public law as a qualified, occasional exception to the paramount rights of property. They made no distinction between the right of passage by a river, flowing from the possessions of one nation through those of another, to the ocean, and the same right to be enjoyed by means of any highway, whether of land or water, generally accessible to the inhabitants of the earth. The right of passage, then, must hold good for other purposes, besides those of trade, for objects of war as well as for objects of peace, for all nations, no less than for any nation in particular, and be attached to artificial as well as to natural highways. The principle could not, therefore, be insisted on by the American government, unless it was prepared to apply the same principle by reciprocity, in favor of British subjects, to the navigation of the Mississippi and the Hudson, access to which from Canada might be obtained by a few miles of land-carriage, or by the artificial communications created by the canals of New York and Ohio. Hence the necessity which has been felt by the writers on public law, of controlling the operation of a principle so extensive and dangerous, by restricting the right of transit to purposes of innocent utility, to be exclusively determined by the local sovereign. Hence the right in question is termed by them an imperfect right. But there was nothing in these writers, or in the stipulations of the treaties of Vienna, respecting the navigation of the great rivers of Germany, to countenance the American doctrine of an absolute, natural right. These stipulations were the result of mutual consent, founded on considerations of mutual interest growing out of the relative situation of the different States concerned in this navigation. The same observation would apply to the various conventional regulations, which had been, at different periods, applied to the navigation of the river Mississippi. As to any supposed right derived from the simultaneous acquisition of the St. Lawrence by the British and American people, it could not be allowed to have survived the treaty of 1783, by which the independence of the United States was acknowledged, and a partition of the British dominions in North America was made between the new government and that of the mother country. (a)

§ 205. To this argument it was replied, on the part of The St. the United States, that, if the St. Lawrence were regarded Lawrence, as a strait connecting navigable seas, as it ought properly

continued.

(a) British Paper on the Navigation of the St. Lawrence. Session 1827-1828, No. 43, p. 41.

285

to be, there would be less controversy. The principle on which the right to navigate straits depends, is, that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive, but common to all nations; the right to navigate the seas drawing after it that of passing the straits. The United States and Great Britain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from one to the other through the natural link. Was it then reasonable or just that one of the two coproprietors of the lakes should altogether exclude his associate from the use of a common bounty of nature, necessary to the full enjoyment of them? The distinction between the right of passage, claimed by one nation through the territories of another, on land, and that on navigable water, though not always clearly marked by the writers on public law, has a manifest existence in the nature of things. In the former case, the passage can hardly ever take place, especially if it be of numerous bodies, without some detriment or inconvenience to the State whosę territory is traversed. But in the case of a passage on water no such injury is sustained. The American government did not mean to contend for any principle the benefit of which, in analogous circumstances, it would deny to Great Britain. If, therefore, in the further progress of discovery, a connection should be developed between the river Mississippi and Upper Canada, similar to that which exists between the United States and the St. Lawrence, the American government would be always ready to apply, in respect to the Mississippi, the same principles it contended for in respect to the St. Lawrence. But the case of rivers, which rise and debouch altogether within the limits of the same nation, ought not to be confounded with those which, having their sources and navigable portions of their streams in States above, finally discharge themselves within the limits of other States below. In the former case, the question as to opening the navigation to other nations, depended upon the same considerations which might influence the regulation of other commercial intercourse with foreign States, and was to be exclusively determined by the local sovereign. But in respect to the latter the free navigation of the river was a natural right in the upper inhabitants, of which they could not be entirely deprived by the arbitrary caprice of the lower State. Nor was the fact of

subjecting the use of this right to treaty regulations, as was proposed at Vienna to be done in respect to the navigation of the European rivers, sufficient to prove that the origin of the right was conventional, and not natural. It often happened to be highly convenient, if not sometimes indispensable, to avoid controversies by prescribing certain rules for the enjoyment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general purposes, does not always reach every minute detail which is called for by the complicated wants and varieties of modern navigation and commerce. Hence the right of navigating the ocean itself, in many instances, principally incident to a state of war, is subjected, by innumerable treaties, to various regulations. These regulations- the transactions of Vienna, and other analogous stipulations- should be regarded only as the spontaneous homage of man to the paramount Lawgiver of the universe, by delivering his great works from the artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly subjected. (a) 118

(a) Mr. Secretary Clay's Letter to Mr. Gallatin, June 19, 1826. Session 18271828, No. 43, p. 18.

[118 Navigation of the St. Lawrence, the Great Lakes, and the South American Rivers. — Art. IV of the Reciprocity treaty of 5th June, 1854, now terminated (see note 110, ante), gave to the inhabitants of the United States the right to navigate the St. Lawrence, and the canals in Canada used as means of communication between the great lakes and the Atlantic, as freely as British subjects, and upon the same terms as to tolls and other assessments. While this privilege remained in citizens of the United States, British subjects were to have a corresponding right to navigate Lake Michigan. Great Britain might at any time suspend this privilege, upon notice, in which event her right to navigate Lake Michigan terminated; and the United States might further suspend the operation, so far as Canada was affected thereby, of Art. III of the treaty, admitting certain articles, the growth and produce of British provinces, into the United States duty free. This treaty further exempted from export-duty lumber cut in that part of Maine watered by the St. John and its tributaries, and floated down that river and exported from New Brunswick to the United States. (U. S. Laws, x. 199 t.)

The treaty of 10th July, 1853, between the United States and the Argentine Confederation, opens the Uruguay and Parana to merchant vessels of all nations, subject only to conditions established by the treaty, or hereafter to be sanctioned by the Confederation. It allows vessels to load and unload in ports open for the purpose; and the Confederation agrees to establish a uniform system of duties, and harbor, pilotage, and police dues, on all its waters. The United States is to be put upon the basis of the most favored nations as to trade; and Brazil, Bolivia, Paraguay, and Uruguay are to become parties to the treaty, if they will extend its provisions to those parts of the rivers Paraguay, Uruguay, and Parana in which they have fluvial rights. (U. S. Laws, x. 233 t.)

By a treaty of 4th February, 1859, between the United States and the Republic of

Paraguay, Paraguay concedes to the merchant-vessels of the United States the free navigation of the river Paraguay, within its dominions, and to the extent of its own authority over the same. (U. S. Laws, xii. 117 t.)

By a treaty of May 13, 1858, between the United States and Bolivia, the latter country declares, that, "in accordance with fixed principles of international law, it regards the Amazon and La Plata, with their tributaries, as highways or channels opened by nature to the commerce of all nations," and invites commerce of all nations to her ports on the tributaries of those rivers; and declares that all places on the Bolivian tributaries of the Amazon or La Plata rivers, accessible by merchantvessels of the United States, shall be considered as ports open to trade within the terms of the treaty, the provisions of which establish reciprocity of trade between the two countries. (U. S. Laws, xii. 291 t.)

By a law passed on the 26th November, 1853, Ecuador declares free the navigation of the rivers and tributaries within the republic, including the Ecuadorian tributaries of the Amazon.

As to the Peruvian tributaries of the Amazon, a controversy arose between the United States and Peru. By the treaty between those powers of 26th July, 1851, it is agreed that there shall be "reciprocal liberty of commerce and navigation between their respective territories," and that "the citizens of either may frequent with their vessels all the coasts, ports, and places of the other where foreign commerce is permitted," and shall have "full liberty to trade in all parts of the territories of either;" and each agrees "not to grant any favor, privilege, or immunity whatever, in matters of commerce and navigation, to other nations which shall not immediately be extended to the citizens of the other contracting party." On the 23d October following, Peru made a treaty with Brazil, to regulate the navigation of the Amazon and its tributaries, in which it is agreed that vessels of either country, passing to or from portions of the other on that river or its tributaries, shall be subject only to reciprocal duties, such as either nation lays on its own products. The United States contended that this treaty came within the operation of the reciprocal clause of the treaty of the 26th July, 1851, and gave to our commerce the same rights in the Peruvian tributaries of the Amazon with Brazilian commerce. This construction has been denied by Peru; in which denial she has been sustained by Brazil, which has objected to the passage of commerce of the United States through the Amazon. (U. S. Laws, x. 28 t.)

By the treaty of Dec. 30, 1853, between the United States and Mexico, navigation is made free to vessels of the United States to and from their own territory, through the Colorado and the Gulf of California, and through the Mexican part of the Rio Grande below latitude 31° 47′ 30′′. (U. S. Laws, x. 123 t.)] — D.

288

PART THIRD.

INTERNATIONAL RIGHTS OF STATES IN THEIR PACI

FIC RELATIONS.

CHAPTER I.

RIGHTS OF LEGATION.

Usage of

diplomatic

§ 206. THERE is no circumstance which marks more distinctly the progress of modern civilization, than the permanent institution of permanent diplomatic missions between dif- missions. ferent States. The rights of ambassadors were known, and, in some degree, respected by the classic nations of antiquity. During the Middle Ages they were less distinctly recognized, and it was not until the seventeenth century that they were firmly established. The institution of resident permanent legations at all the European courts took place subsequently to the peace of Westphalia, and was rendered expedient by the increasing interest of the different States in each other's affairs, growing out of more extensive commercial and political relations, and more refined speculations respecting the balance of power, giving them the right of mutual inspection as to all transactions by which that balance might be affected. Hence, the rights of legation have become definitely ascertained and incorporated into the international code.

lic minis

§ 207. Every independent State has a right to send Right to public ministers to, and receive ministers from, any other send, and obligation to sovereign State with which it desires to maintain the re- receive, publations of peace and amity. No State, strictly speaking, ters. is obliged, by the positive law of nations, to send or receive public ministers, although the usage and comity of nations seem to have