Termina

§ 250. The mission of a foreign minister resident at a foreign court, or at a Congress of ambassadors, may ter- tion of pubminate during his life in one of the following modes:

lic mission.

1. By the expiration of the period fixed for the duration of the mission; or, where the minister is constituted ad interim only, by the return of the ordinary minister to his post. In either of these cases a formal recall is unnecessary.

2. When the object of the mission is fulfilled, as in the case of embassies of mere ceremony; or, where the mission is special, and the object of the negotiation is attained or has failed.

3. By the recall of the minister.

4. By the decease or abdication of his own sovereign, or the sovereign to whom he is accredited. In either of these cases, it is necessary that his letters of credence should be renewed; which, in the former instance, is sometimes done in the letter of notification written by the successor of the deceased sovereign to the prince at whose court the minister resides. In the latter case, he § 244-249. Halleck's Intern. Law, 239-267. Opinions of Attorneys-General (U. S.), vii. 22; viii. 16. Martens, Guide Dipl. ch. xii. §§ 72, 79. Guide des Consulats (De Clercq et De Vallat), i. 6-16. Davis v. Packard, Peters's Rep. vii. 276. Valarino v. Thompson, Selden's Rep. (N.Y.) 576. In the noted case of M. Dillon, the French consul at San Francisco, who refused to appear as a witness in a criminal proceeding, there was a conflict between the Constitution of the United States (which entitles all defendants in criminal causes to compulsory process to secure the attendance of witnesses) and the treaty with France, which exempted consuls from being compelled to appear in court as witnesses. The United States Government contended that the constitutional provision included consuls, they not being exempt by international law at the time of the adoption of the Constitution; and that a treaty provision in derogation of it was void; and proposed an amendment of the treaty. After a long correspondence, the point was settled by instructions from the French Government to its consuls to obey the subpoena in future cases. Mr. Marcy to Mr. Mason, Sept. 11, 1854, and 18th January, 1855. Notes of Mr. Mason and M. Walewski, Aug. 3 and 7, 1855. Annuaire des deux Mondes, 1853-4, p. 762; 1854-5, p. 732,

The provisions in the principal treaties of the United States respecting consuls may be found in the volumes of the United States Laws, as follows: Belgium, July 17, 1858, xii. 91. Paraguay, Feb. 4, 1859, xii. 117. China, June 18, 1858, xii. 127. Venezuela, Aug. 27, 1860, xii. 221. Bolivia, May 13, 1858, xii. 291. Japan, March 31, 1854, xi. 597; and June 17, 1857, xi. 723. Two Sicilies, Oct. 1, 1855, xi. 639. Switzerland, Nov. 25, 1850, xi. 587. Argentine Confederation, July 27, 1853, x. 237. France, Feb. 23, 1853, x. 114. Guatimala, March 3, 1849, x. 1. Great Britain, 3d July, 1815, viii. 230; March 15, 1794, Ib. 127. Netherlands, 1839, viii. 524. Prussia, 1785, viii. 98; 1799, Ib. 176; 1828, Ib. 382. Spain, Oct. 27, 1795, viii. 150. The later statutes on the subject of consuls may be found in the volumes of United States Laws, as follows: 1864, xiii. 17, 121, 305; 1863, xii. 737-8; 1862, Ib. 335; 1861, Ib. 285; 1860, Ib. 72, 79; 1856, xi. 55–65; 1855, x. 619–626.] — D.

is provided with new letters of credence; but where there is reason to believe that the mission will be suspended for a short time only, a negotiation already commenced may be continued with the same minister confidentially sub spe rati.138

5. When the minister, on account of any violation of the law of nations, or any important incident in the course of his negotiation, assumes on himself the responsibility of declaring his mission terminated.

6. When, on account of the minister's misconduct or the measures of his government, the court at which he resides thinks fit to send him away without waiting for his recall.187

7. By a change in the diplomatic rank of the minister.

When, by any of the circumstances above mentioned, the minister is suspended from his functions, and in whatever manner his mission is terminated, he still remains entitled to all the privileges of his public character until his return to his own country. (a) Letter of § 251. A formal letter of recall must be sent to the minister by his government: 1. Where the object of his mission has been accomplished, or has failed. 2. Where he is recalled from motives which do not affect the friendly relations of the two governments.

recall.

In these two cases, nearly the same formalities are observed as on the arrival of the minister. He delivers a copy of his letter of

[186 In the United States, and in other constitutional republics, no change or interruption in the functions of diplomatic agents takes place upon the death of the chief magistrate, or the expiration of his term of office and the inauguration of his successor.]-D.

[187 It is understood that the ambassador must be persona grata to the State or sovereign to whom he is accredited. Although there be no misconduct that entitles the sovereign to dismiss him, still it is no just cause of offence if he object to a particular person as ambassador, on grounds short of misconduct, and merely for the reason that he is a person with whom, from whatever cause, diplomatic or personal relations cannot be agreeably or advantageously maintained. It has been claimed by European sovereigns that they cannot be expected to receive, as a diplomatic agent, a former subject, naturalized in the United States, and that a special agreement to receive him should precede his arrival at their court. The principal cases of foreign ministers objected to by the United States and recalled, are those of M. Genet in 1793-4 (Wait's Am. State Papers, i. 137, 490), of Mr. Jackson in 1809 (Ib. vii. 283, 295; United States Laws, ii. 613), of Sir John Crampton in 1856 (Mr. Marcy to Mr. Dallas, June 16, 1856, Ann. Reg. 1856, p. 277; Ex. Doc. House of Rep. 34th Cong. No. 107), and of M. Poussin in 1849 (Annuaire, 1849, p. 665).] — D.

(a) Martens, Manuel Diplomatique, ch. 7, § 59; ch. 2, § 15. Précis, &c., liv. vii. ch. 9, § 239. Vattel, liv. iv. ch. 9, § 126.

recall to the minister of foreign affairs, and asks an audience of the sovereign, for the purpose of taking leave. At this audience the minister delivers the original of his letter of recall to the sovereign, with a complimentary address adapted to the occasion.

If the minister is recalled on account of a misunderstanding between the two governments, the peculiar circumstances of the case must determine whether a formal letter of recall is to be sent to him, or whether he may quit the residence without waiting for it; whether the minister is to demand, and whether the sovereign is to grant him, an audience of leave.

Where the diplomatic rank of the minister is raised or lowered, as where an envoy becomes an ambassador, or an ambassador has fulfilled his functions as such, and is to remain as a minister of the second or third class, he presents his letter of recall, and a letter of credence in his new character.

Where the mission is terminated by the death of the minister, his body is to be decently interred, or it may be sent home for interment; but the external religious ceremonies to be observed on this occasion depend upon the laws and usages of the place. The secretary of legation, or, if there be no secretary, the minister of some allied power, is to place the seals upon his effects, and the local authorities have no right to interfere, unless in case of necessity. All questions respecting the succession ab intestato to the minister's movable property, or the validity of his testament, are to be determined by the laws of his own country. His effects may be removed from the country where he resided, without the payment of any droit d'aubaine or détraction.

Although in strictness the personal privileges of the minister expire with the termination of his mission by death, the custom of nations entitles the widow and family of the deceased minister, together with their domestics, to a continuance, for a limited period, of the same immunities which they enjoyed during his lifetime.

It is the usage of certain courts to give presents to foreign ministers on their recall, and on other special occasions. Some governments prohibit their ministers from receiving such presents. Such was formerly the rule observed by the Venetian Republic, and such is now the law of the United States. (a)

(a) Martens, Précis, &c., liv. vii. ch. 10, §§ 240–245. Manuel Diplomatique, ch. 7, §§ 60-65.

CHAPTER II.

Faculty of

by treaty,

RIGHTS OF NEGOTIATION AND TREATIES.

§ 252. THE power of negotiating and contracting pubcontracting lic treaties between nation and nation exists in full vigor how limited in every sovereign State which has not parted with this or modified. portion of its sovereignty, or agreed to modify its exercise by compact with other States.

Semi-sovereign or dependent States have, in general, only a limited faculty of contracting in this manner; and even sovereign and independent States may restrain or modify this faculty by treaties of alliance or confederation with others. Thus the several States of the North American Union are expressly prohibited from entering into any treaty with foreign powers, or with each other, without the consent of the Congress; whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce, not inconsistent with the fundamental laws of the Confederation. (a)

treaty.

The constitution or fundamental law of every particular State must determine in whom is vested the power of negotiating and contracting treaties with foreign powers. In absolute, and even in constitutional monarchies, it is usually vested in the reigning sovereign. In republics, the chief magistrate, senate, or executive council is intrusted with the exercise of this sovereign power. Form of § 253. No particular form of words is essential to the conclusion and validity of a binding compact between nations. The mutual consent of the contracting parties may be given expressly or tacitly; and in the first case, either verbally or in writing. It may be expressed by an instrument signed by the plenipotentiaries of both parties, or by a declaration, and counter declaration, or in the form of letters or notes exchanged between them. But modern usage requires that verbal agreements should be, as soon as possible, reduced to writing in order to avoid dis

(a) See ante, §§ 39-58.

putes; and all mere verbal communications preceding the final signature of a written convention are considered as merged in the instrument itself. The consent of the parties may be given tacitly, in the case of an agreement made under an imperfect authority, by acting under it as if duly concluded. (a)

capitula

§ 254. There are certain compacts between nations. Cartels, which are concluded, not in virtue of any special autho- truces, and rity, but in the exercise of a general implied power tious. confided to certain public agents, as incidental to their official stations. Such are the official acts of generals and admirals, suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such a ratification be expressly reserved in the act itself. (a)

§ 255. Such acts or engagements, when made without Sponauthority, or exceeding the limits of the authority under sions. which they purport to be made, are called sponsions. These conventions must be confirmed by express or tacit ratification. The former is given in positive terms, and with the usual forms; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient to infer a ratification by either party, though good faith requires that the party refusing it should notify its determination to the other party, in order to prevent the latter from carrying its own part of the agreement into effect. If, however, it has been totally or partially executed by either party, acting in good faith upon the supposition

(a) Martens, Précis, liv. ii. ch. 2, §§ 49, 51, 65. Heffter, § 87.

The Roman civilians arranged all international contracts into three classes. 1. Pactiones. 2. Sponsiones. 3. Fœdera. The latter were considered the most solemn; and Gaius, in the recently discovered fragments of his Institutes, speaking of the supposition of a treaty of peace concluded in the simple form of a mere pactio, says: "Dicitur uno casu hoc verbo (Spondesne? Spondeo) peregrinum quoque obligari posse, velut si Imperator noster Principem alicujus peregrini populi de pace ita interroget PACEM FUTURAM SPONDES? vel ipse eodem modo, interrogetur: quod nimium subtiliter dictum est, quia si quid adversus pactionem fiat, non ex stipulatu agitur, sed jure belli res vindicatur." Comm. iii. § 94.

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, §§ 6-8. Vattel, Droit des Gens, liv. ii. ch. 14, § 207.