well as other acts and pacifications, have effectually placed Turkey within the pale of the public law of Europe. And lastly, there was a memorable interference of the five great European powers in the Belgic revolution of 1830, which ended in the separation of Belgium from Holland, and the establishment of the former as an independent state. The several cases have given recent and practical illustration of the principle of international law, in its application to the preservation of the public peace and security of nations, against internal as well as external violence and oppression. It has been well observed, (b) that non-interference is the general rule, and cases of justifiable interference form exceptions limited by the necessity of the case. It was stated, on the part of the British ministry, in Parliament, by Lord Palmerston, in 1847, as a rule laid down by writers on the law of nations, that when civil war is regularly established in a country, and when the nation is divided into conflicting armies and opposing camps, the two parties in such war may be dealt with by other powers as if they were separate communities, and that such other powers may take part with one side or the other, according to their sympathies and interests, just as they might in a war between separate and independent nations. Such interference, however justifiable and safe, will be rare, and requires the exercise of emirent discretion. 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. (c) Prior to the recognition of the independence of any of the Spanish colonies in America, and during the existence of the civil war between Spain and her colonies, it was the declared policy of the government of the United States, in recognizing the independence of the Spanish American republics, to remain neutral, and to allow to each of the belligerent parties the same rights of asylum and hospitality, and to consider them, in respect to the neutral relation and duties of the United States, as equally entitled to the sove (b) Wheaton's Elements, p. 120. (c) President's Message to Congress of 8th of March, 1822, and Act of Congress of 4th of May, 1822, c. 52. reign rights of war as against each other. (d) This was also the judicial doctrine of the Supreme Court, derived from the policy of the government, and seems to have been regarded as a principle of international law. (e) Treaties not ernment. Nations are at liberty to use their own resources in such manner, and to apply them to such purposes as they may deem affected by best, provided they do not violate the perfect rights of change of gov 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. (d) President's Message to Congress in 1822, and Proclamation in that year. (e) United States v. Palmer, 3 Wheaton, 610, 634; The Santissima Trinidad, 7 Wheaton, 283, 337. See, also, Walley v. Schooner Liberty, 12 Louisiana, 98. "The uniform policy and practice of the United States, as declared by President Jackson, in his Message to Congress of the 21st December, 1836, is to avoid all interference in disputes which merely relate to the internal government of other nations, and eventually to recognize the authority of the prevailing party, without reference to the merits of the original controversy. All questions relative to the government of foreign nations, whether of the old or new world, have been treated by the United States as questions of fact only, and they have cautiously abstained from deciding upon them, until the clearest evidence was in their possession to enable them to decide correctly." It was further observed, by the American Secretary of State, (Mr. Forsyth,) in 1837, in his answer to the Texan Envoy, that in determining with respect to the independ ence of other countries, the United States have never taken the question of right between the contending parties into consideration. They have deemed it a dictate of duty and policy to decide upon the question as one of fact merely. It belongs to the legislative or executive power, (according to the character of the government,) to recognize the independence of a people in revolt from their foreign sovereign; and until such acknowledgment be made, courts of justice are bound to consider the ancient state of things as remaining unaltered. City of Berne v. Bank of England, 9 Vesey, 347; The Manilla, 1 Edw. Adm. 1; Yrisarri v. Clements, 3 Bing. 432; Thompson v. Powles, 2 Sim. 194; Taylor v. Barclay, ib. 213; Rose v. Himely, 4 Cranch, 241; Hoyt v. Gelston, 13 Johns. 139, 141; United States v. Palmer, 3 Wheaton, 610.1 1 The recognition of the independence of Texas belonged exclusively to that department of the United States Government, which was charged with its foreign relations. Kennet v. Chambers, 14 How. U. S. 38. On the accession of Napoleon III. to the imperial throne, Mr. Webster wrote to Mr. Rives: "As the diplomatic representative of your country in France, you will act as your predecessors have acted, and conform to what appears to be settled national authority." Cong. Doc. 1851-2, vol. 4, Doc. 19. See Roman Law by Lord Mackenzie, (ed. 1862,) 62, 63. 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. (f) 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. (a) seas. * The extent of jurisdiction over the adjoining seas, is often a question of difficulty and of dubious right. As far as a nation Jurisdiction can conveniently occupy, and that occupancy is acquired over adjoining 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. (b) 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 time of peace, on a footing of entire equality and independence. No nation has any right or jurisdiction at sea, except it be over the persons of its own subjects, in its own public and private vessels; and so far territorial jurisdiction may be considered or preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are pro (f) Grotius de Jure, lib. 2, c. 9, sec. 8; Puff. Droit de la Nature et des Gens, par Barbeyrac, tom. ii. liv. 8, c. 12, sec. 2,3; Burlamaqui, Nat. and Pol. Law, vol. ii. part 4, c. 9, sec. 16; Rutherforth's Institutes, b. 2, c. 10; Vattel, b. 2, sec. 85; Protocol of the five great powers of Austria, Great Britain, France, Prussia, and Russia, by their plenipotentiaries at London, December, 1830, stated in Wheaton's History of the Law of Nations, New York, 1845, pp. 538-546. (a) Rutherforth, b. 2, c. 10. (b) 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, c. 22, 23. tected and governed by the law of the country to which the vessel belongs. They may be punished for offences against the municipal laws of the state, committed on board of its public and private vessels at sea, and on board of its public vessels in foreign ports. (c) 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 *27 right to consult its own safety and convenience, and to pursue its own course and business, without being disturbed, when it does not violate the rights of others. (a) 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, (c) Grotius, b. 2, c. 3, sec. 10 and 13; Rutherforth, b. 2, c. 9; Vattel, b. 1, c. 19, sec. 216; Forbes v. Cochrane, 2 Barn. & Cress. 448; Wheaton's Elements of International Law, 3d edit. 157; Edinburgh Review for July, 1841, pp. 294, 295. (a) The Marianna Flora, 11 Wheaton, 38. 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 coast of England, to have been abunantly proved by the treatise of Selden; and Butler speaks of it as a work of profound erudition. (a) Bynkershoek has * 28 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. (b) The claim of dominion to close or narrow seas, is still the theme of discussion and controversy. Puffendorf (c) admits, that, in a narrow sea, the dominion of it, and the right of fishing therein, may belong to the sovereigns of the adjoining shores. Vattel also (d) 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, &c.; and who can doubt, he observes, but that the pearl fisheries of Bahram and Ceylon may be lawfully enjoyed as property? Chitty, in his work on commercial law, (e) 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 Wm. Scott, in the case of The Twee Gebroeders, (ƒ) 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, * 29 exist a peculiar property, excluding the universal, or the (a) Harg. Law Tracts, 10; Co. Litt. lib. 3, n. 205. (b) Dissertatio de Dominio Maris; Bynk. Opera, tom. ii. 124. (c) Droit de la Nat. et des Gens, liv. 4, c. 5, sec. 5–10. (d) B. 1, c. 23. (e) Vol. i. 88-102. |