A government may, in its discretion, lawfully refuse *40 to receive an ambassador, and without affording any just cause for war, though the act would, probably, excite unfriendly disposition, unless accompanied with conciliatory explanations. The refusal may be upon the ground of the ambassador's bad character, or former offensive conduct, or because the special subject of the embassy is not proper, or not convenient for discussion. (a) A state may also be divided and distracted by civil wars, so as to render it inexpedient to acknowledge the supremacy of either party. Bynkershoek says, (b) that this right of sending ambassadors belongs to the ruling party, in whom stet rei agendi potestas. This is placing the right where all foreign governments place it, in the government de facto, which is in the actual exercise of power; but the government to whom the ambassador is sent, may exercise its discretion in receiving, or refusing to receive him.

It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act of his minister. This will depend upon the nature and terms of his authority. (c) It is now the usual course for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of attorney, or credential of the minister; and it is not understood to confer a power upon the minister *41

vol. vii. 108. The questions concerning precedence among the members of the diplo matic corps at foreign courts, were all happily settled by the Congress of Vienna, in 1815, and signed by the representatives of the eight principal European powers. It was agreed that diplomatic agents of the respective classes take rank according to the date of the official notice of their arrival, and that the order of signature of ministers to acts or treaties between several powers that allow of the alternat, should be determined by lot. Recueil des Pièces Officielles, tom. viii. No. 17. Wheaton's Elements of International Law, p. 265. His History of the Law of Nations in Europe and America, New York, 1845, p. 496.

(a) Rutherforth, b. 2, c. 9. Bynk. de Foro Legatorum, c. 19, sec. 7. (b) Quest. J. Pub. lib. 2, c. 3.

(c) The discretion and reserve with which a public minister ought to act in relation to the country in which he resides, is strongly exemplified in the case of The Sally Ann, Stewart's Vice-Adm. Rep. 367. It was held, that a license granted by the British Minister at New York, after the commencement of the war of 1812, to an American citizen, to export provisions to a British island, was inconsistent with his diplomatic character and duty, and void; and the decision was declared to be correct and proper, by the Lords Commissioners on appeal.

to bind his sovereign conclusively. To do so important an act would require, at least, a distinct and special power, containing an express authority to bind the principal definitively, without the right of review, or the necessity of ratification on his part. (a) This is not the ordinary or prudent course of business. Ministers always act under instructions which are confidential, and which, it is admitted, they are not bound to disclose; (b) and it is a well-grounded custom, as Vattel observes, (c) that any engagement which the minister shall enter into, is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries. (d)

Consuls.

Consuls are commercial agents, appointed to reside in the seaports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation deputing them. The establishment of consuls is one of the most useful of modern commercial institutions They were appointed about the 12th century, in the opulent states of Italy, such as Pisa, Lucca, Genoa, and Venice, and their origin has been ascribed to the necessity for extraordinary assistance in those branches of commerce formerly carried on with barbarous and uncivilized nations. (e) The utility of such a mercantile officer has been perceived and felt by all trading nations, and the Mediterranean trade in particular, stands highly in need of such accredited agents. (f) Consuls have been multiplied and extended to every part of the world, where navigation and commerce can successfully penetrate, and their duties and privileges

(a) Bynk. Q. Jur. Pub. lib. 2, c. 7.

(b) Wicquefort's L'Amb. tom. i. sec. 14. Martens, p. 217.

(c) B. 4, c. 6, sec. 77.

(d) Bynk. ubi supra. Vattel, b. 2, c. 12, sec. 156. Martens, b. 2, c. 1, sec. 3. The Eliza Ann, 1 Dodson's Adm. Rep. 244. Both Vattel and Klüber agree, that a treaty concluded under a full power, cannot, in honor, be rejected without very sufficient reasons, as by violation of instructions, mutual error, a moral or physical impossibility, &c. Wheaton's Elements, 3d edit. pp. 303-306. See, in Wheaton's Elements, 3d edit p. 335, a reference to the most respectable writers on diplomatic history. (e) 1 Chitty on Commercial Law, 48, 49.

(f) Jackson on the Commerce of the Mediterranean, p. 30, c. 4. Consuls were not unknown to the ancient Athenians, and they had them in the commercial ports in which they traded, to protect the interests and property of Athenian merchants. St. John's History of the Manners and Customs of Ancient Greece, vol. iii. 282.

*

are now generally limited and defined in treaties of commerce, or by the statute regulations of the country which 42 they represent. In some places they have been invested with judicial powers over disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain, there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers; and in England it has been held, that a consul is not strictly a judicial officer, and they have there no judicial power. (a) It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no government can invest its consuls with judicial power over their own subjects, in a foreign country, without the consent of the government of the foreign country, founded on treaty; and there is no instance in any nation of Europe, of the admission of criminal jurisdiction in foreign consuls. (b) 1 The laws of the United States, on the subject of consuls and vice-consuls, (c) specially

(a) Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunt. Rep. 162. 1 Chitty, 50, 51. (b) Pardessus, Cours de Droit Comm. tom. v. sec. 1450, 1451, 5th edit. Opinions of the Attorneys-General of the United States, vol. i. 786.

(c) Acts of Congress of 14th April, 1792, c. 24, and of February 28, 1803, c. 62.

1 By an Act of Congress of Aug. 11th, 1848, the commissioner and consuls of the United States, appointed to reside in China, are invested with high judicial powers as to crimes and misdemeanors committed by citizens of the United States in the dominions of China; and also with civil jurisdiction to execute the treaty stipulations between the two countries; and in matters of contract made or to be executed at or near the Chinese ports. The laws of the United States, and, where they are deficient, the common law, are extended to such jurisdictions; and if defects still remain, the commissioner may make decrees. The provisions of this act are extended to Turkey, and are there to be executed by the ministers and consuls.

See a paper by the late Attorney-General upon the Authority of Consuls in China. Opin. of Attys-Gen. vol. vii. p. 495.

It is stipulated by the convention between the United States and the Sultan of Borneo, that the American consul shall have exclusive jurisdiction of all cases, in which a citizen of the United States is charged with the commission of a crime in any part of the dominions of his Highness, the Sultan; and shall have power to decide, without any interference by the local authorities, all disputes or differences to which American citizens may be parties. 10 U. S. Stat. 909. And it is stipulated by the convention between the United States and Japan, that Americans committing offences in Japan, shall be tried by the American consul-general or consul, and be punished according to American laws. 11 U. S. Stat. 723.

authorize them to receive the protests of masters and others relating to American commerce, and they declare that consular certificates, under seal, shall receive faith and credit in the courts of the United States.1 It is likewise made their duty, where the laws of the country permit, to administer on the personal estates of American citizens, dying within their consulates, and leaving no legal representative, and to take charge of and secure the effects of stranded American vessels, in the absence of the master, owner, or consignee; and they are bound to provide for destitute seamen within their consulates, and to send them, at the public expense, to the United States. It is made the duty of American consuls and commercial agents, to reclaim deserters, and discountenance insubordination, and to lend their aid to the local authorities for that purpose, and to discharge the seamen cruelly treated. (a) It is also made the duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters, and passports with the consul, vice-consul, or commercial agent, if any, at the port, though this injunction only applies when the vessel shall have come to an entry, or transacted business at the port. (b) These particular powers

and duties are similar to those prescribed by British con*43 suls, and to consuls under the consular convention be

tween the United States and France, in 1788; and they

(a) Act U. S. 20th July, 1840, c. 23, sec. 11, 17. See infra, vol. iii. 199, the treaty between the United States and Hanover, to the same effect.

(b) Toler v. White, Ware's Rep. 277. Matthews v. Offley, 3 Sumner, 115. American consuls, having no judicial power, cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility. The Wm. Harris, U. S. D. Court of Maine, Ware's Rep. 367. But when an American vessel puts into a port of necessity for repairs, a survey to ascertain the damage may, it seems, according to usage, be directed by the American consul, as part of his official duty. Potter v. The Ocean Ins. Co. C. C., U. S. for Massachusetts, October, 1837, 3 Sumner, 27. The English Prerogative Court, before Sir Herbert Jenner, in 1839, in the case of Aspinwall v. The Queen's Proctor, 2 Curteis, 241, held, that an American consul was not, in that capacity, permitted by the law of England to administer upon the personal estate of a domiciled citizen of the United States dying in England. The Crown takes charge of the property in trust, for payment of debts and distribution, according to the law of the owner's domicil.

1 Brown v. The Independence, Crabbe, 54. Johnson v. The Coriolanus, Crabbe, 239. No American consul is invested, by virtue of his office, with authority to exempt an enemy's vessel from confiscation or capture. The Amado, 1 Newberry's Adm. 400.

are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment. (a) The consular convention between France and this country, in 1778, allowed consuls to exercise police over all vessels of their respective nations," within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France, was merely voluntary, and altogether exclusive of any coercive authority; (b) and we have no treaty at present, which concedes even such consular functions. (c) 1 The doctrine of our courts. is, (d) that a foreign consul, duly recognized by our government, may assert and defend, as a competent party, the rights of property of the individuals of his nation, in the courts of the United States, and may institute suits for that purpose, without any special authority from the party for whose benefit he acts.2 But the court, in that case, said that they could not go so far as to recognize a right in a vice-consul to receive actual restitution of the property, or its proceeds, without showing some specific power for the purpose, from the party in interest.

(a) Beawes's L. M. vol. i. tit. Consuls, pp. 292, 293.

(b) Mr. Pickering to Mr. Pinckney, January 16th, 1797.

(c) By the treaties of commerce and navigation between the United States and the Kingdom of Hanover, May 20th, 1840, article 6, and between the United States and Portugal, of 23d April, 1841, it was provided that consuls, vice-consuls, and commercial agents, should have the right, as such, to sit as judges and arbitrators in differences between the masters and crews of the vessels belonging to the nation whose interests were committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the tranquillity of the country, or the consuls should require such assistance, to cause their decisions to be carried into effect or supported. By the same treaties, foreign consuls may apply for the arrest and surrender of seamen deserting from their public and private vessels in port. See, also, treaties to the like effect with Sweden, Prussia, and Russia.

(d) Case of The Bello Corrunes, 6 Wheaton, 168.

1 But see the provisions of the consular convention, concluded between the United States and France, February 28, 1853, 10 U. S. Stat. 992.

2 Ship Adolph, 1 Curtis, C. C. 87. A consul cannot intervene in behalf of his sovereign, in a state where the sovereign has a resident minister or ambassador. Robson v. The Huntress, 2 Wall, Jr. C. C. 59.