Commercial Treaties. America, without the territorial jurisdiction of other nations, even in arms and munitions of war.a 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 *34 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 Cokeb 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 with 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.d a Mr. Adams' Letter to the Russian Minister, March 30th, 1822. See also Mr. Forsyth's Letter to the American Minister at St. Petersburg, November 3d, 1837. b 4 Inst. 155. c 1 Chitty on Commercial Law, 40, 41, 42. 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 com over foreign Every nation is bound, in time of peace, to grant a passage, Passage for lawful purposes, over their lands, rivers and seas, to the territory. 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 *foreign- *35 ers, or their merchandise, injurious to those 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 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. A nation possessing only the upper parts of a navigable Use of naviriver, is entitled to descend to the sea without being embar-gable rivers. rassed by useless and oppressive duties or regulations. It is doubtless a right of imperfect obligation, but one that cannot mercial 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. 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. p. 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. Rutherforth, b. 2. c. 9. Vattel, b. 2. c. 10. sec. 124. 1 Chitty, 103-106. 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 ves sels 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. The like claim, and founded on the same principles ■ 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 18th, 1792. b 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 favour 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, 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.a 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 as a resort 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 some of the most distinguished public jurists,b that every state is bound to deny an asylum to crimi- *37 nals, and, upon application and due examination of the Surrender of criminals. through the Netherlands, and by the different ports of the upper States on the b Grotius, b. 2. c. 21. sec. 3, 4, 5, and Heineccius Com. h. t. Burlamaqui, vol. ii. part 4. c. 3. sec. 23-29. Rutherforth, b. 2. c. 9. vol. ii. p. 496. Vattel, b. 2. c. 6. sec. 76, 77. See Questions de Droit, tit. Etranger, par Merlin, for discussions on this subject in France. P. Voet, de Statutis, p. 297, says, that the surrender of criminals is denied according to the usage of almost all Christian nations, except in cases of humanity, (nisi ex humanitate,) and Martens is of the same opinion. case, to surrender the fugitive to the foreign state where the crime was committed. The language of those authorities is Martens Law of Nations, b. 3. c. 3. sec. 23. The English decisions in support of the right and the practice of surrender of fugitives charged with atrocious crimes, are, Rex. v. Hutchinson, 3 Keble, 785. Case of Lundy, 2 Vent. 314. Rex. v. Kimberly, Str. 848. S. C. Barnard, K. B. vol. i. 225. Fitzgib. 111. East India Company v. Campbell, 1 Vesey, 246. Heath, J., in Muse v. Kay, 4 Taunton, 34. Eunomus, Dialog. 3 sec. 67. Sergeant Hill's opinion (and his authority and learning as a lawyer were pre-eminent) given to government in 1792. See Edin. Review, No. 83, pp. 129. 139. 141. Lord Coke, however, held that the sovereign was not bound to surrender up fugitive criminals from other countries. 3 Inst. 180. The American decisions on the question are, in the matter of Washburn, 4 Johns. Ch. Rep. 106. Commonwealth v. Deacon, 10 Serg. & Rawle, 123. Rex. v. Ball, decided by Ch. J. Reid, at Montreal, and reported in Amer. Jur. 297. Case of Jose Ferreire Jos Santos, 2 Brochenbourgh, 492. Two of those, viz: that in 4th Johnson and before Ch. J. Reid, are for the duty of surrender, and the other two against it, unless specially provided for by treaty. Mr. Justice Story cites the conflicting authorities, both foreign and domestic, on this interesting question; but intimates no opinion. Comm. on the Constitution, vol. iii. pp. 675, 676. Comm. on the Conflict of Laws, pp. 520-522. But afterwards, in the United States v. Davis, 2 Sumner 486, Judge Story expressed great doubts whether, upon principles of international law, and independent of statute or treaty, any court of justice is authorized to surrender a fugitive from justice. In the spring of 1839, George Holmes, being charged with the crime of murder, committed in Lower Canada, fled into the state of Vermont, and his surrender was demanded by the Governor General of Canada. Application was made by authority, in Vermont, to the President of the United States, who declined to act through an alleged want of power, and the case came back to the Governor of Vermont. After hearing counsel and giving the subject great consideration, Governor Jennison decided that it was his duty to surrender the fugitive. The case was afterwards, and before any actual surrender, carried up before the Supreme Court of that state upon habeas corpus, and elaborately argued in July, 1839, and the decision of the governor affirmed. The case was afterwards carried up to the Supreme Court of the United States, in the winter of 1840, and the court declared that they had no jurisdiction in the case. Holmes v. Jennison, 14 Peters' R. 540. Holmes was thereupon brought up before the Supreme Court of Vermont by habeas corpus, in April, 1840, and the question solemnly argued, and the decision was, that the state had no authority to surrender the prisoner, and he was accordingly discharged from custody. Case ex parte Holmes, 12 Vermont R. 630. It may be here properly observed that, according to the official opinion of the Attorney General of the United States, 1797, it was the duty of the United States to deliver up, on due demand, heinous offenders, being fugitives from the dominions of Spain, and that as the existing laws of the Union had not made any specific provision for the case, the defect ought to be supplied. Opinions of the Attorney General, vol. i. 46. But afterwards, in 1821, the then Attorney General of the United States, in an elaborate opinion given to the President, declared that the modern usage and practice of nations had been contrary to the doctrines of the early jurists, and that it was not now the law and usage of nations to deliver up fugitives from justice, whatever may be the |