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

Ꮲ Ꭺ Ꭱ Ꭲ THIRD.

INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC 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

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, §§ 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 colonies 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.

[121 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

Conditional reception of

§ 210. As no State is under a perfect obligation to receive ministers from another, it may annex such conforeign min- ditions to their reception as it thinks fit; but when once isters. received, they are, in all other respects, entitled to the privileges annexed by the law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power; and a government may receive one of its own subjects, under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So, also, one court may absolutely refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded. (a)

Classi

§ 211. The primitive law of nations makes no other fication of distinction between the different classes of public minispublic ministers. ters, than that which arises from the nature of their functions; but the modern usage of Europe having introduced into the voluntary law of nations certain distinctions in this respect; which, for want of exact definition, became the perpetual source of controversies, uniform rules were at last adopted by the Congress of Vienna, and that of Aix-la-Chapelle, which put an end to those disputes. By the rules thus established, public ministers are divided into the four following classes:

1. Ambassadors, and papal legates or nuncios.

2. Envoys, ministers, or others accredited to sovereigns (auprès des souverains).

3. Ministers resident accredited to sovereigns.

tioned whether a State can claim, as a right under the law of nations, that its agent shall 'enjoy the immunities," and be treated as "clothed with the powers of a public minister," when it declines to "invest him with the representative character," or to recognize the independence or lawfulness of the government to which he is sent. The rule would seem to be this: if the revolutionary State chooses to receive this restricted diplomatic agent, it must accord to him the immunities appropriate to the functions he is recognized as discharging. As to holding official intercourse with agents of a party engaged in a revolution against a State with which the United States holds free and friendly diplomatic intercourse, see Mr. Seward's memoranda of March 13 and July 17, 1865, cited at length in note 41, ante, on Intervention in Mexico and Recognition of the Empire. See also instructions of

Earl Russell to Lord Lyons of 23d January, 1862. Parl. Papers, North America, No. 5.]-D.

(a) Bynkershoek, de Foro Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre Publique, sect. iii. § 5.