sides within the foreign state, shall be considered as a member of his own country, and the government he represents has exclusive cognizance of his conduct, and control of his person. The attendants of the ambassador attached to his person, and the effects in his use, are under his protection and privilege, and equally exempt from the foreign jurisdiction, though there are strong instances in which their inviolability has been denied and invaded. The distinction between ambassadors, ministers plenipotentiary, and envoys extraordinary, relates to diplomatic precedence and etiquette, and not to their essential powers and privileges.

A state may be divided and distracted by civil wars, so as to render it inexpedient to acknowledge the supremacy of either party. Bynkershoeck says, that this right of sending ambassadors belongs to the ruling party, in whom stet rei agendi potestas. This is placing the right where all foreign governments place it, in the government de facto, which is the actual exercise of power; but the government to whom the ambassador is sent, may exercise its discretion in receiving, or refusing to receive him.

It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act of his minister. This will depend upon the nature and terms of his authority. It is now the usual course for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of attorney, or credential of the minister, and it is not understood to confer a power upon the minister to bind his sovereign conclusively. To do so important an act would require a distinct and full power, containing an express authority to bind the principal definitely, without the right of review, or the necessity of ratification on his part. This is not the ordinary or prudent course of business. Ministers always act under instructions which are confidential, and which, it is admitted, they are not bound to disclose; and it is a well grounded custom, as Vattel observes, that any engagement which the minister shall enter into is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries. Kent's Commentaries.

34.

The Power to receive Ambassadors and Ministers is always an important, and sometimes a very delicate function; since it constitutes the only accredited medium, through which negotiations and friendly relations are ordinarily carried on with foreign powers. A government may in its discretion lawfully refuse to receive an ambassador, or other minister, without its affording any just cause of war. But it would generally be deemed an unfriendly act, and might provoke hostilities, unless accompanied by conciliatory explanations. A refusal is sometimes made on the ground of the bad character of the minister, or his former offensive conduct, or of the special subject of the embassy not being proper, or convenient for discussion.

This, however, is rarely done. But a much more delicate occasion is when a civil war breaks out in a nation, and two nations are formed, or two parties in the same nation, each claiming the sovereignty of the whole, and the contest remains as yet undecided, flagrante bello. In such a case a neutral nation may very properly withhold its recognition of the supremacy of either party, or of the existence of two independent nations; and on that account refuse to receive an ambassador from either. It is obvious, that in such cases the simple acknowledgement of the minister of either party, or nation, might be deemed taking part against the other; and thus as affording a strong countenance, or opposition, to rebellion and civil dismemberment. On this account, nations, placed in such a predicament, have not hesitated sometimes to declare war against neutrals, as interposing in the war; and have made them the victims of their vengeance, when they have been anxious to assume a neutral position. The exercise of this prerogative of acknowledging new nations, or ministers, is, therefore, under such circumstances, an executive function of great delicacy, which requires the utmost caution and deliberation. If the executive receives an ambassador, or other minister, as the representative of a new nation, or of a party in a civil war in an old nation, it is an acknowledgment of the sovereign authority de facto of such new nation, or party. If such recognition is made, it is conclusive upon the nation, unless indeed it can be reversed by an act of congress repudiating it. If, on the other hand, such recognition has been refused by the executive, it is said, that congress may, notwithstanding, solemnly acknowledge the sovereignty of the nation, or party. These, however, are propositions, which have hitherto remained, as abstract statements, under the constitution; and, therefore, can be propounded, not as absolutely true, but as still open to discussion, if they should ever arise in the course of our foreign diplomacy. The constitution has expressly invested the executive with power to receive ambassadors, and other ministers. It has not expressly invested congress with power, either to repudiate, or acknowledge them. At all events, in the case of a revolution, or dismemberment of a nation, the judiciary cannot take notice of any new government, or sovereignty, until it has been duly recognised by some other department of the government, to whom the power is constitutionally confided.

That a power, so extensive in its reach over our foreign relations, could not be properly conferred on any other, than the executive department, will admit of little doubt. That it should be exclusively confided to that department, without any participation of the senate in the functions, (that body being conjointly entrusted with the treaty-making power,) is not so obvious. Probably the circumstance, that in all foreign governments the power was exclusively confided to the executive department, and the utter

impracticability of keeping the senate constantly in session, and the suddenness of the emergencies, which might require the action of the government, conduced to the establishment of the authority in its present form. It [the power to receive public ministers] is not, indeed, a power likely to be abused; though it is pregnant with consequences, often involving the question of peace and war. And, in our own short experience, the revolutions in France, and the revolutions in South America, have already placed us in situations, to feel its critical character.

As incidents to the power to receive ambassadors and foreign ministers, the president is understood to possess the power to refuse them, and to dismiss those who, having been received, become obnoxious to censure, or unfit to be allowed the privilege by their improper conduct, or by political events. While, however, they are permitted to remain, as public functionaries, they are entitled to all the immunities and rights, which the law of nations has provided at once for their dignity, their independence, and their inviolability. Story's Commentaries.

35. Instructions. The instructions given by the sovereign to his minister, are intended to instruct him in the course of conduct which he is to observe, during the term of his mission, as well towards the court to which he is sent, the members of the diplomatic corps, &c. as relatively to the particular object of his mission. As these comprise, moreover, a collection of designs, views and motives, calculated to shew the spirit and drift of the cabinet, the following observations will not be deemed irrevalent:

The minister should require that his instructions be precise and detailed; he should not forget, that the more general they are, the more responsible he becomes for the consequences; and in order to avoid such a dilemma, he should scrupulously examine all the points, require an explanation of whatever he may find obscure or ambiguous, to alter any article he may judge hostile to the success of his negociation, to remove [or expunge] any article which might render his conduct suspicious or odious, and to cause to be inserted whatever might facilitate the negociation. He should, moreover, endeavor to foresee the different situations in which he may be placed, the different turns which the affairs with which he is charged may take: it is only by proposing his doubts in this manner, that he can fully inform himself, and fully supply what may have been overlooked, or have escaped the closest attention of those who have drawn up his instructions. He will find it also much his advantage to discuss, as we may say, with the Secretary of State, the matters with which he is charged, in order the better to become acquainted with their entire object and extent.

Independently of the first instructions received by the diplomatic agent on reaching his destination, the letters transmitted to him by his sovereign

or the minister for foreign affairs, during the term of his mission, should be regarded as new instructions, or the developement of the old ones.

The instructions are designed for the minister only, and consequently are not to be communicated, without an order from his court, or, unless from some particular motives, he believes himself authorised to communicate some points of them. It often happens also, that two sets of instructions are made out: one arranged for exhibition, in case of need, the other secret and for the sole use of the minister.

It results from the very nature of the instructions, that they ought to be of infinite diversity, according to the end and object of each mission. It would, therefore, be impossible to enumerate all the points which should enter into their composition. Martens' Manual.

S6. Send an able man, and let him act as he shall think fit. Wicquefort. 37. The instructions are a secret instrument, which the Ambassador is not obliged to communicate to the court where he negociates; nay, I dare affirm, that he ought not to produce it, without a necessity, and an express order. In the year 1560, Queen Elizabeth, sent into Scotland, Robert Bowes, with orders to make pressing instances to have the Duke of Lenox removed from the king's person, who was at that time very young. Those of the Council of Scotland said, that it was so severe and unjust a thing, that not being able to believe the Queen had given him any such orders, they desired to see them. Bowes said he would not shew them, and that all he could do, was to let the king, and two or three of his confidants, see them. The Scotch were not satisfied therewith. But the queen was so displeased at their procedure, that she recalled her ambassador, and refused to give audience to him they sent to justify their actions.

In the year 1643, Walter Strickland, minister from the parliament of London, presented a memorial to the states general, wherein he spoke of the prince of Orange with little respect. He was urged to shew his orders; but it was a kind of violence which could not well be justified. They that did it, either did not reflect on what they did, or else they were very willing to offend his master. We have seen within some years a minister, who having been sent by a powerful state to one of the first princes of Germany, began his negotiations, by laying his instructions on the table. But all that can be said of it is, that it was the action of a fool, in the utmost extent of the signification of that epithet. It is an unheard of thing, that a minister has been compelled to shew his orders, and they who force him to do it, offer violence to the law of nations.

The ambassador after he has presented his letters of credence, and had them approved, ought to enjoy the effect thereof, purely, and simply; and has no farther occasion to fortify, or authorise, his negotiation by producing

other instruments, unless he be invited, or that he himself desires to make a particular treaty, for which he must necessarily have a special power. ib. 38. The instructions given to the minister contain the master's secret mandate: the orders to which the minister must carefully conform, and which limit his powers. Vattel.

59. Personal Instructions to the Diplomatic Agents of the United States, in Foreign Countries:

The following Regulations and Instructions have been adopted by the Department of State, and are prescribed for the government of the Diplomatic Agents of the United States in Foreign Countries

40. Presentation. On receiving his instructions from the Department of State, the Diplomatic Agent will proceed, with as little delay as possible, unless otherwise expressly directed, and by such route and conveyance, as his own convenience, if not incompatable with the public interest, may suggest, to the seat of the Government to which he is accredited, where he will establish his residence, and where he will be put in possession of ⚫ the archives, papers, seals and books of the Legation, if a mission of the United States, shall have previously existed there. On his arrival he will inform the Minister of Foreign Affairs, or other official diplomatic organ of the Government, of that fact, and request to be informed of the time, manner and place, at which he may be admitted to present his Letter of Credence. If the Diplomatic Agent be of the rank of Minister Plenipotentiary, and bearer of a Letter of Credence addressed to the Chief of the Government, he will, on asking an audience for the purpose of delivering the original to him, in person, communicate to the Minister of Foreign Affairs the office copy of such Letter, with which he shall have been furnished for that purpose by this Department. In performing all the ceremonies connected with his official reception, he will conform to the established usage of the Country in which he is to reside, and with the rules prescribed for agents of his rank.

41. Uniform. From a proper degree of respect to what is understood to be the usage adopted by some Governments, requiring the members of the Diplomatic Body accredited near them, to wear a court dress upon certain occasions, such as their presentation to the Sovereign or chief executive officers. The President has thought proper to adopt the following, as the dress to be used by the Diplomatic Agents of the United States, upon all such occasions, being recommended as well by its comparative cheapness as by its adaptation to the simplicity of our institutions: viz:-A black coat, with a gold star on each side of the collar near its termination; the under clothes to be black or white, at the option of the wearer; a three-cornered chapeau de bras, with a black cockade and gold eagle; and a steel-mounted sword with a white scabbard. It is to be understood, however, that the use of this particu