shall be returned gun for gun: and if after such arrival so announced any Christians whatsoever, captives in Algiers, make their escape and take refuge on board any of the ships. of war, they shall not be required back again, nor shall the Consuls of the United States or commanders of the said ships be required to pay anything for the said Christians.']

Any indictable offence under the 24 & 25 Vict. cc. 96, 97, 98, 99, 100, or any act amending or substituted for any of the same respectively. Any indictable offence under the laws for the time being in force in relation to bankruptcy.

By the Hong Kong Ordinance, No. 2, of 1850, where it appears to a magistrate or court that there is probable cause for believing that a Chinese, who has taken refuge at Hong Kong, has committed 'any crime or offence against the laws of China,' he may be imprisoned with a view to his being surrendered to the Government of China.

It was held by the Privy Council on appeal from the Supreme Court of Hong Kong that the words 'crime or offence' must be limited to those ordinary crimes and offences which are punishable by the laws of all nations, and which are not peculiar to the laws of China, such as murder, robbery, theft, or arson committed by a Chinese within Chinese territory or in Chinese ships on the high seas; piracy, moreover, in certain circumstances would come within the Ordinance, as for example, if a Chinese went from the Chinese coasts to plunder ships at sea returning again to China with his plunder. Where a Chinese, who had taken refuge in Hong Kong, was accused of having previously murdered a French captain of a French ship at sea, it was held that he could not be imprisoned and delivered up to the Chinese Government under the Ordinance, on two grounds-1. That it could not be assumed without evidence that there was any law in China to punish a Chinese subject for murder committed upon a foreigner within foreign territory, and 2. That even if it could be assumed, still the offence having been committed within French territory ought to be treated as an offence against French, and not an offence against Chinese law.

Chinese coolies who were being taken from China to Peru in a French ship killed the captain and several of the French crew, and then took the ship back to China. They were held to have been guilty of piracy jure gentium. But the piracy was held not to be an offence against the law of China within the meaning of the Ordinance; if they committed an act against the municipal law of any nation it was against that of France: and if they were punishable by the law of China it was only because they had committed an act of piracy which jure gentium is justiciable everywhere. Attorney-General of Hong Kong v. Kwok-a-Sing, 5 L. R. (P. Č.)

179.

CHAPTER VIII.

RIGHTS OF LEGATION AND TREATY.

1. Right of legation an essential attribute of sovereignty-2. Of semisovereign and dependent States-3. This right, how affected by civil war-4. Refusal to receive particular persons-5. Conditional reception of a diplomatic agent-6. What department of government may send and receive such agents-7. On diplomacy and the art of negotiation 8. Right of negotiation and treaty -9. Martens on European treaties-10. Treaties by semi-sovereign and dependent States-II. Treaty-making power of a State-12. Treaties, in general, to be ratified-13. Exception in cases of truces, &c.-14. Sponsions and their ratification-15. Legislation necessary to carry them into effect-16. Constitution of the United States on this subject-17. Treaty with France in 1831-18. Treaty with Great Britain in 1824-19. Auxiliary legislation in United States and Great Britain-20. Real and personal treaties—21. Other divisions of treaties-22. Equal and unequal treaties-23. Treaties of guarantee and surety-24. Treaties of confederation and association-25. Treaties of alliance, of succour and subsidy-26. Treaties of amity or friendship-27. Treaties of commerce, of boundaries, of cession28. Violation of the faith of treaties, how punished-29. Use of an oath or asseveration-30. Conditions to make a treaty binding— 31. Attempts of the Popes to annul the obligation of treaties-32. Guarantees and securities-33. Duration of guarantees and withdrawal of pledges-34. Dissolution and termination of treaties-35. Effect of loss of sovereignty-36. Debts previously contracted-37. Remarks of Kent and Wheaton on the interpretation of treaties-38. Rules of Grotius-39. Of Vattel-40. Collision of stipulations-41. Rules of Rutherforth-42. Of Paley-43. Minute rules of other writers-44 Objections to arbitrary formulæ-45. Importance of well-established principles.

§ 1. ANOTHER essential attribute of sovereignty is the right of legation and treaty. Legation consists in sending diplomatic agents to other States, and in receiving such as are sent by them. This right of an independent sovereign State to send and receive diplomatic agents, is regarded, in international law, as a perfect one; but the obligation to do so is deemed imperfect, for, strictly speaking, no State can be compelled either to send or to receive such agents. Nevertheless, usage and comity have established a sort of reciprocal duty in this

1 For treaties with China and Japan, see post, ch. xi. §§ 24-34.

respect. The maintenance of permanent diplomatic missions between different States is regarded as evidence of a mutual desire to continue the relations of peace and amity. On the contrary, a refusal to establish such means of diplomatic intercourse, or a discontinuance of them when once established, is, in most cases, regarded as an indication of unfriendly feeling, or, at least, of an indisposition to cultivate amicable relations. This, however, will depend very much upon the nature and importance of the relations between the States, and their ability to maintain permanent diplomatic missions. If two States be so situated that they can have very little commercial or political intercourse, such missions would be unnecessary. Moreover the smaller States can hardly be expected to bear the burthen of the expense of maintaining them with all other States.1

§ 2. How far the rights of legation belong to a semi-sovereign or dependent State, must depend upon its relations to the superior with which it is connected or under whose protection it is placed. Its sovereignty not being complete, it may, or may not, be entitled to a right incident to sovereignty, according to the nature and circumstances of the case. Thus, by the constitution of the United States of America, every State is expressly forbidden from entering, without the consent of congress, into any agreement or compact with another State, or with a foreign power, and their original power of sending and receiving public ministers is essentially modified, if not entirely taken away, by this prohibition. Under the constitution of the German Empire, and the Germanic Confederation,2 of the Swiss Confederation, and of the former United Provinces of the low countries, the right of legation was preserved by the princes and States composing these unions.3

1 Wheaton, Elem. Int. Law, pt. iii. ch. i. § 2; Vattel, Droit des Gens, liv. iv. ch. v. §§ 55-65; Real, Science du Gouvernement, tome v. p. 140; Rousset, Ceremonial Diplom., tome ii. p. 481; Riquelme, Derecho Pub. Int., lib. ii. tit. ii. cap. Ad. 1; Horne, On Diplomacy, sec. i. §§ 5, 6 ; Wicquefort, L'Ambassadeur et ses fonctions, liv. i. ch. iii; Rutherforth, Institutes, b. iii. ch. ix. § 20; Martens, Précis du Droit des Gens, §§ 185190; Polson, Law of Nations, § 5; Phillimore, On Int. Law, vol. ii. § 114; Ompteda, Litteratur des Völkerrechts, vol. ii. p. 351; Martens, Guide Diplomatique, § 5; Bowyer, Universal Public Law, ch. xx.; Bello, Derecho Internacional, pt. iii. cap. i. § 2; Heffter, Droit International, § 200. 2 This does not refer to the present German Empire.

3 Kluber, Droit des Gens Mod., pt. ii. tit. ii. ch. iii. § 175; Merlin, Répertoire, verb. Ministre Public,' sec. ii. § 6.

§ 3. Strictly speaking, every State has the exclusive right to determine in whom its sovereign authority is vested. Nevertheless, in case of a revolution or civil war, foreign States must, of necessity, judge for themselves whether they will continue their accustomed diplomatic relations with the former government, or commence them with the revolutionary party. This is sometimes a question of great delicacy, and in order to avoid any positive decision of it, diplomatic intercourse is either entirely suspended until the final termination of the contest, or is partially kept up by means of diplomatic agents, of special and limited authority, who are not vested with full ministerial powers, nor entitled to diplomatic honours. But where the accustomed diplomatic relations are to be maintained, the safest and least objectionable rule is, to continue them with the de facto government, whatever that may be, because, for the time being, that may properly be regarded as representing the sovereignty of the State.

§ 4. As a State is not under a perfect obligation to receive diplomatic agents from another, it may refuse to receive any particular individual, either on the ground of personal character, or of the authority conferred upon him. Thus, in France, where the legates or nuncios of the pope were the bearers of powers which were deemed incompatible with the constitution and laws of the State, it was deemed proper to refuse to receive such agents until their powers were reduced to reasonable limits. Again, the reception of a foreign diplomatic agent has sometimes been refused on the ground of personal character, or known hostility to the sovereign, or the State to which he is sent. Indeed, the sending of a person in a diplomatic capacity, who is known to be odious or objectionable to the court to which he is accredited, if not a direct insult, is certainly far from being an evidence of friendly intentions, or of a desire to maintain friendly relations. But when a diplomatic agent is once received, he is entitled to all the privileges, immunities, and honours annexed by the law of nations to his

There are no diplomatic relations between Great Britain and the Pope. However, it was enacted in 1848: That notwithstanding anything contained in any Act or Acts now in force, it shall be lawful for Her Majesty, her heirs and successors, to establish and maintain diplomatic relations and to hold diplomatic intercourse with the sovereign of the Roman States.' The statute contains some qualifications as to the non-ecclesiastical character of the envoy (11 and 12 Vict. c. 108).

public character, except where modified by special conditions attached to his reception.'

5. Some governments have established, as a fundamental rule in their diplomatic intercourse with other States, that they will not receive one of their own native subjects as a minister from a foreign power; others again refuse to receive one of their own subjects in any diplomatic capacity, except on condition that he shall be amenable to the local laws and local jurisdiction. Where the reception is refused, it is proper that the motives or grounds of the refusal be alleged; and where conditions are annexed, they must be expressed before or at the time of the reception, for, otherwise, the agent is entitled to claim the full rights and honours annexed to the office which he fills. There are no tacit or implied conditions in such receptions which can modifiy or limit the public character in which he is received, and with which he was accredited by the sovereign State which sent him.2

1 Bynkershoek, De Foro Legat., cap. xi. § 10; Moser, Versuch, b. iii. p. 89; Wildman, Int. Law, vol. i. pp. 83 et seq. The question has often been raised whether a Christian State can enter into a valid treaty with an Infidel nation. Grotius, however, says that, according to the law of nature, there can be no doubt of the validity of such treaty (lib. ii. c. xv. 8). A Pirate is not an enemy in the true sense of the word, although he is termed hostis humani generis. Some pirates reduced themselves into a Government or State, as did those of Tunis, Tripoli, and Algiers. They acknowledged the supremacy of the Porte, although that Government had little or no control over them. When Louis IX. of France attempted to destroy these pirates, he summoned a council of war to determine whether it was fit that the then solemn ceremonies of declaring war should be lavished on a company of thieves and pirates. The answer was unanimously in the negative (Fuller, Holy War, lib. iv. ch. xxvii.). Yet because these pirates acknowledged the supremacy of the Porte and had become a sort of State, some contended that they should receive a notification of war. However, in the reign of Charles II., if not earlier, some obtained the right of legation, for a formal peace was concluded between Sir John Lawson in the name of His Majesty and the most excellent signiors Mahomet Bashaw, the Divan of the noble city of Tunis, Hagge Mustapha Dei, Morat Bei, and the rest of the soldiers in the kingdom of Tunis,' October 5, 1662. This was confirmed by the Porte 'the last day of the Moon Delcadi and the year of Hegira, 1085.' Similar articles were concluded with Tripoli and Algiers, and confirmed in like manner.

2 Garden, De la Diplomatie, liv. v. § 2. An English subject may not act as a diplomatic agent in England-Case of Dr. Stewart, House of Commons, June 2, 1871. A nation may refuse to receive one of its citizens as the representative of a foreign Power, and in some countries it is a State maxim that a subject is not to be received in such a capacity. Such was the rule in the French (De Caillères, Traité de la manière de négocier avec les souverains, ch. vi. p. 72) and Swedish courts (Codex Legum Suecia, tit. de Crimin.' § 7), and likewise of the United Provinces