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A treaty, also, may be abrogated under the following cir

cumstances :

(1) When the parties mutually consent.1

(2) When continuance is conditioned upon terms which no longer exist.

(3) When either party refuses to perform a material stipu lation.

(4) When all the material stipulations have been performed. (5) When a party having the option elects to withdraw. (6) When performance becomes physically or morally impossible.

(7) When a state of things which was the basis of the treaty, and one of its tacit conditions, no longer exists.2

convenzione internazionali, 1864;
Probst, Die Lehre vom Abschluss Ver-
träge, 1882; Jellinek, Die rechtliche
natur der Staatenvorträge, 1880; and
see, further, Hartmann, § 56.
1 Supra, § 157.

rested

2 See, fully, Hartmann, § 56. In most of the old treaties were inserted the "clausula rebus sic stantibus," by which the treaty might be construed as abrogated when material circumstances on which it changed. To work this effect it is not necessary that the facts alleged to have changed should be formal conditions. It is enough if they were strong inducements to the party asking abrogation.

The maxim, "Conventio omnis intelligitur rebus sic stantibus," is held to apply to all cases in which the reason for a treaty has failed, or there has been such a change of circumstances as to make its performance impracticable except at an unreasonable sacrifice.

238

Kent (Commentaries, v. i. p. 420) says: "As a general rule, the obligations of treaties are dissipated by hostilities. But if a treaty contain any stipulations which contemplate a state of future war, and make provision for such an exigency, they preserve their force and obligation when the rupture takes place. All those duties of which the exercise is not necessarily sus pended by the war subsist in their full force."

On the question of the effect of war on treaties, see, further, Field's Code Int. Law, § 905, citing Bluntschli, § 718; Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464; the debate in the house of commons, on the declaration of Paris, of 1856; Speeches of Sir George Lewis and Mr. Bright, of March 11 and 17, 1862; and of the Earl of Derby, of Feb. 7, 1862; Dispatch of Mr. Marcy to Mr. Mason, of Dec. 8, 1856; Phillimore's Int. Law, iii., App. 21; Dana's Wheaton, note 143, p. 352.

VI. DIPLOMATIC AND CONSULAR AGENTS.

Diplomacy

of law.

§ 163. In its larger sense diplomacy includes the international political intercourse of states; and all foreign ministers engaged in conducting such intercourse, a system e. g., secretaries of foreign affairs, as well as ambassadors, are held to be internationally diplomatic agents. In its narrower sense the term diplomacy designates the intercourse of foreign ambassadors with each other and with the courts to which they are accredited.1 But while diplomacy is a system of law, its success is largely dependent on tact and conciliatory temper. The old usage was to send special embassies to effect particular ends. In the seventeenth century, however, the practice of permanent embassies became among the great powers universal, and these embassies embraced a numerous suite. Gradually a distinctive science, that of diplomacy, thus grew up. This science embraces not merely the rules of

Hartmann, § 31.

2 In Lorimer's Treatise on the Law of Nations (1883), p. 286, we have the following: "The extent to which a nation enjoys that indefinable power which is known by the name of prestige, and the due employment of which often supersedes the necessity for an appeal to more formidable factors, depends as much on the sympathetic and conciliatory manners of its official representatives as on the reputation of its soldiers for valor or its citizens for wealth. Our transatlantic descendants have always been specially mindful of this fact; and it has often occurred to me that their astuteness in this respect may have something to do with the greater good-will that is shown to them than to ourselves by continental nations."

So far as the United States are concerned, they have no reason to complain of the want of "conciliatory manners" on the part of recent British diplomatists and consular representa

tives. British consuls, in the main, have been peculiarly kind and conciliatory in their bearing to the communities in which they reside; and, with the exception of Mr. Crompton, there has been no British minister in the United States of late years who has not done whatever good temper and tact could do to cultivate friendly relations between the two nations. The contrast between the recent attitude of foreign ministers in this country and their early attitude, is very marked. Mr. Hammond, British minister to the United States during Washington's presidency, took no pains to maintain friendly relations with the then Federal administration, while Genet, the French minister at the same time, took particular pains to insult that administration.

The consequence was that while Hammond did nothing to soothe the still prevalent hostility to England, Genet almost plunged us into a war with France.

international law, public and, private, but the details of ceremonies which have been adopted and become settled in diplomatic intercourse. Officers of various grades are thus employed. Merely business and commercial details are placed in the hands of the consuls or syndics (syndici); while secretaries and interpreters are employed for other parts of the work. Embassies, in their technical sense, have the following specific duties: 1. Conducting negotiations with the state where they are accredited; 2. Examination of the legal and political relations of the state they represent with the state to which they are accredited, and the collection and forwarding of information in regard to matters of business or political interest to the state represented; 3. promotion of friendly relations between such powers.1

Ministers sent from government to government.

§ 164. A diplomatic agent represents exclusively the gov ernment by which he is commissioned, and is to address exclusively the government to which he is sent. He represents the government commissioning him as speaking for the country as an aggregate, whatever may be his personal antecedents and predilections; and it is at least an indiscretion on his part to speak of himself or the administration he represents as the organ of a party as distinguished from the whole country from which he comes. On the other hand, he can officially address on political matters, in the country to which he is accredited, exclusively the established government of that country; and for him to appeal to the people as against the gov ernment, or even to express his views as to the politics of such country through the press, is an indecorum which will justify

Holtzendorff, ut supra, 1229, citing Mirus, Gesandschaftsrecht, 1847; Martens, Manuel Diplomatique ou précis des droits et des fonctions des agents diplomatique, 1822; Grenville Murray, Droits et devoirs des employés diplomatique, London, 1853; Esperson, Diritto diplomatics, 1872; Heffter, § 200; Bluntschli, § 159; Pradier-Fodere, Cours de droit diplomatique,

1881; Lewy, des consulats et des ambassades, 2d ed., 1876.

This was made by Mr. Webster and Mr. Calhoun the ground for the rejec tion by the United States Senate of Mr. Van Buren as minister to England. Whether Mr. Van Buren's official course is open to this interpretation may now be well questioned.

his dismissal by such government.1 À fortiori, "if ambassadors should be so regardless of their duty, and of the objects of their privilege, as to insult or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall; or they may be dismissed and required to depart within a reasonable time."

ents and

insurgents may be re

presented.

165. It does not follow, however, that a government may not receive political agents from insurgents in a foreign country with which such government is at Belligerpeace; and this position is strengthened when such insurgents are recognized as belligerents by the government against which they revolt. For some time before the recognition by France of the independence of the United States, the United States had political agents in Paris who had a quasi recognition from the French government; and there is now a general acquiescence among European publicists, in the position that Messrs. Mason and Slidell, sent during the late civil war by the Confederate government to France and England, were at least diplomatic representatives to such an extent as to entitle them to a free passage on the high seas on neutral ships. Even when representing bellige rents such agents may be sent, not on a belligerent, but on a pacific mission.1

State

§ 166. A state to whom an ambassador is sent may object (1) to any diplomatic intercourse whatever with the state sending; or (2) to the particular person sent. receiving The first objection is one of great seriousness, and may constitute a casus belli.

and state

The second objec

cretion.

sending have dis

This view was taken by Mr. Jeffer- with agents of insurgents in a state

son in Genet's case, in 1797.

2 1 Kent's Com., 38.

3 Infra, §§ 228–9; supra, § 141.

See Abdy's Kent, 135; Dana's Wheat., note 121. On the other hand, Mr. Seward has declared that it is the practice of the United States not to hold official or unofficial intercourse

with which the United States are at peace. Ex. Doc. 20, 39th Cong., 1st sess.; cited Dana's Wheat., note 41; Mr. Seward to Mr. Bigelow, March 13, 1865, Dip. Corr. 1865, pt. 3, 378; but see, contra, supra, § 141, for Hülseman correspondence. As to case of Mason and Slidell; see infra, § 228.

tion that to the person of the ambassador-if not frivolously or impertinently used, cannot be the ground of offence. Of such refusals to receive particular persons we have numerous illustrations. The United States have refused to receive, or have requested the recall of persons who have improperly interfered in politics in the United States. Sovereigns, also, have refused to receive ambassadors who were their own subjects; nuncios of the pope have been refused on the ground that they would exercise a special religious influence prejudicial to the welfare of the state to which they were sent. The pope, on the other hand, has refused to receive cardinals as ambassadors. Women are not excluded from the post, some of the most creditable treaties having been negotiated by women. The benefit to be derived from permanent embassies is illustrated by the tenacity with which the Western powers have insisted on the establishment of such missions at Pekin. It should be added that a minister may be accredited by a formal power plenipotentiary, or, as is the case with chargés d'affaires, by informal correspondence with secretaries.1

Inviola

bility and extra-terri

embassies.

§ 167. The inviolability of an ambassador is an essential to diplomatic intercourse. He represents the dignity and sovereignty of his own state, and an attack on toriality of him is an attack on that state. The privilege extends to the ambassador's suite, to the servants of the embassy dwelling in the same hotel, to its hotel and its furniture, to its correspondence, and to its couriers when engaged in its service. This involves exemption from local law. If the parties so priviledged abuse their privilege, the proper course, under such circumstances, is to dismiss the offending

"A nation may refuse to receive, as public agent, any one who is personally objectionable, on informing the government by which he is sent that the refusal is for personal reasons; but the reasons need not be more particularly stated. 2 Phill. Int. Law, 149. "Several cases of refusal on perso nal grounds are mentioned in Klüber,

§ 187, note d; Dana's Wheaton, § 251, note 137.

"Dana's Wheaton, § 210, allows the refusal, if the motives are alleged. But the above rule should seem to be sufficient."-Field's Code of Int. Law,

§ 99.

2 See Hartmann, § 38.

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