tuted, and which, aided by the evidence furnished from this Department with respect to the public character of the parties, quashed the writ, and released Mr. Barrozo from the process issued against him. "The court having determined to consider Mr. Barrozo as still enjoying the privileges and immunities attached to the representative character of a public minister, the attorney of the United States for the eastern district of Pennsylvania thought it his duty to institute a suit against the persons concerned in the arrest of Mr. Barrozo for an infraction of the act of Congress exempting public ministers from judicial process, which suit now awaits a decision in the due course of law." Mr. Van Buren, Sec. of State, to Mr. Brown, Oct. 20, 1830. MSS. Inst., Am. St. According to ordinary European practice, on the accession of a new sovereign, new letters to him are forwarded to ministers resident at his seat of Government. Mr. Fish, Sec. of State, to Mr. Schenck, Apr. 27, 1875. MSS. Inst., Gr. Brit. This question came before the district court of Philadelphia, which held that a chargé d'affaires who has returned his exequatur and obtained his passports cannot be sued in trover for the archives of the mission by a new minister who represents an incoming adverse dynasty, though such new minister is recognized by the Secretary of State, the reason being that the outgoing minister is entitled as a returning minister to his privilege from suit. D'Azambuja v. Pereira, 1 Miles (Phil.), 366. It was further held that the recognition of a foreign minister is conclusive evidence of the authenticity and validity of his credentials, and that where a diplomatic representative announces the cessation of his functions by reason of a change of authority in his country and obtains his passports, he has not waived his privilege as a returning minister, and the process should be quashed. It has been also held that such a suit, as in this case, is no evidence that the sovereign has deprived the chargé of his privilege, even if it were competent so to do. Torlade v. Barrozo, 1 Miles (Phil.), 361. Subsequently the attorney who issued the capias was indicted under the act of Congress and tried in the Federal court. The case went to the Supreme Court of the United States on a difference of opinion, and a nolle prosequi was entered by direction of the President. U. S. v. Phillips, 6 Pet., 776. For other points in this controversy, see 8 J. Q. Adams' Mem., 221, ss. A change in the Government by which a foreign minister is accredited suspends the activity of his functions, but does not necessarily terminate them, and during such suspension he is entitled to the immunities of a public minister. Mr. Barrozo Pereira, the Portuguese chargé d'affaires, on the 30th October, 1829, was consequently held entitled to the respect and immunities of a public minister, notwithstanding the assumption of regal power in Portugal by Don Miguel in exclusion of Don Pedro IV. 2 Op., 290, Berrien, 1829. As between the American Republics in which the executive power is permanent and continuous, the functions of a public minister do not cease on a mere change of President. A fortiori the Mexican commissioner, Mr. Salazar, appointed by President Santa Anna to act on be. half of Mexico in defining the cession of territory to the United States, under the Mesilla treaty of December 30, 1853, is not deprived of his authority by the resignation of President Santa Anna and the installment of a successor. 7 Op., 582, Cushing, 1855. XII. DIPLOMATIC GRADES. § 88. By the congresses of Vienna and Aix-la-Chapelle four distinct kinds of embassies were recognized: (1) "Ambassadeurs," legates, and nuncios of the Pope. These are regarded as the personal representatives of the sovereign by whom they are sent. (2) Ministers plenipotentiary and envoys. (3) Ministers resident. (4) Chargés d'affaires, who are appointed by the minister of foreign affairs, while the three classes first above named are commissioned nominally or actually by the sovereign. Whart. Com. Am. Law, § 169. As to rules of precedence of congress of Vienna, see Blackwood's Mag. for Dec., 1873, vol. 114, p. 681. That diplomatic agents are not to appear officially but with their full titles, and to negotiate ouly with ministers of equal rank, see 7 Johu Adams' Works, 451, 452; 8 id., 4. "In the practice of our Government there is no immediate connection or dependence between persons holding diplomatic and consular appointments in the same country; but, by the usage of all the commercial nations of Europe, such a subordination is considered as of course. In the transaction of their official duties the consuls are often in necessary correspondence with their ministers, through whom alone they can regularly address the supreme Government of the country wherein they reside, and they are always supposed to be under their directions. You will accordingly maintain such correspondence with the consuls of the United States in France as you shall think conducive to the public interest; and in case of any vacancy in their offices, which may require a temporary appointment of a person to perform the duties of the consulate, you are authorized, with the consent of the Government to which you are accredited, to make it, giving immediate notice of it to this Department." Mr. Adams, Sec. of State, to Mr. Brown, Dec. 24, 1823. MSS. Inst., Ministers. A report by Mr. Clay, Secretary of State, January 31, 1827, on the posi tion of chargés d'affaires is contained in House Doc. No. 452, 19th Cong., 2d sess. In this report, after enumerating a series of cases of persons appointed as chargés d'affaires, with their respective terms of office, Mr. Clay proceeds as follows: "Most of the preceding appointments of chargés d'affaires were made whilst we had ministers appointed to reside near the same Government. Mr. Purviance was so appointed by Mr. Monroe, being the regular minister of the United States in London at the time. Mr. Erving, being the secretary of legation at Madrid, was intrusted with the charge of our affairs until the arrival of Mr. Bowdoin, our minister. Mr. Harris, at St. Petersburg, was left in charge of our affairs whilst Mr. Adams was absent on the duty of assisting in the negotiation of peace with Great Britain. Mr. Lawrence was left chargé d'affaires by Mr. Russell whilst this gentleman was absent from Stockholm on the same service of treating of peace. Mr. Jackson was left chargé at Paris after Mr. Gallatin's appointment, but before his arrival in France, as the minister of the United States. Mr. Brent was intrusted with the charge of our affairs during Mr. Forsyth's return to the United States. In the same character, at Stockholm, Mr. Hughes was left by Mr. Russell on his return home. Mr. Pinkney was left by Mr. Campbell in charge of our affairs in July, 1820, Mr. Middleton having been appointed minister the preceding April. Mr. Appleton was left in charge of our affairs by Mr. Forsyth, at Madrid, in March, 1823, Mr. Nelson having been ap pointed minister the preceding January. Mr. Watts was left at Bogota, in charge of our affairs, in the year 1825, during Mr. Anderson's absence on a visit to the United States. And, lastly, Mr. John A. King was left by Mr. Rufus King in charge of our affairs after the appointment but before the arrival of Mr. Gallatin at London. The necessity of confiding temporarily to a chargé the affairs of a Government, which is ordinarily represented by a minister plenipotentiary, arises out of the absence of a minister, no matter from what cause. It is supposed not to be affected by the fact of a minister's having notified his intention to return and the appointment of his successor. "The authority under which the above appointments were made is believed to be furnished by the Constitution of the United States, and the public law and usage of nations. So important is it regarded to preserve, without interruption, the diplomatic intercourse between nations which are mutually represented by ministers, that upon the death of a minister the secretary of legation becomes, by established usage, ipso facto, chargé d'affaires until his Government is advised and provides for the event. The period during which they respectively continued to act in the character of chargé d'affaires will be seen by an inspection of the annexed abstract from the books of the Treasury, 'marked A, to which a reference is respectfully requested. "The duties to be performed by a chargé d'affaires, so appointed, are to be found in the same public law and usage, and may be stated, in the general, to be the same as those of the minister whose place he supplies. He transacts the ordinary business of the legation; keeps its archives and an office; corresponds with the Government where he is accredited, and with his own; and sustains an expense and maintains an intercourse with the diplomatic corps corresponding to the new station to which he is elevated. "The compensation received by the several persons so appointed (with the exception of Mr. John A. Smith and Mr. Watts, whose accounts are not yet closed, but will be finally liquidated on the same principles), may be seen in the above extract from the Treasury. From that abstract it appears: First, that the allowance of salary in the character of chargé, in the cases there stated, has been uniform; second, that the allowance of an outfit has been most usually, but not always, made; third, that in some instances the temporary appointment has been continued after the intervention of a session of the Senate, as in the cases of Mr. Purviance, Mr. Russell, Mr. Lawrence, Mr. Jackson, Mr. Brent, Mr. Hughes, and Mr. Sheldon, and in two cases (those of Mr. Erving and Mr. Harris) after the intervention of several sessions of the Senate; and fourth, that in the case of Mr. John A. King, the allowance made to him was a medium between the highest and lowest allowances that had been previously made. The highest was made in the cases of Mr. Russell and Mr. Jackson, to each of whom, besides the outfit and salary of a chargé, a quarter's return salary was allowed. Mr. King was not allowed salary as a chargé during the absence of Mr. Gallatin on his visit to Paris last fall, nor was he allowed a quarter's return salary as chargé. He was, moreover, the bearer of a convention, the first intelligence of the conclusion of which reached the Department by his delivery of the instrument itself. Such a service is always regarded in the transactions of Governments as one of peculiar interest. He might have been, but was not, allowed the usual compensation made to bearers of dispatches." 6 Am. St. Pap. (For. Rel.), 555. "The object of diplomatic missions is to adjust differences and conduct affairs between Governments in regard to their political and commercial relations, and to furnish the Government at home with information touching the country to which the mission is accredited more full and accurate than might be obtained through the ordinary channels, or more promptly than the same information might otherwise be received. The grade of a mission may be higher or lower, according to the estimate of its importance. “As a general rule, no Government sends to, or at least continues in, another country a minister of a higher grade than that country may reciprocate. This rule, however, is by no means invariable, and for various reasons it seems to be proper to leave it to the President to determine the cases in which exceptions ought to be made. There are not sufficient advantages in having ministers of the highest grade accredited to all Governments-the most inconsiderable as well as the most important-to justify a departure from a long prevalent and common usage, with many good reasons to sustain it." Mr. Marcy, Sec. of State, to Mr. Pennington, chairman of the Committee on "Your dispatch No. 61, of the 16th ultimo, relative to the question of precedence which has arisen among the representatives of foreign powers of Tangier, has been received. In reply I have to state that every nation may consult its own pleasure in regard to the grade of its diplomatic or other representative in a foreign country. That grade must be presumed to be measured by its sense of the importance of its relations with the power to which the representatives may be accredited. "Consuls have diplomatic functions in the Barbary states. The United States consul is accredited to the Emperor of Morocco. His predecessors were accredited in the same way, and the consuls at Tripoli, Tunis, and in Egypt are, respectively, accredited to the heads of the Governments of those countries. "It is customary, where the rules of the treaty of Vienna and the protocol of Aix-la-Chapelle are acknowledged, for the eldest of the chief grade to take precedence of all others, and the eldest also when they are all of the same grade. Is this rule binding and operative at Tangier? "The French have thought proper to accredit a minister plenipotentiary to the Emperor of Morocco, who resides at Tangier, and who claims precedence over the representatives of other Governments there solely in virtue of the superiority of his official grade. Is this claim indefeasible? The rules in regard to precedence above referred to, having been embodied in a treaty and in a protocol, may be technically binding only on the parties to those instruments. The United States were not a party to them. The Emperor of Morocco might disregard them for a similar reason. Those rules, however, may be said to have been merely a formal recognition by the chief powers of Europe of a custom which had been the law of nations upon the subject ever since diplomacy began in modern times. As such they have hitherto been practically accepted even by this Government, whenever it may have had occasion to send representatives of any of the grades to which they refer. We have never had any officer at Tangier of a higher grade than consul. If, however, we should accredit a minister plenipotentiary |