§ 357. As a rule nowadays no head of a State, be he a monarch or a president, negotiates directly and in person with a foreign Power, although this happens occasionally. The necessary negotiations are regularly conducted by the Foreign Office, an office which since the Westphalian Peace has been in existence in every civilised State. The chief of this office, the Secretary for Foreign Affairs, who is a Cabinet Minister, directs the foreign affairs of the State in the name of the head and with the latter's consent; he is the middle-man between the head of the State and other States. And although many a head of a State directs in fact all the foreign affairs himself, the Secretary for Foreign Affairs is nevertheless the person through whose hands all transactions must pass. Now, as regards the position of such Foreign Secretary at home, it is the Municipal Law of a State which regulates this. International Law defines his position regarding international intercourse with other States. He is the chief over all the ambassadors of the State, over its consuls, and over its other agents in matters international. It is he who, either in person or through the envoys of his State, approaches foreign States for the purpose of negotiating matters international. And again it is he whom foreign States through their Foreign Secretaries or their envoys approach for the like purpose. He is present when Ministers hand in their credentials to the head of the State. All documents of importance regarding foreign matters are signed by him or his substitute, the Under-Secretary for Foreign Affairs. It is, therefore, usual to notify the appointment of a new Foreign Secretary of a State to such foreign States as are represented within its boundaries by diplomatic envoys; the new Foreign Secretary himself makes this notification.
CHAPTER II DIPLOMATIC ENVOYS
I THE INSTITUTION OF LEGATION
Phillimore, II. §§ 143-153—Taylor, § 274—Twiss, § 199—Geffcken in Holtzendorff, III. pp. 605-618—Nys, II. pp. 335-339—Rivier, I. § 35—Ullmann, § 44—Martens, II. § 6—Gentilis, "De legationibus libri III." (1585)—Wicquefort, "L'Ambassadeur et ses fonctions" (1680)—Bynkershoek, "De foro legatorum" (1721)—Garden, "Traité complet de diplomatie" (3 vols. 1833)—Mirus, "Das europäische Gesandtschaftsrecht" (2 vols. 1847)—Charles de Martens, "Le guide diplomatique" (2 vols. 1832; 6th ed. by Geffcken, 1866)—Montague Bernard, "Four Lectures on Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd Lecture)—Alt, "Handbuch des Europäischen Gesandtschaftsrechts" (1870)—Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd ed. 1899)—Krauske, "Die Entwickelung der ständigen Diplomatie," &c. (1885)—Lehr, "Manuel théorique et pratique des agents diplomatiques" (1888)—Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905), vol. II. (1906; the other vols. have not yet appeared).
Development of Legations.
§ 358. Legation as an institution for the purpose of negotiating between different States is as old as history, whose records are full of examples of legations sent and received by the oldest nations. And it is remarkable that even in antiquity, where no such law as the modern International Law was known, ambassadors enjoyed everywhere a special protection and certain privileges, although not by law but by religion, ambassadors being looked upon as sacrosanct. Yet permanent legations were unknown till very late in the Middle Ages. The fact that the Popes had permanent representatives—so-called apocrisiarii or responsales—at the Court of the Frankish Kings and at Constantinople until the final separation of the Eastern from the Western Church, ought not to be considered as the first example of permanent legations, as the task of these papal representatives had nothing to do with international affairs, but with those of the Church only. It was not until the thirteenth century that the first permanent legations made their appearance. The Italian Republics, and Venice in especial, created the example[713] by keeping representatives stationed at one another's capitals for the better negotiation of their international affairs. And in the fifteenth century these Republics began to keep permanent representatives in Spain, Germany, France, and England. Other States followed the example. Special treaties were often concluded stipulating permanent legations, such as in 1520, for instance, between the King of England and the Emperor of Germany. From the end of the fifteenth century England, France, Spain, and Germany kept up permanent legations at one another's Courts. But it was not until the second half of the seventeenth century that permanent legations became a general institution, the Powers following the example of France under Louis XIV. and Richelieu. It ought to be specially mentioned that Grotius[714] thought permanent legations to be wholly unnecessary. The course of events has, however, shown that Grotius's views as regards permanent legations were short-sighted. Nowadays the Family of Nations could not exist without them, as they are the channel through which nearly the whole, and certainly all important, official intercourse of the States flows.
[713] See Nys, "Les Origines du droit international" (1894), p. 295.
[714] "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae."
Diplomacy.
§ 359. The rise of permanent legations created the necessity for a new class of State officials, the so-called diplomatists; yet it was not until the end of the eighteenth century that the terms "diplomatist" and "diplomacy" came into general use. And although the art of diplomacy is as old as official intercourse between States, such a special class of officials as are now called diplomatists did not and could not exist until permanent legations had become a general institution. In this as in other cases the office has created the class of men necessary for it. International Law has nothing to do with the education and general character of these officials. Every State is naturally competent to create its own rules, if any, as regards these points. Nor has International Law anything to do with diplomatic usages, although these are more or less of importance, as they may occasionally grow into customary rules of International Law. But I would notice one of these usages—namely, that as regards the language which is in use in diplomatic intercourse. This language was formerly Latin, but through the political ascendency of France under Louis XIV. it became French. However, this is a usage of diplomacy only, and not a rule of International Law.[715] Each State can use its own language in all official communications to other States, and States which have the same language regularly do so in their intercourse with each other. But between States of different tongues and, further, at Conferences and Congresses, it is convenient to make use of a language which is generally known. This is nowadays French, but nothing could prevent diplomatists from dropping French at any moment and adopting another language instead.