§ 23. Termina

The mission of a foreign minister resident at a foreign court, or at a congress of ambassadors, may terminate during public mis- his life in one of the seven following manners:—

tion of

sion.

1. By the expiration of the period fixed for the duration of the mission; or, where the minister is constituted ad interim only, by the return of the ordinary minister to his post. In either of these cases, a formal recall is unnecessary.

2. When the object of the mission is fulfilled, as in the case of embassies of mere ceremony; or where the mission is special, and the object of the negotiation is attained or has failed.

3. By the recall of the minister.

4. By the decease or abdication of his own sovereign, or the sovereign to whom he is accredited. In either of these cases, it is necessary that his letters of credence should be renewed; which, in the former instance, is sometimes done in the letter of notification written by the successor of the deceased sovereign to the prince at whose court the minister resides. In the latter case, he is provided with new letters of credence; but where there is reason to believe that the mission will be suspended for a short time only, a negotiation already commenced may be continued with the same minister confidentially sub spe rati.

5. When the minister, on account of any violation of the law of nations, or any important incident in the course of his negotiation, assumes himself the responsibility of declaring his mission terminated.

6. When, on account of the minister's misconduct, or the measures of his government, the court at which he resides thinks fit to send him away without waiting for his recall.

7. By a change in the diplomatic rank of the minister. When, by any of the circumstances above-mentioned, the minister is suspended from his functions, and in whatever manner his mission is terminated, he still remains entitled to all the privileges of his public character until his return to his own country.38

38 Martens, Manuel Diplomatique, ch. 7, § 59; ch. 2, § 15. Précis, &c. liv. vii. ch. 9, § 239. Vattel, liv. iy. ch. 9, § 126.

A formal letter of recall must be sent to the minister by his government: 1. Where the object of his mission has been accomplished, or has failed. 2. Where he is recalled from motives which do not affect the friendly relations of the two governments. 3. On account of a misunderstanding between the two governments, or their ministers; as where the court at which the minister resides has demanded his recall, or the government from which he is sent considers its rights to have been violated, or determines to make use of reprisals.

In the two first cases, nearly the same formalities are observed as on the arrival of the minister. He delivers a copy of his letter of recall to the minister of foreign affairs, and asks an audience of the sovereign for the purpose of taking leave. At this audience the minister delivers the original of his letter of recall to the sovereign, with a complimentary address adapted to the occasion.

If the minister is recalled on account of a misunderstanding between the two governments, the peculiar circumstances of the case must determine whether a formal letter of recall is to be sent to him, or whether he may quit the residence without waiting for it; whether the minister is to demand, and whether the sovereign is to grant him an audience of leave.

Where the diplomatic rank of the minister is raised or lowered, as where an envoy becomes an ambassador, or an ambassador has fulfilled his functions as such, and is to remain as a minister of the second or third class, he presents his letter of recall, and a letter of credence in his new character.

Where the mission is terminated by the death of the minister, his body is to be decently interred, or it may be sent home for interment; but the external religious ceremonies to be observed on this occasion depend upon the laws and usages of the place. The secretary of legation, or if there be no secretary, the minister of some allied power, is to place the seals upon his effects, and the local authorities have no right to interfere, unless in case of necessity. All questions respecting the succession ab intestato to the minister's moveable

§ 24. Letter of

recall.

property, or the validity of his testament, are to be determined by the laws of his own country. His effects may be removed from the country where he resided without the payment of any droit d'aubaine or detraction.

Although in strictness the personal privileges of the minister expire with the termination of his mission by death, the custom of nations entitles the widow and family of the deceased minister, together with their domestics, to a continuance for a limited period of the same immunities which they enjoyed during his lifetime.

It is the usage of certain courts to give presents to foreign ministers on their recall, and on other special occasions. Some governments prohibit their ministers from receiving such presents. Such was formerly the rule observed by the Venetian republic, and such is now the law of the United States of America.39

39 Martens, Précis, &c. liv. vii. ch. 10, §§ 240-245. Manuel Diplomatique, ch. 7, §§ 60-65.

CHAPTER II.

RIGHTS OF NEGOTIATION AND TREATIES.

THE power of negotiating and contracting public treaties § 1. between nation and nation exists in full vigour in every so- contractFaculty of vereign state which has not parted with this portion of its ing by sovereignty, or agreed to modify its exercise by compact limited or with other states.

Semi-sovereign or dependent states have, in general, only a limited faculty of contracting in this manner; and even sovereign and independent states may restrain or modify this faculty by treaties of alliance or confederation with others. Thus the several states of the North American Union are expressly prohibited from entering into any treaty with foreign powers, or with each other, without the consent of the congress; whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce not inconsistent with the fundamental laws of the confederation.1

The constitution or fundamental law of every particular state must determine in whom is vested the power of negotiating and contracting treaties with foreign powers. In absolute, and even in constitutional monarchies, it is usually vested in the reigning sovereign. In republics, the chief magistrate, senate, or executive council is intrusted with the exercise of this sovereign power.

treaty, how

modified.

§ 2.

Cartels,

truces, and

There are certain compacts between nations which are concluded, not in virtue of any special authority, but in the exercise of a general implied power confided to certain public capitulaagents as incidental to their official stations. Such are the

See pt. i. ch. 2, §§ 9-14.

tions.

§3. Sponsions.

$4.

and ratifi

official acts of generals and admirals, suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the state, unless such a ratification be expressly reserved in the act itself.2

Such acts or engagements, when made without authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions. These conventions must be confirmed by express or tacit ratification. The former is given in positive terms, and with the usual forms; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient to infer a ratification by either party, though good faith requires that the party refusing it should notify its determination to the other party, in order to prevent the latter from carrying its own part of the agreement into effect. If, however, it has been totally or partially executed by either party, acting in good faith upon the supposition that the agent was duly authorized, the party thus acting is entitled to be indemnified or replaced in his former situation.3

:

As to other public treaties in order to enable a public Full power minister or other diplomatic agent to conclude and sign a cation. treaty with the government to which he is accredited, he must be furnished with a full power. Treaties and conventions thus negotiated and signed are, by the law of nature, binding upon the state in whose name they are concluded, in the same manner as any other contract made by a duly

2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, §§ 6—8. Vattel, Droit des Gens, liv. ii, ch. 14, § 207.

8 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 16; lib. iii. cap. 22, §§ 1 3. Vattel, Droit des Gens, liv. ii. ch. 14, §§ 209-212. Rutherforth's Inst. b. ii. ch. 9, § 21.