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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 2
Of the Rights and Duties of Nations in a State of Peace

A VIEW of the external rights and duties of nations in peace, will lead us to examine the grounds of national independence, the extent of territorial jurisdiction, the rights of embassy, and of commercial intercourse.

Nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality, and entire independence of all distinct states, is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government, or religion, or a course. of internal policy, to another. No state is entitled to take cognizance or notice of the domestic administration of another state, or of what passes within it as between the government and its own subjects.1 The Spaniards, as Vattel observes, violated all rules of right, when they set up a tribunal of their own to judge the Inca of Peru according to their laws. If he had broken the law of nations in respect to them, they would have had a right to punish him; but when they undertook to judge of the merits of his own interior administration, and to try and punish him for acts committed in the course of it, they were guilty of the grossest injustice. No nation had a contention within itself, but the ancient Romans, with their usual insolence, immediately interfered, and with profound duplicity pretended to take part with the oppressed for the sake of justice, though in reality for the purpose of dominion. It was by a violation of the right of national independence, that they artfully dissolved the Achaean league, and decreed that each member of the confederacy should be governed by its own laws, independent of the general authority.2 But so surprisingly loose and inaccurate were the theories of the ancients on the subject of national independence, that the Greeks seem never to have questioned the right of one state to interfere in the internal concerns of another.3 We have several instances within time of memory, of unwarrantable and flagrant violations of the independence of nations. The interference of Russia, Prussia, and Austria, in the internal government of Poland, and first dismembering it of large portions of its territory, and then finally overturning its constitution, and destroying its existence as an independent power, was an aggravated abuse of national right. There were several cases which preceded, or which arose during the violence of the French revolution, which were unjustifiable invasions of the rights of independent nations to prescribe their own forms of government, and to deal in their discretion with their own domestic concerns. Among other instances, we may refer to the invasion of Holland by the Prussian arms in 1787, and of France by the Prussian arms in 1792, and of wars fomented or declared against all monarchical forms of government, by the French rulers, during the earlier and more intemperate stages of their revolution. We may cite, also, the invasion of Naples by Austria in 1821, and the still more recent invasion of Spain by France, under the pretext of putting down a dangerous spirit of internal revolution and reform, as instances of the same violation of the absolute equality and independence of nations.

Every nation has an undoubted right to provide for its own safety, and to take due precaution against distant, as well as impending danger.4 A rational fear is said to be a justifiable cause of war. Posse vicinum impediri, ne in suo solo, sine alia causa suaque evidenti utilitate, munimentum nobis propinquum extruat, aut aliud quid faciat, unde justa formido periculi oriatur.5 The danger must be great, distinct and imminent, and not rest on vague and uncertain suspicion. The British government officially declared to the allied powers in 1821,6 that no government was more prepared than their own, “to uphold the right of any state or states to interfere where their own security or essential interests were seriously endangered by the internal transactions of another state. That the assumption of the right was only to be justified by the strongest necessity, and to be limited and regulated thereby. That it could not receive a general and indiscriminate application to all revolutionary movements, without reference to their immediate bearing upon some particular state or states; that its exercise was an exception to general principles of the greatest value and importance, and as one that only properly grows out of the circumstances of the special case; and exceptions of this description could never, without the utmost danger, be so far reduced to rule, as to be incorporated into the ordinary diplomacy of states, or into the institutes of the law of nations.”

The limitation to the right of interference with the internal concerns of other states, was defined in this instance with uncommon precision; and no form of civil government which a nation may think proper to prescribe for itself, can be admitted to create a case of necessity justifying an interference by force; for a nation, under any form of civil policy which it may choose to adopt, is competent to preserve its faith, and to maintain the relations of peace and amity with other powers.

It is sometimes a very grave question, when and how far one nation has a right to assist the subjects of another, who have revolted, and implored that assistance. It is said,7 that assistance may be afforded consistently with the law of nations, in extreme cases, as when rulers have violated the principles of the social compact, and given just cause to their subjects to consider themselves discharged from their allegiance. Vattel mentions the case of the Prince of Orange as a justifiable interference, because the tyranny of James II. had compelled the English nation to rise in their defense, and to call for his assistance. The right of interposition must depend upon the special circumstances of the case. It is not susceptible of precise limitations, and is extremely delicate in the application. It roust be submitted to the guidance of eminent discretion, and controlled by the principles of justice and sound policy. It would clearly be a violation of the law of nations, to invite subjects to revolt who were under actual obedience, however just their complaints; or to endeavor to produce discontents, violence, and rebellion, in neighboring states, and under color of a generous assistance, to consummate projects of ambition and dominion. The most unexceptionable precedents are those in which the interference did not take place until the new states bud actually been established, and sufficient means and spirit had been displayed to excite a confidence in their stability. The assistance that England gave to the United Netherlands when they were struggling against Spain, and the assistance that France gave to this country during the war of our revolution, were justifiable acts, founded in wisdom and policy. And it is not to be doubted that the government of the United States had a perfect right in the year 1822, to consider as it then did, the Spanish provinces in South America as legitimate powers, which had attained sufficient solidity and strength to be entitled to the rights and privileges belonging to independent states.8

Nations are at liberty to use their own resources in such manner, and to apply them to such public purposes, as they may deem best, provided they do not violate the perfect rights of other nations, nor endanger their safety nor infringe the indispensable duties of humanity. They may contract alliances with particular nations, and grant or withhold particular privileges; in their discretion, By positive engagements of this kind, a new class of rights and duties is created, which forms the conventional law of nations, and constitutes the most diffusive, and, generally, the most important branch of public jurisprudence. And it is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states) are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body politic is still the same, though it may have a different organ of communication.9 So, if a state should be divided in respect to territory, its rights and obligations are not impaired, and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common.10

The extent of jurisdiction over the adjoining seas, is often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory, and the sea-coast adjoining it, and the navigable waters included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation, and to the undisturbed use of the neighboring shores.11 The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing, is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in tune of peace, on a footing of entire equality and independence. No nation has any right of jurisdiction at sea, except it be over the persons of its own subjects, and its own vessels; and so far, territorial jurisdiction may be considered as preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs.12 This jurisdiction:, is confined to the ship; and no one ship has a right to prohibit the approach of another at sea, or to draw round her a line of territorial jurisdiction, within which no other is at liberty to intrude. Every vessel, in time of peace has a right to consult it own safety and convenience, and to pursue its own course and business, without being disturbed, and without having violated the rights of others.13 As to narrow seas, and waters approaching the land, there have been many and sharp controversies among the European nations, concerning the claim for exclusive dominion. The questions arising on this claim are not very clearly defined and settled, and extravagant pretensions are occasionally put forward. The subject abounds in curious and interesting discussions, and fortunately for the peace of mankind, they are, at the present day, matters rather of speculative curiosity than of use.

Grotius published his Mare Liberum, against the Portuguese claim to an exclusive trade to the Indies, through the South Atlantic and Indian Oceans, and he shows that the sea was not capable of private dominion. He vindicates the free navigation of the ocean, and the right of commerce between nations, and justly exposes the folly and absurdity of the Portuguese claim. Selden’s Mare Clausum was intended to be an answer to the doctrine of Grotius, and he undertook to prove, by the laws, usages, and opinions of all nations, ancient and modern, that the sea was, in point of fact, capable of private dominion, and he poured a flood of learning over the subject. He fell far short of his great rival in the force and beauty of his argument, but he entirely surpassed him in the extent and variety of his citations and researches. Having established the fact, that most nations had conceded that the sea was capable of private dominion, he showed, by numerous documents and records, that the English nation had always asserted and enjoyed a supremacy over the surrounding or narrow seas, and that this claim had been recognized by all the neighboring nations. Sir Matthew Hale considered the title of the king to the narrow seas adjoining the coasts of England, to have been abundantly proved by the treatise of Selden, and Butler speaks of it as a work of profound erudition.14 Bynkershoek has also written a treatise on the same contested subject, in which he concedes to Selden much of his argument, and admits that the sea was susceptible of dominion, though he denies the title of the English, on the ground of a want of uninterrupted possession. He said there was no instance, at that time, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him.15

The claim of dominion to close or narrow seas, is still the theme of discussion and controversy. Pufendorf16 admits, that in a narrow sea the dominion of it may belong to the sovereigns of the adjoining shores. Vattel also17 lays down the position, that the various uses to which the Sea contiguous to the coast may be applied, render it justly the subject of property. People fish there, and draw from it shells, pearls, amber, etc.; and who can doubt, he observes, that the peril fisheries of Bahram and Ceylon may not be lawfully enjoyed as property? Chitty, in his late work on commercial law,18 has entered into an elaborate vindication of the British title to the four seas, surrounding the British islands, and known by the name of the British seas, and, consequently, to the exclusive right of fishing, and of controlling the navigation of foreigners therein. On the other hand, Sir Win. Scott, in the case of the Twee Gebroeders,19 did not treat the claim of territory to contiguous portions of the sea with much indulgence. He said, the general inclination of the law, was against it; for in the sea, out of the reach of cannon shot, universal use was presumed, in like manner as a common use in rivers flowing through conterminous states was presumed; and yet, in both cases, there might, by legal possibility, exist a peculiar property, excluding the universal, or the common use. The claim of Russia to sovereignty over the Pacific ocean north of the 51st degree of latitude, as a close sea, was considered by our government, in 1822, to be against the rights of other nations.20 It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends.21 All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea, extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force, and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon shot will reach, and no farther, and this is usually calculated to be a marine league; and the Congress of the United States have recognized this limitation, by authorizing the District Courts to take cognizance of all captures made within a marine league of the American shores.22 The executive authority of this country, in 1793, considered the whole of Delaware bay to be within our territorial jurisdiction; and it rested its claims upon those authorities which admit that gulfs, channels, and arms of the sea, belong to the people with whose lands they are encompassed; and it was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea, beyond the reach of cannon shot.23

Considering the great extent of the line of the American coats, we have a right to claim for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauck Point., and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi. It is certain that our government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the use of the waters of our coast, far beyond the reach of cannon shot, as cruising ground for belligerent purposes. In 1793, our government thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea shore;24 and, in 1806, our government thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well defined path of the Gulf Stream, to expect an immunity from belligerent warfare, for the space between that limit and the American shore. At least it ought to be insisted, that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within the chambers formed by headlands, or any where at sea within the distance of four leagues, or from a right line from one headland to another.25 In the case of the Little Belt, which was cruising many miles from shore between Cape Henry and Cape Hatteras, our government laid stress on the circumstance that she was “hovering on our coasts,” and it was contended on the part of the United States, that they had a right to know the national character of armed ships in such a situation, and that it was a right immediately connected with our tranquillity and peace. It was further observed, that all nations exercise the right, and none with more rigor, or at a greater distance from the coast, than Great Britain, and none on more justifiable grounds than the United States.26 There can be but little doubt, that as the United States advance in commerce and naval strength, our government will be disposed more and more to feel and acknowledge the justice and policy of the British claim to supremacy over the narrow seas adjacent to the British isles, because we shall stand in need of similar accommodation and means of security.

It was declared, in the case of Le Louis,27 that maritime states claim, upon a principle just in itself, and temperately applied, a right of visitation and inquiry within those parts of the ocean adjoining to their shores. They were to be considered as parts of the territory for various domestic purposes, and the right was admitted by the courtesy of nations. The English hovering laws were founded upon that right. The statute of 9 Geo. II. c. 33. prohibited foreign goods to be transhipped, within four leagues of the coast, without payment of duties; and the act of Congress of March 2d, 1799, ch. 128. sec. 25, 26, 27, 99 contained the same prohibition; and the exercise of jurisdiction, to that distance, for the safety and protection of the revenue laws, was declared by the Supreme Court, in Church v. Hubbard28 to be conformable to the laws and usages of nations.

As the end of the law of nations is the happiness and perfection of the general society of mankind, it enjoins upon every nation the punctual observance of benevolence and good will, as well as of justice, towards its neighbors.29 This is equally the policy and the duty of nations. They ought to promote a free intercourse for commercial purposes, in order to supply each other’s wants, and promote each other’s prosperity. The variety of climates and productions on the surface of the globe, and the facility of communication, by means of rivers, lakes, and the ocean, invite to a liberal commerce, as agreeable to the law of nature, and extremely conducive to national amity, industry, and happiness.30 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?31 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 interest.32 The celebrated English navigation act of Charles II contained nothing, 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 all 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,33 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.

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 other 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.34 The recent 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 ammunitions of war.35

Treaties of commerce, defining and establishing the rights and extent of commercial intercourse, have been found to be of great utility; and they occupy a very important title in the code of national law. They were considered, even two centuries ago, to be so conducive to the public welfare, as to overcome the bigotry of the times; and Lord Coke36 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 offense, provided those treaties do not affect their perfect rights. A state may enter into a treaty, by which it grants exclusive privileges 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, lately, they have monopolized the trade of Japan.37 These are matters of strict legal right; but it is, nevertheless, in a moral sense, the duty of every nation to deal kindly, and liberally, and impartially towards all mankind, and not to bit d 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.

Every nation is bound, in time of peace, to grant a passage, for lawful purposes, over their lands, rivers, and seas, to the people of other states, whenever it can he permitted without inconvenience; and burdensome 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 interests of their own people which they are bound 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 to the discretion of the government which tolerates it.38 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.39 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 to the special terms and conditions prescribed by the treaty.

A nation possessing only the upper, parts of a navigable 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 justly be 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 sane, 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 the end; such, for instance, as the right to moor vessels to the shore, and to land in case: of necessity. The same clear right of the United Stalest to the free navigation of the Mississippi through the territories of Spain to the ocean, was asserted by the Congress under the confederation.40 The claim in that case, with the qualifications annexed to it, was well grounded on the principles and authorities of the law of nations.41

When foreigners are admitted into a state upon free and liberal terms, the public faith becomes pledged for their protection. The courts of justice ought to be freely open to them to resort to for the redress of their grievances. But strangers are equally bound with natives, to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law. It has sometimes been made a question, how far one government was hound by the law of nations, and, independent of treaty, to surrender, upon demand, fugitives from justice, who, having committed crimes in one country, flee to another for shelter. It is declared by the public jurists42 that every state is bound to deny an asylum to criminals, and upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime was committed. The language of the authorities is clear and explicit, and the law and usage of nations rest on the plainest principles of justice. It is the duty of the government to surrender up fugitives upon demand, after the civil magistrate shall have ascertained the existence of reasonable grounds for the charge, and sufficient to put the accused upon his trial. The guilty party cannot be tried and punished by any other jurisdiction than the one whose laws have been violated, and, therefore, the duty of surrendering hire applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive.

The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offenses to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety. The act of the legislature of New York, of the 5th of April, 1822, ch. 148 gave facility to the surrender of fugitives, by authorizing the Governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death, or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. Such a legislative provision was requisite, for the judicial power can do no more than, to cause the fugitive to be arrested and detained, until sufficient means and opportunity have been afforded for the discharge of this duty, to the proper organ of communication with the power that makes the demand.

The European nations, in early periods of modern history, made provision by treaty for the mutual surrender of criminals seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, and England and France in 1308, and France and Savoy in 1378, and the last treaty made special provision for the surrender of criminals though they should happen to be subjects of the state to which they had fled. Mr. Ward43 considers these treaties as evidence of the advancement of society in regularity and order.

Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to the laws of the country to which they are deputed. As they are representatives of their sovereigns, and requisite for negotiations and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions, or perfidious policy, have violated this immunity. Some very honorable examples of respect for the rights of ambassadors, even when their privileges would seem in justice to have been forfeited on account of the gross abuse of them, are to be met with in the ancient Roman annals, notwithstanding the extreme arrogance of their pretensions, and the intemperance of their military spirit.44 If, however, ambassadors should be so regardless of their duty, and of the object of their privilege, as to insult, or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall, or they may be dismissed, and required to depart within a reasonable time. We have had instances within our own times, of all these modes of dealing with ministers who had given offense, and it is not to be denied, that every government has a perfect right to judge for itself whether the language or conduct of a foreign minister be admissible. The writers on public law go still farther, and allow force to be applied to confine or send away an ambassador, when the safety of the state, which is superior to all other considerations, absolutely requires it, arising either from the violence of his conduct t, or the influence and danger of his machinations. This is all that can be done, for ambassadors cannot, in any case, be made amenable to the civil or criminal jurisdiction of the country; and this has been the settled rule of public law ever since the attempt trade in the reign of Elizabeth to subject the Scotch ambassador to criminal jurisdiction, and the learned discussions which that case excited.45 By fiction of law, an ambassador is considered as if he were oat of the territory of the foreign power; and it is an implied agreement among nations, that the ambassador,
while tie resides within the foreign state, shall be considered as a member of his own country, and the government tie represents has exclusive cognizance of his conduct, and control of his person. The attendants and effects of the ambassador are under his protection and privilege, and equally exempt from the foreign jurisdiction, though there are strong instances in which their inviolability has been denied and invaded.46 The distinction between ambassadors, ministers plenipotentiary, and envoys extraordinary, relates to diplomatic precedence and etiquette, and not to their essential powers and privileges.47

A government may, in its discretion, lawfully refuse to receive an ambassador, and without affording any just cause for war, though the act would, probably, excite unfriendly dispositions, unless accompanied with conciliatory explanations. The refusal may be upon the ground of the ambassador’s bad character, or former offensive conduct, or because the special subject of the embassy is not proper, or not convenient for discussion.48 A state may also be divided and distracted by civil laws, so as to render it inexpedient to acknowledge the supremacy of either party. Bynkershoek says,49 that this right of sending ambassadors belongs to the ruling party, in whom stet rei agendi potestas. This is placing the right where all foreign governments place it, in the government de facto, which is in the actual exercise of power; but the government to whom the ambassador is sent, may exercise its discretion in receiving, or refusing to receive him.

It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act. of his minister. This will depend upon the nature and terms of his authority. It is now the usual course for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of attorney, or credential of the minister; and it is not understood to confer a power upon the minister to bind his sovereign conclusively. To do so important an act would require a distinct and full power, containing an express authority to bind the principal definitively, without the right of review, or the necessity of ratification on his part. This is not the ordinary or prudent course of business. Ministers always act under instructions, which are confidential, and which, it. is admitted, they are not bound to disclose;50 and it is a well grounded custom, as Vattel observes,51 that any engagement which the minister shall enter into is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries.52

Consuls are commercial agents, appointed to reside in the sea-ports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation deputing them. The establishment of consuls is one of the most useful of modern commercial institutions. They were first appointed about the 12th century, in the opulent states of Italy, such as Pisa, Lucea, Genoa, and Venice, and their origin has been ascribed to the necessity for extraordinary assistance in those branches of commerce formerly carried on with barbarous and uncivilized nations.53 The utility of such a mercantile officer has been perceived and felt by all trading nations, and the Mediterranean trade, in particular, stands highly in need of such accredited agents.54 Consuls have been multiplied and extended to every part of the world, where navigation and commerce can successfully penetrate, and their duties and privileges are now generally limited and defined in treaties of commerce, or by the statute regulations of the country which they represent. In some places, they have been invested with judicial powers over the disputes between their own merchants in foreign Ports; but in the commercial treaties made by Great Britain, there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary Powers; and in England it has been held, that a consul is not strictly a judicial officer, and they have there no judicial power.55 It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no government can invest its consuls with judicial power over their own subjects, in a foreign country, without the consent of the government of the foreign country, founded on treaty; and there is no instance, in any nation of Europe, of the admission of criminal jurisdiction in foreign consuls. The laws of the United States, on the subject of consuls and vice-consuls,56 specially authorize them to receive the protests of masters and others, relating to American commerce, and they declare that their consular certificates, under seal, shall receive faith and credit in the courts of the United States, It is likewise made their duty, where the laws
of the country permit, to administer on the personal estates of American citizens, dying within their consulates, and leaving no legal representative, and to take charge of and secure the effects of stranded American vessels, in the absence of the master, owner, or consignee; and they are bound to provide. for destitute seamen within their consulates, and to send them, at the public expense, to the United States. These particular powers and duties are similar to those prescribed to British consuls and to consuls under the consular convention between the United States and France, in 1788; and they are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment.57 The former consular convention between France and this country, allowed consuls to exercise police over all vessels of their respective nations, “within the interior of the vessels,” and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France, was merely voluntary, and altogether exclusive of any coercive authority;58 and we have no treaty at present which concedes even such consular functions. The doctrine of our courts is,59 that a foreign consul, duly recognized by our government, may assert and defend, as a competent party, the rights of property of the individuals of his nation, in the courts of the United Stales, and may institute suits for that purpose, without any special authority from the party for whose benefit he acts. But the court, in that case, said, that they could not go so far as to recognize a. right in a vice-consul to receive actual restitution of the property or its proceeds, without showing some specific power, for the purpose, from the party in interest.

No nation is bound to receive a foreign consul, unless it has agreed to do so by treaty, and the refusal is no violation of the peace and amity between the nations. Consuls are to be approved and admitted in the usual form, and if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, revoked, and to be punished according to the laws of the country in which he is consul; or he may be sent back to his own country, at the discretion of the government which he has offended. The French consuls are forbidden to be concerned in commerce, and, by the act of Congress of February 28th, 1803, American consuls residing on the Barbary coast, are forbidden also; but British and American consuls are generally at liberty to be concerned in trade; and in such cases the character of consul does not give any protection to that of merchant, when these characters are united in the same person.60 Though the functions of consul would seem to require, that he should not be a subject of the state in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports.

A consul is not such a public minister as to be entitled to the privileges appertaining to that character, nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe conduct, but he is not entitled to the jus gentium. Vattel thinks61 that his functions require that he should be independent of the ordinary criminal jurisdiction of the country, and that he ought not to be molested, unless he violates the law of nations by some enormous crime; and that if guilty of any crime, he ought to be sent home to be punished. But no such immunities have been conferred on consuls by the modern practice of nations; and it may be considered as settled law, that consuls do riot enjoy the protection of the law of nations any more than other persons who enter the country under a safe conduct. In civil and criminal cases they are equally subject to the laws of the country in which they reside.62 The same doctrine declared by the public jurists, has been frequently laid down in the English and American courts of justice.63 It seems, however, from some decisions in France mentioned by Mr. Warden,64 that foreign consuls cannot be prosecuted before a French tribunal for acts done by them in France by order of their government, and with the authorization of the French government, and that in general a consul cannot be prosecuted without the previous consent of his government. Consular privileges are much less extensive in Christian than in Mohammedan countries. In the latter they cannot be imprisoned for any cause whatever, except by demanding justice against them of the Porte,65 and they partake very considerably of the character of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognizes in relation to the foreign ministers resident at Constantinople. By treaty an entire immunity is usually given to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties.66

Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the constitution of the United States, which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers, and the federal jurisdiction is understood to be exclusive of the state courts.67


NOTES

     1.    Grotius, de Jure Belli et Pacis, b. 1, c. 3, sec. 8. Vattel, Droit des Gens, b. 2, c. 4, sec. 54. Rutherforth’s Inst. b. 2, c. 9.
     2.    Livy, b. 33. c. 30. Florus, b. 2. c. 7. Montesq. Consid. sur les Causes de la Grand. des Rom. ch. 6.
     3.    Mitford’s Hist. of Greece, vol. 5, 127.
     4.    Vattel, b. 2. c. 4. sec. 49, 50.
     5.    Huber de Jure civitatis, lib. 3. c. 7. sec. 4.
     6.    Lord Castlereagh’s circular dispatch of January 19, 1821.
     7.    Vattel, b. 2. c. 4. sec. 56. Rutherforth, b. 2. c. 9. See also Grotius, lib. 2, c. 25, sec. 8. Puff. b. 8, ch. 6, sect. 14.
     8.    President’s Message to Congress of 8th of March, 1822, and act of Congress of 4th of May, 1822, ch. 52.
     9.    Burlamaqui, Nat. and Pol. Law, vol. 2. part 4. ch. 9. sec. 10. Rutherforth’s Institutes, b. 2, ch. 10.
   10.    Rutherforth, ub. sup.
   11.    Grotius, b. 2. c. 2. sec. 12. — c. 3. sec. 7. Puff. b. 3. c. 3. sec. 4; b. 4. c 5. sec. 3 and 8. Vattel, b. 1. ch. 22, 23.
   12.    Grotius, b. 2. c. 3. sec. 10. and 13. Rutherforth, b. 2 c. 9. Vattel, b. 1. c. 19. sec. 216. 2 Barnwell & Cresswell, 448, Forbes v. Cochrane.
   13.    The Marianna Flora, 11 Wheaton, 38.
   14.    Harg. Law Tracts, 10. Co. Litt. lib. 3. n. 205.
   15.    Dissertatio de Dominio Maris. Bynk. Opera. tom. 2, 124.
   16.    Droit de la Nat. et Gen. lib. 4. ch. 5. sec. 5-10.
   17.    B. 1. ch. 23.
   18.    Vol. 1, 88-102.
   19.    8 Rob. Adm. 336.
   20.    Mr. Adams’ Letter to the Russian Minister, March 30th, 1822.
   21.    Azuni on the Maritime Law of Europe, vol. 1. p. 206.
   22.    Bynk. Q. Pub. J. c. 8. Vattel, b. 1. c. 23. sec. 289. Act of Congress, June 5th, 1794, ch. 50.
   23.    Opinion of the Attorney General concerning the seizure of the ship Grange, dated 14th of May, 1793, and the Letter of the Secretary of State to the French Minister, of 15th of May, 1793.
   24.    Mr. Jefferson’s Letter to M. Genet, November 8th, 1793.
   25.    Mr. Madison’s Letter to Messrs. Monroe and Pinckney, dated May 17th, 1806.
   26.    Mr. Monroe’s Letter to Mr. Foster, Oct. 11th, 1811, and President’s Message, November 5th, 1811.
   27.    2 Dodson’s Adm. Rep. 245.
   28.    2 Cranch, 187.
   29.    Vattel’s Prelim. sec. 12, 13. b. ch. 1. sec. 2, 3.
   30.    Vettel, b. 2. c. 2. sec. 21.
   31.    Spectator. vol. 1, No. 69.
   32.    Puf. b. 4. c. 5, sec. 10. Vattel, b. 1. c. 8. sec. 92, 97. Martens’ 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 of September 22d, and December 28th, 1826, and Mr. Clay to Mr. Gallatin, November 11th, 1826.
   33.    Mr. Canning’s Letter to Mr. Pinckney, Sept. 23d, 1808.
   34.    b. 2. c. 2. sec. 24.
   35.    Mr. Adams’ Letter to the Russian Minister, March 30th, 1822.
   36.    4 Inst. 155.
   37.    1 Chitty on Commercial Law, 40, 41, 42.
   38.    Puff. b. 3. ch. 3. sec. 5, 6, 7. Rutherforth, b. 2. ch. 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.
   39.    Rutherforth, b. 2. ch. 9. Vattel, b. 2. c. 10. sec. 134. 1 Chitty, 103-106.
   40.    Instructions given to Mr. Jay in 1780. Resolution of Congress of September, 1788. Report of the Secretary of State to the President, March 18, 1792.
   41.    Grotius. lib. 2. c. 2 sec. 11, 12, 13, 15. — c. 3. sec. 12. Puf. lib. 3. c. 3. sec. 5, 6, 8. Vattel, b. 1. sec. 292,— b. 2. sec. 127, 129, 132.
   42.    Grotius, b. 2. ch, 21. sec. 3, 4, 5. and Heineccius’ Com. h. t. Burlamaqui, part 4. c. 3. sec. 19. Rutherforth, b. 2. c. 9. Vattel, b. 2. ch. 6, sec. 76, 77.
   43.    Hist. of the Law of Nations, vol. 2, 318-320.
   44.    Livy, b. 2. c. 4. b. 30. c. 25.
   45.    Vattel, b. 4. c. 7. sec. 97-103. Ward’s History, vol. 2. p. 486-552.
   46.    Rutherforth, b. 2. c. 9. Ward’s History, vol. 2. 552, 3.
   47.    Martens, p. 201-207. Vattel, b. 4. c. 6.
   48.    Rutherforth, b 2. c. 9.
   49.    Quaest. J. Pub. lib. 2. c. 3.
   50.    Wicquefort’s L’Amb. tom. 1. sec. 14. Martens, p. 217.
   51.    b. 4. c. 6. sec. 77.
   52.    The Eliza Ann, 1 Dodson’s Adm. Rep. 244.
   53.    1 Chitty on Commercial Law, 48, 49.
   54.    Jackson on the Commerce of the Mediterranean, p. 30. ch. 4.
   55.    3 Taunton, 162. 1 Chitty 50, 51.
   56.    Acts of Congress of 14th April, 1792, ch. 24 and of Feb. 28, 1803, ch. 62.
   57.    1 Beawes’ L. M. tit. Consuls, p. 292, 293.
   58.    Mr. Pickerring to Mr. Pinckney, January 16th, 1797.
   59.    Case of the Bello Corrunes, 6 Wheaton, 168.
   60.    Beawes’ L. M. vol. 1. tit. Consuls, p. 291. 1 Chitty, 57, 58. 3 Rob. Adm. Rep. 27. The Indian Chief.
   61.    B. 2. c. 2. sec. 34.
   62.    Wicquefort’s L’Amb., b. 1. c. 5. Bynk. de foro legat. c. 10. Marten’s Summ. b. 4. c. 3. sec. 8
   63.    Viveash v. Becker. 3 Maule & Selw. 284. Clarke v. Cretico, 1 Taunton, 106. United States v. Ravara, 2 Dallas, 297. The Commonwealth v. Korsloff, 5 Serg. & Rawl. 545. 1 Chitty, 70.
   64.    On Consuls, p. 108-116.
   65.    1 Chitty, 71.
   66.    Shaler’s Sketches of Algiers, p. 39. 307.
   67.    5 Serg. & Raw. 545. 3 Pickering, 80.