AUTHORITIES FROM THE LAW OF NATIONS, AND OTHER SOURCES, TOUCHING MATTERS IN REFERENCE TO THE DIPLOMATIC CHARACTER OF A Public Minister, AND HIS OFFICIAL DUTIES. CHAP. I. Of the Rights of Embassy. [From Martens' Law of Nations.] SECT. 1. However simple a negotiation may be, it would be very difficult, now-a-days, to bring it to a conclusion by a written correspondence between the sovereigns. A verbal communication is absolutely necessary; and, as it would be impossible for sovereigns to negociate, themselves, they must commission others, furnished with instructions and full powers, to do it in their stead. Hence the origin of embassies. SEC. 2. Of a Public Minister. By Public Minister is commonly meant, the person whom the state has charged with its public affairs: in a more particular sense, the person who is at the head of some department of the government; and, in a still more confined sense, the person whom the Sovereign has appointed to superintend his affairs at some foreign court. This last sort of minister (Embassador in a general sense, Legatus) is that of which we are to speak here. The sending of this sort of ministers being a necessary means of treating of state affairs, the right to send them becomes one of the natural rights of sovereignty. These ministers are now employed, not only to negociate the affairs of the sovereign by whom they are sent, (though all their rights are grounded upon their acting in that capacity,) but on points of ceremony also; and, since the introduction of perpetual embassies, sometimes the principal business of such a minister is to watch. over the interests of his master, and give him an exact account of every thing that passes, and of which it imports him to be informed. Whatever difference a rigorous attention to theory might make, as to prerogatives, &c. between negociators and other ministers, in the practice, the same prerogatives that are enjoyed by negociators, are also enjoyed by embassies of ceremony, perpetual embassies, and embassies in ordinary. SECT. 3. Of the right of sending Ministers. The primitive and principal object of sending embassies proves clearly, 1. That the right of sending ministers, belongs to all those states, which have a right to treat with foreign powers in their own name. Consequently, all states that are entirely free (notwithstanding vassalage, protection, and tribute), as well as all the demi-sovereign states, that have the right of making war and peace, and of forming foreign alliances, have a right to send ministers to foreign courts. Hence it comes that the states of the Empire, as well as many other demisovereign states, enjoy this right. 2. In monarchies this right may belong solely to the sovereign, or it may so happen that the state participates in it. This depends on the internal constitution of each state in particular. But, S. No subject part of a state, no person, however distinguished by his rank and dignities, that has not a right to treat with foreign nations in his own name, has a right to send embassies. In the communications between sovereigns and their subjects, the former sends commissaries and the latter deputies; but neither of the two have the prerogatives of ministers. The latter have thein not, for want of authority in those by whom they are sent, and the former, for want of the consent of the sovereign; and, besides, neither of them stand in need of such prerogatives. 4. A sovereign may, however, authorize other persons to exercise the rights of appointing embassies in his name; thus, the princes of the blood, governors of provinces, vice-roys, generals, and even ministers, send persons vested with the character, essential rights, and authority of ministers. SEOT. 4. The right of sending ministers making part of the rights of sovereignty, it returns, in case of a vacancy of the throne, into the hands of the people, or of those who are authorised to exercise the sovereign power in the interim. A sovereign who abdicates his crown, loses with it his right of sending ministers; but the simple loss of possession, when involuntary, does not always carry in it the loss of right. A prince, by being held in captivity, or by being driven from his throne, or even from his dominions, does not, on that account, lose at once the right of sending ministers; neither does he who has usurped his throne, or power, acquire this right by his mere momentary possession. It is the justice or injustice of the cause that ought principally to decide, which of the two is entitled to exercise this right. The conduct of foreign powers on such occasions ought to be conformable to what has been already said, with respect to the acknowledgement of general sovereignty. SEOT. 5. Of the right of receiving Ministers. Those, and those only, who have a right to send ministers, have a right to receive them. They may even be obliged, imperfectly, to receive them, or at least not to refuse them. But, except in the case of treaties, no state is under a perfect obligation to receive them, and still less to permit their constant residence at its |