Passage through war. Opinion of in the house of an ambassador is founded on the Law of Nations. * $144. Has the public minister the right of inviolability and extraterritoriality in the territory of a third State, where he is passing through or temporarily staying on his way to the State to which he is accredited? As such a case must frequently occur, this question can arise at any time. Vattel is of opinion that it is a reciprocal obligation, imposed by the comity of Nations, that the authorities of the country through which a public minister is passing cannot reasonably refuse him all the privileges due to the representative of a Foreign Power, at all events, perfect safety and protection must be accorded to him. † Wheaton states that he is entitled to respect and protection, though not invested with all the privileges and immunities which he enjoys within the dominions of the Sovereign to whom he is sent. Kluber says, "Persönliche Sicherheit ist das mindeste worauf alsdann der Gesandte Anspruch zu machen hat." || Sir Robert Phillimore gives the following opinion. “The sound rules which ought to govern this question appear to be: "1. That, in time of peace, the ambassador is of right inviolable in his transit through a third *See Heathfield v. Chilton 4 Burr. 2016 as to the registration in England of the names of the servants of an ambassador. In the present century, in the case of the coachman of Mr. Gallatin, the United States minister in London, the British Government claimed the right to arrest him on a criminal charge for an assault committed outside the residence, and to make the arrest within the limits, admitting, however, the propriety of first giving notice to the minister that he might deliver him up or make arrangements with the police as to the time and manner of their entering to search and seize. WHEATON. Dana's Edit. 303. note. † VATTEL. Liv. IV. Chapt. VII. § 84. WHEATON. Vol. I. p. 269. KLUBER. § 176. country, but cannot claim the privileges of exterritoriality as a matter of tacit compact, though they would probably be acceded to him by the Courts of all Nations--and to ambassadors to a Congress they are accorded. The diplomatic agents of foreign Powers at Frankfurt-on-the Main were allowed the same privileges, on their transit, as the members of the German Confederation." * "2. That, in time of war, he cannot be secure from imprisonment without a previously obtained permission to pass through the territory; but that his life can in no case be taken, unless, indeed, he actually exercises hostilities in the country through which he passes. "The true international rule would be, that the ambassador should be allowed, in all cases, the jus transitus innoxii. This was the law of Holland at the beginning of the eighteenth century. The Mexicans are said to have adopted a similar principle of law; their practice was to mark out a certain route out of which it was not lawful for the hostile ambassador to deviate." "It is well remarked by Zouch, that both the State which sends the ambassador, and that to which he is sent, are injured by harm or insult inflicted upon him by a third country."† Foreign Affairs ment. § 145. In conformity with the Public Law of The Minister of the State (§§ 37 & 38), the political affairs of and his depart international intercourse are directed by a State department, called the department of Foreign Affairs (ministère des affaires étrangères) and the officer presiding over that department is styled the Minister or Secretary of State for Foreign * GROTIUS. Liv. II. Chapt. XVIII. 5. †ZOUCH. De Judicio inter Gentes. P. 2. §§ 4 & 18. FELIX, in his Droit Intern. Priv. p. 279, states the enactments contained in various municipal codes with reference to the treatment and protection of ambassadors. PHILLIMORE, Vol. II. p. 217. Affairs (ministre des affaires étrangères or chancelier d'état). The attributes of this high functionary, upon whose knowledge, experience and sound policy in the management of political affairs, depends the maintenance of friendly relations between his Government and foreign Powers, are manifold. All business relating to ceremonials of reception, audiences, presentation of credentials or letters of recall of and conferences with foreign diplomatic agents, the discussion of reciprocal interests, the negotiation and drawing up of treaties and conventions, and the issue of all documents and despatches relating to external political affairs, letters of credence and instructions for the diplomatic agents going abroad, belong to his department. This department has in a large State such a preponderant influence, that the Minister or Secretary for Foreign Affairs in the government of large States is, as such, the Prime Minister, or chief leader of the Cabinet. At the seat of every Government the Minister of Foreign Affairs is thus, next to the Sovereign or Chief Magistrate of the State, the first personage in the eye of the foreign diplomatic agent, for whom he is the constituted authority, representing the whole external sovereignty of the State (§ 24). He represents his Government in dealing with all foreign agents, accredited to his Government or Sovereign, and he does so both in relation to individual agents and in relation to them in the aggregate called the corps diplomatique. All political transactions and communications with other States emanating from or addressed to the Sovereign or Chief Magistrate of the State, regarding external State affairs, pass through the hands of the Minister of Foreign Affairs. The right of direct personal communication with the Sovereign, which nominally belongs yet to the privileges attaching to the rank of an Ambassador, is falling more and more into disuse through the general adoption of the principles of constitutional representative government which enhance the position of responsible Ministers or Secretaries of State. §146. There are two classes of international Mutual ranking or so-called diplomatic agents. 1°. Those with credentials from the Sovereign or Chief Magistrate of their State representing the whole Government and external sovereignty. They are accredited direct to the Sovereign or the Chief Magistrate of the State to which they are sent. These are called Ambassadors, Envoys Extraordinary, Ministers Plenipotentiary and Ministers-Resident (Gesandte). 2o. Those who have no letters of credence to the Sovereign or Chief Magistrate, representing only the foreign department of their State and are accredited as agents of that department to the foreign department of the other State. These are chargés d'affaires (Geschäftsträger, Zaakgelastigden) and, in some instances, Consular officers. The rank of a Public Minister has nothing to do with the transaction of affairs, but only with the ceremonials of the Court. As the capacity to represent the external sovereignty of the State is restricted to the first class, viz. to those provided with credentials from their Sovereign or the Chief Magistrate of the State, it is not legal to have treaties or conventions concluded by the political agents of the second class, as treaties and conventions can be made only by the constituted authorities of a State and those who represent its whole Government. Formerly, says Mr. Woolsey, there was but one class of Public Minister or at most two, Ambassadors (Gesandte) and agents (chargés of International Agents. Nominal ranking Agents by the Congress of d'affaires) known to Europe, but since the beginning of the eighteenth century there have been three grades. Moreover, sometimes extraordinary ministers have claimed precedence over ordinary ministers of the same class. * Differences about rank among diplomatic agents of International accredited at the same Court led to some regulaVienna in 1815 tions in the protocol of the plenipotentiaries of the Aix-la-Chapelle eight principal Powers, concerned in the Congress of Vienna, dated March 19, 1815, which is to the following effect: and that of 1818. "To prevent the embarrassments which have often occurred, and which may yet arise from the claims to precedence between different diplomatic agents, the plenipotentiaries of the Powers signing the Treaty of Paris, have agreed to the following articles; and they feel it their duty to ask those of other crowned heads to adopt the same regulations :- Art. I. Diplomatic employés are divided into three classes :-- That of ambassadors, legates, or nuncios; That of envoys, ministers, or others accredited to sovereigns; That of chargés d'affaires accredited to ministers charged with foreign affairs. Art. II. Ambassadors, legates, or nuncios alone have the representative character. Art. III. Diplomatic employés on an extraordinary mission have not, for that reason, any superiority of rank. Art. IV. Diplomatic employés shall take rank among themselves, in each class, according to the date of the official notification of their arrival. The present rule shall bring with it no innovation in regard to the representatives of the Pope. *WOOLSEY. p. 156. |