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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 and Spanish ambassadors 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, retaining his original domicil, and the government he represents has exclusive cognizance of his conduct and control of his person. An ambassador is also deemed under the protection of the law of nations in his passage through the territories of a third and friendly power, while upon his public mission, in going to and returning from the government to which he is deputed. To arrest him under such circumstances would be a breach of his privilege as a public minister. The

Grotius, b. 2. c. 18. sec. 4. Bynk. de Foro Legatorum, c. 8. 17, 18. Vattel, b. 4. c. 7. sec. 92-103. Ward's History, vol. ii. p. 486-552. Marshall, Ch. J., in the case of the Schooner Exchange v. M'Fadden, 7 Cranch, 138. Mr. Wheaton, in his History of the Law of Nations in Europe and America, New-York, 1845, pp. 236-261, has given an analysis or summary of Bynkershoeck's treatise De Foro Legatorum, and which is justly regarded as an excellent work, and of high authority, It is contained in the 2d volume of Bynkershoeck's work, published in 2 volumes, folio, at Leyden, 1767.

b Grotius, b. 2. c. 18. sec. 1-6. Wicquefort, de l'Ambassadeur, liv. 1. sec. 27. Vattel, b. 4. c. 7. sec. 81-125. Bynk. De Foro Legat. c. 8. If an ambassador be concerned in trade, his property in that trade is liable to seizure, as in the case of any individual. Bynk. De Foro Legat. c. 14. Vattel, b. 4. c. 8.

© Vattel, b. 4. c. 7. sec. 63. 84. Holbrook and others v. Henderson, New-York Superior Court, December 2d, 1839. In this case, Henderson, the minister from the Republic of Texas to France, was arrested in New-York for debt, while on his return from France to Texas, by the way of New-York, and the court discharged him from the arrest. It was held, that an entry into the country in time of peace did not require, for the protection of the person, a passport, though the law assumes that passports may be granted by the government of the United States. Act of Congress, April 30, 1790, sec. 27. Passports, though named in our law, are unknown in practice. The protection is implied by natural and municipal law, and it is the duty of the courts of justice, when cases arise before them, to enforce the law of nations on this subject, as part of the law of the land. The doctrine of international law, as laid down by Vattel, is founded in good sense and public policy, and sustained by the interests and courtesy of nations. Grotius says, b. 2. c. 18. sec. 5, that the obligation to protect ambassadors extends only to the power to whom the embassy is sent, and does not extend to the power through whose terri

attendants of the ambassador attached to his person, and the effects in his use, and the house in which he resides, and his domestic servants, 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, envoys extraordinary, and resident ministers, relates to diplomatic precedence and etiquette, and not to their essential powers and privileges.b

tories the ambassador presumes to pass without a passport. But that harsh and narrow rule is now justly exploded.

• Rutherforth, b. 2. c. 9. Ward's History, vol. ii. 552, 553. Vattel, b. 4. c. 8. sec. 113. United States v. Hand, 2 Wash. Cir. Rep. 435. Opinions of the Attorney General of the United States, Washington, 1841, vol. i. 89-91. The immunities of a public minister are considered as not extending to debtors, as to debts incurred prior to their entering into the minister's service, nor to fugitive slaves, nor to persons who were under previous duties, as soldiers, sailors, apprentices, minors, a wife, &c., nor does the privilege of immunity protect a labourer engaged to work in the garden attached to the minister's residence.-Ib. The duties and privileges of a public minister are detailed at large by Mr. Wheaton, in his Elements of International Law, 3d edition, pp. 264—307, and afterwards in his larger work on the History of the Law of Nations in Europe and America, New-York, 1845, pp. 236-261; and from his long residence at two of the European courts in a diplomatic character, his authority on the subject acquires additional force.

b Martens, pp. 201–207. Vattel, b. 4. c. 6. Chargé d'Affaires is a diplomatic representative or minister of the 4th grade; and a resident minister 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 great powers, at the congress of Vienna, in 1815, and of Aix la Chapelle, in 1818, by an arrangement, divided diplomatic agents into four classes; 1. Ambassadors, papal legates, or nuncios. 2. Envoys, ministers, and other agents accredited to the sovereigns. 3. Ministers resident, accredited to sovereigns. 4. Chargés d'affaires, accredited to the department of foreign relations. A minister extraordinary has not, by that title, any superiority of rank. The Comm. Pinheiro-Ferreira, the Portuguese publicist, and himself a minister d'état, in his Cours de Droit Public, classes together, chargés d'affaires, ministers resident, or simply ministers or residents, as diplomatic agents of the third class. The United States are usually represented at the courts of the great powers of the first class by ministers plenipotentiary, and at those of an inferior class by a chargé d'affaires; 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. vii. 108. The questions concerning precedence among the members of the diplomatic corps at foreign courts, were all happily settled by the congress of Vienna, in 1815, and signed by the representatives of the eight principal European powers. It was agreed that

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*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 disposition, 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.

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 min*41 ister; 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, at least, a distinct and special power, containing an express authority to bind the

diplomatic agents of the respective classes take rank according to the date of the official notice of their arrival, and that the order of signature of ministers to acts or treaties between several powers that allow of the alternat, should be determined by lot. Recueil des Piéces Officielles, tome viii. No. 17. Wheaton's Elements of International Law, p. 265. His History of the Law of Nations in Europe and America, New-York, 1845, p. 496.

Rutherforth, b. 2. c. 9. Bynk. de Foro Legatorum, c. 19. sec. 7. b Quest. J. Pub. lib. 2. c. 3.

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.

principal definitively, without the right of review, or the necessity of ratification on his part.a 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.d

Consuls are commercial agents, appointed to reside in the Consuls. seaports 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 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.f 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 *statute regulations of the *42 country which they represent. In some places they have been invested with judicial powers over disputes be

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B. 4. c. 6. sec. 77.

Bynk. ubi supra. Vattel, b. 2. c. 12. sec. 156. Martens, b. 2. c. 1. sec. 3. The Eliza Ann, 1 Dodson's Adm. Rep. 244. Both Vattel and Kluber agree, that a treaty concluded under a full power, cannot, in honour, be rejected without very sufficient reasons, as by violation of instructions, mutual error, a moral or physical impossibility, &c. Wheaton's Elements, 3d edit. pp. 303-306. See, in Wheaton's Elements, 3d edit. p. 335, a reference to the most respectable writers on diplomatic history. 1 Chitty on Commercial Law, 48, 49.

Jackson on the Commerce of the Mediterranean, p. 30. c. 4. Consuls were not unknown to the ancient Athenians, and they had them in the commercial ports in which they traded, to protect the interests and property of Athenian merchants. St. John's History of the Manners and Customs of Ancient Greece, vol. iii. 282.

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tween 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.b (1) 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 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. It is made the duty of American consuls and commercial agents, to reclaim deserters, and discountenance insubordination, and to

a

Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunt. Rep. 162. 1 Chitty, 50, 51. b Pardessus, Cours de Droit Comm. tome v. sec. 1450, 1451, 5th edit. Opinions of the Attorneys General of the United States, vol. i. 786.

Acts of Congress of 14th April, 1792, c. 24, and of February 28, 1803, c. 62.

(1) By an act of Congress of Aug. 11th, 1848, the Commissioner and Consuls of the United States, appointed to reside in China, are invested with high judicial powers as to crimes and misdemeanors committed by citizens of the United States in the dominions of China; and also with civil jurisdiction to execute the treaty stipulations between the two countries; and in matters of contract made or to be executed at or near the Chinese ports. The laws of the United States, and, where they are deficient, the common law, are extended to such jurisdictions; and if defects still remain, the commissioner may make decrees. The provisions of this act are extended to Turkey, and are there to be executed by the ministers and consuls.

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