agent of the state. They may be sent to peoples in a state of insurgency or revolution or to the authorities of a de facto government in a state which has not been recognized as such. A public political agent of this class may be sent to another duly recognized state or government for purposes of special negotiations. As they are not invested with a diplomatic character, they are given a commission for the special purpose or a letter of recommendation but no letters of credence. For this reason they are often designated as commissioners. They are not often given or requested to be given the full diplomatic privileges of diplomatic agents, but they are entitled, nevertheless, as public agents, to the protection of the state, and as a matter of comity or courtesy it would not be improper for the receiving state to grant them full privileges. A sufficient inviolability of person and residence and of papers should be granted them so as to enable them to execute their office. Secret political agents, of course, will not be in this category. In the history of the United States such agents have been used upon a number of occasions. Probably the first case on record was the appointment by President Washington of Mr. Gouverneur Morris as a "private agent" to London, in 1789, before either country was represented in the other by a minister. As he was directed to converse with the ministers of the British Government as to certain matters concerning the relations between the two countries, his status approached that of a political or diplomatic agent. In 1849 Mr. A. Dudley Mann was appointed by President Taylor as a special and confidential agent to Hungary, then in a state of insurrection against Austria, in order to determine the question of recognition of its independence. The United States had at the time a diplomatic representative at Vienna. In 1852 Commodore M. C. Perry, U. S. N., was appointed by the President to conclude a treaty with Japan. In 1861 Archbishop Hughes and Bishop McIlvaine were sent to Europe by the secretary of state with the approval of President Lincoln as confidential agents in relation to questions growing out of the Civil War. In 1893 Mr. James H. Blount was appointed a special commissioner to the Hawaiian Islands with paramount authority, a letter of credence, etc., there being a minister to the islands at the time. In 1900 Mr. W. W. Rockhill was appointed commissioner to China with diplomatic privileges and immunities, owing to the state of affairs and isolation of the legations at Peking during the Boxer War. An unusual mission in our history occurred in 1902, as follows: "The United States Commission in the Philippines having recommended, as a means of allaying certain native discontents of long standing, the purchase by the government of the lands of the religious orders in the islands, it was deemed essential definitely to ascertain the attitude of the Vatican on the subject. To that end it was decided to send to Rome Governor Taft, the head of the Philippine Commission, who was then in Washington. His commission, which was dated May 9, 1902, was a letter of instructions, addressed to 'Hon. William H. Taft, Civil Governor of the Philippines,' and signed by 'Elihu Root, Secretary of War.' After adverting to the apparent impossibility of arranging a purchase directly with the friars, it authorized Governor Taft to ascertain what 'church authorities' had the power to negotiate for and determine upon a sale of the lands; and if he should find, as the information at hand indicated, that 'the officers of the church at Rome' possessed such power, he was to endeavor to reach at least a basis of negotiation along lines which would be satisfactory to them and to the Philippine Government. Certain rules were laid down for his guidance, and it was expressly declared that his errand would 'not be in any sense or degree diplomatic in its nature,' but would be 'purely a business matter of negotiation' by him 'as governor of the Philippines for the purchase of property from the owners thereof and the settlement of land titles in such manner as to contribute to the best interests of the people of the islands.' In conclusion he was assured of any assistance which he might desire to enable him to perform his duties in a manner satisfactory to himself; and he called to his aid Judge James S. Smith, then a member of the Supreme Court of the Philippines, and Major Porter of the judge advocate's bureau in the United States army. "Governor Taft bore with him a friendly letter from President Roosevelt to the Pope, asking him to accept a set of the President's works, and an American bishop of the Catholic Church arranged for an audience. Governor Taft was duly received by his Holiness, and he then entered into communication with Cardinal Rampolla, papal secretary of state, Major Porter acting as his bearer of despatches. Each step in the correspondence was duly reported to the secretary of war, who gave fresh instructions as they were needed. The negotiations at Rome were concluded late in July, 1902, with the understanding that the Holy See would send, as afterward was done, an apostolic delegate to Manila to treat with the local government.' The case of the appointment of the Hon. John Lind as a commissioner or agent to observe upon and report as to the affairs of Mexico is an instance of a mission of this kind in recent times. The question of such appointments and their validity without confirmation by the Senate has been discussed in the Senate several times, but on the whole the precedents are that the President has the right to make such appointments especially for the negotiation of treaties. Members of arbitration and other conferences are also appointed and employed by the President without reference to the Senate. 1 Moore's "Digest," vol. IV, pp. 447, etc. TOPICS AND REFERENCES 1. Position and Immunities of the Head of a State in a General and Diplomatic Sense Phillimore, 3d ed., vol. II, 133-153. Hall, 6th ed., 169, 170, 291. 2. Diplomatic Intercourse Between States Bernard, "Lectures on Diplomacy," 1868. Foster, "Practice of 3. The Appointment and Reception of Embassies and Diplomatic AgentsHalleck, 4th ed., vol. I, 290–2; 385-390. Oppenheim, 2d ed., vol. I, 446-456. Hannis Taylor, 324–334. 4. Rank and Classification of Diplomatic Officials— Moore's "Digest," vol. IV, 430-1. Oppenheim, vol. I, 2d ed., 4436. Twiss, vol. I, secs. 204-9. 5. The Duties of Diplomatic Envoys Foster's "Practice of Diplomacy," chaps. V and VI. Hershey's "Essentials," 277. Moore's "Digest," vol. IV, 553, 565, 570, 572-4, 583, 615, 618-622, 680-726. 6. Inviolability of Diplomatic Agents Foster's "Practice of Diplomacy," chap. VIII. Phillimore, 3d ed., vol. II, 186-193, 199-218. Oppenheim, 2d ed., vol. I, 457-472. 7. Right of Asylum Hall, 6th ed., pp. 178-182. Right of Asylum," 1906. 307. Sibley and Elias, "The Alien Act and 8. Agents of the State Without Diplomatic or Consular CharacterOppenheim, 2d ed., vol. I, 508-512. Moore's "Digest," vol. IV, 447-458. Foster's "Practice of Diplomacy," 197–204. CHAPTER XI CONSULS. EXEQUATUR. RIGHTS, IMMUNITIES, AND DUTIES OF CONSULAR OFFICERS 102. Historical Sketch of Consulates.-The establishment of consuls within the territory of foreign countries antedates by several centuries the maintenance of permanent legations and embassies. "The origin of this institution is in all probability traceable," says Phillimore, "to that domestic consulate which, after the fall of the Western Empire, was during the earlier part of the Middle Ages founded in most of the maritime cities of the south of Europe connected with commerce and navigation, the jurisprudence and authority of which rested mainly upon principles gleaned from the Roman and Greek law."1 About the eleventh century commercial settlements or depots, and a consequent jurisdiction, grew up under consuls appointed to deal with maritime and commercial questions in the Levant, especially and generally on the Mediterranean Sea. This growth or commercial expansion gradually extended beyond the limits of the Mediterranean to the rest of maritime Europe. The jurisdiction of consuls in foreign countries also came to include a local government of their fellow countrymen in matters other than commercial, in accordance with their home laws. Consuls at this time enjoyed all of the immunities which ambassadors hold at the present time. The modern system of consuls can be said to date from the latter part of the sixteenth century, and in this establishment the French led the way. The special advantages which France 1 Phillimore, 3d ed., vol. II, pp. 265, 266. |