which, however, he was shortly afterwards liberated, chiefly, according to Bynkershoek, because the States General were very anxious at that particular period to be on good terms with England (q).

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.

CXXXVII. The private rank or birth of the ambassador, who is sufficiently ennobled 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, but lawfully, any person known to be personally disagreeable to the head of the State (r).

How far the religion of the ambassador can be considered an objection, will be presently discussed (s). It is only necessary to state here that no State is bound to receive a Papal Legate or Nuncio, armed, either by specific instructions or by the general Canon Law, with powers injurious to the Established Church or to the sovereignty of the State over all causes, ecclesiastical as well as civil.

(9) Q. J. P. l. ii. c. v.

Merlin, ib. iv.

(r) Wicquefort, i. s. 13. L'Ambassadeur doit estre agréable. "Le mesme droit de gens qui ne permet pas qu'on fasse violence ou outrage au ministre qui a esté admis et reconnu, permet aux princes de ne point admettre un ministre dont ils puissent recevoir du déplaisir." Wicquefort gives a catalogue of ambassadors refused on this ground. The Duke of Buckingham, employed by Charles I., might well have been rejected both by Spain and France on account of the insolence and arrogance of his conduct. (s) Vide post, RELIGION AND THE STATE.

Heffters, s. 200, n. 4.

Miruss, s. 94.

States have a right to refuse the reception of such a minister, or to demand that these powers be limited and defined, so as to be consistent with their safety, before the bearer of them be admitted.

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 the letters of credit (t).

It

CXXXVIII. 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 (u), and especially those which are most likely to prevent or stay the shedding of blood.

CXXXIX. We have now arrived at the discussion of the third question propounded, viz. :- Is a State bound to allow a resident embassy (legationem assiduam) within its territories?

The continuous residence of an embassy is, to speak strictly, a matter of comity and not of strict right (x).

(t) Miruss, s. 82.

(u) Vattel, 1. iv. c. v. s. 67: Comment on doit admettre les minis'res d'un ennemi.

(x) Wheaton, El. 2, 261, 262.

Merlin, ib. s. 3.

Heffters, s. 200.

Ward, vol. ii. p. 484.

Lord Coke, speaking of Henry VII., says, "that wise and politique king would not in all his time suffer Lieger (i.e. resident) ambassadours of any foreign king or prince within his realm, nor he with them; but upon occasion used ambassadours."-4 Inst. 155.

Charles I. expressed resentment against the Dutch for not sending a resident embassy to England.-Wicq. Mém. touch. les Ambassadeurs, 25. In 1660, a noble member of the Polish Diet complained of the continued

Nevertheless, so long a custom and so universal a consent have incorporated this permission 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.

66

Grotius, indeed, says, " Optimo autem jure rejici possunt, quæ nunc in usu sunt legationes assiduæ, quibus quam non "sit opus (y), docet nos antiquitas cui illæ ignoratæ ” (z); but it must be remembered that since this opinion was expressed, a usage of two additional centuries has imparted, according to the principles laid down in an earlier chapter (a) of this work, a character approaching to that of positive. law upon this institution of resident embassies.

Vattel (b) therefore declares, that even in his time the

residence of the French ambassador, "que le séjour de l'ambassadeur estoit suspect, parceque les ambassadeurs ont accoustumés de se retirer dès que leur négociation est achevée."

In 1668, an attempt was made by various members of the Diet to send away all ambassadors; it was resisted by the king and senate, but is said to have been one of the chief causes of the dissolution of the Polish Diet.Wicquefort, 1. viii.

(y) The Justinian law was unquestionably adverse to the notion of a resident ambassador. It had no idea of protecting foreign commerce, "perniciosum urbibus mercimonium" (Cod. 1. iv. t. 63, s. 3.), which it forbad nobles to exercise, and which it conceived might lead to a revelation of the secrets of imperial policy. The Code contains a very curious law, beginning: "Mercatores tam imperio nostro quam Persarum regi subjectos, ultra ea loca, in quibus fœderis tempore cum memorata natione nobis convenit, nundinas exercere minime oportet: ne alieni regni (quod non convenit) scrutentur arcana," &c.-Ib. s. 4.

(z) L. ii. c. xviii. s. 3, 2.

(a) Vide ante, vol. i. chap. v. p. 41.

(b) Vattel, 1. iv. c. v. s. 66. Des Ministres résidents. "La coutume d'entretenir partout des ministres continuellement résidents, est aujourd'hui si bien établie, qu'il faut alléguer de très-bonnes raisons pour refuser de s'y prêter sans offenser personne."

Miruss, s. 82.

"Hodie tamen ita usurpantur ut sine illis amicitia vix stabilis inter

custom was so deeply rooted as to require excellent reasons for its abrogation by any individual State.

populos diversos coli videatur etsi nec minus usum habeat exploratorum." -Huberus de Jure Civili, 1. iii. c. xii.

The whole question is well summed up: "Se deben recibir los ministros de un soberano amigo: y dunque no estamos extrictamente obligados á tolerar su residencia perpétua, esta prática se ha hecho tan general en nuestros dias que no pudiéramos separarnos de ella sin muy graves motivos."-Pando, tit. cuarto, ccxxix.

CHAPTER IV.

EMBASSY-GENERAL STATUS.

CXL. WE have now considered the Rights and the Duties incident to the sending and receiving of embassies. The next subject for discussion is the Status which International Law ascribes to those who are so sent, and to those who are so received.

This status 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 (a). It is with the former that we are at present concerned (b).

CXLI. The right of sending embassies being estab

(a) The necessity of the case, the usage of foreign writers, the great convenience of the term, will, it is hoped, justify the attempt to naturalise this word.

(b) Vattel, 1. iv.c. v. s. 55, ib. c. vii. s. 81, and s. 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 consentement général des nations."

Heffters, s. 204: "ein so von selbst sich verstehendes Recht." S. 205. "In der Natur der Sache ist nun ein Mehreres nicht begründet ab."

u. S. W.

Klüber, s. 203: "Den Gesandten räumt theils das natürliche Völkerrecht, theils das positive der Europäischen Staaten besondere Vorrechte ein."

u. S. W.