesiastical courts, at doctors' commons in London. It is no court of record, any more than the spiritual courts. From the sentences of the admiralty judge an appeal always lay, in ordinary course, to the king in chancery, as may be collected from statute 25 Hen. VIII. c. 19. which directs the appeal from the arch-bishop's courts to be determined by persons named in the king's commission, "like as in case of appeal from the admiral-court." But this is also expressly declared by statute 8 Eliz. c. 5. which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.

Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. But in case of prize vessels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice-admiralty as lawful prize, the appeal lies to certain commissioners of appeals consisting chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: for this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to which this question is permitted in England, is the court of admiralty; and the court of appeal is in effect the king's privy council, the members of which are, in consequence of treaties, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster-hall, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission, on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3. with a proviso, that no sentence given under it should be valid, unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions: and such an addition became indeed wholly unnecessary in the course of the war which commenced in 1756; since, during the whole of that war, the commission of appeals was regularly attended and all it's decisions conducted by a judge, whose masterly acquaintance with the law of nations was known and revered by every state in Europe.

Top