IN THE MATTER OF THE RIGHT OF AN ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY OF THE UNITED STATES TO A FOREIGN STATE TO BE PAID COMPENSATION FOR THE TIME HE IS DETAINED IN THE UNITED STATES BY AUTHORITY OF THE STATE DEPARTMENT, FOR PURPOSES CONNECTED WITH HIS OFFICIAL DUTIES, AFTER THE PERIOD OF THIRTY DAYS, DURING WHICH HE RECEIVED INSTRUCTIONS, HAS EXPIRED.-FOSTER'S CASE.

1. Section 1740 of the Revised Statutes so far prescribes a post of duty within the foreign State to which an Envoy Extraordinary and Minister Plenipotentiary of the United States is appointed, as to require him to reach such post of duty so designated and there to enter upon his official duties, before he is "entitled tocompensation for his service," in addition to that authorized for the time he is receiving his instructions" and "making the direct transit" to "his post of duty."

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2. The maximum time, for which a "diplomatic officer" is entitled to compensation in making the transit between the place of his residence and his foreign post of duty, has been prescribed by regulations made in pursuance of section 4 of the act of June 11, 1874 (18 Stat., 70), and may be changed by the same authority.

3. The chief executive authority of a foreign State, to which a "diplomatic officer" is appointed, may, according to international law, and for sufficient reasons, refuse to receive him.

4. The decision in Seward's case (2 Lawrence, Compt. Dec., 2d ed., 53) explained and affirmed.

5. An Envoy Extraordinary and Minister Plenipotentiary of the United States to a foreign State, who has first reached his foreign post of duty, has been duly accredited, and has entered upon his official duties, may, by order of the President, and for the purposes of such official duties, be required to return to the United States, or to go elsewhere, so long as the President directs: in which case, such "diplomatic officer" is not, within the meaning of section 1742 of the Revised Statutes, "absent from his post," so that by reason thereof he will forfeit his salary during such absence.

6. A statute cannot take from the President the power given to him by the Consti- . tution, to "nominate, and, by and with the Advice and Consent of the Senate, appoint Ambassadors, other public Ministers," &c.

7. But Congress may by statute provide that a "public Minister" duly appointed shall only receive salary after he has entered upon his official duties at the foreign state to which he is accredited.

July 20, 1883, the Acting Secretary of State addressed a letter to the First Comptroller, inclosing the account of Hon. John W. Foster for sixtytwo days' salary as Envoy Extraordinary and Minister Plenipotentiary of the United States to Spain, from March 12, 1883, when he was com missioned and qualified, to May 12, 1883, being thirty days for receiving instructions, and thirty-two days for detention in the United States under special instructions from the Secretary of State, at the rate of $12,000 per annum, in all $2,051.28, duly approved by the Second Assistant Secretary of State. The letter states, as follows:

"When Mr. Foster was prepared to start for Madrid, the President requested that he might be detained a sufficient time to meet and receive General Diaz, ex-President of Mexico (who was then on his way to the

United States), and escort him to this Capital. Mr. Foster was selected for this duty, because of his familiarity with Mexico, and his personal acquaintance with General Diaz.

In addition to this duty, I may remark, that a very large number of unsettled private claims against Spain, of long standing, are pending in the Department; and for more than two weeks of these thirty-two days, in addition to the thirty days allowed for receiving his general instructions, Mr. Foster was, by direction of the Secretary, constantly engaged in the Department, aiding its officers in the preparation of separate instructions on each of these claims, and doing just such work in regard to them as he would have been obliged to do at Madrid, with fewer facilities than were afforded him here.

I am also led to believe, that the precedents afforded by the case of Mr. Foster himself, while Minister to Mexico, whence he was called to this Capital, to give special information to the Government relative to Mexican affairs, and remained here several months, for which his regular salary was allowed: that of Mr. Seward, while Minister to Peking, who was also ordered home on public business, remaining several months; that of Mr. Dichman (who was not able to reach Bogota within the time prescribed by law and regulation), furnish strong support in favor of Mr. Foster's claim for these thirty-two days."

The Assistant Secretary of State asks the opinion of the First Comptroller on the subject, in view of the fact, that "the Fifth Auditor entertains some doubt as to the propriety of his recommending payment of the salary for more than thirty days."

OPINION BY WILLIAM LAWRENCE, First Comptroller.

The act of August 18, 1856 (11 Stat., 55, sec. 8), as carried into the Revised Statutes, section 1740, provides, that:

"No ambassador, envoy extraordinary, minister plenipotentiary, minster resident, commissioner, chargé d'affaires, secretary of legation, assistant secretary of legation, interpreter to any legation or consulate, or consul-general, consul, or commercial agent, mentioned in Schedules B and C, shall be entitled to compensation for his services, except from the time when he reaches his post and enters upon his official duties to the time when he ceases to hold such office, and for such time as is actually and necessarily occupied in receiving his instructions, not to exceed thirty days, and in making the direct transit between the place of his residence, when appointed, and his post of duty, at the commencement and termination of the period of his official service, for which he shall in all cases be allowed and paid, except as hereinafter mentioned. And no person shall be deemed to hold any such office after his successor is appointed and actually enters upon the duties of his office at his post of duty, nor after his official residence at such post has terminated if not so relieved. But no such allowance or payment shall be made to any consulgeneral, consul, or commercial agent, not embraced in Schedules B and C, or to any vice-consul, vice-commercial agent, deputy consul, or consu. lar agent, for the time so occupied in receiving instructions, or in such transit as aforesaid; nor shall any such officer as is referred to in this section be allowed compensation for the time so occupied in such transit, at the termination of the period of his official service, if he has resigned or been recalled therefrom for any malfeasance in his office."

The "Personal Instructions to the Diplomatic Agents of the United States in Foreign Countries," prepared by the State Department in 1874, contain these provisions, thus:

"§ XXXII. In case a diplomatic agent reaches his post, he will be entitled to compensation at the rate of his salary: First. For such time subsequent to the date of his confirmation (not exceeding thirty days) as shall be actually and necessarily occupied in receiving his instructions. This is payable in currency, and is usually adjusted at the Fifth Auditor's office before leaving. Second. For such time as may be actually and necessarily occupied in making the transit between his place of residence and his post of duty, not to exceed the time named in § XXXIII. This is payable in gold. Third. For such time as he serves according to his appointment, except as provided in § XLI. This also is to be drawn for in gold, as may be indicated in special instructions. Fourth. For the time actually and necessarily occupied in making the transit between his post of duty and his place of residence at the termination of the period of his official service. This is usually paid in gold."

"§ XLI. Diplomatic agents are forbidden by law from absenting themselves from the legation for more than ten days at any one time, without first obtaining leave from the President.

The statute provides that no diplomatic or consular officer shall receive salary for the time during which he may be absent from his post, (by leave or otherwise,) beyond the term of sixty days in any one year; provided, that the time equal to that usually occupied in going to and from the United States, in case of the return on leave, of such diplomatic or consular officer to the United States, may be allowed in addition to said sixty days.

The year in which the absences above referred to are to be estimated, is regarded as the calendar year."

Vattel, in his work on the Law of Nations (page 400), says:

"Though the minister's character is not displayed in its full extent and does not thus insure him the enjoyment of all his rights, till he is acknowledged and admitted by the sovereign, to whom he delivers his credentials,-yet, on his entering the country to which he is sent, and making himself known, he is under the protection of the law of nations; otherwise, it would not be safe for him to come. Until he has had his audience of the prince, he is, on his own word, to be considered as a minister; and besides, exclusive of the notice of his mission, usually given by letter, the minister has, in case of doubt, his passports to produce, which will sufficiently certify his character.

These passports sometimes become necessary to him in the countries through which he passes on his way to the place of his destination; and, in case of need, he shows them, in order to obtain the privileges to which he is entitled."

In Lawrence's Wheaton on International Law (6th ed., pages 278–280), it is said:

"So far as the relative rank of diplomatic agents may be determined by the nature of their respective functions, there is no essential difference between public ministers of the first class and those of the second. Both are accredited by the sovereign, or supreme executive power of the State, to a foreign sovereign. The distinction between ambassadors and envoys was originally grounded upon the supposition, that the former are authorized to negotiate directly with the sovereign himself;

whilst the latter, although accredited to him, are only authorized to treat with the minister of foreign affairs or other person empowered by the sovereign. The usage of all times, and especially the more recent times, authorizes public ministers of every class to confer, on all suitable occasions, with the sovereign at whose court they are accredited, on the political relations between the two States.

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According to the rule prescribed by the Congress of Vienna, and which has since been generally adopted, public ministers take rank between themselves, in each class, according to the date of the official notification of their arrival at the court to which they are accredited.

A minister or ministers may also have full powers to treat with foreign States, as at a Congress of different nations, without being accredited to any particular court."

It is thus apparent, that, both by statute and the general principles of international law, an envoy extraordinary and minister plenipotentiary, appointed to represent the United States at a designated foreign court, has a post of duty, which is the foreign State to which he is accredited. The statute expressly provides, that such minister is entitled to salary, prior to "the time when he reaches his post

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such time as is actually and necessarily occupied [1] in receiving his instructions, not to exceed thirty days, and [2] in making the direct transit between the place of his residence, when appointed, and his post of duty, at the commencement of the period of his official service." The time for receiving instructions is limited by statute, and cannot "exceed thirty days." The minister is entitled to receive his salary, as the stat ute says, "for such time as is actually and necessarily occupied *** in making the direct transit between the place of his residence, when appointed, and his post of duty, at the commencement of the period of his official service." This time is necessarily indefinite; hence, the payment of salary to Mr. Dichman, Minister to Bogota, who was unable to reach his post of duty within the time prescribed by the regula tions of the State Department, was fully justified.

Section 46 of the United States consular regulations of 1881 estab lishes and determines "the maximum amount of time" for making the transit to the places therein named, including Bogota. These regula tions were prescribed in accordance with section 4 of the act of June 11, 1874 (18 Stat., 70); and, generally, the power which makes a regula tion can change it. But the salary prescribed by statute for an envoy extraordinary and minister plenipotentiary can neither be enlarged nor diminished by a regulation or order of the President, or of the head of a Department (Goldsborough v. United States, Taney's Decisions, 80; Rev. Stat., 1765). The statute seems to regard the time occupied in receiv ing instructions and in making the transit to the post of duty as employed in some sense unofficially, or, rather, perhaps, officially, but not in the full capacity of an envoy extraordinary and minister plenipotentiary accredited to a foreign State. Under the statute, therefore, the full offi

cial duty in the capacity of such minister commences at the foreign post of duty. And Vattel (Law of Nations, 466) says, that "the minister's character is not displayed in its full extent, and does not thus insure him the enjoyment of all his rights, till he is acknowledged and admitted by the sovereign, to whom he delivers his credentials." There is a reason for this. The power to whom a minister is accredited may refuse to receive him. Thus, Vattel (Law of Nations, 469) says:-"a prince, when influenced by substantial reasons, may refuse to admit and listen to ambassadors." (Calvin's case, 7 Coke, 21b; 4 Inst., 155; 2 Id., 57; 1 Chitty, Commercial Laws, 131.) And again (page 456): "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." Wheaton (Lawrence's Wheaton, International Law, 6th ed., 273), says, that "no State, strictly speaking, is obliged, by the positive law of nations, to send or receive public ministers." (2 Rutherforth's Institutes, b. 2, ch. 9, § 20; Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii, ch. 1, §§ 187-190.) The statute recognizes these conditions, and, hence, declares, that "no dinary [and] minister plenipotentiary compensation for his services, except from the time when he reaches his post and enters upon his official duties," and for the time occupied in receiving instructions and in making the transit to such post. This subject has been somewhat discussed in Dunn's case (ante, 410.) It is unnecessary now to inquire, what acts, after a minister reaches his foreign post of duty, furnish evidence, that he has entered upon his official duties. For purposes of the payment of salary, it may be, that he "enters upon his official duties," when he exercises the usual and proper acts of diligence, to present his credentials and be received as minister.

envoy extraorshall be entitled to

It seems to have been supposed that the decision in Seward's case (2 Lawrence, Compt. Dec., 2d ed., 53) was, that, under all circumstances, the post of duty of a "diplomatic officer" is wherever he may be required. by the President to be for the purpose of performing official duties as such officer, even before he has entered on duty in the foreign country to which he is accredited. Such is not the case, so far as the right to salary is concerned. Section 1742 of the Revised Statutes provides, that "no diplomatic * officer shall receive salary for the time during which he may be absent from his post, by leave or otherwise, beyond the term of sixty days in any one year." In Seward's case the facts were, that Mr. Seward, formerly Consul-General of the United States at ShangHai, China, and afterwards Envoy Extraordinary and Minister Plenipotentiary to that country, who had been at his foreign post of duty, was subsequently, by direction of the President, required to return to the United States, for purposes connected with his official duties, and remained here beyond the term of sixty days. And it was decided, that Mr. Seward, having once "entered upon his official duties" at his foreign post of duty, was subject to the direction of the President for the 29 D 83