Conditional reception What department some countries it is a State maxim that a subject is not to be received in such a capacity. An English subject may not act as a diplomatic agent in England.' And such was the rule in the French 2 and Swedish 3 Courts and in the United Provinces. But in recent times two French subjects have been accredited to, and received by, the French Court as the representative ministers of foreign Powers-Count Pozzo di Borgo as minister of Russia, and the Count de Bray as minister of Bavaria. They appear to have been naturalised in the countries which they represented. But when a diplomatic agent is once received, he is entitled to all the privileges, immunities, and honours annexed by the law of nations to his public character, except where modified by special conditions attached to his reception.5 § 5. We have just stated that some Governments have established, as a fundamental rule in their diplomatic intercourse with other States, that they will not receive one of their own native subjects as a minister from a foreign Power; others again refuse to receive one of their own subjects in any diplomatic capacity, except on condition that he shall be amenable to the local laws and local jurisdiction. Where the reception is refused, it is proper that the motives or grounds of the refusal be alleged; and where conditions are annexed, they must be expressed before or at the time of the reception, for, otherwise, the agent is entitled to claim the full rights and honours annexed to the office which he fills. There are no tacit or implied conditions in such receptions which can modify or limit the public character in which he is received, and with which he was accredited by the sovereign State which sent him.6 § 6. The question, with respect to what department of the may send government belongs the right of sending and receiving diplomatic agents, depends upon the municipal constitution of the State. In monarchical governments, this prerogative usually resides in the sovereign; in republics, it is generally vested in and receive 1 Case of Dr. Stewart, House of Commons, June 2, 1871. 2 De Caillères, Traité de la Manière de négocier avec les Souverains, ch. vi. p. 72. 3 Codex Legum Suecia, tit. ' De Crimin.,' § 7. 4 Twiss, Law of Nations, ch. ii. p. 276. 5 Bynkershoek, De Foro Legat., cap. xi. § 10; Moser, Versuch., b. iii. p. 89; Wildman, Int. Law, vol. i. pp. 83 et seq. Garden, De la Diplomatie, liv. v. § 2. the chief executive, or in the president and his council, or the senate, conjointly. In the United States of America, the President alone receives a foreign minister, and the appointment of a minister to a foreign court is made by the President, with the advice and consent of the Senate. In monarchical countries there is also a distinction sometimes made in the rank of the representatives of a foreign State, with respect to the department of government which is to receive them, those of the highest rank being received by the sovereign, and those of a lower grade by the secretary, or minister of foreign affairs. But this subject will be more particularly discussed in another place. Indeed, § 7. Many publicists have written at considerable length Art of on the art of diplomacy, and some seem to have based their diplomacy remarks on the idea that a peculiar tact, finesse, or talent for deception, not required, or even allowed, in other professions, was absolutely necessary to successful negotiation. in the diplomacy of the middle ages, it was proclaimed, as a maxim of the art, that 'dissimulation must be met by dissimulation, and falsehood by falsehood,' and, at even later periods, and in the most refined courts of Europe, bribery, gallantry, and intrigue were regarded as the most effective arguments in the discussion of diplomatic questions. But such disreputable means of negotiation are now seldom resorted to, and the most able diplomatists of the present age are men as much distinguished for their exalted personal character and unimpeachable integrity, as for their talents and learning. While a knowledge of the rules of diplomacy, and of the laws regulating the international rights and duties of States, is absolutely indispensable in a public minister, it may be remarked, that good manners and good temper seem peculiarly necessary in an officer so intimately connected with the etiquette of polite society and ceremonies of courts.' right may § 8. The right of a State to negotiate and contract public Exercise treaties with other nations is, like the right of legation, a of the necessary incident to its sovereignty. This power exists in be refull vigour in every State which has not parted with this by treaty portion of its natural sovereignty, or has not agreed to modify 1 Flassan, De la Diplomatie, tom. i. pp. 235, 246, 247; Machiavelli, Il Principe, Discorso 2; Mably, Droit des Gens, tom. i. pp. 15 et seq. VOL. I. T stricted By in powreful neighbours its exercise by some compact with other States. Sovereign and independent States are sometimes restricted in their power to make new treaties by the conditions of alliances already formed with others. Such limitation affects the exercise of the power of negotiating treaties, but is not regarded as a modification of the power itself. But if, by alliance or otherwise, a State has parted with its general power to negotiate treaties and to contract obligations, it can no longer be regarded as completely sovereign and independent. It has lost one of the essential attributes of sovereignty.' § 9. Martens admits that, in theory, every sovereign State fluence of has a right to form, with other Powers, whatever treaties may appear to be conducive to its interests, provided such treaties do not violate the equal rights of others; but, he adds, the general practice of Europe has been very different, many of the smaller States, nominally sovereign and independent, being forced, against their will, to accede to treaties in the formation of which they were not even consulted. He gives a number of examples to prove the truth of his statement. There are, no doubt, numerous instances in the history of Europe where the well-established principles of international law have been violated, and many States, nominally sovereign and independent, are really mere dependencies of their more powerful neighbours. But these exceptions are rather instances of an abuse of power. It should not, however, be forgotten that minor States, by accepting, as a matter of course, the arrangements made by the Great Powers of Europe, tacitly recognise that those Powers occupy a primacy, and superintending authority, over them." 1 Vide ante, ch. iii. 2 Martens, Précis du Droit des Gens, § 119; Pinheiro-Ferreira, Notes sur Martens, No. 63; Martens, Recueil des Traités, tom. v. p. 222. The question has often been raised whether a Christian State can enter into a valid treaty with an Infidel nation. Grotius says that, according to the law of nature, there can be no doubt of the validity of such treaty (lib. ii. c. xv. 8). A pirate is not an enemy in the true sense of the word, although he is termed hostis humani generis. Some pirates have reduced themselves into a government or State, as did those of Tunis, Tripoli, and Algiers. They acknowledged the supremacy of the Porte, but that Government had little or no control over them. When Louis IX. of France attempted to destroy these pirates, he summoned a council of war to determine whether it was fit that the then solemn ceremonies of declaring war should be lavished on a company of thieves and pirates. The answer was unanimously in the negative (Fuller, Holy War, lib. iv. ch. xxvii.). Yet because these pirates acknowledged the supremacy with § 10. The right of semi-sovereign and dependent States to Treaties contract, by treaty, is, like their right of legation, to be deter- dependent mined by the nature of their connection with, or dependence States on, others. We have already shown that a colony, or ordinary dependency, is a part of a State, but cannot itself be regarded as a distinct political organisation, possessing the essential attributes of a State; that the mere fact of dependence, or of feudal vassalage and the payment of tribute, or of occasional obedience, or of habitual influence, does not destroy, although it may greatly impair, the sovereignty of the States so situated. We have also shown the effects of a protectorate, of a confederation, and of a union, upon the sovereignty of the protected, confederated, and united States. The powers of such States to contract, by treaty, will necessarily depend upon the character of the relations thus formed with others. Thus, the sovereign members of the former Germanic Confederation could each make treaties of alliance and commerce, not inconsistent with the fundamental laws of the Confederation; in the former Swiss Confederation, of 1815, the Diet, consisting of one deputy from each of the twentytwo cantons, had the exclusive power of concluding treaties of peace, alliance and commerce with foreign Powers. Again, the several States, constituting the United States of America, are expressly prohibited by the Federal constitution from entering into any treaty, agreement, or compact with foreign Powers, without the consent of the Federal congress. A foreign Power, treating with a semi-sovereign, dependent, or confederated State, is bound to know how far such State is capable of contracting obligations by treaty. If it contract with a State incapable of entering into such engagements, the treaty is necessarily invalid.' of the Porte and had become a sort of State, some contended that they should receive a notification of war. In the reign of Charles II., if not earlier, they obtained the right of legation, for a formal peace was concluded between Sir John Lawson in the name of his Majesty and 'the most excellent signiors Mahomet Bashaw, the Divan of the noble city of Tunis, Hagge Mustapha Dei, Morat Bei, and the rest of the soldiers in the kingdom of Tunis,' October 5, 1662. This was confirmed by the Porte 'the last day of the Moon Delcadi and the year of Hegira, 1085.' Similar articles were concluded with Tripoli and Algiers, and confirmed in like manner. 1 Pando, Derecho Internacional, pt. iii. cap. i. §2; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xv. ; Wheaton, Elem. Int. Law, pt. iii. ch. ii. § 1; Vattel, Droit des Gens, liv. ii. ch. xii. § 55; Constitution of the Treatymaking power Treaties must in general be ratified Exception in cases of truces, &c. § 11. The treaty-making power of a State is determined by its own constitution, or fundamental law. In monarchical governments it is usually vested in the reigning sovereign, sometimes, however, subject to restrictions. In republics it is usually vested in the chief executive, either alone or conjointly with a council or senate. By the constitution of the United States of America, the President has power, by and with the advice and consent of the senate, to make treaties, provided that two-thirds of the senators present concur. This power is general, and, of course, embraces all sorts of treaties, for peace or war. The President has, therefore, no power to terminate a war by a treaty of peace, without the concurrence of two-thirds of the senators present. This, however, does not prevent his entering into a truce with any enemy for the suspension of hostilities. That power results from his office as commander-in-chief of the army and navy of the United States. Military conventions, as shown hereafter, form a part of the commercia belli, and do not require the treatymaking power of the State, either for their negotiation or ratification. § 12. The question how far, under the positive law of nations, ratification by the State in whose name the treaty is made, by its duly authorised minister or diplomatic agent, furnished with full power, is essential to the validity of the treaty, was at one time the subject of much doubt and discussion. But it is now the settled usage to require such ratification,' even where this pre-requisite is not reserved by the express terms of the treaty itself. The municipal constitution of the State determines in whom the power of ratification resides. By the constitution of the United States of America, treaties are negotiated and concluded under the authority of the president, but the advice and consent of the Senate is essential to enable him to pledge the national faith, by making a treaty the supreme law of the land." § 13. There are, however, certain compacts or conventions relating to the pacific intercourse of belligerent nations United States, art. i. sect. 10; Story, Com. on the Constitution, §§ 1347 et seq. See on this subject, which cannot be reduced to a few words, Hansard's Debates, July 24, 1853, Treaty between Austria and the Porte'; ibid., May 22, 1871, Treaty with the United States.' Kluber, Droit des Gens Mod., § 48. |