78

CHAPTER III.

OF PUBLIC MINISTERS AND CONSULS.

THE subject of public ministers may be considered with regard to; first, Their mission and reception; secondly, Their different orders and precedence; thirdly, Their privileges; fourthly, The claim of asylum and jurisdiction over their train.

First, An ambassador is the representative of an independent state or sovereign in the territories of another (a). Ambassadors differ from other public ministers only in respect of rank and ceremonial, and in the circumstance that the former only have a representative character (b). A minister is furnished with two sets of papers,-his credentials and his instructions; of which the former are ostensible, the latter secret (c). Credentials are essential, as they are the necessary and only proof of public character; and the diplomatic rank of a minister depends upon the title by which he is designated therein (d). Ambassadors are accredited to the sovereign; hence ambassadors accredited to confederate states have several credentials for each. Thus ambassadors accredited to Switzerland were furnished with credentials for the cantons in general, for each particular canton; for the Protestant cantons, and for the Catholic cantons (e). A minister cannot be required to disclose

(a) Wicq. i. 5; Vatt. iv. § 71.

(b) Wicq. i. 118, 855; Bynk. F. L. i. xiii.

(c) Wicq. ii. 54; Bynk. Q. J. P. ii. vii.

(d) Wicq. i. 137, 356, et seq. 372, et seq. 673; Bynk. F. L. xiii. ; Vatt. iv. § 76.

(e) Wicq. i. 375.

his instructions (f); but circumstances may rarely occur in which he would be justified in giving extracts, or in communicating them in detail (g). A minister who is instructed to negotiate, is furnished with powers for that purpose; and he is a plenipotentiary or not, accordingly, as his powers are plenary or limited (h). Joint powers must be jointly exercised (i).

The law of nations does not require the indiscriminate reception of all ambassadors, but forbids their reception to be refused without just cause (j). Gustavus Adolphus set forth as one of his grounds of war against the Emperor of Germany, that he had refused to receive the Swedish ambassadors, and had forbidden them to enter Germany on pain of death (k). When there is just cause of refusal, the mission of an ambassador may be prohibited, either absolutely or conditionally. For every one may abridge his own right; and when a sovereign has a right to prohibit, he may propose conditions on which he is willing to waive such prohibition. But if an ambassador be received unconditionally, he is entitled to all the privileges that attach to his office: cæterem admissa legatio etiam apud hostes, tanti magis apud inimicos præsidium habit juris gentium (1). The reasonableness of this rule is obvious. A sovereign who has just cause of objection, may either insist upon it or waive it; but if he receive an ambassador without intimating any objection, his option is determined, otherwise there would be a want of reciprocity. For the sovereign who sends an ambassador, upon objection made either absolutely or

Wicq. i. 354, 355.

(g) Wicq. ii. 54, 125, 159.

(h) Wicq. i. 377, 382, 392.

(1) Wicq. i. 386.

(j) Grot. ii. 18, iii.; Wicq. i. 308, 317, 323, 328; Bynk. Q. J. P. ii. v. ; Vatt. iv. § 65.

(k) Wicq. i. 316.

(1) Grot. ii. 18, vi.; Puff. viii. xi. iii.; Wicq. i. s. xi.; Vatt. iv. § 112; Martens Man. dip. § 23.

conditionally, has the option of substituting another, or of accepting the conditions proposed. But if the sovereign to whom he is sent could receive him without giving notice of any objection, and afterwards impose conditions, the sovereign who sends the ambassador would have no opportunity of exercising his option.

It is impossible to conceive, says Vattel, that a prince who sends an ambassador or any other minister, can have any intention of subjecting him to the authority of a foreign power; and this consideration furnishes an additional argument, which completely establishes the independence of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the footing of independence; and thus there exists between the two princes a tacit convention, that gives new force to the natural obligation (m).

Bynkershoek excepts from this rule the case of an ambassador, who is a subject of the sovereign to whom he is sent (n). But this seems emphatically within the reason thereof; for the fact is peculiarly within the knowledge of the sovereign, whose subject he is. Part of the reasons which he alleges in support of this exception, are in direct contradiction to those on which he maintains the general privileges of ambassadors, and the weight of reason and authority is against it. But if a minister be allowed to accept an appointment from the sovereign to whom he is accredited, he must be taken to waive, with the consent of his sovereign, so much of his privilege as is inconsistent with the duties of such appointment (o).

(m) Cited by Marshall, C. J., arguendo Schooner Exchange, 7 Cranch,

143.

(n) Bynk. F. L. xi.-contra Puff. viii. xi. 3; Wicq. i. xi.; Vatt. iv. § 112; Martens Man. dip. § 23.

(0) Vatt. iv. § 112.

Bynkershoek goes yet further, and lays down a doctrine peculiar to himself, not in accordance with the usage of nations, and more than doubtful on abstract principles, on which alone he attempts to support it (p). He argues that the privilege of ambassadors arises from the tacit obligation or implied contract annexed to their reception; and that, according to the maxim expressum cessare facit tacitum, any state may extinguish their privileges by making a law that no ambassador shall be received except on condition of subjection (q). But no state can vary the law of nations by its own private ordinances: no nation can privilege itself to commit a crime against the law of nations by a municipal regulation of its own (r). It is true that an ambassador would be entitled to no privilege, if he were accredited with a knowledge of such an ordinance; for that would amount to a waiver of privilege on the part of himself and his sovereign. But the question is, whether a sovereign can of right refuse to receive any ambassador except on such condition. He gives no instance of the exercise of such pretended right; and he approves and adopts the principle of Grotius, that the reception of a public minister cannot be refused without just cause. But to deny him the privileges which are essential to the performance of his functions is equivalent to a refusal to receive him. And if the reception of a public minister, to which there is no just ground of objection, be a duty imposed

the law of nations, he ought to have shewn on what principle a sovereign can annex arbitrary conditions to the performance of a legal duty, and restrain at his pleasure the legal consequences of an act which the law requires him to perform. The assent of a sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the consideration, (p) F. L. viii. p. 158, xix. p. 176.

(q) Vatt. iv. § 196, contra.

(r) Le Louis, 2 Dod. 251.-cf. Grot. iii. 9, xvii.

G

that without such exemption every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power, and, therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain: privileges which are essential to the dignity of his sovereign, and to the duties which an ambassador is bound to perform (s).

The argument of Bynkershoek assumes that the reception of a minister, and, consequently, the terms on which he is to be received, are res integra, until his reception is completed. And so it might possibly be considered, if the state receiving him had never in its intercourse with foreign states had the benefit of those privileges in the persons of its own ministers. So restricted, the doctrine would be of little importance, otherwise the maxim applies abstine commodo si damnum metius (t). There is little danger of any attempt to act upon this doctrine. If a sovereign were to notify such condition to a single state, it would be an insult to its sovereign, and the insult would be aggravated by its singularity. If he were to notify it to all states, it could hardly be regarded otherwise than as an insult to all sovereigns; and the least that he could expect in resentment of such an insolent pretension would be the dismissal of his ministers from all Courts.

Objections to the reception of an ambassador may apply: first, to him who sends; secondly, to him who is sent; thirdly, to the objects of his mission.

First, the right of employing ambassadors and other public

(s) Schooner Exchange, 7 Cranch, 138.

(t) Bynk. Q. J. P. viii. Abstine commodo, etc., ipsa juris gentium, non sola Ulpiani, vox est.