deliberately omitted from the final form of the latter treaty, which superseded the Clayton-Bulwer Treaty. In the absence of an express exemption it would seem, therefore, that the United States may erect fortifications; for when it was intended, in the case of the Suez Canal, to forbid such a proceeding, express clauses were inserted to that effect (u). (u) For arguments for and against the fortification of the Panama Canal, see Amer. Journ. of Int. Law, vol. iii. (1909), pp. 354 seq., 885 seq.; vol. iv. (1910), pp. 324 seq. PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC CHAPTER I. 329 RIGHTS OF LEGATION. permanent THERE is no circumstance which marks more distinctly the Usage of progress of modern civilization than the institution of permanent diplomatic diplomatic missions between different States. The rights of am- missions. bassadors were known, and, in some degree, respected by the classic nations of antiquity (x). During the middle ages they were less distinctly recognised, 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 (1648), 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. Every independent State has a right to send public ministers to, and receive ministers from, any other sovereign State with which it desires to maintain the relations of peace and amity. No State, strictly speaking, 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 (c) Cf. Phillipson, Int. Law and Custom of Ancient Greece and Rome, vol. i. ch. 13. Right to send and obliga tion to receive public ministers. Rights of legation, to what States belonging. How affected importance of the relations to be maintained between different States by means of diplomatic intercourse (a). How far the rights of legation belong to dependent or semisovereign 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, obtained 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 prohibited from entering, without the consent of Congress, into any treaty, alliance, or confederation, with any 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). The question, to what department of the Government belongs the right of sending and receiving public ministers, also depends upon the municipal constitution 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 (a) Vattel, Droit des Gens, liv. iv. ch. 5, §§ 56-65. Rutherforth, 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 recognised by the Treaty of Berlin. This State has 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 recognise 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 the representative character, nor entitled to diplomatic honours. rebels. It was on this footing that Messrs. Slidell and Mason, the Communiemissaries of the Confederate States, who were seized on board cation with the Trent, were sent to Europe (f). During the continuance of a rebellion, although foreign States may refuse to recognise 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 Conditional from another, it may annex such conditions to their reception as reception of foreign it thinks fit; but when once received, they are in all other respects ministers. (e) Vide supra, Pt. I. ch. 2, pp. 38 seq. Merlin, Répertoire, tit. Ministre Publique, sect. ii. § 6. (f) Wheaton (Lawrence), p. 378, n. 118. Parl. Papers, N. America, 1862 (No. 5), p. 34. See ante, Pt. II. (g) Earl Russell to Mr. Adams, 26th p. 8. Classification of public ministers. 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 express 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, than that which arises from the nature of their functions; but the modern usage of Europe having introduced into the voluntary law of nations. certain distinctions in this respect, which, for want of exact definition, became the perpetual source of controversies, uniform rules were at last adopted by the Congress of Vienna (1815), and that of Aix-la-Chapelle (1818), which put an end to those disputes. By the rules thus established, public ministers are divided into the four following classes: 1. Ambassadors, and papal legates or nuncios (i). 2. Envoys, ministers, or others accredited to sovereigns ('auprès des souverains'). 3. Ministers resident accredited to sovereigns. 4. Chargés d'affaires accredited to the minister of foreign affairs (k). (1) Bynkershoek, De Foro Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Répertoire, tit. Ministre Publique, sect. iii. § 5. A recent 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. (i) Since the abolition of the Pope's temporal power, 1870, papal legates and nuncios have necessarily lost their character of public ministers. (k) The règlement' of the Con- "Art. 1. Les employés diploma- |