. XX

These treaties, says Sir Robert Phillimore, furnish one of the many reasons why the science of International Law has made such progress since the treaty of Westphalia, which is usually considered as the first great adjustment of International relations on the Continent of Europe. It is, then, a sound maxim that a principle of International Law acquires additional force from having been solemnly acknowledged as such in the provisions of a public treaty. *

From 1640. Lisbon, 1856. 10. Russia Recueil des Traités," etc., published by order of the Minister of Foreign Affairs by F. Martens, in Russian and French. 11. Savoy, House of, from Peace of Château Cambresis in 1559. Turin, 1836-1861, 8 Vols. 4to. 12. Spain, “Tratados de Paz," etc., 1700-1843. Madrid, 1843. 13. United States of America. Treaties, etc., since 1776. Washington, 1871, with an appendix, 1873. "American Diplomatic Code," containing treaties of the United States between 1778 and 1834. Washington, 1834. The Seventh Volume of Public Statutes at Large of the United States of America edited by R. Peters, Boston 1848, contains in two parts, treaties with foreign States and Indian tribes (Vols. VII and VIII, new edit.). 14. Spanish and Portuguese States of America. Calvo. Rec. des Traités de tous les Etats de l'Amerique. Latine, from 1493 onward. In three parts: the first in II Vols., 800 to 1807; the second in 5 Vols., 1808-1819; the third to the present time, Paris.

* Sir ROBERT PHILLIMORE. Comm. Intern. Law. Vol. I. p. 53.

Ch.

CHAPTER XXI.

INTERNATIONAL AGENTS.

PUBLIC MINISTERS, THEIR RIGHTS and DUTIES.

§ 141. In Chapter XIX., we have given a sketch of the right of legation and embassy and the rights and duties incident to the sending and receiving of ministers, ambassadors or envoys (Gesandte.-§ 129). We must now proceed to treat of the status which international usages ascribe to those sent and received as agents for the management of international intercourse.

This status, says Sir Robert Phillimore, is composed of rights stricti juris, resting upon the basis of Natural Law and therefore immutable, and of privileges, originally not immutable, but so rational in their character, and so hallowed by usage, as to be universally presumed, and to become matter of strict right if their abrogation have not been formally promulgated (a case almost inconceivable) before the arrival of the ambassador. The former are usually described under the title of inviolability, the latter under the title of exterritoriality. * The right of sending embassies being established, the personal inviolability (inviolabilitas, inviolabilité, Unverletz

*VATTEL. I. IV. Chapt. V. § 55, ib. Chapt. VII. § 81, and § 103. Nous avons déduit l'indépendance et l'inviolabilité de l'ambassadeur des principes naturels et nécessaires du droit des gens ces prérogatives lui sont confirmées par l'usage et le consentment général des nations.

HEFFTER. § 204. "Ein so von selbst sich verstehendes Recht." § 205. "In der Natur der Sache ist nun ein mehreres nicht begründet," etc. KLUBER. § 203. "Den Gesandten räumt theils das natürliche Völkerrecht, theils das positive der europäischen Staaten, besondere Vorrechte ein."

IV

.

barkeit) of the ambassador follows as a necessary consequence. Every foreigner, indeed, is under the protection of the State in which he is commorant, and is so far inviolable. But this attribute is in a special manner ascribed to the representative of a foreign State, in whom the image of his sovereign and the majesty of his country are as it were visibly present; therefore the expression of sanctity (sanctitas, personne sacré, Heiligkeit) is often applied by jurists, philosophers and historians, of all ages and countries, as applicable to the bearers of an embassy. Any offence committed against their person is or ought to be considered by the State as an offence against the State itself (crime d'état)."

"The injury done to an ambassador is not merely an injury done to the sovereign and country which he represents, but a violation of the common welfare and general safety of all Nations. Therefore there is a peculiarity incident to this right, viz.: that an infringement of it, unlike the invasion of particular national interest, becomes immediately and directly a matter of general international concern, and entitles all Nations to demand and enforce atonement for the offence and punishment of the offender. The atonement and punishment, moreover, are to be measured by a standard different from that which might satisfy an injury done to a private subject."+

An ambassador, it will be seen, may, with, but not without, the consent of his master, waive his privilege of exemption from the local tribunals; but if wrong has been done, or an insult offered to him, he cannot appear as a common

* VATTEL. I. IV. Chapt. VII. § 81 and § 92.

"L'inviolabilité du

ministre public, ou la sureté qui lui est due, plus saintement et plus particulièrement qu'a tout autre étranger ou citoyen." MARTENS. §214. KLUBER. § 203.

MIRUSS. § 337.

, XXI

person demanding satisfaction in a Court of justice; he has a right to demand that the State in which he is residing prosecute the wrongdoer as a public criminal." "'*

"There is another peculiarity incident to this right which requires observation. The Civil Law of Rome expressed a sound principle of jurisprudence, in declaring that it was competent to a person to waive any advantage which had been introduced, for his sake only, into a covenant."

"The sovereigns, therefore, of the State may waive the rights due to them in person of their ambassadors, but the ambassadors themselves have no such liberty, because these rights are not incident to their office for their own private convenience, but for the honour of their sovereign, the good of their country, and the welfare of all Nations. These rights of inviolability, flowing from the Law of Nature and the reason of the thing, are applicable to all societies, and therefore unalterable by any individual member of the community of Nations. These rights have been acknowledged and respected since the dawn of civilization in all ages, and are not without vestiges of their recognition even among barbarous tribes."

Grotius, at the outset of his excellent chapter De legationum jure, observes that the sanctity of ambassadors, the sacred rights of embassies, the inviolability of treaties, are topics abounding in the works of writers of all ages. †

The status of inviolability which International Law ascribes to those who are delegated by their respective Governments to act as agents in international intercourse, extend to all classes of * VATTEL. I. IV. Ch. VIII. § 3.

† GROTIUS. Liv. 2. Chapt. 18. § 1. Sir ROBERT PHILLIMORE. Vol. II. p. 186.

public ministers who duly represent their sovereign or their State.

This right of inviolability attaches to all those who really and properly belong to the legation, i.e. those who accompany the minister as members of his family and his suite; the councellors (Conseillers de Legation, Gesandtschafts-räthe), secretaries and attachés of the embassy (Gesandtschaft) and all persons attached in any official capacity to the embassy or legation; besides the domestic servants belonging to the nationality of the minister and living within the precincts of his hotel or legation.

The inviolability extends to all that is necessary for the discharge of ambassadorial functions, the private effects of the minister and of every member of his legation aforementioned, and, above all, the papers, the archives and the correspondence of the minister and of the members of the embassy are inviolable. *

This right of inviolability, says Sir Robert Phillimore, attaches from the moment the minister sets foot in the country to which he is sent, if previous notice of his mission has been imparted to it or in any case as soon as he has made his public character officially known. It extends at least so far as the State to which he is accredited is concerned, over the time occupied by the minister in his arrival, his sojourn and his departure. Lastly, the right is not affected by the breaking out of war between his own country and that to which he is sent. †

* GROTIUS. Liv. II. Chapt. XVIII. § IX. KLUBER. $203. MIRUSS. $335. DE GARDEN. Traité complet de la Diplomatie. Vol. II. p. 86, et seq.

† GROTIUS. Liv. II. Chapt. XVIII. § VI. VATTEL. Liv. IV. Chapt. VII. § 83. MARTENS. Liv. VII. Chapt. V. § 214. HEFFTER. §§ 204-210. KLUBER. § 203. MIRUSS. §§ 335 & 336. Sir RoBERT PHILLIMORE, Vol. II. p. 199, et seq.