established a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different States by means of diplomatic intercourse. (a)

legation, to

Rights of § 208. How far the rights of legation belong to dewhat States pendent or semi-sovereign States, must depend upon the belonging. nature of their peculiar relation to the superior State under whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending chargés d'affaires of the Greek communion to represent them at the court of Constantinople. (a)

So also of confederated States: their right of sending public ministers to each other, or to foreign States, depends upon the peculiar nature and constitution of the union by which they are bound together. Under the constitution of the former German Empire, and that of the present Germanic Confederation, this right is preserved to all the princes and States composing the federal union. Such was also the former Constitution of the United Provinces of the Low Countries, and such is now that of the Swiss Confederation. By the Constitution of the United States of America every State is expressly forbidden from entering, without the consent of Congress, into any treaty, alliance, or confederation, with any other State of the Union, or with a foreign State, or from entering, without the same consent, into any agreement or compact with another State, or with a foreign power. The original power of sending and receiving public ministers is essentially modified, if it be not entirely taken away, by this prohibition. (b)119

(a) Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Martens, Précis du Droit de Gens Moderne de l'Europe, liv. vii. ch. 1, S$ 187-190..

(a) Vattel, liv. iv. ch. 5, § 60. Klüber, Droit des Gens Moderne de l'Europe, st. 2, tit. 2, ch. 3, § 175. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 1, Nos. 3, 4. (b) Heffter, Europ. Völker. § 200. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 5.

[119 Constitution of the United States, Art. I, § 10. The Articles of Confederation had the same prohibition (Art. of Confed. § 6); and no State ever exercised such a power, or ever acted as a sovereign, in foreign relations. The Articles of Confederation were adopted during the War of Independence, and were superseded, without interval, by the Constitution; so that none of the colonies or States were ever in a

fected by

the sover

§ 209. The question, to what department of the govern- How afment belongs the right of sending and receiving public civil war or ministers, also depends upon the municipal constitution contest for of the State. In monarchies, whether absolute or consti- eignty. tutional, this prerogative usually resides in the sovereign. In republics it is vested either in the chief magistrate, or in. a senate or council, conjointly with or exclusive of such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign States must of necessity judge for themselves whether they will recognize the government de facto by sending to, and receiving ambassadors from it; or whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign; or suspend altogether these relations with the nation in question. So, also, where an empire is severed by the revolt of a province, or colony declaring and maintaining its independence, foreign States are governed by expediency in determining whether they will commence diplomatic intercourse with the new State, or wait for its recognition by the metropolitan country. (a)120

For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplomatic 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.121

political condition that admitted of their sending and receiving public ministers. The colonies acted together as a political body, in all their international relations, in throwing off their allegiance, and during the War of Independence. It was as a confederation that their independence was achieved, and the confederation passed directly into a supreme government. See note 32, ante, The United States a Supreme Government.] D.

(a) Vide suprà, §§ 22-26. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 6. [12) On this subject, see note 16, ante, on Recognition of Independence, and note 41, ante, on Intervention in Mexico and Recognition of the Empire. See also Mr. Buchanan to Mr. Rush, of 31st March, 1848; Mr. Webster to Mr. Rives, of Jan. 12, 1852; Mr. Everett to Mr. Rives, of 17th February, 1863.] —D.

[121 Where a revolution or forcible change of governments has occurred, a minister who had been accredited to the country, and duly received by the former government, and remains over, will usually enjoy the immunities of a public minister, although his own State may not have recognized the new government as the real sovereignty. It is not likely that objections will come from that quarter. But it may well be ques

Conditional reception of

§ 210. As no State is under a perfect obligation to receive ministers from another, it may annex such conforeign min- ditions to their reception as it thinks fit; but when once isters. 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. (a)

Classi- § 211. The primitive law of nations makes no other fication of distinction between the different classes of public minispublic ministers. ters, than that which arises from the nature of their functions; 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.

tioned whether a State can claim, as a right under the law of nations, that its agent shall "enjoy the immunities," and be treated as "clothed with the powers of a public minister," when it declines to "invest him with the representative character," or to recognize the independence or lawfulness of the government to which he is sent. The rule would seem to be this: if the revolutionary State chooses to receive this restricted diplomatic agent, it must accord to him the immunities appropriate to the functions he is recognized as discharging. As to holding official intercourse with agents of a party engaged in a revolution against a State with which the United States holds free and friendly diplomatic intercourse, see Mr. Seward's memoranda of March 13 and July 17, 1865, cited at length in note 41, ante, on Intervention in Mexico and Recognition of the Empire. See also instructions of Earl Russell to Lord Lyons of 23d January, 1862. Parl. Papers, North America, No. 5.]-D.

(a) Bynkershoek, de Foro Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre Publique, sect. iii. § 5.

4. Chargés d'affaires accredited to the minister of foreign affairs. (a)

§ 212. Ambassadors and other public ministers of the Ambasfirst class are exclusively entitled to what is called sadors. 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 exlusively applied to those sent on permanent missions, the latter to those employed on a particular or extraordinary occasion, though it is sometimes ex

(a) 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 lequel les questions de rang ont été réglées, ne parait pas avoir prévu, il est arrêté entres 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."

tended to those residing at a foreign court for an indeterminate period. (a)

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

Ministers

ond class.

§ 213. All other public ministers are destitute of that of the sec- 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. (a)

Ministers of the second class are envoys, envoys extraordinary, ministers plenipotentiary, envoys extraordinary and ministers plenipotentiary, and internuncios of the Pope. (b)

§ 214. So far as the relative rank of diplomatic agents Diplomatic prece- may be determined by the nature of their respective funcdence. tions, there is no essential difference between public

ministers of the first class and those of the second. Both are accredited by the sovereign, or 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

(a) Vattel, Droit des Gens, liv. iv. ch. 6, §§ 70-79. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii. ch. 9, § 192. Martens, Manuel Diplomatique, ch. 1, § 9.

(b) Martens, Précis, &c., liv. vii. ch. 2, § 198. Vide ante, § 153

(a) Martens, Manuel Diplomatique, ch. 1, § 10.

(b) Ibid. ch. 1, § 10.