e. g. reconciliation with another State. In these cases, ex eo ob quod mittitur, it may refuse the ambassador."

"With respect to the second question, it may be unhesitatingly answered in the negative. It is in the discretion of the receiving State to refuse the reception of a certain diplomatic agent; but it is not altogether an arbitrary discretion. Some reason must be alleged for the refusal. Non enim', says Grotius, 'omnes admitti præcipit gentium jus: sed vetat sine causa rejici. "

"A State cannot reasonably refuse to receive an ambassador on the grounds of sex. The League of Cambrai in 1508 was signed by Margaret of Austria, in the name of her brother, Charles V. In the same place Louisa of Savoy, mother of Francis, signed a peace, sometimes called Le Traité des Dames. It is said that, in the reign of Henry IV, France sent an ambassadress to Constantinople. In 1645, Louis XIV, sent la Maréchale de Guebriant to conduct to Poland the Princess des Gonzaques, bride to the King of Poland. Wicquefort says, erroneously, that she was the first female diplomatic agent. The Duchess of Orleans negotiated as Plenipotentiary the treaty between France and England, which in Charles II's time detached the latter country from its alliance with Holland. "Minus frequentari," says Bynkershoek, "mulierum legationes res certa est, sed non minus certa, etiam olim minus fuisse frequentatas. Sed plus minusve sint fuerintue frequentatæ, jus principis non tollit, ejus igitur voluntas, etiam in hac causa, suprema lex

refusing particu

as ambassadors.

"A State may reasonably refuse to receive one Reasons for of its own subjects as a foreign diplomatic agent, lar individuals especially if its constitution forbid the subject ever to put off his allegiance. One very good reason for refusing such a diplomatic agent is the expediency of avoiding the very difficult question which may arise from a possible conflict between his privileges as a foreign ambassador with his present and former obligations contracted as a subject, for it will be seen that a class of these privileges is founded upon the fact that the bearer of them is not a subject of the country in which he is residing as an ambassador. Bynkershoek is of opinion that no objection exists to the employment of a subject; but he builds his opinion on the proposition that there is no reason why a subject should not serve two masters, or rather be actively the subject of one and passively the subject of another. Yet Bynkershoek himself is obliged to qualify his proposition with the condition that the interests of the two masters do not come into conflict, or that, if they do, the ambassador take no part in them. In France, it has been for some time settled as a constitutional maxim that subjects are not admissible as ambassadors. An exception appears to have been formerly made in favour of the ambassador from Malta. The Swedish Law equally forbids the reception of a subject as a foreign ambassador. The old German Confederation refused upon special grounds to receive any Frankfurt Burgher as the representative of any member of the Confederation except of Frankfurt itself."

"As a State may exercise its right of refusal absolutely, it may also exercise it conditionally. A State may declare beforehand the terms under which it will consent to receive its own subject as a foreign diplomatic agent. But if the subject

be received without any such previously promulgated stipulation, he will be entitled to the full jus legationis."

"That the exile is in any case, though more especially if his return be forbidden by law, subject to the refusal of his own country, cannot be doubted; the only doubt is whether he can escape, by virtue of his ambassadorial character, punishment in the State which had exiled him, to which he has returned without permission and therefore with an additional offence. In 1697, the English ambassador to France obtained permission from the Government of that country to include among his suit certain Frenchmen and refugees on account of their religion, without which permission Bynkershoek thinks France might have claimed them "ut reversos exules." *

With regard to the question of refusing an ambassador on account of his political nationality, this distinguished author makes the following

remarks.

"The fact of the ambassador not being a native of the State which sent him would not alone afford a reasonable cause for refusal. The subject of a third country might be the domiciled citizen of the country which employed him as ambassador, and, even if he were not domiciled, no objection seems to lie against him, on the sole ground of his not being a native. The private rank or birth of the ambassador who is sufficiently ennabled by his Sovereign's choice can constitute no ground of refusal. The King of Spain employed Rubens as ambassador both to England and Holland (1633). A State, however, would for its own honour justly refuse a notoriously scandalous person, and less justly

IV

.

but lawfully, any person known to be personally disagreeable to the head of the State." *

The notification of the refusal to receive ought to be made, if possible, before the ambassador has left his own country, but it may be imparted openly on his arrival, or tacitly by not accepting his letters of credit. †

The same author further states, that the existence of a state of war between two Nations by no means relieves them from the necessity of receiving each other's ambassadors, not of course for the purpose of residence but of audience. It may be necessary to demand a passport or safe conduct, through the intervention of a third State or of a herald, and what it is necessary to demand may be refused; but the refusal cannot lawfully be grounded on the mere existence of a state of war, for the greater the evil, the more stringent is the obligation upon Nations to adopt the readiest means of putting an end to it, and especially those which are most likely to prevent or stay the shedding of blood. ‡

In answer to the third question, whether a State is bound to allow a resident ambassador (legationem assiduam) within its territories, Sir Robert Phillimore gives the following opinion. "We have now arrived at the discussion of the third question propounded, viz.--Is a State bound to allow a resident embassy within its territories? The continuous residence of an embassy is, to speak strictly, a matter of comity and not of strict right. Nevertheless, so long a custom and so universal a consent have incorporated this permis

Right of Negotiation and Treaty.

sion of continuous residence into the practice of Nations, that the gross discourtesy of refusing it would require unanswerable reasons for its justification, and would place the refusing in so unfriendly an attitude towards the refused State, as to be little removed from a condition of declared hostility. Grotius, indeed, says, optimo autem jure rejici possunt, quæ nunc in usu sunt legatiomes assiduæ, quibus quam non sit opus, docet nos antiquitas cui illæ ignoratæ; but it must be remembered that since this opinion was expressed, a usage of two additional centuries has imparted

a

character approaching to that of positive law upon this institution of resident embassies. Vattel therefore declares, that even in his time the custom was so deeply rooted as to require excellent reasons for its abrogation by any individual State." * (Comp. § 29).

§ 130. Treaties and conventions between Nations are the means by which international rights are created, modified or extended, by developing or regulating the natural moral obligations between the contracting parties. Whilst moulding these natural moral obligations into practical rules, international agreements impose upon the respective parties special lines of conduct, by specifying the particular supplementary obligations, through mutual agreement, to do or to omit to do or to suffer third parties to do or omit to do certain special acts by which parties calculate to arrive at a certain definite aim.

The constitution of every State determines the authority in which is vested the power to conclude treaties binding on the State as body-politic.