Lapas attēli

glish 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, 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. 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. 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 north-west coast of America, without the territorial jurisdiction of other nations, even in arms and ammunitions of war.c


Treaties of commerce, defining and establishing the rights Comercial 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

a Mr. Canning's Letter to Mr. Pinkney, Sept. 23d, 1808.

b b. 2. c. 2. sec. 24.

c Mr. Adams' Letter to the Russian Minister, March 30th, 1822. VOL. I.


Passage over Foreign Tertory.

two centuries ago, to be so conducive to the public welfare, as to overcome the bigotry of the times; and Lord Coke 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 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 of Japan. 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.

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 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

a 4 In t. 155.

b1 Chitty on Commercial Law, 40, 41, 42.

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." 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. 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.

gable rivers

A nation possessing only the upper parts of a navigable Use of naviriver, 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 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 of the means requisite to attain the end; such, for instance, as the right


a Puff. b. 3. ch. 3. sec. 5, 6, 7. Rutherforth, b. 2. ch. 9. b. 2. c. 7. sec. 94.-c. 3. sec. 100.-c. 9. sec. 123. 130..-c. 10. sec. 132. 1 Chitty, 84–89.

b Rutherforth, b. 2. ch. 9. Valtel, b. 2. ch. 10. sec. 134. 1 Chilly, 103-106.

Surrender of criminals.

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. The claim in that case, with the qualifications annexed to it, was well grounded on the principles and authorities of the law of nations."

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 bound 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 jurists, that every

a Instructions given to Mr. Jay in 1780, and again in 1785. Resolution of Congress of September, 1788. Report of the Secretary of State to the President, March 18, 1792.

b Grotius, lib. 2. c. 2. sec. 11, 12, 18. 15.-c. 3. sec. 12. Puff. lib. 3. c. 3. sec. 5, 6. 8. Valtel, b. 1. sec. 292.-b. 2. sec. 127. 129. 132. At the Congress of Vienna, in 1814, the allied Sovereigns agreed to the free navigation of the great navigable rivers of Germany and ancient Poland, to their mouths, in favour of all who should conform to the regulations under which the affranchisement was to be granted. The English government, so late as 1830, continued to assert a right under the treaty of Vienna, in 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.

e Grotius, b. 2. ch. 21. sec. 3, 4, 5. and Heineccius's Com. h. t. Burlamaqui, part 4. c. 3. sec. 19. Rutherforth, b. 2. c. 9. Vattel, b. 2. ch. 6. sec. 76, 77. See Questions de Droit, tit. Etranger, par Merlin, for discussions on this subject in France.

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 him 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 offences 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,

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