lic minister

territory of

State than

which he is

The opinion of public jurists appears to be some- § 20. Pubwhat divided upon the question of the respect and pro- passing tection to which a public minister is entitled, in passing through the through the territories of a State other than that to another which he is accredited. The inviolability of ambassa- that to dors, under the law of nations, is understood by Grotius accredited. and Bynkershoek, among others, as binding only on those to whom they are sent, and by whom they are received.1 Wicquefort, in particular, who has ever been considered as the stoutest champion of ambassadorial rights, asserts that the assassination of the ministers of the French king, Francis I., in the territories of the Emperor Charles V,, though an atrocious murder, was no breach of the law of nations, as to the privileges of ambassadors. It might be regarded as a violation of the right of innocent passage, aggravated by the circumstance of the dignified character of the persons on whom the crime was committed, and might even be considered a just cause of war against the emperor, without involving the question of protection in the character of ambassador, which arises exclusively from a legal presumption which can only exist between the sovereigns from and to whom he is sent.2

-

Vattel, on the other hand, states that passports are necessary to an ambassador, in passing through different territories on his way to his destined post, in order to make known his public character. It is true that the sovereign to whom he is sent is more especially bound to cause to be respected the rights attached to that character; but he is not the less entitled to be treated, in the territory of a third power, with the respect due to the envoy of a friendly sovereign. He is, above all, entitled to enjoy complete personal security; to injure and insult him would be to injure and insult his sovereign and entire nation; to arrest him, or commit any other act of violence against his person, would be to infringe the rights of legation which belong to every sovereign. Francis I. was therefore fully justified in complaining of the assassination of his ambassadors, and, as

1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 5. Bynkershoek, de Foro Comp. Legat. cap. ix. § 7.

2 Wicquefort, de l'Ambassadeur, liv. i. § 29, pp. 433-439.

Charles V. refused satisfaction, in declaring war against him. "If an innocent passage, with complete security, is due to a private individual, with still more reason is it due to the public minister of a sovereign, who is executing the orders of his master, and travelling on the business of his nation. I say an innocent passage; for if the journey of the minister is liable to just suspicion, as to its motives and objects; if the sovereign, through whose territories he is about to pass, has reason to apprehend that he may abuse the liberty of entering them for sinister purposes, he may refuse the passage. But he cannot maltreat him, or suffer others to maltreat him. If he has not sufficient reasons for refusing the passage, he may take such precautions as are necessary to prevent the privilege being abused by the minister." 1

He afterwards limits this right of passage to the ambassadors of sovereigns, with whom the State through which the attempt to pass is, at the time, in the relations of peace and amity; and adduces, in support of this limitation of the right, the case of Marshal Belle-Isle, French ambassador at the Prussian court, in 1744, (France and Great Britain being then at war,) who, in attempting to pass through Hanover, was arrested and carried off a prisoner to England.2

Bynkershoek maintains that ambassadors, passing through the territories of another State than that to which they are accredited, are amenable to the local jurisdiction, both civil and criminal, in the same manner with other aliens, who owe a tempo

rary allegiance to the State. He interprets the edict of the States-General, of 1679, exempting from arrest "the persons, domestics, and effects of ambassadors, hier te lande komende, residerende of passerende," as extending only to those public ministers actually accredited to their High Mightinesses. He considers the last-mentioned term passerende as referring not to those who, coming from abroad, merely pass through the territories of the State in order to proceed to another country, but to those only who are about to leave the State where they have been resident as ministers accredited to its government.3

Vattel, Droit des Gens, liv. iv. ch. 7, §§ 84, 85.

2 Ch. de Martens, Causes Célébres du Droit des Gens, tome i. p. 310. 3 Bynkershock, de For. Legat. cap. ix. Wheaton, Hist. Law of Nations, p. 243.

"The

This appears to Merlin to be a forced interpretation. word passer in French, and passerende in Dutch," says he, "was never used to designate a person returning from a given place; but is applicable to one who, having 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 Gortz, 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.” 1

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

1 Merlin, Répertoire, tit. Ministre Publique, sect. v. § 3, Nos. 4, 12.

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.1

§21. Free

gious wor

A minister resident in a foreign country is entitled to dom of reli- the privilege of religious worship in his own private ship. 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.2

§ 22. Consuls not entitled to

Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their the peculiar official duties, and whatever special privileges may be privileges of public conferred upon them by the local laws and usages, or ministers. 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

1 Vide supra, Pt. II. ch. 2, § 9, p. 143.

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

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.1 (a)

1 Wicquefort, de l'Ambassadeur, liv. i. § 5. Bynkershoek, cap. 10. Martens, Précis, &c., liv. iv. ch. 3, § 148. Kent's Comment. on American Law, vol. i. pp. 43-45, 5th edit. Felix, Droit International Privé, § 191.

(a) [Vide supra, Pt. II. c. 2, § 11, p. 167, note, also the Treaty of the United States with Borneo, concluded at Bruni, 23d June, 1850, and promulgated by the President, the 12th of July, 1854; which extends the judicial power of the American consuls, beyond the concessions heretofore made to us, in any of our treaties with the nations of the East. By it our consuls have exclusive jurisdiction, without any interference, molestation, or hindrance, on the part of any of the authorities of Borneo, in all cases where American citizens are accused of crime, and in all cases where disputes or differences may arise between American citizens or between American citizens and the subjects of the Sultan of Borneo, or between American citizens and the citizens or subjects of any other foreign power in the dominions of Borneo. Treaties of the United States, 1853-4, p. 90.

The following opinion of the Attorney-General, Mr. Cushing, which has been transmitted with the sanction of the Department of State to the consuls of the United States, though it, also, touches points discussed, under other heads, in this treatise, is inserted in this place, as elucidating the status of consuls under the law of nations. It was prepared in answer to a communication from the Secretary of State, which states that it is the practice, to some extent, of the consuls of the United States abroad to marry parties, either citizens of the United States or not, and this without observance of the laws of the particular place regarding marriage, and suggests the inquiry whether such marriages are valid in the United States, either as to the personal status of the parties themselves and their issue, or as to any of the rights of property depending on the matrimonial relation.

"This inquiry belongs to international law private, as distinguished from international law public; that is to say, it regards, not the relations of nations among themselves, but the relations of individuals to the laws, civil or criminal, of different nations. Fælix, Dr. Int. Privé, tit. prél.

"The different States of Christendom are combined, by religious faith, by civilization, by science and art, by conventions, and by usages or ideas of right having the moral force of law, into a community of nations, each politically sovereign and independent of the other, but all admitting much interchange of legal rights or duties. Vattel, Droit des Gens, Prél. s. 11; Wheaton's Elements, p. 40, 3d ed.; Garden, Code Dip. de l'Europe, tom. i. int. p. 3.

"As between themselves, the general rule of public law is that each independent State is sovereign in itself, and has more or less complete jurisdiction of all persons being, matters happening, contracts made, or acts done, within its own