The right of sending an ambas

that of receiving.

29

rebellious subjects are not entitled to the jus legationis in their communications with their sovereign; the foundation of right is wanting. Nevertheless, when rebellion has grown, from the numbers who partake in it, the duration of it, the severity of the struggle, and other causes, into the terrible magnitude of a civil war, the emissaries of both parties have been considered entitled to the privilege of ambassadors, so far as their personal safety is concerned. In hoc eventu.' Grotius says, 'gens una pro tempore quasi dua gentes habetur.'* Peace and order, under these circumstances, can only be restored, the shedding of blood can only be stayed, through the medium of negotiation: negotiation must be carried on through negotiators, and negotiators cannot act unless their personal security be guaranteed. So far as the State itself, in which the rebellion has broken out, is concerned, it must always be a question of circumstances, and incapable of definition beforehand, when the citizen is to be considered as entitled to the privilege of an enemy rather than the punishment of a rebel."

"States which have the right to send, have the sador inrolres right to receive (droit passif, passives Gesandtschaftsrecht). The active and the passive right of legation are inseparably connected, and, as will be scen, the rule extends generally to the sending and reception of the same grade of diplomatic agents. It is said by Klüber and Miruss that dependent. States have not necessarily the latter, because they have the former right. But it does not appear on what principle this position is to be maintained, and no authority is cited in support of it. On the other hand, Vattel, Martens, Wheaton and other writers do not qualify the general principle which has been laid down.

* GROTIUS. L. II. B. 18, 2.

Perhaps, however, where the right to send is exclusively derived from treaty, (as in the now obsolete cases of Moldavia and Wallachia), the right of reception, not being mentioned in the instrument, cannot be inferred as a matter of necessary implication. But, as a general proposition, the right of sending and receiving embassies is inherent in all States; and it therefore follows that to prevent the free exercise, in either way, of this right, would constitute a very heinous violation of International Law, a crime, which, inasmuch as it affected the interests, would justify the interference of all Nations on behalf of the one which had been so injured. A State has a right to receive, as it has to send, an embassy; but a State is not under an obligation of duty to send or to receive an embassy.'

Upon the consideration of this last point, Questions with

three questions arise, viz.:

regard to the obligation of sending and receiving an

1. Is a State bound, as a general proposition, ambassador.

to receive an ambassador at all?

2. Is it bound to receive any ambassador duly commissioned?

3. Is it bound to allow a resident embassy within its territories (legationem assiduam)?

"With respect to the first question, the sound opinion appears to be that a State is bound to give audience to an ambassador, and, except under most extraordinary circumstances, to receive him for that purpose within its territories and at its Court. If, however, such circumstances do exist, some place must be specified-Vattel suggests the frontier-at which the ambassador's message must be received. A State may be aware that an ambassador is sent for a mischievous purpose, or, it may be, from a third Nation for a purpose conceived to be inexpedient by the refusing State.

Ambassadresses.

, XIX

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 minusre sint fuerintue frequentate, jus principis non tollit, ejus igitur voluntas, etiam in hac causa, suprema lex

est.

* BYNKERSHOEK. De Foro Leg. Chapt. XI. Quest. Jur. Pub. L. II. Chapt. V. The Questiones Juris Publici were published after the treatise De Foro Legatorum."

. XIX

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

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129

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

*PHILLIMORE. Vol. II. p. 176, et seq.