Constitutional History of England, Henry VII to George II. Volume 1 of 3Hallam, Henry
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Constitutional History of England, Henry VII to George II. Volume 1 of 3
Hallam, Henry
Constitutional history -- Great Britain
It has been said so often, that few perhaps wait to reflect whether it
has been said with reason, that Mary, as an independent sovereign, was
not amenable to any English jurisdiction. This, however, does not appear
unquestionable. By one of those principles of law, which may be called
natural, as forming the basis of a just and rational jurisprudence,
every independent government is supreme within its own territory.
Strangers, voluntarily resident within a state, owe a temporary
allegiance to its sovereign, and are amenable to the jurisdiction of
his tribunals; and this principle, which is perfectly conformable to
natural law, has been extended by positive usage even to those who are
detained in it by force. Instances have occurred very recently in
England, when prisoners of war have suffered death for criminal
offences; and if some have doubted the propriety of carrying such
sentences into effect, where a penalty of unusual severity has been
inflicted by our municipal law, few, I believe, would dispute the
fitness of punishing a prisoner of war for wilful murder, in such a
manner as the general practice of civil societies and the prevailing
sentiments of mankind agree to point out. It is certainly true that an
exception to this rule, incorporated with the positive law of nations,
and established, no doubt, before the age of Elizabeth, has rendered the
ambassadors of sovereign princes exempt, in all ordinary cases at least,
from criminal process. Whether, however, an ambassador may not be
brought to punishment for such a flagrant abuse of the confidence which
is implied by receiving him, as a conspiracy against the life itself of
the prince at whose court he resides, has been doubted by those writers
who are most inclined to respect the privileges with which courtesy and
convenience have invested him.[252] A sovereign, during a temporary
residence in the territories of another, must of course possess as
extensive an immunity as his representative. But that he might, in such
circumstances, frame plots for the prince's assassination with impunity,
seems to take for granted some principle that I do not apprehend.
Public-domain text, read in full here on John Shaqi.
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