which he is accredited. He delivers a copy of his letter of recall to the minister or secretary of foreign affaires, and asks an audience of the sovereign or chief executive, for the purpose of taking leave. At this audience he delivers, or exhibits the original of his recall, and takes his leave with a complimentary address suited to the occasion, and to which a complimentary reply is usually made. But if he is recalled. at the request of the government to which he is accredited, for misconduct or other objections, he would neither ask nor receive an audience of leave. If 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. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 24; Martens, Guide Diplomatique,, §§ 60-65; Horne, On Diplomacy, sec. 7, §§ 52, 53; Heffter, Droit International, § 226; Bello, Derecho Internacional, pt. 3, cap. 1, §8; Riquelme, Derecho Pub. Int., lib. 2, caps. Ad., 1, 2; Real, Science du Gouvernement, tome 5, p. 337; Phillimore, On Int, Law, vol. 2, § 241.)

§ 36. Where the mission is terminated by the expiration of the minister's appointment, as in the case of embassies of mere ceremony, or of special negotiations which have been accomplished or have failed, a formal letter of recall is not usually sent to the minister by his own government. But the formalities of taking leave are nearly the same as in case of an ordinary recall by letter. 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. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, §§ 23, 24; Martens, Guide Diplomatique, §§ 60-65; Horne, On Diplomacy, sec. 7, §§ 52, 53; Phillimore, On Int. Law, vol. 2, § 240; Heffter, Droit International, § 226 ; Bello, Derecho Internacional, pt. 3, cap. 1, §8; Riquelme, Derecho Pub. Int., lib. 2, caps. Ad., 1, 2.)

§ 37. Where the mission terminates by the decease or abdication of the minister's own sovereign, or the sovereign

to whom he is accredited, it is usual for him to await a renewal of his letters of credence. In the former case, a mere notification of the continuance of his appointment is sent by the successor of the deceased or deposed sovereign, and in the latter, new letters of credence are sent to the minister to be presented to the new ruler. If a radical change should take place in the character or organization of his own government, it would be the duty of the minister to await new letters of credence, or a ratification of his appointment. by the new government. The government, to which he is accredited would be justified in declining any new negotiations with him without such ratification, or new appointment, or, at least, without some evidence of a renewal or continuance of his powers. (Wheaton, Elem. Int. Law, pt.. 3, ch. 1, §23; Martens, Precis du Droit des Gens, §§ 240-245; Horne, On Diplomacy, sec. 7, §§ 52, 53; Phillimore, On Int.. Law, vol. 2, § 240; Berrien, Opinions U. S. Att'ys. Geni., vol. 2, p. 290; Heffler, Droit International, §§ 223–226.)

§ 38. When, on account of the measures of his government, the court at which he resides thinks fit to discontinue all diplomatic intercourse with a minister, this is usually done by a diplomatic note informing him of that fact, and offering him his passport. But when the court, at which he resides, thinks fit to send him away on account of his own misconduct, it is usual to notify his goverement that he is no longer an acceptable representative, and to request his recall. If the offense be of an aggravated character, he may be dismissed without waiting for a recall by his own government. The government asking such recall, may, or may not, at its own option, state the reasons for the request; they cannot be required. It is sufficient that he is no longer acceptable. In such a case, international courtesy would require his immediate recall. If, however, the request should not be complied with, his dismissal would follow as a matter of course. This is done by a simple notification, and the offer of his passports. The dismissal of a public minister, for personal or official misconduct, is not an act of disrespect or hostility to the government which sent him, and cannot be made a cause of war. No state has a right to send to, or continue at, another court, a minister who is personally

unacceptable to that court; an attempt to do so is, in itself, a mark of disrespect and unfriendliness. If the government, to which a minister is accredited, refuses to receive him, his position is similar to that of one who is recalled or dismissed; that is, he has no ministerial powers, but retains his privileges and the exemptions of his ex-territoriality so long as he remains in the country. But the time of his remaining may be limited to a particular period, after the expiration of which his diplomatic privileges ceases; or if he engage in, or contemplate any act not consonant with the laws, the peace, or the public honor of the country to which he was accredited, the courtesy of transit may be withdrawn. The diplomatic character will not be allowed to be made a cloak for the infringement of international or municipal laws. (Martens, Guide Diplomatique, § 59; Grotius, de Jur. Bel. ac Pac, lib. 2, cap 18, § 3; Wheaton, Elem. Int. Law, pt. 3, ch. 1, §§ 23-24; Phillimore, On Int. Law, vol. 2, § 240; Garden, de Diplomatie, liv. 5, § 25; Cong. Doc., 34 Cong., 1st Sess. H. of R., Ex. Doc. No. 107; Cushing, Opinions of U. S. Att'ys Genl., vol. 8, pp. 471, 473; Bello, Derecho Internacional, pt. 3, cap. 1, § 7; Heffter, Droit International, § 223; Merlin, Repertoire, verb. Ministre Public, sec. 5.)

§ 39. All ministers and diplomatic agents, of whatever description, are bound to respect the government and authorities of the country where they reside. Any disrespect, on the part of such officers or agents, are good and sufficient causes for asking their recall; or, in aggravated cases, for dismissing them and sending them out of the country. Such offenses are seldom, if ever, committed by diplomtists of character and experience; but, where a state appoints, as its representatives at foreign courts, men who do not possess the requisite qualifications for the office, it is liable not only to occasional mortifications at the conduct of such agents, but to the risk of being unnecessarily involved in serious international difficulties. Indeed, nations are not unfrequently involved in long and bloody wars, through the faults and unskillfulness of their public ministers and diplomatic agents. (Bello, Derecho Internacional, pt. 3, cap. 2, § 1; Heffter, Droit International, §§ 206, 207, 232; Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 13; Martens, Guide Diplomatique, § 52; Horne, On Diplomacy, sec. 6, § 42; Wicquefort, de l'Ambassadeur, etc., liv. 1, § 20.)

CHAPTER X.

OF CONSULS AND COMMERCIAL AGENTS.

CONTENTS.

1. Origin of the institution of consuls-2. Object of consulates in modern times-23. Divisions of the consular organization - 4. Commissions and exequaturs- 5. Consuls have no representative or diplomatic character26. Are subject to local jurisdiction-27. Have no rank except among themselves? 8. Enjoy certain privileges and exemptions-29. The office to be distinguished from the personal status of the officer-2 10. If exequatur be issued to a citizen without conditions - 11. Opinions of textwriters 12. U. S. laws respecting foreign consuls-13. Duties and powers respecting their own countrymen. 214. They have no civil or criminal jurisdiction - 15. The granting of passports- 16. Certificates, acknowledgements, etc.- 17. Can afford no refuge from civil process 18. Engaging in trade-2 19. Judicial decisions on public character of consuls 20. Powers and privileges extended by treaty and municipal law-21. Consuls of christian states in the east-22. Origin of difference of powers- 23. Same system extended to China - 24. Treaty between Great Britain and China- 25. Act of parliament - 26. British orders and instructions - 27. Treaty between France and China - ? 28. French laws and regulations-? 29. Treaty between the U. S. and China — 230. Remarks of U. S. commissioner on this treaty-31. Act of congress for carrying it into effect-32. Decree of U. S. commissioner in China33. Controversies between subjects of foreign states in China — § 34. Mr. Cushing's opinion on this subject.

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§ 1. The institution of a foreign consulate originated in the earlier part of the middle ages, in sending officers or persons from one country or city to the sea-ports and towns of foreign

states, for the purpose of protecting the national commerce, especially in matters of shipwreck, and of adjusting disputes between sailors and merchants of their own country. In the absence of regular ambassadors, or other public ministers, these commercial agents sometimes acted in the capacity of representatives and diplomatic agents of their respective states, and not unfrequently assumed and exercised jurisdiction and authority over the merchants and citizens of their own countries in foreign ports and cities. In the ports of the Baltic and Mediterranean, where foreigners were compelled to live in particular quarters of the town, they sometimes exercised great power over their own countrymen, and were designated by various titles, according to the customs of various countries. (Heffter, Droit International, § 244; Phillimore, On Int. Law, vol. 2, §§ 243, 244; Miltitz, Manuel des Consuls, tome 1, p. 6; Martens, Guide Diplomatique, §§ 71, 72; Martens, Precis du Droit des Gens, §§ 147, 148; Garden, De Diplomatie, tome 1, pp. 315, et seq.; De Clercq, Guide des · Consulats, pp. 1, et seq.; Bello, Derecho Internacional, pt. 1, cap. 7, §1; Moreuil, Manuel des Agents Con., introduction; Mensch, Manuel du Consulat, pt. 1; Riquelme, Derecho Pub. Int., lib. 2, cap. Ad., 3; Dalloz, Repertoire, verb. Consul, § 1; Warden, Treatise on Consuls; Borel, Functions des Consuls; Santos et Barreto, Traité du Consulat; Bursotti, Guide des Agents Consulaires; De Podio, Jurisdiction des Consuls.)

§ 2. In the early part of the seventeenth century, a great change was effected in commerce and international intercourse generally, by the establishment of permanent diplomatic agencies and legations, by the general improvement of municipal law, and especially by more clearly defining the boundaries and limits of territorial and foreign jurisdictions. The extra-territorial jurisdiction, criminal and civil, exercised by consuls, was found to be wholly at variance with the recognized principles of public law in christian Europe, and the consular institution, thus changed in its condition and character, was limited to a general vigilance of the consul over the interests of shipping and navigation of his nation at a particular locality. To this was sometimes added a limited authority, over particular questions of dispute, between merchants and sailors of his own country. This is