Part II. should affect the general principle of neutralization or the obligation of the contracting parties. The treaty was ratified by the Senate on the 16th of December, 1901 (a). The Panama route was ultimately decided upon, but the Colombian Government showed themselves unwilling to carry out the provisions of the treaty of 1841, under which the United States claimed the right to construct a canal. On November 5th, 1903, a revolution on the Isthmus, by which the inhabitants of the adjacent territory declared themselves independent of the Colombian Government, resulted in the proclamation of the Republic of Panama, whose existence was recognized with remarkable promptitude by the United States; and when President Roosevelt sent his message to Congress on December 7th, he was in a position to lay before the Senate a treaty with the new Republic for the building of a canal across the Isthmus of Panama. (a) The negotiations which led to the eventual ratification of the Hay-Pauncefote Treaty form a curious chapter in diplomatic history, but the details would See be out of place in these pages. PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC CHAPTER I. 321 RIGHTS OF LEGATION. $206. diplomatic THERE is no circumstance which marks more distinctly Usage of the progress of modern civilization than the institution permanent of permanent diplomatic missions between different missions. States. The rights of ambassadors were known, and, in some degree, respected by the classic nations of antiquity. During the middle ages they were less distinctly recognized, and it was not until the seventeenth century that they were firmly established. The institution of resident permanent legations at all the European courts took place subsequently to the Peace of Westphalia, and was rendered expedient by the increasing interest of the different States in each other's affairs, growing out of more extensive commercial and political relations, and more refined speculations respecting the balance of power, giving them the right of mutual inspection as to all transactions by which that balance might be affected. Hence the rights of legation have become definitely ascertained and incorporated into the international code. and obliga $207. Every independent State has a right to send public Right to send, ministers to, and receive ministers from, any other tion to receive sovereign State with which it desires to maintain the public relations of peace and amity. No State, strictly speaking, W. Y ministers. Part III. is obliged, by the positive law of nations, to send or receive public ministers, although the usage and comity of nations seem to have established a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different States by means of diplomatic intercourse (a). $ 208. Rights of legation, to what States belonging. How far the rights of legation belong to dependent or semi-sovereign States must depend upon the nature of their peculiar relation to the superior State under whose protection they are placed. Thus, by the treaty concluded at Kinardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending chargés d'affaires of the Greek communion to represent them at the Court of Constantinople (b). So also of confederated States; their right of sending public ministers to each other, or to foreign States, depends upon the peculiar nature and constitution of the union by which they are bound together. Under the constitution of the former German Empire, and that of the Germanic Confederation, this right was preserved to all the princes and States composing the federal union (c). Such was also the former constitution of the United Provinces of the Low Countries, and such is now that of the Swiss Confederation. By the Constitution of the United States of America every State is expressly forbidden from entering, without the consent of Congress, into any treaty, alliance, or confederation, with any (a) Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Institutes, vol. ii. b. ii. ch. 9, § 20. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii. ch. 1, §§ 187-190. (b) Vattel, liv. iv. ch. 5, § 60. Klüber, Droit des Gens Moderne de l'Europe, st. 2, tit. 2, ch. 3, § 175. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 1, No. 3, 4. Roumania, as these united provinces are now called, has now acquired complete independence, which is recognized by the Treaty of Berlin. This State has therefore the right of sending diplomatic representatives to the Porte, and to other countries, on the same terms as other independent States. See Treaty of Berlin, art. 43. (c) It is now merged in that of the German Empire. other State of the Union, or with a foreign State, or from entering, without the same consent, into any agreement or compact with another State, or with a foreign power. The original power of sending and receiving public ministers is essentially modified, if it be not entirely taken away, by this prohibition (d). Chap. I. contest sovereignty. § 209. The question, to what department of the government How affected belongs the right of sending and receiving public by civil war ministers, also depends upon the municipal constitution for the of the State. In monarchies, whether absolute or constitutional, this prerogative usually resides in the sovereign. In republics, it is vested either in the chief magistrate, or in a senate or council, conjointly with, or exclusive of, such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign States must of necessity judge for themselves whether they will recognize the government de facto, by sending to, and receiving ambassadors from, it; or whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign, or suspend altogether these relations with the nation in question. So, also, where an empire is severed by the revolt of a province or colony declaring and maintaining its independence, foreign States are governed by expediency in determining whether they will commence diplomatic intercourse with the new State, or wait for its recognition by the metropolitan country (e). For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplomatic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities, of ministers, though they are not invested with (d) Heffter, das Europäische Völkerrecht, 200. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 1, No. 5. As to the reception of the Dutch ambassadors in the sixteenth century, see Motley's Life of John Barneveld, vol. i. (e) Vide supra, Pt. I. ch. 2, §§ 23-27. Part III. the representative character, nor entitled to diplomatic § 209a. Communication with rebels. $ 210. Conditional reception of foreign ministers. § 211. Classification of public ministers. honours. It was on this footing that Messrs. Slidell and Mason, the emissaries of the Confederate States, who were seized on board The Trent, were sent to Europe (f). During the continuance of a rebellion, although foreign States may refuse to recognize the insurgents in any way, or to enter into regular diplomatic intercourse with them, it sometimes becomes necessary for the protection of their own commerce and subjects, that foreign States should communicate with the rebel authorities. Lord Russell has laid it down that "Her Majesty's Government hold it to be an undoubted principle of international law, that when the persons or the property of the subjects or citizens of a State are injured by a de facto government, the State so aggrieved has a right to claim from the de facto government redress and reparation; and also that in cases of apprehended losses or injury to their subjects, States may lawfully enter into communication with de facto governments to provide for the temporary security of the persons and property of their subjects" (g). As no State is under a perfect obligation to receive ministers from another, it may annex such conditions to their reception as it thinks fit; but when once received, they are in all other respects entitled to the privileges annexed by the law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power; and a government may receive one of its own subjects under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So also one court may refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded (h). The primitive law of nations makes no other distinction between the different classes of public ministers, (f) Wheaton, by Lawrence, p. 378, n. 118. Parl. Papers, N. America, 1862 (No. 5), p. 34. See ante, Pt. II. ch. 2, $ 109 b. (g) Earl Russell to Mr. Adams, 26th Nov. 1861. U. S. Dipl. Cor. 1862, p. 8. (h) Bynkershoek, de Foro Legatorum, cap. 11, § 10. Martens, Manuel Diplo matique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre Publique, sect. iii. § 5. The latest recorded instance of the exercise of this right occurred in 1891, when the Chinese Government refused to accept as Minister of the United States at Pekin a gentleman who had used strong language in the Senate on the occasion of the Chinese Exclusion Bill. Annual Register, 1891. |