use of either of the modes of proof specified. All these cases, however, are referable to the general principle, that the party offering documentary evidence must produce the best in his power, or the best which, under the circumstances of the case, he was able to procure. No one can be required to do an impossibility, nor will any one be deprived of his rights for not producing what is beyond his reach. (Story, Conflict of Laws, § 643; Massé, Droit Commercial, tome 2, §§ 336, et seq.; Starkie, On Evidence, pt. 2, §92; Phillips, On Evidence, vol. 1, p. 432; vol. 2, pp. 133, et seq.; Westlake, Private Int. Law, ch. 12; Gardner, Institutes, p. 146; Church v. Hubbart, 2 Cranch. Rep., p. 238; Henry v. Adey, 3 East Rep., p. 221; Andrews v. Herriott, 4 Cowen Rep., p. 526, note; Yeaton v. Fry, 5 Cranch. Rep., p. 335; Thompson v. Stewart, 3 Conn. Rep., p. 171; Delafeld v. Hurd, 3 Johns. Rep., p. 310; De Sobry v. De Laistre, 2 Harr. and Johns. Rep., p. 193; Prichard v. Bailey, 6 Foster's Rep., p. 167; Spaulding v. Vincent, 24 Vermont Rep., p. 504; Cotten v. Underhill, 4 McLean Rep., p. 199; Stewart v. Swanzy, 23 Miss. Rep., p. 502.)

CHAPTER VIII.

RIGHTS OF LEGATION AND TREATY.

war

CONTENTS.

1. Right of legation an essential attribute of sovereignty-22. Of semisovereign and dependent states-3. This right, how effected by civil 4. Refusal to receive particular persons- 5. Conditional reception of a diplomatic agent-? 6. What department of government may send and receive such agents-7. On diplomacy and the art of negotiation 28. Right of negotiation and treaty-29. Martens on European treaties -10. Treaties by semi-sovereign and dependent states- -211. Treatymaking power of a state-12. Treaties, in general, to be ratified - 13. Exception in cases of truces, etc.- 14. Sponsions and their ratification2 15. Legislation necessary to carry them into effect-16. Constitution of the United States on this subject-17. Treaty with France in 183118. Treaty with Great Britain in 1824-19. Auxilliary legislation in United States and Great Britain - 20. Real and personal treaties - 21. Other divisions of treaties - 22. Equal and unequal treaties - 23. Treaties of guarantee and surety - 24. Treaties of confederation and association- 25. Treaties of alliance, of succor and subsidy - 26. Treaties of amity or friendship- 27. Treaties of commerce, of boundaries, etc.

§ 1. Another essential attribute of sovereignty is the right of legation and treaty. Legation consists in sending diplomatic agents to other states, and in receiving such as are sent by them. This right of an independent sovereign state to send and receive diplomatic agents, is regarded, in international law, as a perfect one; but the obligation to do so is deemed imperfect, for, strictly speaking, no state can be compelled

either to send or to receive such agents. Nevertheless, usage and comity have established a sort of reciprocal duty in this respect. The maintenance of permanent diplomatic missions between different states is regarded as evidence of a mutual desire to continue the relations of peace and amity. On the contrary, a refusal to establish such means of diplomatic intercourse, or a discontinuance of them when once established, is, in most cases, regarded as an indication of unfriendly feeling, or, at least, of an indisposition to cultivate amicable relations. This, however, will depend very much upon the nature and importance of the relations between the states, and their ability to maintain permanent diplomatic missions. If two states be so situated that they can have very little commercial or political intercourse, such missions would be unnecessary. Moreover the smaller states can hardly be expected to bear the burthen of the expense of maintaining them with all other states. (Wheaton, Elm. Int. Law, pt. 3, ch. 1, §2; Vattel, Droit des Gens, liv. 4, ch. 5, $$ 55-65; Real, Science du Gouvernement, tome 5, p. 140; Rousset, Ceremonial Diplom., tome 2, p. 481; Riquelme, Derecho Pub. Int., lib. 2, tit. 2, cap. Ad. 1; Horne, On Diplomacy, sec. 1, §§ 5, 6; Wicquefort, L'Ambassadeur et ses functions, liv. 1, ch. 3; Rutherforth, Institutes, b. 3, ch. 9, § 20; Martens, Precis du Droit des Gens, §§ 185–190; Polson, Law of Nations, sec. 5; Phillimore, On Int. Law, vol. 2, § 114; Ompteda, Litteratur Volkerrecht, vol. 2, p. 351; Martens, Guide Diplomatique, §5; Bowyer, Universal Public Law, ch. 20; Bello, Derecho Internacional, pt. 3, cap. 1, §2; Heffler, Droit International, § 200.)

§ 2. How far the rights of legation belong to a semi-sovereign or dependent state, must depend upon its relations to the superior with which it is connected or under whose protection it is placed. Its sovereignty not being complete, it may, or may not be, entitled to a right incident to sovereignty, according to the nature and circumstance of the case. Thus, by the constitution of the United States of America, every state is expressly forbidden from entering, without the consent of congress, into any agreement or compact with another state, or with a foreign power, and their original power of sending and receiving public ministers is essentially modified, if not entirely taken away,

by this prohibition. Under the constitution of the German Empire, and the Germanic Confederation, of the Swiss Confederation, and of the former United Provinces of the low countries, the right of legation was preserved by the princes and states composing these unions. (Wheaton, Elm. Int. Law, pt. 3, ch. 1, §3; Vattel, Droit des Gens, liv. 4, ch. 5, $60; Kluber, Droit des Gens Mod., pt. 2, tit. 2, ch. 3, § 175; Horne, On Diplomacy, sec. 1; Heffter, Droit International, § 200; Phillimore, On Int. Law, vol. 2, § 116; Martens, Guide Diplomatique, §5; Riquelme, Derecho Pub. Int., lib. 2, tit. 2, cap. Ad. 1; Bello, Derecho Internacional, pt. 3, cap. 1, §2; Merlin, Repertoire, verb. Ministre Public, sec. 2, § 6.)

§ 3. Strictly speaking, every state has the exclusive right to determine in whom its sovereign authority is vested. Nevertheless, in case of a revolution or civil war, foreign states must, of necessity, judge for themselves whether they will continue their accustomed diplomatic relations with the former government, or commence them with the revolutionary party. This is sometimes a question of great delicacy, and in order to avoid any positive decision of it, diplomatic intercourse is either entirely suspended until the final termination of the contest, or is partially kept up by means of diplomatic agents, of special and limited authority, who are not vested with full ministerial powers, nor entitled to diplomatic honors. But where the accustomed diplomatic relations are to be maintained, the safest and least objectionable rule is, to continue them with the de facto government, whatever that may be, because, for the time being, that may properly be regarded as representing the sovereignty of the state. (Bello, Derecho Internacional, pt. 3, cap. 1, § 2; Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 4; Vattel, Droit des Gens, liv. 2, ch. 4, § 56; Martens, Precis du Droit des Gens, §§ 79–82; Merlin, Repertoire, verb. Minst. Pub., sec. 2, § 6; Martens, Guide Diplomatique, § 5.)

§4. As a state is not under a perfect obligation to receive diplomatic agents from another, it may refuse to receive any particular individual, either on the ground of personal character, or of the authority conferred upon him. Thus, in France, where the legates or nuncios of the Pope were the bearers of powers which were deemed incompatible with the

constitution and laws of the state, it was deemed proper to refuse to receive such agents until their powers were reduced to reasonable limits. Again, the reception of a foreign diplomatic agent has sometimes been refused on the ground of personal character, or known hostility to the sovereign, or the state to which he is sent. Indeed, the sending of a person in a diplomatic capacity, who is known to be odious or objectionable to the court to which he is accredited, if not a direct insult, is certainly far from being an evidence of friendly intentions, or of a desire to maintain friendly relations. But when a diplomatic agent is once received, he is entitled to all the privileges, immunities, and honors annexed by the law of nations to his public character, except where modified by special conditions attached to his reception. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, §§ 4, 5; Bynkershoek, de Foro Legat., cap. 11, § 10; Heffter, Droit International, § 200; Moser, Versuch, b. 3, p. 89; Merlin, Repertoire, verb. Minister Pub., sec. 3, § 3; Kluber, Droit des Gens, §§ 176, 187; Horne, On Diplomacy, sec. 1; Real, Science du Gouvernement, tome 5, p. 283; Wildman, Int. Law, vol. 1, pp. 83, et seq.)

$5. Some governments have established, as a fundamental rule in their diplomatic intercourse with other states, that they will not receive one of their own native subjects as a minister from a foreign power; others again refuse to receive one of their own subjects in any diplomatic capacity, except on condition that he shall be amenable to the local laws and local jurisdiction. Where the reception is refused, it is proper that the motives or grounds of the refusal be alleged; and where conditions are annexed, they must be expressed before or at the time of the reception, for, otherwise, the agent is entitled to claim the full rights and honors annexed to the office which he fills. There are no tacit or implied conditions in such receptions whica can modify or limit the public character in which he is received, and with which he was accredited by the sovereign state which sent him. (Wheaton, Elem. Int. Law, pt. 3, ch. 1, §§ 4, 5; Wildman, Int. Law, vol. 1, ch. 3; Phillimore, On Int. Law, vol. 2, ch. 3; Martens, Precis du Droit des Gens, § 188; Moser, Beitrage, etc., b. 3, pp. 90, et seq.; Garden, De Diplomatie, liv. 5, §2; Heffter, Droit Internutional, § 202; Bynkershoek, De Foro Legat., cap. 11, §10;