CHAPTER V.

INTERNATIONAL RIGHTS OF INTERCOURSE.

1205. ACCORDING to International Jus, nations are regarded as distinct moral agents, capable of acting for or against each other, of contracting with each other, and the like. Hence they must have certain National Modes of Intercourse with each other; not merely such as consist in the citizens of one State communicating with the citizens of another; but in the States themselves communicating with each other, by persons who speak and act on their part. Such Intercourse is naturally under the direction of the Executive branch of the Government, as being that branch which acts for the State. But, for the most part, the communications with foreign States are not made directly by the Sovereign, as a part of his general administrative office, but by Ambassadors or other Ministers of the State, deputed for that express purpose.

1206. Every State considered as an Independent State, has the power of negotiating and contracting Public Treaties with other Independent States. For this purpose, every Independent State has a right to send Public Ministers, and to receive Ministers from any other Sovereign State. No State is, strictly speaking, obliged, by the positive Law of Nations, to send or receive public ministers. But universal usage, the result of the Comity of Nations, has established this as a reciprocal Duty. Such being the Duty of every nation on the ground of Comity, it is what has been called an Imperfect Obligation. It may not and cannot be enforced as a Right; but the State which refuses to conform to .he usage, has no longer any claim to receive the

benefits of the Law of Nations. The Right of Legation is a part of existing International Law. 1207. When States are not absolutely sovereign and independent, but semi-sovereign, or dependent, or united by federations of various kinds, it must be determined, by their relation to their superior, or, their compact with each other, how far they possess this Right of Legation. Thus England, or Ireland, or Scotland, cannot send Ambassadors or Ministers to a foreign State, distinct from the Ministers of Great Britain. Nor can the Colonies, as Canada or Australia. The United States of North America, though each, for many internal purposes, sovereign, are restrained by their federal Union from treating separately with foreign powers. But the States of the German Federation send their separate ambassadors. When, in the course of historical events, several States coalesce into one, as by legislative union, or by conquest; or when one State is divided into several, as by revolt, revolution, or common consent; it is the business of other States to determine when each new State assumes a distinct and real existence; and they recognize this existence by receiving Ministers from it and sending Ministers to it. The same is the mode of recognizing the actual authority of a new Government, in a State which has undergone an internal Revolution..

1208. In deciding upon such recognitions of new States and new Governments, the Governors of a Nation, if they would act for the Nation in its highest character of a moral agent, capable of Justice, Humanity, Magnanimity, Love of Order, and Love of Liberty, will not make their recognition of the New Government depend upon mere caprice, or upon any low views of their national interest: but will regard it as a jural and moral question: as a point to be decided according to the best existing Rules of International Law, and without losing sight.

in the decision, of the prospect of raising the standard of International Law; for this prospect, all States must have before them, as the highest aim of their

actions.

1209. The modern usage of Europe has in troduced into the customary Law of Nations certain distinctions of various kinds of Public Ministers: and at the Congresses of Vienna and of Aix-la-Chapelle an uniform Rule was adopted for this subject. By this Rule public ministers are divided into the four following classes :*

1. Ambassadors and Papal Legates or Nuncios. 2. Envoys Extraordinary, Ministers Plenipotentiary, and Internuncios.

3. Ministers Resident accredited to Sovereigns. 4. Chargés d'affaires accredited to the Minister of Foreign Affairs.

1210. Ambassadors possess a representative character; they are considered as representing the Sovereign or State by whom they are delegated, and receive peculiar honours on this ground. Formerly a Solemn Entry of the Ambassador was customary, but they are now received at a private audience, in the same manner as other Ministers.

1211. The Powers, Credentials, Privileges, and Modes of acting for their nation which belong to its Public Ministers abroad, need not be here dwelt upon. The Right of directing their actions, of negotiating and concluding Treaties, belongs, as we have said, to the Executive at home. But though the Executive thus makes the Contracts of the State with other States, the assent and co-operation of the Legislature may often be requisite to give effect to such Contracts. Thus, in Treaties requiring the appropriation of monies for their execution, it is the usual practice of the British Government to stipulate that

Wheaton, 1., 263

.

the King will recommend to Parliament to make the grant necessary for that purpose. Under the Constitution of the United States, by which treaties made and ratified by the President, with the advice and consent of the Senate, are declared to be “the Supreme Law of the land," it seems to be understood that Congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry the treaty into effect.*

1212. The General Contracts between nations are divided into two classes: Transitory Conventions, such as treaties of cession, boundary, exchange of territory, and the like; and Treaties properly so called, Fædera; such as those of friendship and alliance, commerce and navigation. The first class are perpetual in their nature; and once carried into effect, subsist, notwithstanding revolutions within the State, and wars without. The second class are interrupted by war, and extinguished by the extinction. of one of the contracting parties as an Independent State. Most international Compacts contain Articles of both kinds; such is the case especially with most Treaties of Peace. Treaties of Alliance are either Defensive, when each ally engages to assist the other in repelling aggression; or Offensive, when an ally. engages to co-operate with the other in a specified kind of hostilities. When the Alliance is Defensive, one of the allies cannot claim the assistance of the other in an aggressive war; such a war is not the casus fæderis.†

1213. The Convention of Guarantee is one of the most usual international Contracts. It is an engagement by which one State promises to aid another, when interrupted, or threatened to be disturbed, in the peaceable enjoyment of its Rights, by a third Power. Guarantee may be applied to every species

* Wheaton, 1., 296

Ibid. 1., 306.

of Right and Obligation which can exist between nations to the possession and boundaries of territories, the Sovereignty of the State, the right of Succession, &c.

1214. But if a State assumes the character of Guarantee for one of the Parties in another State, if, for instance, it engages to protect the Sovereign against the revolt of the Subjects, or the Subjects against the tyranny of the Sovereign, the transaction is then of another kind. It is an Intervention which necessarily interferes with the independence of the State thus dealt with. Such an Intervention may be necessary for the safety of neighbouring States; but is only justifiable in a Case of Necessity, and is not to be looked upon as one of the ordinary Cases of International Jus. A Sovereign may be wrongfully dethroned, and a foreign State may aid him as his ally against a hostile faction. He may be rightly dethroned, and a foreign Sovereign may probably aid those who, in a Case of Necessity, deprive him of his office. A nation may resist a usurper, and a foreign Sovereign may properly aid the nation in such a cause; or a nation may proclaim doctrines which make all exercise of international jus impossible, and other nations may hence refuse international intercourse with this, and may thus be driven into war. All these are Cases in which Intervention may possibly be justified by necessity, according to the circumstances of the Case. But for these, as for other Cases of Necessity, it is impossible to lay down Rules beforehand.

1215. States have hitherto been much impelled in their public transactions by their views of their own particular interest. Yet there have not been wanting, in the history of nations, many acts of justice, of magnanimity, and of humanity. The negotiations of States and the reasonings of jurists seem o show, that International Law rises gradually to a