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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.1 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) A state may also be divided and distracted by civil wars, so as to render it inexpedient to acknowledge the supremacy of either 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 ministre 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, 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 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 Pièces Officielles, viii. No. 17; Wheaton's Elements of International Law, 265; his History of the Law of Nations in Europe and America, New York, 1845, 496.

(a) Rutherforth, b. 2, c. 9; Bynk. de Foro Legatorum, c. 19, sec. 7.

1 Dana's Wheaton, note 137; Annual Register, 1843, p. 160; 1856, p. 277, &c.

The government of a revolted state which has not yet been recognized, sometimes sends out diplomatic agents, who, although not invested with the representa tive character, nor entitled to diplomatic honors, may be clothed with the powers and enjoy the immunities of ministers. Despatch of Earl Russell to Lord Lyons, Jan. 23, 1862; North Am. Pap. Nov. 4, 1862, p. 234, cited Abdy's Kent, 135; cited Dana's Wheat. note 121, as Parl. Pap. N. A. No. 5. But Mr. Seward has stated, in the case of the Mexican Empire, that

the government of the United States holds no official intercourse, or unofficial or private interviews, with agents of parties in any country which stand in an attitude of revolution antagonistic to the sovereign authority in the same country with which the United States are on terms of friendly intercourse. Memoranda of March 13 and July 17, 1865; Ex. Doc. 20, 39th Cong. 1st Sess., cited Dana's Wheaton, note 41; Despatch of Mr. Seward to Mr. Bigelow, March 13, 1865; Dip. Corr. 1865, pt. 3, 378.

See, as to recognition, ante, 25, n. 1.

party. Bynkershoek says, (b) 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. (c) 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 *41 sovereign conclusively. To do so important an act would require, at least, a distinct and special power, containing an express authority to bind the 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; (b) and it is a wellgrounded custom, as Vattel observes, (c) 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)

8. Consuls.- Consuls are commercial agents, appointed to reside

(b) Quest. J. Pub. lib. 2, c. 3.

(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. R. 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.

(a) Bynk. Q. Jur. Pub. lib. 2, c. 7.

(c) B. 4, c. 6, sec. 77. Martens, b. 2, c. 1, sec. 3;

(b) Wicquefort's L'Amb. i. sec. 14; Martens, 217. (d) Bynk. ubi supra; Vattel, b. 2, c. 12, sec. 156; The Eliza Ann, 1 Dodson, 244. Both Vattel and Klüber agree, that a treaty concluded under a full power, cannot, in honor, be rejected without very sufficient reasons, as by violation of instructions, mutual error, a moral or physical impossibility, &c. Wheaton's Elements, 3d ed. 303-306. See in Wheaton's Elements, 3d ed. 335, a reference to the most respectable writers on diplomatic history.

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in the 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. (e) 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 *42 and defined in treaties of commerce, or by the *statute regulations of the country which they represent. In some places they have been invested with judicial powers over 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. (a) 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 conBut 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

cerns.

(e) 1 Chitty Comm. Law, 48, 49.

(f) 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, iii. 282.

(a) Mansfield Ch. J., in Waldron v. Coombe, 3 Taunt. 162; 1 Chitty, 50, 51. (b) Pardessus, Cours de Droit Comm. v. sec. 1450, 1451, 5th ed.; Opinions of the Attorneys-General of the United States, i. 786.

The act of June 22, 1860, 12 U. S. St. at L. 72, in pursuance of treaties, gives

judicial powers to United States consuls in China. Japan, Siam, Turkey, Persia,

laws of the United States, on the subject of consuls and viceconsuls, (c) 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 having 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 lend their aid to the local authorities for that purpose, and to discharge the seamen cruelly treated. (d) It is also made the duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters, and passports with the consul, vice-consul, or commercial agent, if any, at the port, though this injunction only applies when the vessel shall have come to an entry, or transacted business at the port. (e)

(c) Acts of Congress of 14th April, 1792, c. 24, and of February 28, 1803, c. 62. (d) Act U. S. 20th July, 1840, c. 23, sec. 11, 17. See, infra, iii. 199, the treaty between the United States and Hanover, to the same effect.

Att.-Gen. 342; vide ib. 18, 495, 565; 8 Op.
Att.-Gen. 380; 1 Vattel. Pradier-Fodéré,
625; Wheat. Lawrence's notes 73, 74.
So, as to British consuls in Turkey; The
Laconia, 1 Br. & L. 117; s. c. 2 Moore,
P. C. N. s. 161. See Barber v. Lamb, 8 C.
B. N. s. 95.

(e) Toler v. White, Ware, 277; Matthews v. Offley, 3 Sumner, 115. American Tripoli, Tunis, Morocco, and Muscat, and also in other uncivilized countries. Their jurisdiction, both civil and criminal, is to be in accordance with the laws of the United States and the common law, including equity and admiralty, and they are to supply defects by decrees. In some cases an appeal is given to the minister. See Lawrence's Wheaton, note 74.

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The consul of a decedent's country can intervene of right, apart from treaty, only by way of surveillance, and without jurisdiction. 8 Op. Att.-Gen. 98. See act of Aug. 18, 1856, § 29; 11 St. at L. 52, 63.

The consular certificates mentioned in the text are not evidence, except so far as made so by statute. Levy v. Burley, 2 Sumn. 355; Brown v. The Independ ence, Crabbe, 54; Johnson v. The Coriolanus, Crabbe, 239; Catlett v. Pacific Ins. Co., 1 Paine, 594.

*

These particular powers and duties are similar to those prescribed by British consuls, and to consuls under the con*43 sular convention between the United States and France, in 1788; and they are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment. (a) The consular convention between France and this country, in 1778, allowed consuls to exercise police over all vessels of their respective nation, "within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and altogether exclusive of any coercive authority; (b) and we have no treaty at present which concedes even such consular functions. (c) The doctrine of our courts is, (d) that a foreign conconsuls, having no judicial power, cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility. The Wm. Harris, Ware, 367. But when an American vessel puts into a port of necessity for repairs, a survey to ascertain the damage may, it seems, according to usage, be directed by the American consul, as part of his official duty. Potter v. The Ocean Ins. Co. 3 Sumner, 27. The English Prerogative Court, before Sir Herbert Jenner, in 1839, in the case of Aspinwall v. The Queen's Proctor, 2 Curteis, 241, held, that an American consul was not, in that capacity, permitted by the law of England to administer upon the personal estate of a domiciled citizen of the United States dying in England. The Crown takes charge of the property in trust, for payment of debts and distribution, according to the law of the owner's domicile.

(a) Beawes's L. M. i. tit. Consuls, 292, 293.

(b) Mr. Pickering to Mr. Pinckney, January 16th, 1797.

(c) By the treaties of commerce and navigation between the United States and the Kingdom of Hanover, May 20th, 1840, article 6, and between the United States

(d) The Bello Corrunes, 6 Wheaton, 168.

1 See Act of Congress of August 18, 1856, 11 U. S. St. at L. 52 et. seq. ch. 127.

As to the duties of British consuls, see Abdy's Kent, 148 et seq.

The act of Congress of June 11, 1864, makes provisions for carrying out the exclusive jurisdiction of foreign consuls and like officials over controversies between officers and any of the crew, or between any of the crew, of vessels of their nation, where such jurisdiction has been provided

for by treaty. 13 U. S. St. at L. ch. 116, p. 121. A list of such treaties will be found in Lawrence's Wheaton, note 73.

As to the consul's intervention on behalf of individuals of his nation, see The Adolph, 1 Curt. 87; Robson v. The Huntress, 2 Wall. Jr. 59; Elizabeth, Blatchf. Pr. 250. As to his protest against the admiralty court's taking jurisdiction in certain cases, post, iii.; Becherdass Ambaidass, 1 Lowell, 569, 6 Am. Law Rev. 74; The Nina, L. R. 2 P. C. 38.

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