Charles V. refused satisfaction, in declaring war against him. "If an innocent passage, with complete security, is due to a private individual, with still more reason is it due to the public minister of a sovereign, who is executing the orders of his master, and travelling on the business of his nation. I say an innocent passage; for if the journey of the minister is liable to just suspicion, as to its motives and objects; if the sovereign, through whose territories he is about to pass, has reason to apprehend that he may abuse the liberty of entering them for sinister purposes, he may refuse the passage. But he cannot maltreat him, or suffer others to maltreat him. If he has not sufficient reasons for refusing the passage, he may take such precautions as are necessary to prevent the privilege being abused by the minister." 1

He afterwards limits this right of passage to the ambassadors of sovereigns, with whom the State through which the attempt to pass is, at the time, in the relations of peace and amity; and adduces, in support of this limitation of the right, the case of Marshal Belle-Isle, French ambassador at the Prussian court, in 1744, (France and Great Britain being then at war,) who, in attempting to pass through Hanover, was arrested and carried off a prisoner to England.2

Bynkershoek maintains that ambassadors, passing through the territories of another State than that to which they are accredited, are amenable to the local jurisdiction, both civil and criminal, in the same manner with other aliens, who owe a temporary allegiance to the State. He interprets the edict of the States-General, of 1679, exempting from arrest "the persons, domestics, and effects of ambassadors, hier te lande komende, residerende of passerende," as extending only to those public ministers actually accredited to their High Mightinesses. He considers the last-mentioned term passerende as referring not to those who, coming from abroad, merely pass through the territories of the State in order to proceed to another country, but to those only who are about to leave the State where they have been resident as ministers accredited to its government.3

Vattel, Droit des Gens, liv. iv. ch. 7, §§ 84, 85.

2 Ch. de Martens, Causes Célébres du Droit des Gens, tome i. p. 310.

3 Bynkershoek, de For. Legat. cap. ix. Wheaton, Hist. Law of Nations, p. 243.

"The

This appears to Merlin to be a forced interpretation. word passer in French, and passerende in Dutch," says he, "was never used to designate a person returning from a given place; but is applicable to one who, having arrived at that place, does not stop there, but proceeds on to another. We must, therefore, conclude that the law in question attributes to ambassadors who merely pass through the United Provinces the same independence with those who are there resident. If it be objected, as Bynkershoek does object, that the States-General (that is, the authors of this very law) caused to be arrested, in 1717, the Baron de Gortz, ambassador of Sweden at the court of London, at the request of George I., against the security of whose crown he had been plotting, the answer to this example is furnished by Bynkershoek himself. The only reason,' says he, 'alleged by the States-General for this proceeding was, that this ambassador had not presented to them his letters of credence.' This reason, (continues Merlin,) is not the less conclusive for being the only one alleged by the States-General. When it is said that an ambassador is entitled, in the territories through which he merely passes, to the independence belonging to his public character, it must be understood with this qualification, that he travels as an ambassador; that is to say, after having caused himself to be announced as such, and having obtained permission to pass in that character. This permission places the sovereign, by whom it has been granted, under the same obligation as if the public minister had been accredited to and received by him. Without this permission, the ambassador must be considered as an ordinary traveller, and there is nothing to prevent his being arrested for the same causes which would justify the arrest of a private individual." 1

To these observations of the learned and accurate Merlin it may be added, that the inviolability of a public minister in this case depends upon the same principle with that of his sovereign, coming into the territory of a friendly State by the permission, express or implied, of the local government. Both are equally entitled to the protection of that government, against every act of violence and every species of restraint, inconsistent with their

1 Merlin, Répertoire, tit. Ministre Publique, sect. v. 3, Nos. 4, 12.

sacred character. We have used the term permission, express or implied; because a public minister accredited to one country who enters the territory of another, making known his official character in the usual manner, is as much entitled to avail himself of the permission which is implied from the absence of any prohibition, as would be the sovereign himself in a similar case.1

§ 21. Free

gious wor

A minister resident in a foreign country is entitled to dom of reli- the privilege of religious worship in his own private ship. chapel, according to the peculiar forms of his national faith, although it may not be generally tolerated by the laws of the State where he resides. Ever since the epoch of the Reformation, this privilege has been secured, by convention or usage, between the Catholic and Protestant nations of Europe. It is also enjoyed by the public ministers and consuls from the Christian powers in Turkey and the Barbary States. The increasing spirit of religious freedom and liberality has gradually extended this privilege to the establishment, in most countries, of public chapels, attached to the different foreign embassies, in which not only foreigners of the same nation, but even natives of the country of the same religion, are allowed the free exercise of their peculiar worship. This does not, in general, extend to public processions, the use of bells, or other external rites celebrated beyond the walls of the chapel.2

§ 22. Consuls not entitled to

Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their the peculiar official duties, and whatever special privileges may be privileges of public conferred upon them by the local laws and usages, or ministers. by international compact, they are not entitled, by the general law of nations, to the peculiar immunities of ambassadors. No State is bound to permit the residence of foreign consuls, unless it has stipulated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur, which is granted them, withdrawn, and may be

1 Vide supra, Pt. II. ch. 2, § 9, p. 143.

2 Vattel, liv. iv. ch. 7, § 104. Martens, Précis, &c., liv. vii. ch. 6, §§ 222–226. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. ii. ch. 3, §§ 215, 216.

punished by the laws of the State where they reside, or sent back to their own country, at the discretion of the government which they have offended. In civil and criminal cases they are

subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the State.1 (a)

1 Wicquefort, de l'Ambassadeur, liv. i. § 5. Bynkershoek, cap. 10. Martens, Précis, &c., liv. iv. ch. 3, § 148. Kent's Comment. on American Law, vol. i. pp. 43-45, 5th edit. Fœlix, Droit International Privé, § 191.

(a) [Vide supra, Pt. II. c. 2, § 11, p. 167, note, also the Treaty of the United States with Borneo, concluded at Bruni, 23d June, 1850, and promulgated by the President, the 12th of July, 1854; which extends the judicial power of the American consuls, beyond the concessions heretofore made to us, in any of our treaties with the nations of the East. By it our consuls have exclusive jurisdiction, without any interference, molestation, or hindrance, on the part of any of the authorities of Borneo, in all cases where American citizens are accused of crime, and in all cases where disputes or differences may arise between American citizens or between American citizens and the subjects of the Sultan of Borneo, or between American citizens and the citizens or subjects of any other foreign power in the dominions of Borneo. Treaties of the United States, 1853-4, p. 90.

The following opinion of the Attorney-General, Mr. Cushing, which has been transmitted with the sanction of the Department of State to the consuls of the United States, though it, also, touches points discussed, under other heads, in this treatise, is inserted in this place, as elucidating the status of consuls under the law of nations. It was prepared in answer to a communication from the Secretary of State, which states that it is the practice, to some extent, of the consuls of the United States abroad to marry parties, either citizens of the United States or not, and this without observance of the laws of the particular place regarding marriage, — and suggests the inquiry whether such marriages are valid in the United States, either as to the personal status of the parties themselves and their issue, or as to any of the rights of property depending on the matrimonial relation.

"This inquiry belongs to international law private, as distinguished from international law public; that is to say, it regards, not the relations of nations among themselves, but the relations of individuals to the laws, civil or criminal, of different nations. Felix, Dr. Int. Privé, tit. prél.

"The different States of Christendom are combined, by religious faith, by civilization, by science and art, by conventions, and by usages or ideas of right having the moral force of law, into a community of nations, each politically sovereign and independent of the other, but all admitting much interchange of legal rights or duties. Vattel, Droit des Gens, Prél. s. 11; Wheaton's Elements, p. 40, 3d ed.; Garden, Code Dip. de l'Europe, tom. i. int. p. 3.

"As between themselves, the general rule of public law is that each independent State is sovereign in itself, and has more or less complete jurisdiction of all persons being, matters happening, contracts made, or acts done, within its own

§ 23. Terinination of

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

sion.

territory. Klüber, Droit des Gens, s. 21 and passim; Story's Conflict of Laws, ch. 2.

"I say, more or less complete; because, although each nation possesses its territory as its own, and exercises jurisdiction within itself, not only as to persons, whether subjects or foreigners, their acts and their property therein, and in general neither claims itself, nor concedes to others, external jurisdiction; yet each yields to the other certain reciprocal rights within itself, which are sometimes denominated by the civil law term of servitudes of the public law or law of nations. Martens, Précis, s. 83.

“These privileges, servitudes, or easements of public law have grown up either by express convention, or by usage founded on consent. Per Ch. J. Marshall, The Exchange, vii. Cranch, p. 136. Among them are the effect, which, in certain cases, one State concedes to the laws of another in regard to contracts made in the latter, and the reciprocal rights conceded of personal residence or commercial intercourse, and of the interchange of ministers and consuls, which concessions modify to a certain degree the hypothetical completeness of the internal sovereignty of each nation.

"Hence, in all the discussions of private international right, the fundamental and all-pervading distinction between the statute personal, or the laws of one's own proper domicile, and the statute real, or the laws which are independent of the person, and which regulate in a foreign country his acts or interests irrespective of his domicile. The personal statute is transitory, and follows the person; the real statute is chiefly confined to things, which it controls only in the locus rei sitæ, or the given territory. Dalloz, Dict. Juris. s. v. Loi Pers.; Proudhon, Des Personnes, tom. i. p. 8.

"To the regular jurisdiction, however, of each country over persons, things, and acts, being or done within it, there exist, by received public law, certain absolute exceptions. These exceptions are the several cases of exterritoriality that is, the various conditions in which a person, though abroad, is exempt from the foreign jurisdiction, and is deemed to be still within the territory and jurisdiction of his own country.

"The doctrine of exterritoriality is denounced by some speculative publicists as if it were a mere fiction of law. See Pinheiro Ferreira, Droit Public, tom. ii. p. 197. This view of the matter is superficial, for it is only a cavil as to the name; and erroneous, because it argues upon the name, and not the thing which it represents.

"The word 'exterritoriality' is a sufficient definite technical designation for the peculiarity of legal condition already defined as attaching to certain persons in a foreign country, to wit: the case of an actual sovereign of an independent State, his person, suite, residence, and furniture, while he resides or sojourns peaceably in a foreign country; a foreign army, whether in peace or war; a ship of war generally, and sometimes a merchant ship in a foreign port, and either of them