and Merlin disputes with good reason the interpretation, which Bynkershoek has assigned to the word passerende, which occurs in an Edict of the States General (anno 1679) issued on the occasion of the Negociations for the peace of Nimeguen. The Edict announced that the persons, domestics, and effects of foreign Ambassadors or Ministers, "hier te lande komende, residerende, of passerende,” should be exempted from arrest. Bynkershoek considers this Edict as having reference only to foreign Ministers accredited to the States General, and construes the word passerende as referring not to those who might have landed in the territory of the States General, and were passing through it on their way to the territory of a third Power, but to those who were about to leave the territory of the States General, having been accredited to them as Resident Ministers. "Non interpretor," are his words, "de legatis transeuntibus, sed abeuntibus." Merlin in reviewing Bynkershoek's interpretation maintains, that passerende, being the Dutch equivalent of the French word passer, is applicable only to a person who, having arrived at a place, proceeds onward to another place, and is never used to designate a person who is leaving a place where he has been residing, and going back to the place from which he first came. Merlin however very justly remarks, that when it is said that an Ambassador is entitled to have his Independence respected in every territory through which he passes, it must be understood that he travels under the avowed character of an Ambassador; in other words, that his passport certifies his Public Character. If an Ambassador, who is in itinere, presents such a pasport at the frontier of a State other than to which he is accredited, and is thereupon allowed to enter its territory, the good

faith of the Sovereign of that State becomes pledged to respect his Official Character, as long as he does nothing inconsistent with perfect good faith on his own part. A Nation is at liberty to refuse a passage through its territory to a foreign Minister accredited to a third Power, precisely as a Nation is entitled to refuse altogether to receive a foreign Minister accredited to itself, but, if it allows him upon knowledge of his Character to enter its territory, it may not maltreat him nor suffer any violence to be offered to his Person.

The reasons assigned by Bynkershoek for restricting the privilege of the Ambassadorial Character are thus stated, "quia illa privilegia voluntatis tacitæ sunt post admissum legatum, et legatum etiam repellere licet, neque legatio inter alios, quam qui misit et ad quem mittitur, versatur." On examining these reasons, it will be found that the principle involved in the first reason does not militate against Vattel's view, if the Ambassador travels with a passport which certifies his Official Character, as every State through whose territory he proposes to pass is at liberty to decline to admit him in such Character, and his admission is thus a Voluntary act upon its part; on the other hand, the second reason, whilst it may be a valid reason so far as Resident Embassies and the secondary rights of Embassy incidental to Residence are concerned, is inconsistent with the fact that the person of the Courier who is the bearer of the despatches of a Foreign Minister is sacred under the Law of Nations, whilst he is passing through the territory of a Power to whom the Minister is not accredited, if the Official Character of the Courier is certified by his passport. The Right of Innocent Passage, in regard to an Ambassador on his way to the Court to which

he is accredited, is a Right in which all Nations are interested. It may be said of the disputes of Nations as of individuals, "Rei Publicæ interest ut finis sit litium." It is in the common interest of Nations that the peace of the World should be maintained, and the Personal Inviolability of the Ambassador, whose Mission is essentially that of Peace, is as necessary for that end, when he is passing on his way to his destination, as when he has reached his post. Vattel 80 holds that Francis I of France was justified not merely in declaring war against the Emperor Charles V, by reason of the murder of his Ambassadors, accredited respectively to Constantinople and to Venice, whilst passing through the Duchy of Milan, but in calling in the aid of other Nations, since it was not a Private Right of a particular Nation which was in dispute, but a matter which involved the Right of all Nations, since they are all interested in maintaining the Sacred Right of Embassy and of those means which enable them to hold communication with each other and to treat of their Commercial interests 81. Wheaton, who, as already observed, supports the views of Vattel and Merlin, remarks, that the Inviolability of a public Minister in his passage through the territory of a third Power depends upon the same principle which protects the person of his Sovereign coming into the territory of a friendly State by the permission,

80 Droit des Gens, L. IV. c. 7. $84.

81 The cases of the Duc de Belle Isle, Ambassador of France to Prussia, arrested in Hanover on his way to Berlin, and of the Marquis de Monti, Ambassador from France to Poland, arrested in Dantzig on his way back to France, which are sometimes

quoted as examples of the practice of Nations in accordance with Bynkershoek's view, will be found on examination to be instances of enforcing a strict Right of War. The details of each case will be found in the collection of Causes Celèbres du droit des Gens, par Ch. de Martens, Tom. I. pp. 210, 285.

Consuls

not Diplomatic Agents.

express or implied, of the local Government. Both are equally entitled to the protection of that Government against every act of violence and every species of restraint inconsistent with their Sacred Character. "We have used," says Wheaton, "the term permission, express or implied, because the public minister of a Sovereign Prince accredited to one country, who enters the territory of another country making known his Official Character in the usual manner, is as much entitled to avail himself of the permission, which is implied by the absence of any prohibition, as the Sovereign himself in a similar case 82 "

§ 206. The Institution of Public Consulates in Foreign Countries (Consulats à l'Etranger) dates from the Sixteenth Century, although the name of Consul, as applied to an Officer exercising jurisdiction in Commercial matters, was in familiar use in the cities of the Mediterranean and in the Hanse Towns since the Thirteenth Century 83. The Judge Consul was originally a local Officer annually elected in each great City of Maritime Commerce by the members of the Mercantile Community established therein. It was his province to determine all disputes between the members of that Community and foreign merchants in matters of Commerce and Navigation. These Officers were for the most part two in number, and the Consolato del Mare, one of the earliest compilations of Rules for the decision of Maritime and Commercial questions, is considered to have been so called, as embodying the Rules according to which the JudgeConsuls, established in the Maritime Cities of Spain, proceeded in determining the questions submitted to

82 Elements, Pt. III. § 20. Bynkershock, de Foro Legatorum,

c. 3, 9.

83 The office of Judge Consul was first introduced at Barcelona in Spain in the year 1279.

their decision.

As Commerce increased, these Local Institutions became inadequate to the wants of Merchants of different Nationalities, and we thus find the Institution of Judge Consuls fall into disuse, and their functions pass into the hands of Officers bearing indeed the name of Consuls, but appointed not by the resident body of merchants in each City, but by Foreign States, and commissioned by them to watch over the Commercial interests of their subjects. The duties of a Consul in the modern sense of the word are strictly limited to the management of the private affairs of the subjects or citizens of the State, from which he has received his Commission. He is not concerned in any way, as Consul, with the public affairs of States, and he is accordingly not clothed with a Diplomatic Character. J. J. Moser is almost the only Jurist of note who has claimed for the Consul a place of inferior rank amongst Public Ministers; but Bynkershoek, Wicquefort, Vattel, and Klüber concur in rejecting such a claim. It is true, that European Consuls accredited to Mahommedan Powers have in fact exercised many of the functions which mark the Diplomatic Agent, and have been clothed with many of the attributes of the Diplomatic Character; but the Status of the Consul in the Levant, as well as in China, is altogether exceptional, and rests upon special Treaty-engagements between the Christian and the Mahommedan or Buddhist Powers 1. The Consul is not the bearer of Letters of Credence, but he receives a Commission (lettre de provision) signed by the Sovereign authorising him to discharge

84 Under special Treaty-engagements the Consuls and ViceConsuls of Great Britain in the Levant and in China exercise ju

risdiction over British subjects, and between British subjects and native inhabitants.