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For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplo matic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities of ministers, though they are not invested with the representative character, nor entitled to diplomatic honors. (a)

§ 5. Con

ception of

foreign ministers.

As no State is under a perfect obligation to receive ditional re- ministers from another, it may annex such conditions to their reception as it thinks fit; but when once received, they are, in all other respects, entitled to the privileges annexed by the law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power; and a government may receive one of its own subjects, under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So, also, one court may absolutely refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded.1

(a) [In the case of the last change in the Constitution of France, by the elevation of the Emperor Napoleon III. the following instructions were sent, by the Secretary of State to the Minister at Paris.

"From President Washington's time down to the present it has been a principle, always acknowledged by the United States, that every nation possesses a right to govern itself according to its own will, to change its institutions at discretion, and to transact its business through whatever agents it may think proper to employ. This cardinal point in our own policy has been strongly illustrated by recognizing the many forms of political power, which have been successively adopted by France in the series of revolutions, with which that country has been visited. Throughout all these changes the government of the United States has governed itself in strict conformity to the original principles adopted by Washington, and made known to our diplomatic agents abroad, and to the nations of the world by Mr. Jefferson's letter to Gouverneur Morris, of the 12th of March, 1793: and if the French people have now, substantially, made another change, we have no choice but to acknowledge that also, and as the diplomatic representative of your country in France, you will act as your predecessors have acted and conform to what appears to be settled national authority." Mr. Webster to Mr. Rives, Cong. Doc. 1851-2. Vol. 4, Doc. 19.]

1 Bynkershoek, de Foro Competent. Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre publique, sect. iii. § 5.

§ 6. Classi

The primitive law of nations makes no other distinction between the different classes of public ministers, fication of public minthan that which arises from the nature of their func- isters. tions; but the modern usage of Europe having introduced into the voluntary law of nations certain distinctions in this respect, which, for want of exact definition, became the perpetual source of controversies, uniform rules were at last adopted by the Congress of Vienna, and that of Aix-la-Chapelle, which put an end to those disputes. By the rules thus established, public ministers are divided into the four following classes:

1. Ambassadors, and papal legates or nuncios.

2. Envoys, ministers, or others accredited to sovereigns (auprès des souverains.)

3. Ministers resident accredited to sovereigns.

4. Chargés d'affaires accredited to the minister of foreign affairs.1

The recez of the Congress of Vienna of the 19th of March, 1815, provides : "Art. 1. Les employés diplomatiques sont partagés en trois classes: "Celle des ambassadeurs, légats ou nonces;

"Celle des envoyés, ministres, ou autres accrédités auprès des souverains; "Celle des chargés d'affaires accrédités auprès des ministres chargés des affaires étrangères.

"Art. 2. Les ambassadeurs, légats ou nonces, ont seuls le caractère représentatif.

"Art. 3. Les employés diplomatiques en mission extraordinaire, n'ont, à ce titre, aucune supériorité de rang.

"Art. 4. Les employés diplomatiques prendront rang, entre eux, dans chaque classe, d'après la date de la notification officielle de leur arrivée. ⚫

"Le présent réglement n'apportera aucune innovation relativement aux représentans du Pape.

"Art. 5. Il sera déterminé dans chaque état un mode uniforme pour la réception des employés diplomatiques de chaque classe.

"Art. 6. Les liens de parenté ou d'alliance de famille entre les cours, ne donnent aucun rang à leurs employés diplomatiques.

"Il en est de même des alliances politiques.

"Art. 7. Dans les actes ou traités entre plusieurs puissances, qui admettent l'alternat, le sort décidera, entre les ministres, de l'ordre qui devra être suivi dans les signatures."

The protocol of the Congress of Aix-la-Chapelle of the 21st November, 1818, declares:

"Pour éviter les discussions désagréables qui pourraient avoir lieu à l'avenir sur un point d'étiquette diplomatique, que l'annexe du recez de Vienne, par

Ambassadors and other public ministers of the first class are exclusively entitled to what is called the representative character, being considered as peculiarly representing the sovereign or State by whom they are delegated, and entitled to the same honors to which their constituent would be entitled, were he personally present. This must, however, be taken in a general sense, as indicating the sort of honors to which they are entitled; but the exact ceremonial to be observed towards this class of ministers depends upon usage, which has fluctuated at different periods of European history. There is a slight shade of difference between ambassadors ordinary and extraordinary; the former designation being exclusively applied to those sent on permanent missions, the latter to those employed on a particular or extraordinary occasion, though it is sometimes extended to those residing at a foreign court for an indeterminate period.1

The right of sending ambassadors is exclusively confined to crowned heads, the great republics, and other States entitled to royal honors.2

All other public ministers are destitute of that particular character which is supposed to be derived from representing generally the person and dignity of the sovereign. They represent him only in respect to the particular business committed to their charge at the court to which they are accredited.3

Ministers of the second class are envoys, envoys extraordinary, ministers plenipotentiary, envoys extraordinary and ministers plenipotentiary, and internuncios of the pope.

So far as the relative rank of diplomatic agents may be determined by the nature of their respective functions, there is no essential difference between public ministers of the first class and those of the second. Both are accredited by the sovereign, or

lequel les questions de rang ont été réglées, ne parait pas avoir prévu, il est arrêté entre les cinq cours, que les ministres résidens, accrédités auprès d'elles formeront, par rapport à leur rang, une classe intermédiaire entre les ministres du second ordre et les chargés d'affaires."

1 Vattel, Droit des Gens, liv. iv. ch. 6, §§ 70-79. Gens Moderne de l'Europe, liv. vii. ch. 9, § 192. tique, ch. 1, § 9.

Martens, Précis du Droit des

Martens, Manuel Diploma

2 Martens, Précis, &c., liv. vii. ch. 2, § 198. Vide ante, Pt. II. ch. 3, § 2, p. 210.

8 Martens, Manuel Diplomatique, ch. 1, § 10.

4 Ibid.

supreme executive power of the State, to a foreign sovereign. The distinction between ambassadors and envoys was originally grounded upon the supposition, that the former are authorized to negotiate directly with the sovereign himself; whilst the latter, although accredited to him, are only authorized to treat with the minister of foreign affairs or other person empowered by the sovereign. The authority to treat directly with the sovereign was supposed to involve a higher degree of confidence, and to entitle the person, on whom it was conferred, to the honors due to the highest rank of public ministers. This distinction, so far as it is founded upon any essential difference between the functions of the two classes of diplomatic agents, is more apparent than real. The usage of all times, and especially the more recent times, authorizes public ministers of every class to confer, on all suitable occasions, with the sovereign at whose court they are accredited, on the political relations between the two States. But even at those periods when the etiquette of European courts confined this privilege to ambassadors, such verbal conferences with the sovereign were never considered as binding official acts. Negotiations were then, as now, conducted and concluded with the minister of foreign affairs, and it is through him that the determinations of the sovereign are made known to foreign ministers of every class. If this observation be applicable as between States, according to whose constitutions of government negotiations may, under certain circumstances, be conducted directly between their respective sovereigns, it is still more applicable to representative governments, whether constitutional monarchies or republics. In the former, the sovereign acts, or is supposed to act, only through his responsible ministers, and can only bind the State and pledge the national faith through their agency. In the latter, the supreme executive magistrate cannot be supposed to have any relations with a foreign sovereign, such as would require or authorize direct negotiations between them respecting the mutual interests of the two States.'

In the third class are included ministers, ministers resident, residents, and ministers chargés d'affaires, accredited to sovereigns.2

1 Pinheiro-Ferreira, Notes to Martens, Précis du Droit des Gens, tom. ii. Notes 12, 14.

2 Martens, Précis, &c., liv. vii. ch. ii. § 194.

Chargés d'affaires, accredited to the ministers of foreign affairs of the court at which they reside, are either chargés d'affaires ad hoc, who are originally sent and accredited by their governments, or chargés d'affaires per interim, substituted in the place of the minister of their respective nations during his absence.1 (a)

According to the rule prescribed by the Congress of Vienna, and which has since been generally adopted, public ministers take rank between themselves, in each class, according to the date of the official notification of their arrival at the court to which they are accredited.2

The same decision of the Congress of Vienna has also abolished all distinctions of rank between public ministers, arising from consanguinity and family or political relations between their different courts.3

A State which has a right to send public ministers of different classes, may determine for itself what rank it chooses to confer upon its diplomatic agents; but usage generally requires that those who maintain permanent missions near the government of each other should send and receive ministers of equal rank. One minister may represent his sovereign at different courts, and a State may send several ministers to the same court. A minister or ministers may also have full powers to treat with foreign States, as at a Congress of different nations, without being accredited to any particular court.4 (b)

1 Martens, Manuel Diplomatique, ch. 1, § 11.

(a) [On occasion of an appeal made by Mr. Hülsemann, chargé d'affaires of Austria, to the President, in reference to some proceedings of the Secretary of State, Mr. Webster thus wrote, under date of June 8, 1852, to the American chargé d'affaires, at Vienna :- "The Chevalier Hülsemann should know that a chargé d'affaires, whether regularly commissioned or acting as such without commission, can hold official intercourse only with the Department of State. He had no right even to converse with the President on matters of business, and may consider it a liberal courtesy that he is presented to him at all. Although usually we are not rigid in these matters, yet a marked disregard of ordinary forms implies disrespect to the government itself." Congressional Documents.]

2 Recez du Congrès de Vienne du 19 Mars, 1815, art. 4.

3 Ibid. art. 6.

4 Martens, Précis, &c., liv. vii. ch. 2, §§ 199–204.

́(b) [Eu égard à l'état de la part duquel un ministre public est envoyé, celui-ci réunit dans sa personne deux qualités différentes. Il est fonctionnaire public de cet état, et il est son mandataire par rapport à sa mission diplomatique. Relativement aux états autres que ceux près lesquels il est accredité, un ministre

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