Of the Right of Embassy

§ 55. It is necessary that nations be enabled to treat and communicate together.
IT is necessary that nations should treat and hold intercourse together, in order to promote their interests, — to avoid injuring each other, — and to adjust and terminate their disputes. And as they all he under the indispensable obligation of giving their consent and concurrence to whatever conduces to the general advantage and welfare (Prelim. § 13) — of procuring the means of accommodating and terminating their differences (Book II. § 323, etc.) — and as each has a right to every thing which her preservation requires (Book I. § 18) — to every thing which can promote her perfection without injuring others (Ib. § 23), as also to the necessary means of fulfilling her duties, — it results from the premises, that each nation is at once possessed of the right to treat and communicate with others, and bound by reciprocal obligation to consent to such communication as far as the situation of her affairs will permit her.

§ 56. They do this by the agency of public ministers.
But nations or sovereign states do not treat together immediately: and their rulers or sovereigns cannot well come to a personal conference in order to treat of their affairs. Such interviews would often be impracticable; and, exclusive of delays, trouble, expense, and so many other inconveniences, it is rarely, according to the observation of Philip de Commines, that any good effect could be expected from them. The only expedient, therefore, which remains for nations and sovereigns, is to communicate and treat with each other by the agency of procurators or mandatories, — of delegates charged with their commands, and vested with their powers, — that is to say, public ministers. This term, in its more extensive and general sense, denotes any person intrusted with the management of public affairs, but is more particularly understood to designate one who acts in such capacity at a foreign court.

At present there are several orders of public ministers, and in the sequel we shall speak of them; but whatever difference custom has introduced between them, the essential character is common to them all; I mean that of minister, and in some sort, representative of a foreign power, — a person charged with the commands of that power, and delegated to manage his affairs: and that quality is sufficient for our present purpose.

§ 57. Every sovereign state has a right to send and receive public ministers.
Every sovereign state then has a right to send and to receive public ministers; for they are necessary instruments in the management of those affairs which sovereigns have to transact with each other, and the channels of that correspondence which they have a right to carry on. In the first chapter of this work may be seen who are those sovereigns, and what those independent states, that are entitled to rank in the great society of nations. They are the powers to whom belongs the right of embassy.

§ 58. An unequal alliance, or a treaty of protection, does not take away this right.
An unequal alliance, or even a treaty of protection, not being incompatible with sovereignty (Book I. §§ 5, 6), — such treaties do not of themselves deprive a state of the right of sending and receiving public ministers. If the inferior ally or the party protected has not expressly renounced the right of entertaining connections and treating with other powers, he necessarily retains that of sending ministers to them, and of receiving their ministers in turn. The same rule applies to such vassals and tributaries as are not subjects (Book I. §§ 7,8).

§ 59. Right of the princes and states of the empire in this respect.
Nay more, this right may even belong to princes or communities not possessed of sovereign power; for the rights whose assemblage constitutes the plenitude of sovereignly, are not indivisible: and if, by the constitution of the state, by the concession of the sovereign, or by reservations which the subjects have made with him, a prince or community remains possessed of any one of those rights which usually belong to the sovereign alone, such prince or community may exercise it, and avail themselves of it in all its effects and all its natural or necessary consequences, unless they have been formally excepted. Though the princes and states of the empire are dependent on the emperor and the empire, yet they are sovereign in many respects; and as the constitutions of the empire secure to them the right of treating with foreign powers and contracting alliances with them, they incontestably have also that of sending and receiving public ministers. The emperors, indeed, when they felt themselves able to carry their pretensions very high, have sometimes disputed that right, or at least attempted to render the exercise of it subject to the control of their supreme authority, — insisting that their permission was necessary to give it a sanction. But since the peace of Westphalia, and by means of the imperial capitulations, the princes and states of Germany have been able to maintain themselves in the possession of that right; and they have secured to themselves so many other rights, that the empire is now considered as a republic of sovereigns.

§ 60. Cities that have the right of banner.
There are even cities which are and which acknowledge themselves to be in a state of subjection, that have nevertheless a right to receive the ministers of foreign powers, and to send them deputies, since they have a right to treat with them. This latter circumstance is the main point upon which the whole question turns; for whosoever has a right to the end, has a right to the moans. It would be absurd to acknowledge the right of negotiating and treating, and to contest the necessary means of doing it. Those cities of Switzerland, such as Neufchatel and Bienne, which have the right of banner, have, by natural consequence, a right to treat with foreign powers, although the cities in question be subject to the dominion of a prince: for the right of banner, or of arms, comprehends that of granting succors of troops,¹ provided such grants be not inconsistent with the service of the prince. Now, if those cities are entitled to grant troops, they must necessarily be at liberty to listen to the applications made to them on the subject by a foreign power, and to treat respecting the conditions. Hence it follows that they may also depute an agent to him for that purpose, or receive his ministers. And as they are at the same time vested with the administration of their own internal police, they have it in their power to insure respect to such foreign ministers as come to them. What is here said of the rights of those cities is confirmed by ancient and constant practice. However exalted and extraordinary such rights may appear, they will not be thought strange, if it be considered that those very cities were already possessed of extensive privileges at the time when their princes were themselves dependent on the emperors, or on other liege lords who were immediate vassals of the empire. When the princes shook off the yoke of vassalage, and established themselves in a state of perfect independence, the considerable cities in their territories made their own conditions; and instead of rendering their situation worse, it was very natural that they should take hold of existing circumstances, in order to secure to themselves a greater portion of freedom and happiness. Their sovereigns cannot now advance any plea in objection to the terms on which those cities consented to follow their fortunes and to acknowledge them as their only superiors.

§ 61. Ministers of viceroys.
Viceroys and chief governors of a sovereignty or remote province have frequently the right of sending and receiving public ministers; but, in that particular, they act in the name and by the authority of the sovereign whom they represent, and whose rights they exercise. That entirely depends on the will of the master by whom they are delegated. The viceroy of Naples, the governors of Milan, and the governors-general of the Netherland for Spain, were invested with such power.

§ 62. Ministers of the nation or of the regents during an interregnum.
The right of embassy, like all the other rights of sovereignty, originally resides in the nation as its principal and primitive subject. During an interregnum, the exercise of that right reverts to the nation, or devolves on those whom the laws have invested with the regency of the state. They may send ministers in the same manner as the sovereign used to do; and these ministers possess the same rights as were enjoyed by those of the sovereign. The republic of Poland sends ambassadors while her throne is vacant: nor would she suffer that they should be treated with less respect and consideration than those who are sent while she has a king, Cromwell effectually maintained the ambassadors of England in the same rank and respectability which they possessed under the regal authority.

§ 63. Of him who molests another in the exercise of the right of embassy.
Such being the rights of nations, a sovereign who attempts to hinder another from sending and receiving public ministers, does him an injury, and offends against the law of nations. It is attacking a nation in one of her most valuable rights, and disputing her title to that which nature herself gives to every independent society: it is offering an insult to nations in general, and tearing asunder the ties by which they are united.

§ 64. What is allowable in this respect in time of war.
But this is to be understood only of a time of peace; war introduces other rights. It allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. There are even occasions when we may refuse a passage to the ministers of neutral nations, who are going to our enemy. We are under no obligation to allow them an opportunity of perhaps conveying him intelligence of a momentous nature, and concerting with him the means of giving him assistance, etc. This admits of no doubt, for instance, in the case of a besieged town. No right can authorize the minister of a neutral power or any other person whatsoever, to enter the place without the besieger’s consent. But, in order to avoid giving offence to sovereigns, good reasons must be alleged for refusing to let their ministers pass; and with such reasons they must rest satisfied, if they are disposed to remain neuter. Sometimes even a passage is refused to suspected ministers in critical and dubious junctures, although there do not exist any open war. But this is a delicate proceeding, which, if not justified by reasons that are perfectly satisfactory, produces an acrimony that easily degenerates into an open rupture.

§ 65. The minister of a friendly power is to be received.
As nations are obliged to correspond together, to attend to the proposals and demands made to them, to keep open a free and safe channel of communication for the purpose of mutually understanding each other’s views and bringing their disputes to an accommodation, a sovereign cannot, without very particular reasons, refuse admitting and hearing the minister of a friendly power, or of one with whom he is at peace. But in case there be reasons for not admitting him into the heart of the country, he may notify to him that he will send proper persons to meet him at an appointed place on the frontier, there to hear his proposals. It then becomes the foreign minister’s duty to stop at the place assigned: it is sufficient that he obtains a hearing; that being the utmost that he has a right to expect.

§ 66. Of resident ministers.
The obligation, however, does not extend so far as to include that of suffering at all times the residence of perpetual ministers, who are desirous of remaining at the sovereign’s court, although they have no business to transact with him. It is natural, indeed, and perfectly conformable to the sentiments which nations ought mutually to entertain for each other, that a friendly reception should be given to those resident ministers, when there is no inconvenience to be apprehended from their slay. But if there exist any substantial reason to the contrary, the advantage of the state undoubtedly claims a preference; and the foreign sovereign cannot take it amiss if his minister be requested to withdraw, when he has fulfilled the object of his commission, or when he has not any business to transact. The custom of keeping every where ministers constantly resident is now so firmly established, that whoever should refuse to conform to it, must allege very good reasons for his conduct, if he wishes to avoid giving offence.

These reasons may arise from particular conjunctures: but there are also ordinary reasons ever subsisting, and such as relate to the constitution of a government and the state of a nation. Republics would often have very good reasons of the latter kind, to excuse themselves from continually suffering the residence of foreign ministers, who corrupt the citizens, — gain them over to their masters, to the great detriment of the republic, — and excite and foment parties in the state, etc. And even though no other evil should arise from their presence than that of inspiring a nation, originally plain, frugal, and virtuous, with a taste for luxury, the thirst of gain, and the manners of courts, — that alone would be more than sufficient to justify the conduct of wise and provident rulers in dismissing them. The Polish government is not fond of resident ministers; and indeed their intrigues with the members of the diet have furnished but too many reasons for keeping them at a distance. In the war of 1666, a nuncio publicly complained, in the open diet, of the French ambassador’s unnecessarily prolonging his stay in Poland, and declared that he ought to be considered as a spy. In 1668, other members of that body moved for a law to regulate the length of time that an ambassador should be allowed to remain in the kingdom.²

§ 67. How the ministers of an enemy are to be admitted.
The greater calamities of war are, the more it is incumbent on nations to preserve means for putting an end to it. Hence it becomes necessary, that, even in the midst of hostilities, they be at liberty to send ministers to each other, for the purpose of making overtures of peace, or proposals tending to moderate the transports of hostile rage. It is true, indeed, that the minister of an enemy cannot come without permission; accordingly, a passport, or safe-conduct, is asked for him, either through the intervention of some common friend, or by one of those messengers who are protected by the laws of war, and of whom we shall speak in the sequel — I mean a trumpeter or drummer. It is true, also, that, for substantial reasons, the safe-conduct may be refused, and admission denied to the minister. But this liberty, which is authorized by the care that every nation is bound to bestow on her own safety, is no bar to our laying it down as a general maxim, that we are not to refuse admitting and hearing an enemy’s minister; that is to say, that war alone, and of itself, is not a sufficient reason for refusing to hear any proposal coming from an enemy; but that, to warrant such refusal, there must exist some reason of a particular nature, and which rests upon very good grounds, as, for instance, when an artful and designing enemy has, by his own conduct, given us just cause to apprehend that his only intention, in sending his ministers and making proposals, is to disunite the members of a confederacy, to lull them into security by holding out false appearances of peace, and then to overpower them by surprise.

§ 68. Whether ministers may be received from or sent to an usurper.
Before we conclude this chapter, it will be proper to discuss a celebrated question, which has been often debated. It is asked whether foreign nations may receive the ambassadors and other ministers of an usurper, and send their ministers to him? In this particular, foreign powers take for their rule the circumstance of actual possession, if the-interest of their affairs so require: and, indeed, there cannot be a more certain rule, or one that is more agreeable to the law of nations and the independency of states. As foreigners have no right to interfere in the domestic concerns of a nation, they are not obliged to canvass and scrutinize her conduct in the management of them, in order to determine how far it is either just or unjust. They may, if they think proper, suppose the right to be annexed to the possession. When a nation has expelled her sovereign, other powers, who do not choose to declare against her, and to risk the consequences of her enmity or open hostility, consider her thenceforward as a free and sovereign state, without taking on themselves to determine whether she has acted justly in withdrawing from her allegiance to the prince by whom she was governed. Cardinal Mazarin received Lockhart, whom Cromwell had sent as ambassador from the republic of England, and refused to see either King Charles the Second, or his ministers.

If a people, after having expelled their prince, submit to another — if they change the order of succession, and acknowledge a sovereign to the prejudice of the natural and appointed heir — foreign powers may, in this instance also, consider what has been done as lawful: it is no quarrel or business of theirs. At the beginning of the last century, Charles, Duke of Sudermania, having obtained the crown of Sweden, to the prejudice of his nephew Sigismund, king of Poland, was soon acknowledged by most sovereigns. Villeroy, minister of the French monarch, Henry the Fourth, in his dispatches of the 8th of April, 1608, plainly said to the president, Jeanin, “All these reasons and considerations shall not prevent the king from treating with Charles, if he finds it to be his interest, and that of his kingdom.” This remark was sensible and judicious. The king of France was neither the judge nor the guardian of the Swedish nation, that he should, contrary to the interests of his own kingdom, refuse to acknowledge the king whom Sweden had chosen, under pretense that a competitor had termed Charles an usurper. Had the charge been even founded injustice, it was an affair which did not fall under the cognizance of foreigners.

Therefore, when foreign powers have received the ministers of an usurper, and sent theirs to him, the lawful prince, on recovering the throne, cannot complain of these measures as an injury, nor justly make them the ground of a war, provided those powers have not proceeded to greater lengths, nor furnished any assistance against him. But to acknowledge the dethroned prince or his heir, after the state has solemnly acknowledged the person to whom the scepter has been transferred, is an injury done to the latter, and a profession of enmity to the nation that has chosen him. Such a step, hazarded in favor of James the Second’s son, was, by William the Third and the British nation, alleged as one of the principal reasons of the war which England soon after declared against France. Notwithstanding all the caution, and all the protestations of Louis the Fourteenth, his acknowledgment of young Stuart, as king of England, Scotland, and Ireland, under the title of James the Third, was considered by the English as an injury done both to the king and to the nation.