ness. (a) The numerous wants of civilized life can only be supplied by mutual exchange between nations of the peculiar productions of each; and who that is familiar with the English classics, has not dwelt with delight on the description of the extent and blessings of English commerce, which Addison has given, with such graceful simplicity and such enchanting elegance, in one of the Spectator's visits to the Royal Exchange? (b) But as every nation has the right, and is disposed to exercise it, of judging for itself, in respect to the policy and extent of its commercial arrangements, the general freedom of trade, however reasonably and strongly it may be inculcated in the modern school of political economy, is but an imperfect right, and necessarily subject to such regulations and restrictions as each nation may think proper to prescribe for itself. Every state may monopolize as much as it pleases of its own internal and colonial trade, or grant to other nations, with whom it deals, such distinctions and particular privileges as it may deem conducive to its interests. (c) The celebrated English navigation act of Charles II. contained nothing, *33 said Martens, contrary to the law of nations, notwithstanding it was very embarrassing to other countries. When the United States put an entire stop to their commerce with the world, in December, 1807, by laying a general embargo on their trade, without distinction as to nation, or limit as to time, no other power complained of it; and the foreign government most affected by it, and against whose interests it was more immediately directed, declared to our government, (d) that as a municipal regulation, foreign states had no concern with it, and that the British government did not conceive that they had the right, or the pretension, to make any complaint of it, and that they had made none.

(a) Vattel, b. 2, c. 2, sec. 21. (b) Spectator, vol. i. No. 69. (c) Puff. b. 4, c. 5, sec. 10. Vattel, b. 1, c. 8, sec. 92, 97. Martens's Summary of the Law of Nations, 146, 148. 1 Chitty on Commercial Law, 76-81. Mr. Canning's Letters to Mr. Gallatin, of September 11th and November 13th, 1826. Mr. Gallatin to Mr. Canning, September 22d and December 28th, 1826, and Mr. Clay to Mr. Gallatin, November 11th, 1826.

(d) Mr. Canning's Letter to Mr. Pinckney, September 23d, 1808.

No nation has a right, in time of peace, to interfere with, or interrupt, any commerce which is lawful by the law of nations, and carried on between other independent powers, or between different members of the same state. The claim of the Portuguese, in the height of their maritime power in India, to exclude all European people from commerce with Asia, was contrary to national law, and a just cause of war. Vattel called it a pretension no less iniquitous than chimerical. (a) The attempt of Russia to appropriate to herself an exclusive trade in the North Pacific, met with a prompt resistance on the part of this country; and the government of the United States claimed for its citizens the right to carry on trade with the aboriginal natives, on the northwest coast of America, without the territorial jurisdiction of other nations, even in arms and munitions of war. (b)

Commer

Treaties of commerce, defining and establishing the cial Trea- rights and extent of commercial intercourse, have been ties. found to be of great utility; and they occupy a very

important title in the code of national law. They were * 34 considered, even two centuries ago, to be so conducive to the public welfare as to overcome the bigotry of the times; and Lord Coke (c) admitted them to be one of the four kinds of national compacts that might, lawfully, be made with infidels. They have multiplied exceedingly within the last century, for it has been found by experience, that the general liberty of trade, resting solely on principles of common right, benevolence, and sound policy, was too vague and precarious to be consistent with the safety of the extended intercourse and complicated interests of great commercial states. Every nation may enter into such commercial treaties, and grant such special privileges, as they think proper; and no nation, to whom. the like privileges are not conceded, has a right to take offence, provided those treaties do not affect their perfect rights. A state may enter into a treaty, by which it grants exclusive privileges

(a) B. 2, c. 2, sec. 24.

(b) Mr. Adams's Letter to the Russian Minister, March 30th, 1822. See, also, Mr. Forsyth's Letter to the American Minister at St. Petersburg, November 3d, 1837. (c) 4 Inst. 155.

to one nation, and deprives itself of the liberty to grant similar privileges to any other. Thus, Portugal, in 1703, by her treaty with England, gave her the monopoly of her wine trade; and the Dutch, formerly, by a treaty with Ceylon, engrossed the cinnamon trade, and, latterly, they have monopolized the trade with Japan. (a) These are matters of strict legal right; but it is, nevertheless, in a moral sense, the duty of every nation to deal kindly, liberally, and impartially towards all mankind, and not to bind itself by treaty with one nation, in contravention of those general duties which the law of nature dictates to be due to the rest of the world. (b)

territory.

Every nation is bound, in time of peace, to grant a Passage passage, for lawful purposes, over their lands, rivers, over foreign and seas, to the people of other states, whenever it can be permitted without inconvenience; and burthensome conditions ought not to be annexed to the transit of persons and property. If, however, any government deems the introduction of* foreigners, or their merchandise, injurious to those *35 interests of their own people which they are at liberty to protect and promote, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject

(a) 1 Chitty on Commercial Law, 40, 41, 42.

(b) It has been the policy of the United States to encourage, in its diplomatic intercourse with other nations, the most perfect freedom and equality in relation to the rights and interests of navigation. This is the principle contained in the commercial treaty between the United States and the federation of Central America, of the 5th December, 1825. By that treaty, whatever can be imported into, or exported from, the ports of the one country, in its own vessels, may, in like manner, and upon the same terms and conditions, be imported or exported in the vessels of the other country. The same rule is contained in the treaties of the United States with Denmark, Sweden, and the Hanseatic cities.1

1 And see the treaties with Peru, July 26, 1851, and with the Argentine Confederation, July 27, 1853, 10 U. S. Stats. 926, 1005.

At different times Russia, Austria, Prussia, Sardinia, Greece, Brazil, Ecuador, Venezuela, and other of the South American states, and, in 1849, Great Britain, (12 & 13 Vict, c. 29,) have acceded to the offer of complete freedom and reciprocity in respect to navigation which at an early period in their history the United States extended to all nations. An instructive historical sketch of the progress of this liberal policy may be found in the opinion of the court, per Wayne, J., in Oldfield v. Marriott, 10 How. U. S. 146. 4

VOL. I.

to the discretion of the government which tolerates it. (a) The state may even levy a tax or toll upon the persons and property of strangers in transitu, provided the same be a reasonable charge, by way of recompense for the expense which the accommodation creates. (b) These things are now generally settled in commercial treaties, by which it is usually stipulated, that there shall be free navigation and commerce between the nations, and a free entry to persons and property, subject to the ordinary revenue and police laws of the country, and the special terms and conditions prescribed by treaty.

Use of

rivers.

A nation possessing only the upper parts of a navinavigable gable river, is entitled to descend to the sea without being embarrassed by useless and oppressive duties or regulations. It is doubtless a right of imperfect obligation, but one that cannot be justly withheld without good cause. When Spain, in the year 1792, owned the mouth, and both banks of the lower Mississippi, and the United States the left bank of the upper portion of the same, it was strongly contended on the part of the United States, that by the law of nature and nations, we were entitled to the navigation of that river to the sea, subject only to such modifications as Spain might reasonably deem necessary for her safety and fiscal accommodation. It was further contended, that the right to the end carried with

it, as an incident, the right to the means requisite to attain *36 the end; such, for instance, as the right to moor vessels

to the shore, and to land in cases of necessity. The same clear right of the United States to the free navigation of the Mississippi through the territories of Spain to the ocean, was asserted by the congress under the confederation. (c) The

(a) Puff. b. 3, c. 3, sec. 5, 6, 7. Rutherforth, b. 2, c. 9. Vattel, b. 2, c. 7, sec. 94; c. 8, sec. 100; c. 9, sec. 123, 130; c. 10, sec. 132. 1 Chitty, 84-89. M. PinheiroFerreira (Cours de Droit Public, tome ii. pp. 19, 20,) complains vehemently of the checks created by passports and the preventive police of the continental governments of Europe, upon emigration and the transit and sojourn of foreigners. He calls it legal tyranny, and contrasts such policy with that of the United States, "the classic land of civil liberty." But I am of opinion, notwithstanding, that every government has the right, and is bound in duty, to judge for itself, how far the unlimited power of emigration, and of the admission and residence of strangers and emigrants, may be consistent with its own local interests, institutions, and safety.

(b) Rutherforth, b. 2, c. 9. Vattel, b. 2, c. 10, sec. 124. 1 Chitty, 103-106. (c) Instructions given to Mr. Jay in 1780, and again in 1785. Resolution of Con

claim in that case, with the qualifications annexed to it, was well grounded on the principles and authorities of the law of nations. (a) The like claim, and founded on the same principles of natural law, and on the authority of jurists and the conventional law of nations, has been made on behalf of the people of the United States to navigate the St. Lawrence to and from the sea, and it has been discussed at large between the American and British governments. (b)

gress of September, 1788. Report of the Secretary of State to the President, March 18th, 1792.

(a) Grotius, lib. 2, c. 2, sec. 11, 12, 13, 15; c. 3, sec. 12. Puff. lib. 3, c. 3, sec. 5, 6, 8. Vattel, b. 1, sec. 292; b. 2, sec. 127, 129, 132. By the treaty of peace at Paris, in 1815, it was stipulated that the navigation of the Rhine and the Scheldt should be free; and at the Congress of Vienna, in 1815, the allied sovereigns agreed to the free navigation of the great navigable rivers of Germany and ancient Poland, to their mouths, in favor of all who should conform to the regulations under which the affranchisement was to be granted. The detailed conventions consequent on the act of Congress of Vienna, have applied the principles adopted by the congress, founded on the Memoir of Baron Von Humboldt, to regulate the navigation of the Rhine, the Scheldt, the Meuse, the Moselle, the Elbe, the Oder, the Weser, the Vistula, the Danube, and the Po, with their confluent rivers. The English government, so late as 1830, continued to assert a right, under the treaty of Vienna, or federal act of 1815, to the free navigation of the Rhine, and to hold that it was accessible to the vessels of all nations, to the extent of its navigation, subject to moderate duties, for the preservation of the paths on the sides of the river, and for the maintenance of the proper police. And by the convention concluded at Mayence, March 31st, 1831, between all the riparian states of the Rhine, the navigation of that river was declared free, from the point where it becomes navigable into the sea, including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel, through the first-named outlet, and by Dortrecht and Holvoetsluys, through the latter, with the use of the artificial canal of Voorne and Holvoetsluys. The convention provides regulations of police and toll duties on vessels and merchandise passing to and from the sea, through the Netherlands, and by the different ports of the upper states on the Rhine. Wheaton's Elements of International Law, 3d edit. 243-247. His History of the Law of Nations in Europe and America, New York, 1845, pp. 498-506.

(b) Mr. Wheaton, in his Elements of International Law, 3d edit. 248-257, and in his History of the Law of Nations, pp. 506, 517, has given the substance of the arguments, pro and con., taken from congressional documents of the sessions of 1827 and 1828. It was insisted, on the part of Great Britain, that this right of passage was not an absolute natural right, but an imperfect right, restricted to the right of transit for purposes of innocent utility, to be exclusively determined by the local sovereign. The commissioners and diplomatists of the United States, in 1805, and afterwards, stated, as a principle of international law, that when any European nation took possession of any extent of sea-coast, that possession extended into the interior country to the sources of the rivers emptying into that coast and to their mouths, with the bays and