arrived at that place, does not stop there, but proceeds on to another. We must, therefore, conclude that the law in question attributes to ambassadors who merely pass through the United Provinces the same independence with those who are there resident. If it be objected, as Bynkershoek does object, that the States-General (that is, the authors of this very law) caused to be arrested, in 1717, the Baron de Görtz, ambassador of Sweden at the court of London, at the request of George I., against the security of whose crown he had been plotting, the answer to this example is furnished by Bynkershoek himself. The only reason,' says he, alleged by the States-General for this proceeding was, that this ambassador had not presented to them his letters of credence.' This reason (continues Merlin) is not the less conclusive for being the only one alleged by the States-General. When it is said that an ambassador is entitled, in the territories through which he merely passes, to the independence belonging to his public character, it must be understood with this qualification, that he travels as an ambassador; that is to say, after having caused himself to be announced as such, and having obtained permission to pass in that character. This permission places the sovereign, by whom it has been granted, under the same obligation as if the public minister had been accredited to and received by him. Without this permission, the ambassador must be considered as an ordinary traveller, and there is nothing to prevent his being arrested for the same causes which would justify the arrest of a private individual."(a)

To these observations of the learned and accurate Merlin it may be added, that the inviolability of a public minister in this case depends upon the same principle with that of his sovereign, coming into the territory of a friendly State by the permission, express or implied, of the local government. Both are equally entitled to the protection of that government, against every act of violence and every species of restraint, inconsistent with their sacred character. We have used the term permission, express or implied; because a public minister accredited to one country who enters the territory of another, making known his official character in the usual manner, is as much entitled to avail himself of the permission which is implied from the absence of any prohibition, as would be the sovereign himself in a similar case. (b)134

(a) Merlin, Répertoire, tit. Ministre Publique, sect. v. § 3, Nos. 4, 12.

(b) Vide supra, § 95.

[184 See also Klüber, Droit des Gens, § 170.]-D.

323

Freedom

§ 248. A minister resident in a foreign country is of religious entitled to the privilege of religious worship in his own worship. private chapel, according to the peculiar forms of his national faith, although it may not be generally tolerated by the laws of the State where he resides. Ever since the epoch of the Reformation, this privilege has been secured, by convention or usage, between the Catholic and Protestant nations of Europe. It is also enjoyed by the public ministers and consuls from the Christian powers in Turkey and the Barbary States. The increasing spirit of religious freedom and liberality has gradually extended this privilege to the establishment, in most countries, of public chapels, attached to the different foreign embassies, in which not only foreigners of the same nation, but even natives of the country of the same religion, are allowed the free exercise of their peculiar worship. This does not, in general, extend to public processions, the use of bells, or other external rites celebrated beyond the walls of the chapel. (a)

Consuls

to the pe

§ 249. Consuls are not public ministers. Whatever not entitled protection they may be entitled to in the discharge of culiar privi- their official duties, and whatever special privileges may leges of public min- be conferred upon them by the local laws and usages, or isters. by international compact, they are not entitled, by the general law of nations, to the peculiar immunities of ambassadors. No State is bound to permit the residence of foreign consuls, unless it has stipulated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur, which is granted them, withdrawn, and may be punished by the laws of the State where they reside, or sent back to their own country, at the discretion of the government which they have offended. In civil and criminal cases they are subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the State. (a)135

(a) Vattel, liv. iv. ch. 7, § 104. Martens, Précis, &c., liv. vii. ch. 6, §§ 222-226. Klüber, Droit des Gens Moderne de l'Europe, Part II. tit. ii. ch. 3, §§ 215, 216.

(a) Wicquefort, de l'Ambassadeur, liv. i. § 5. Bynkershoek, cap. 10. Martens, Précis, &c., liv. iv. ch. 3, § 148. Kent's Comm. i. 38-44. Fölix, Droit International Privé, § 191.

[135 As to the status of consuls, and the privileges usually accorded to them in the practice of nations, for further authorities see Twiss's Law of Nations, i. 318. Woolsey's Introd. § 95, 96. Phillimore's Intern. Law, 240-275. Heffter's Europ. Völker.

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.

I

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.136

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.137

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

[136 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.

[137 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.