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and England and France in 1308, and France and Savoy in 1378, 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 considers these treaties as evidence of the advancement of society in regularity and order.
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 honourable 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. 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. We have had instances within our own times, of all these modes 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
public law go still further, and allow force to be applied to confine or send away
a Hist. of the Law of Nations, vol. 2. 318-320. b Livy, b. 2. c. 4. b. 30. c. 25.
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 ambassador to criminal jurisdiction, and the learned discussions which that case excited. 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, and the government he represents has exclusive cognizance of his conduct, and control of his person. The attendants of the ambassador attached to his person, and the effects in his use, 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. The distinction between ambassadors, ministers plenipotentiary, and envoys extraordinary, relates to diplomatic precedence and etiquette, and not to their essential powers and privileges.e A government may, in its discretion, lawfully refuse to receive an ambassador, and without affording any just cause for war, though the act would, probably, excite unfriendly dispositions, unless accompanied with conciliatory explanations. The refusal may be upon the ground of the ambassador's bad character, or former offensive conduct, or because the special subject of the embassy is not proper, or not convenient for discussion. A state may also be divided and distracted by civil wars, so as to render it inexpedient to acknowledge the supremacy of either party. Bynkershoeck says, that this right of sending ambassadors belongs to the ruling party, in whom stet rei agendi potestas. This is placing the right where all foreign governments place it, in the government de facto, which is in the actual exercise of power ; but the government to whom the ambassador is sent, may exercise its discretion in receiving, or refusing to receive him.
a l'attel, b. 4. c. 7. sec. 97–103. Ward's History, vol. 2. p. 486— 552.
6 Rutherforth, b. 2.c. 3. Ward's History, vol. 2. 552, 3. Vattel, b. 4. c. 8. sect. 113. United States v. Hand, 2 Wash. Cir. R. 435.
e Martens, p. 201–207. Vattel, b. 4. c. 6. Chargé d'affaires is a diplomatic representative or minister of an inferior grade, and a resident minister, though of higher rank, 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 United States have always been represented in Europe by ministers plenipotentiary, and they have never sent a person of the rank of ambassador in the diplomatic sense.
The Prince of Orange once expressed to Mr. Adams his surprise that the United States had not put themselves in that respect on a level with the crowned heads. Diplomatic Correspondence, edited by Mr. Sparks, vol. 7. 108.
It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act of his minister. This will depend upon the nature and terms of his authority. It is now the usual course for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of attorney, or credential of the minister; and it is not understood to confer a power upon the minister to bind his sovereign conclusively. To do so important an act would require a distinct and full power, containing an express authority to bind the principal definitively, without the right of review, or the necessity of ratification on his part. This is not the ordinary or prudent course of business. Ministers always act under instructions which are confidential, and which, it is admitted, they are not bound to disclose ; and it is a well grounded custom, as Vattel observes, that any engagement which the minister shall enter into is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries.
a Rutherforth, b. 2. c. 9.
c The discretion and reserve with which a public minister ought to act in relation to the country in which he resides, is strongly exemplified in the case of the Sally Ann. (Stewart's Vice-Adm. Rep. 367.) It was held that a license granted by the British minister at New-York, after the commencement of the war of 1812, to an American citizen to export provisions to a British island, was inconsistent with his diplomatic character and duty, and void ; and the decision was declared to be correct and proper by the Lords Commissioners, on appeal.
Consuls are commercial agents, appointed to reside in Consuls. the sea-ports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation deputing them. The establishment of consuls is one of the most useful of modern commercial institutions. They were first appointed about the 12th century, in the opulent states of Italy, such as Pisa, Lucca, Genoa, and Venice, and their origin has been ascribed to the necessity for extraordinary assistance in those branches of commerce formerly carried on with barbarous and uncivilized nations. The utility of such a mercantile officer has been perceived and felt by all trading nations, and the Mediterranean trade, in particular, stands highly in need of such accredited agents. Consuls have been multiplied and extended to every part of the world, where navigation and commerce can successfully penetrate, and their duties and privileges are now generally limited and defined in treaties of commerce, or by the
a Wicquefort's L’Amb. tom. 1. sec. 14. Martens, p. 217,
statute regulations of the country which they represent. In some places, they have been invested with judicial powers over the disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain, there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers ; and in England it has been held, that a consul is not strictly a judicial officer, and they have there no judicial power. It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no government can invest its consuls with judicial power over their own subjects, in a foreign country, without the consent of the government of the foreign country, founded on treaty; and there is no instance, in any nation of Europe, of the admission of criminal jurisdiction in foreign consuls. The laws of the United States, on the subject of consuls and vice-consuls, specially authorize them to receive the protests of masters and others, relating to American commerce, and they declare that their consular certificates, under seal, shall receive faith and credit in the courts of the United States. It is likewise made their duty, where the laws of the country permit, to administer on the personal estates of American citizens, dying within their consulates, and leaving no legal representative, and to take charge of and secure the effects of stranded American vessels, in the absence of the master, owner, or consignee ; and they are bound to provide for destitute seamen within their consulates, and to send them at the public expense, to the United States. These particular powers and duties are similar to those prescribed to British consuls, and to consuls under the consular
a Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunton, 162. 1 Chitty, 50, 51.
b Acts of Congress of 14th April, 1792, ch. 24. and of Feb. 28, 1803, ch. 62.