place, Louisa of Savoy, mother of Francis, signed a peace, sometimes called Le Traité des Dames.

It is said, that in the reign of Henry IV., France sent an ambassadress to Constantinople. In 1645, Louis XIV. sent la Maréchale de Guebriant to conduct to Poland the Princess des Gouzaques, bride to the King of Poland. Wicquefort says, erroneously, that she was the first female diplomatic agent. The Duchess of Orleans negotiated as Plenipotentiary the Treaty between France and England, which, in Charles II.'s time detached the latter country from its alliance with Holland.

"Minus frequentari," (says Bynkershoek) "mulierum legationes res certa est, sed non minus certa, etiam olim minus fuisse frequentatas. Sed plus minusve sint fuerintve frequentatæ, jus principis non tollit, ejus igitur voluntas, etiam in hâc causà, suprema lex est."(i)

CXXXV. A State may reasonably refuse to receive one of its own subjects as a foreign diplomatic agent, especially if its constitution forbid the subject ever to put off his allegiance.

One very good reason for refusing such a diplomatic agent, is the expediency of avoiding the very difficult question which may arise, from a possible conflict between his privileges as a foreign ambassador with his present and former obligations contracted as a subject: for it will be seen. that a class of these privileges is founded upon the fact that the bearer of them is not a subject of the country in which he is residing as an ambassador.

Bynkershoek() is of opinion that no objection exists to the employment of a subject; but he builds his opinion on the proposition that there is no reason why a subject should not *serve two masters, [*151] or rather be actively the subject of one and passively the subject of another. Yet Bynkershoek himself is obliged to qualify his proposition with the condition that the interests of the two masters do not come into conflict, or that, if they do, the ambassador take no part in them.

In France,(7) it has been for some time settled as a constitutional maxim that subjects are not admissible as ambassadors. An exception appears to have been formerly made in favour of the ambassador from Malta. The Swedish Law equally forbids the reception of a subject as a foreign ambassador. The German Confederation refuses upon special grounds to receive any Frankfort Burgher as the representative of any member of the Confederation, except of Frankfort itself.(m)

As a State may exercise its right of refusal absolutely, it may also exercise it conditionally.

A State may declare beforehand the terms under which it will consent to receive its own subject as a foreign diplomatic agent. But if the sub

(i) Bynk. De Foro Leg. c. xi. Q. J. P. l. ii. c. v.

The "Quæstiones Juris Publici" were published after the treatise “De Foro Legatorum."

(k) De Foro Legatorum, c. xi.

(1) De Callières, in his Traité de la manière de négocier avec les souverains, speaks of this custom as peculiar to France; but if it ever was peculiar, it is not so now, for such a rule would probably be now adopted by all the Great Powers. Merlin, Ib. v. Bynk. De F. L. c. xi.

(m) Heffters, s. 202, n. 1.

ject be received without any such previously promulgated stipulation he will be entitled to the full jus legationis. But this is a point of which the discussion belongs to another place.(n)

CXXXVI. That the exile is in any case, though more especially if his return be forbidden by law, subject to the refusal of his own country, cannot be doubted ;(0) the only doubt is, as will be seen hereafter, whether he can escape, by virtue of his ambassadorial character, punishment in the State which had exiled him, to which he has returned without permission, and therefore with an additional offence.

*In 1697, the English ambassador to France obtained permission from the Government of that country to include among hist [*152] suite certain Frenchmen and refugees on account of their religion, without which permission Bynkershoek thinks France might have claimed them "ut reversos exules."

·:"(p)

Still more justly may a State refuse to receive a criminal whose sentence is yet unexecuted. A Dutchman condemned to a criminal punishment by the Dutch East India Company fled from India to England, and was sent by the latter country as a diplomatic agent to Holland. Immediately on his arrival at the Hague (1636,) the Dutch Company induced the Government to put him in prison, from which, however, he was shortly afterwards liberated, chiefly, according to Bynkershoek, because, the States General were very anxious at that particular period to be on good terms with England.(g)

The fact of the ambassador not being a native of the State which sent him would not alone afford a reasonable cause for refusal. The subject of a third country might be the domiciled citizen of the country which employed him as ambassador, and, even if he were not domiciled, no objection seems to lie against him, on the sole ground of his not being a native.

CXXXVII. The private rank or birth of the ambassador, who is sufficiently ennobled by his Sovereign's choice, can constitute no ground of refusal. The King of Spain employed Rubens as ambassador both to England and Holland (1633.) A State, however, would for its own honour justly refuse a notoriously scandalous person, and less justly but lawfully any person known to be personally disagreeable to the head of the State.(r)

[*153]

*How far the religion of the ambassador can be considered an objection, will be presently discussed.(s) It is only necessary to state here that no State is bound to receive a Papal Legate or Nuncio, armed, either by specific instructions or by the general Canon Law, with

(n) Story's Comment. on the United States, 1. 669. Miruss, s. 83.
(0) Bynk. Q. J. P. 1. ii. c. v. Zouch, p. 2, s. 4.
(p) Q. J. P. l. ii. c. v.

(g) Ibid. Merlin, ib. iv.

(2) Wicquefort, 1, s. 13. L'ambassadeur doit estre agréable. "Le mesme droit de gens qui ne permet pas qu'on fasse violence ou outrage au ministre qui a esté admis et reconnu, permet aux princes de ne point admettre un ministre dont ils puissent recevoir du déplaisir." Wicquefort gives a catalogue of ambassadors refused on this ground. The Duke of Buckingham, employed by Charles I., might well have been rejected both by Spain and France on account of the insolence and arrogance of his conduct.

(s) Vide post, RELIGION AND THE STATE. Heffters, s. 200, n. 4. Miruss, s. 94.

powers injurious to the Established Church or to the sovereignty of the State over all causes, ecclesiastical as well as civil. States have a right to refuse the reception of such a minister, or to demand that these powers be limited and defined, so as to be consistent with their safety, before the bearer of them be admitted.

The notification of the refusal to receive ought to be made, if possible, before the ambassador has left his own country, but it may be imparted openly on his arrival, or tacitly by not accepting the letters of credit.(t)

CXXXVIII. The existence of a state of war between two nations by no means relieves them from the necessity of receiving each other's ambassadors, not, of course, for the purpose of residence, but of audience. It may be necessary to demand a passport or safe conduct, through the intervention of a third State or of a herald, and what it is necessary to demand may be refused; but the refusal cannot lawfully be grounded on the mere existence of a state of war, for the greater the evil the more stringent is the obligation upon nations to adopt the readiest means of putting an end to it,(u) and especially those which are most likely to prevent or stay the shedding of blood.

CXXXIX. We have now arrived at the discussion of the *third [*154] question propounded, viz. :-Is a State bound to allow a resident embassy (legationem assiduam) within its territories?

The continuous residence of an embassy is, to speak strictly, a matter of comity, and not of strict right.(x)

Nevertheless, so long a custom and so universal a consent has incorporated this permission of continuous residence into the practice of nations, that the gross discourtesy of refusing it would require unanswerable reasons for its justification, and would place the refusing in so unfriendly an attitude towards the refused State, as to be little removed from a condition of declared hostility.

Grotius, indeed, says, "Optimo autem jure rejici possunt, quæ nunc in usu sunt legationes assiduæ, quibus quam non sit opus,(y) docet nos

(t) Miruss, s. 82.

(u) Vattel, 1. iv. c. v. s. 67. (x) Wheaton, El. 2, 261, 2. p. 484.

Comment on doit admettre les ministres d'un ennemi.
Merlin, Ib. s. 3. Heffters, s. 200. Ward, vol. ii.

Lord Coke, speaking of Henry VII., says, "that wise and politique king would not in all his time suffer Lieger (i. e. resident) ambassadours of any foreign king or prince within his realm, nor he with them; but upon occasion used ambassadours."-4 Inst. 155.

Charles I. expressed resentment against the Dutch for not sending a resident embassy to England.-Wicq. Mem. touch. les Ambassadeurs, 25.

In 1660, a noble member of the Polish Diet complained of the continued residence of the French ambassador, "que le sejour de l'ambassadeur estoit suspect, parceque les ambassadeurs ont accoustumés de se retirer dès que leur négociation est achevée."

In 1668, an attempt was made by various members of the Diet to send away all ambassadors; it was resisted by the king and senate, but is said to have been one of the chief causes of the dissolution of the Polish Diet.-Wicquefort, 1. viii.

(y) The Justinian law was unquestionably adverse to the notion of a resident ambassador. It had no idea of protecting foreign commerce, "perniciosum urbibus mercimonium" (Cod. 1. iv. t. 63, s. 3), which it forbad nobles to exercise, and which it conceived might lead to a revelation of the secrets of imperial policy. The Code contains a very curious law, beginning:-" Mercatores tam imperio nostro quam

antiquitas cui illæ ignoratæ ;"(z) but it must be remembered that since this opinion was expressed, a usage of two additional [155] centuries has imparted, according to the principles laid down in an earlier chapter(a) of this work, a character approaching to that of positive law upon this institution of resident embassies.

Vattel (b) therefore declares, that even in his time the custom was so deeply rooted as to require excellent reasons for its abrogation by any individual State.

*CHAPTER IV.

[*156]

EMBASSY-GENERAL STATUS.

CXL. WE have now considered the Rights and the Duties incident to the sending and receiving of embassies. The next subject for discussion is the Status which International Law ascribes to those who are so sent, and to those who are so received.

This status is composed of rights stricti juris, resting upon the basis of natural law and therefore immutable, and of privileges, originally not immutable, but so rational in their character, and so hallowed by usage, as to be universally presumed, and to become matter of strict right if their abrogation have not been formally promulgated (a case almost inconceivable) before the arrival of the ambassador. The former are usually described under the title of inviolability, the latter under the title of exterritoriality.(a) It is with the former that we are at present concerned.(b)

CXLI. The right of sending embassies being *established, the [*157] personal inviolability (inviolabilitas, inviolabilité, Unverletzbarkeit) of the ambassador follows as a necessary consequence.

Persarum regi subjectos, ultra ea loca, in quibus fœderis tempore cum memoratâ natione nobis convenit, nundinas exercere minimè oportet: ne alieni regni (quod non convenit) scrutentur arcana," &c.-Ib. s. 4.

(2) L. ii. c. xviii. s. 3, 2.

(a) Vide ante, vol. i. chap. v.

(b) Vattel, 1. iv. c. v. s. 66. Des Ministres résidents. "La coûtume d'entretenir partout des ministres continuellement résidents, est aujour-d'hui si bien établie, qu'il faut alléguer de très-bonnes raisons pour refuser de s'y prêter sans offenser personne." Miruss, s. 82.

"Hodie tamen ita usurpantur ut sine illis amicitia vix stabilis inter populos diversos coli videatur etsi nec minus usum habeat exploratorum."-Huberus de Jure Civili, I. iii. c. xii.

(a) The necessity of the case, the usage of foreign writers, the great convenience of the term, will, it is hoped, justify the attempt to naturalize this word.

(b) Vattel, 1. iv. c. v. s. 55, ib. c. vii. s. 81, & s. 103. "Nous avons déduit l'indépendance et l'inviolabilité de l'ambassadeur des principes naturels et nécessaires du droit des gens-ces prérogatives lui sont confirmées par l'usage et le consentement général des nations."

Heffters, s. 204, "ein so von selbst sich verstehendes Recht." S. 205. "In der Natur der Sache ist nun ein Mehreres nicht begründet abs." u.s.w.

Klüber, s. 203. "Den Gesandten räumt theils das natürliche Völkerrecht theils das positive der Europäischen Staaten besondere Vorrechte ein." u.s.w.

Every foreigner, indeed, is under the protection of the State in which he is commorant, and is so far inviolable.

But this attribute is in a special manner ascribed to the representative of a Foreign State, in whom the image of his sovereign and the majesty of his country are as it were visibly present; therefore the expression of sanctity (sanctitas, personne sacrée, Heiligkeit) is often applied by jurists, philosophers, and historians of all ages and countries, as applicable to the bearer of an embassy.(c)

CXLII. Any offence committed against their person is or ought to be considered by the State as an offence against the State itself (crime d'état.) The injury done to an ambassador is not merely an injury done to the Sovereign and country which he represents, but a violation of the common welfare and general safety of all nations.

Therefore there is a peculiarity incident to this right, (d) *viz., [*158] that an infringement of it, unlike the invasion of particular national interests, becomes immediately and directly a matter of general International concern, and entitles all nations to demand and enforce atonement for the offence and punishment of the offender.

CXLIII. The atonement and punishment, moreover, are to be measured by a standard different from that which might satisfy an injury done to a private subject.(e)

(c) Grotius, 1. ii. c. xviii. s. 1. "Passim enim legimus sacra legationum, sanctisancta corpora legatorum."

moniam legatorum

Ib. s. iv. 5. "Quare omnino ita censeo, placuisse gentibus ut communis mos, qui quemvis in alieno territorio existentem ejus loci territorio subjicit, exceptionem pateretur in legatis, ut qui sicut fictione quâdam habentur pro personis mittentium senatûs faciem secum attulerat, auctoritatem reipublicæ, ait de legato quodam M. Tullius," &c.

Bynkershoek, De F. L. c. v. De Sanctitate Legatorum, &c. "Plus scire attinet, quâ ratione legati apud omnes, ut dixi, gentes habeantur sancti-Et si sanctum id sit, quod ab injuriâ hominum atque defensum munitum est, ut esse dicit Marcianus in 1. 8, pr. ff De Rev. Divis., utque ex proprietate verbi deducit Festus in V. sanctum, dicendum videbatur sanctitatem id legatis præstare, ne dicto factove offendere liceat, quia imaginem principis sui ubique circumferunt, quia pacis et foederum nuncii sunt et proxenetæ, et sine his gentium societas et beata quies salva esse nequit."

Vattel, 1. iv. c. vii. s. 81, & s. 92. "L'inviolabilité du ministre public, ou la sûreté qui lui est due, plus saintement et plus particulièrement qu'à tout autre étranger ou citoyen." Martens, s. 214. Klüber, s. 203.

(d) Whether Vattel be right or not in the application of the principle of the law to the case of the ambassadors of Francis I., put to death by the Governor of Milan, through which city they were travelling to Constantinople, the principle which he lays down is sound and true: "Et comme il n'en donna point de satisfaction convenable, François Ier avait un très-juste sujet de lui déclarer la guerre, et même de demander l'assistance de toutes les nations. Car une affaire de cette nature n'est point un différent particulier, une question litigeuse, dans laquelle chaque partie tire le droit de son côté; c'est la querelle de toutes les nations, intéressées à maintenir comme sacrés le droit et les moyens qu'elles ont de communiquer ensemble et de traiter de leurs affaires."—1. iv. c. vii. s. 84. "Quiconque fait violence à un ambassadeur ou à tout autre ministre public ne fait pas seulement injure au souverain que ce ministre répresente; il blesse la sûreté commune et le salut des nations; il se rend coupable d'un crime atroce envers tous les peuples."—

Ib. s. 81.

(e) "Quid igitur est præcipuum in legatis? hoc videlicet, ut in eos, qui legatos malé habent, severiùs animadvertatur, atque ita ob personarum sanctitatem pœna atrocior statuatur, quam solet statui in eos, qui privatum quemcunque læsissent.". Bynk. De Foro Leg. c. v. Miruss, s. 337.