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 PACIFIC RELATIONS.

CHAPTER I.

RIGHTS OF LEGATION.

diplomatic

§ 206. THERE is no circumstance which marks more Usage of 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

established a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different States by means of diplomatic intercourse. (a)

legation, to

Rights of § 208. How far the rights of legation belong to dewhat States pendent or semi-sovereign States, must depend upon the belonging. nature of their peculiar relation to the superior State under whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending chargés d'affaires of the Greek communion to represent them at the court of Constantinople. (a)

So also of confederated States: their right of sending public ministers to each other, or to foreign States, depends upon the peculiar nature and constitution of the union by which they are bound together. Under the constitution of the former German Empire, and that of the present Germanic Confederation, this right is preserved to all the princes and States composing the federal union. Such was also the former Constitution of the United Provinces of the Low Countries, and such is now that of the Swiss Confederation. By the Constitution of the United States of America every State is expressly forbidden from entering, without the consent of Congress, into any treaty, alliance, or confederation, with any other State of the Union, or with a foreign State, or from entering, without the same consent, into any agreement or compact with another State, or with a foreign power. The original power of sending and receiving public ministers is essentially modified, if it be not entirely taken away, by this prohibition. (b)119

(a) Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Martens, Précis du Droit de Gens Moderne de l'Europe, liv. vii. ch. 1, S$ 187-190.

(a) Vattel, liv. iv. ch. 5, § 60. Klüber, Droit des Gens Moderne de l'Europe, st. 2, tit. 2, ch. 3, § 175. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 1, Nos. 3, 4. (b) Heffter, Europ. Völker. § 200. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 5.

[119 Constitution of the United States, Art. I, § 10. The Articles of Confederation had the same prohibition (Art. of Confed. § 6); and no State ever exercised such a power, or ever acted as a sovereign, in foreign relations. The Articles of Confederation were adopted during the War of Independence, and were superseded, without interval, by the Constitution; so that none of the colonies or States were ever in a

fected by

the sover

§ 209. The question, to what department of the govern- How afment belongs the right of sending and receiving public civil war or ministers, also depends upon the municipal constitution contest for of the State. In monarchies, whether absolute or consti- eignty. tutional, this prerogative usually resides in the sovereign. In republics it is vested either in the chief magistrate, or in a senate or council, conjointly with or exclusive of such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign States must of necessity judge for themselves whether they will recognize the government de facto by sending to, and receiving ambassadors from it; or whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign; or suspend altogether these relations with the nation in question. So, also, where an empire is severed by the revolt of a province, or colony declaring and maintaining its independence, foreign States are governed by expediency in determining whether they will commence diplomatic intercourse with the new State, or wait for its recognition by the metropolitan country. (a)120

For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplomatic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities of ministers, though they are not invested with the representative character, nor entitled to diplomatic honors.121

political condition that admitted of their sending and receiving public ministers. The co'on es acted together as a political body, in all their international relations, in throwing off their allegiance, and during the War of Independence. It was as a confederation that their independence was achieved, and the confederation passed directly into a supreme government. See note 32, ante, The United States a Supreme Government.-D.

(a) Vide suprà, §§ 22-26.

Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 6.

[12) On this subject, see note 16, ante, on Recognition of Independence, and note 41, ante, on Intervention in Mexico and Recognition of the Empire. See also Mr. Buchanan to Mr. Rush, of 31st March, 1848; Mr. Webster to Mr. Rives, of Jan. 12, 1852; Mr. Everett to Mr. Rives, of 17th February, 1863.] -D.

[Where a revolution or forcible change of governments has occurred, a minister who had been accredited to the country, and duly received by the former government, and remains over, will usually enjoy the immunities of a public minister, although his own State may not have recognized the new government as the real sovereignty. It is not likely that objections will come from that quarter. But it may well be ques