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part of the European states. The more common practice we apprehend to be for sovereigns who sympathise with a deposed prince to hold communications with him by persons not openly sustaining the character of envoys. The whole matter may be disposed of in a word: nations and sovereigns, according to their biases, will be quick or slow to recognise a revolutionary government; some will cling to the old as long as they can, others will fall into the current of things sooner or later, but fall into it at length they will. And if an actual sovereign feels himself injured by the acknowledgment of the claims of a deposed one, such conduct will be attributed to hostile feeling, and may provoke war. The acknowledgment of the sovereignty of a new state is sometimes first made by receiving its ambassadors.

A protected or dependent state may employ political and other agents, but generally cannot send ambassadors either to the principal state or to third powers without the consent of the former. The peace of Kainardsché, in 1774, allowed the hospodars of Moldavia and Wallachia to send each a chargé d'affaires of the Greek religion, and with the privileges conceded by the law of nations, to Constantinople. The members of a confederation may or may not exercise this right, according to the nature of the compact: no state of our confederation shall, without consent of congress, enter into any agreement or compact with a foreign power, or enter into any treaty, alliance, or confederation;' and the power of appointing ambassadors being vested elsewhere, they are, perhaps, by that pro vision of the constitution also, cut off from the exercise of a similar function. But the members of the German confederation can severally entertain their representatives at foreign courts.

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A messenger sent from a province, or revolted portion of a country to the sovereign, not being an ambassador, has no rights of one. Bad, then, as the act was, when Philip II. of Spain detained two noblemen sent from the Low Countries in 1566, and finally had them put to death, it was no offence against the rights of legation. (Bynkersh. Quæst. J. P.' ii. § 3.)

An ambassador being the representative of a sovereign, it

1 Bynkershoek disposes of this subject as follows (Quæst. J. P. ii. § 3) :—‘I should not be willing to say, as some do, that no one rightfully sends legates saving the sovereign, for thus we should have to do away with legates of provinces and towns, of whom there has been, and still is, a great abundance. I should rather say, that every one can send legates in the discharge of that business which he has the power of doing, but that according to the dignity of the sender they have different rights, and are held in different degrees of honour. If a prince in his own right sends them, they have the full rights of legates; if another, the whole thing de pends on the will of him to whom they are sent,' &c. But thus the question becomes one of words. Have these legates the privileges of ambassadors, and is a prince or state in any way bound to receive them? If not, can they be ranked in the same class?

follows that the power of choice lies with him, and thus, as it respects the country, religion, rank, &c. of the ambassador, no complaint can be made by the foreign state, except so far as a slight or intention to insult may be inferred from the circumstances of the case. Formerly it was not an unfrequent thing for a native of one country to serve as the ambassador from another in the land where he owed allegiance. But, as we have already said, some nations—as France, under the old régime and the first empire, and the United Provinces from 1727refused to receive native-born persons in this capacity. When, however, nationality has been transferred in accordance with the laws of the states concerned, there can be no objection against such ministers, unless it be of a personal nature. In some Catholic countries, again, in Austria, Spain and France, the usage has prevailed that the sovereign of the land shall nominate the nuncio whom he receives from the Pope; the reason for which usage lies probably in the fear of papal interference, and of unacceptableness with the native clergy.

Sometimes smaller sovereigns have concurred in appointing the same person as their ambassador, and sometimes the same person has held this office for his sovereign at several courts.

When an ambassador is sent abroad, there must be some evidence of his official position. For this purpose he is furnished with credentials certifying his diplomatic character and rank; namely with a letter of credence (lettre de créance), sometimes, also, with one of recommendation, and with a full power, indicating the subjects on which he is authorised to treat, and the amount of power with which he is invested. According to their rank some agents of foreign governments are directly accredited to a sovereign, and others to his ministers of foreign affairs. Until such credentials are presented, a foreign government may reject, or on other evidence receive, the person claiming to be an ambassador, according to its pleasure.

§ 92 a.

An ambassador, from the time of his entrance into the foreign Privileges of am- country in that character, until the time when, at bassadors. the expiration of his office, he leaves the country, has in modern days enjoyed very great privileges or immunities, which even the breaking out of war before he can leave the country will not terminate. Even before he has had opportunity

1 Even women have been acknowledged as representatives at foreign courts, but more frequently have been secret emissaries. The wife of Marshal Guebriant acted in this capacity for France at the court of Ladislas IV., King of Poland, in 1646. The noted Chevalier d'Eon, who, after inferior diplomatic employments, was appointed French ambassador at London, was thought to be a woman, but was not. Compare Klüber, § 186, note.

to show his credentials to the proper department of government, he cannot be injured or obstructed without a violation of international law, if he announces his official character; and should a government to which he is sent refuse to receive him, he must be free to withdraw without receiving marks of disrespect. If he is recalled, free exit and passports, where they are necessary, must be granted to him; but if he remain in the country after that a sufficient time for removal, denoted in his passports, has elapsed, he takes the jural relation of any traveller from his native land. The more essential immunities conceded to the ambassador grow out of the consideration that he cannot do the business entrusted to him well, unless his person be safe, and he be independent of the control of the foreign government; and comity adds to these other less important privileges, as marks of respect to the representative of a foreign sovereignty. These immunities have been arranged under the heads of inviolability and exterritoriality. Such, for instance, is Klüber's classification. But to this it may be objected that exterritoriality may be taken in a narrower and a more extended sense. The term stands, as we have already explained it, for that legal fiction which regards the agents of a government in a foreign land as being outside of the country where they discharge their functions, or as carrying with them into another territory almost as entire an exemption from its laws as if they were at home. But there is no such complete exemption, and hence it will be best if we arrange the rights of ambassadors under these heads, to define what immunities are allowed; otherwise the term, by its vagueness, will lead us astray. De Martens remarks (§ 215), that the 'extension of exterritoriality pertains only to the positive law of nations, to treaties or usage, and is susceptible of modifications, which in fact it undergoes; whence it is not enough always to appeal to exterritoriality, in order to enjoy those rights which may be derived from the extended notion given to the word.'

1. When we speak of the inviolability of an ambassador, we mean that neither public authority nor private per- 1. Inviolability sons can use any force, or do any violence to him, of ambassadors. without offending against the law of nations. It is not, however, intended that he may not be repelled by force, if he attempts to injure other individuals or to violate the laws. The right of selfdefence cannot cease on his account, nor can he enter places closed to the public, nor do a great variety of illegal acts without having passive resistance at least used against him. The state within whose bounds he resides, is bound to protect him against

1 This fiction was known to Grotius, who says (ii. 18, § 4, 5) that as legates 'fictione quadam habentur pro personis mittentium, ita etiam simili fictione constituuntur quasi extra territorium.

aggressions from its subjects, by law and penalty, and by troops or a police force, when necessary. In one case only, apart from the necessities of self-defence, can active force be exerted upon his person, and that is when, after committing some great crime, and being ordered home, he refuses to go, when he may be removed without personal injury.

2. Exterritoriality.

2. Inviolability of person could not stand alone, without protection to the house, furniture, equipage, and, in fact, the people of the ambassador. We shall arrange these with other immunities under the head of exterritoriality, and shall consider first,

A. His immunity from the jurisdiction of the country of his sojourn, both criminal and civil.

(a.) As immu

If the ambassador were subject to the criminal jurisdiction of the foreign country, his person could not be innity from crimi- violate, as he would be liable to arrest, imprisonnal jurisdiction. ment, and punishment; nor would the nature of the acts inseparable from the processes of criminal laws be consistent with his freedom as negotiator. This immunity is therefore conceded to ambassadors by all the nations of Christendom, and, although some of the earlier writers had some scruples in admitting it, or even contended against it, the modern writers are believed to be unanimous in regarding it as a part of international law. For the exceptions to this immunity which have occurred in extreme cases, see § 92 e.

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In the case of a native of the country still owing allegiance, but representing a foreign sovereign, it has been questioned * whether jurisdiction, civil or criminal, is suspended during the discharge of his functions. The most noted case in which such a person felt the severity of the law, was that of Wicquefort, a native of Amsterdam, who, while he held an office under the states-general, became the Duke of Lüneburg's resident at the Hague, and while in the service of this prince, in 1675, was accused of betraying state secrets to foreigners, was tried, convicted, and sentenced to imprisonment for life with confiscation of goods. In this case it might with justice be maintained that he held an office of responsibilty, and could not be released from penal liabilities as long as it lasted; if he took on him duties to a new sovereign, he was still accountable to the old one. He betrayed secrets to which in his office he had access, and ought therefore to suffer. But if a private citizen of a country is acknowledged by its government as an ambassador from another state, it is fairly to be inferred that all the immunities are conceded to him, which are considered to belong to that class of persons, and without which he could not freely discharge his 1 Compare Bynkersh. De For. Leg. 11, and 18, and Wheaton's Hist. p. 234..

duties. His sovereign had a right (§ 90) to refuse to recognise him in that relation to another sovereign: in so recognising him he gives up jurisdiction over him for the time being.

Opinions have been divided in regard to an ambassador's exemption from civil jurisdiction. Entire exemp- (b) and from civil tion in this respect cannot be argued from the nature jurisdiction. of his functions, and yet everywhere this exemption is allowed, far as it can be derived from the notion of exterritoriality. At the least, according to Heffter, no step can be taken towards an ambassador which cannot be taken towards an absent stranger. No measures involving force can be used against his person the effects which he has with him.

or

Hence the private person to whom an ambassador owes money has no remedy against him except through his sovereign, or by suit in the ambassador's native courts after his return home. Such, at least, is the understanding and practice in most countries. Prussia appears to claim somewhat more of jurisdiction. 2 In a case, the discussion of which is given at great length by Dr. Wheaton, the owner of a house at Berlin, rented to the American ambassador, claimed under the Prussian civil code to detain the minister's goods found there at the expiration of the lease, on the ground that damages were due for injuries done to the house during his occupation of it. The government of Prussia sustained the claimant, but the discussion shows that while a pledge given by an ambassador for the security of a debt could have been detained by the lender, the goods in the house could not be kept from their owner without a violation of international law. The laws of the United States, accordingly, include distress for rent among other legal remedies which are denied to the creditors of a foreign minister.'

An ambassador is bound to observe the police laws in regard to public security and order within and without his hotel, but cannot be called to account for transgression of them, any more than for his pecuniary obligations.

One or two exceptions to this exemption are laid down by the writers beside that derived from the ambassador's acting in a capacity other than his official one, which we shall consider by itself. (§ 92 e.)

They are, (1.) when he is the subject of the state where he acts; (2.) when he is in its service; (3.) when he voluntarily recognises the jurisdiction of the courts by appearing before them

1 So substantially Wheaton, El. iii. 1, § 15. Heffter says the right of punishing is scarcely taken away from such an ambassador's sovereign, § 214. Bynkersh. u. s., holds the same opinion: subditos nostros, quamvis alterius Principis legationem acceperint, subditos nostros esse non desinere.' So others.

2 Compare Wheaton, El. iii. 1, § 17, 274-287, and Vergé on De Martens, § 216.

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