*

4. Right of Passage over Land.—Every nation is bound, in time of peace, to grant a passage for lawful purposes, over their lands, rivers, and seas, to the people of other states, whenever it can be permitted without inconvenience; and burdensome conditions ought not to be annexed to the transit of persons and property. If, however, any government deems the introduction of foreigners, or their merchandise, injurious to the interests *35 of their own people, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it. (a) The state may even levy a tax or toll upon the persons and property of strangers in transitu, provided the same be a reasonable charge, by way of recompense for the expense which the ac commodation creates. (b) These things are now generally settled in commercial treaties, by which it is usually stipulated, that there shall be free navigation and commerce between the nations, and a free entry to persons and property, subject to the ordinary revenue and police laws of the country, and the special terms and conditions prescribed by treaty.

5. Right of Navigable Rivers.-A nation possessing only the upper parts of a navigable river, is entitled to descend to the sea without being embarrassed by useless and oppressive duties or regulations. It is doubtless a right of imperfect obligation, but one that cannot be justly withheld without good cause. When Spain, in the year 1792, owned the mouth, and both banks of the lower Mississippi, and the United States the left bank of the upper portion of the same, it was strongly contended on the part of the the ports of the one country, in its own vessels, may, in like manner, and upon the same terms and conditions, be imported or exported in the vessels of the other country. The same rule is contained in the treaties of the United States with Denmark, Sweden, and the Hanseatic cities.

(a) Puff. b. 3, sec. 5, 6, 7; Rutherforth, b. 2, c. 9; Vattel, b. 2, c. 7, sec. 94; c. 8, sec. 100; c. 9, sec. 123, 130; c. 10, sec. 132; 1 Chitty, 84-89; M. Pinheiro-Ferreira (Cours de Droit Public, ii. 19, 20), complains vehemently of the checks created by passports and the preventive police of the continental governments of Europe, upon emigration and the transit and sojourn of foreigners. He calls it legal tyranny, and contrasts such policy with that of the United States, "the classic land of civil liberty." But I am of opinion, notwithstanding, that every government has the right, and is bound in duty, to judge for itself, how far the unlimited power of emigration, and of the admission and residence of strangers and emigrants, may be con sistent with its own local interests, institutions, and safety.

(b) Rutherforth, b. 2, c. 9; Vattel, b. 2, c. 10, sec. 124; 1 Chitty, 103-106.

*

*

United States, that by the law of nature and nations, we were entitled to the navigation of that river to the sea, subject only to such modifications as Spain might reasonably deem necessary for her safety and fiscal accommodation. It was further contended that the right to the end carried with it, as an incident, the right to the means requisite to attain the end; such, for instance, *36 as the right to moor vessels to the shore, and to land in cases of necessity. The same clear right of the United States to the free navigation of the Mississippi through the territories of Spain to the ocean, was asserted by the Congress under the confederation. (a) The claim in that case, with the qualifications annexed to it, was well grounded on the principles and authorities of the law of nations. (b) The like claim, and founded on the same principles of natural law, and on the authority of jurists and the conventional law of nations, has been made on behalf of the people of the United States to navigate the St.

(a) Instructions given to Mr. Jay in 1780, and again in 1785; Resolution of Congress of September, 1788; Report of the Secretary of State to the President, March 18th, 1792.

(b) Grotius, lib. 2, c. 2, sec. 11, 12, 13, 15; c. 3, sec. 12; Puff. lib. 3, c. 3, sec. 5, 6, 8; Vattel, b. 1, sec. 292; b. 2, sec. 127, 129, 132. By the treaty of peace at Paris, in 1815, it was stipulated that the navigation of the Rhine and the Scheldt should be free; and at the Congress of Vienna, in 1815, the allied sovereigns agreed to the free navigation of the great navigable rivers of Germany and ancient Poland, to their mouths, in favor of all who should conform to the regulations under which the affranchisement was to be granted. The detailed conventions consequent on the act of the Congress of Vienna, have applied the principles adopted by the Congress, founded on the Memoir of Baron Von Humboldt, to regulate the navigation of the Rhine, the Scheldt, the Meuse, the Moselle, the Elbe, the Oder, the Weser, the Vistula, the Danube, and the Po, with their confluent rivers. The English government, so late as 1830, continued to assert a right, under the treaty of Vienna, or federal act of 1815, to the free navigation of the Rhine, and to hold that it was accessible to the vessels of all nations, to the extent of its navigation, subject to moderate duties, for the preservation of the paths on the sides of the river, and for the maintenance of the proper police. And by the convention concluded at Mayence, March 31st, 1831, between all the riparian states of the Rhine, the navigation of that river was declared free, from the point where it becomes navigable into the sea, including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel, through the first-named outlet, and by Dordrecht and Hellevoetsluis, through the latter, with the use of the artificial canal of Voorn and Hellevoetsluis. The convention provides regulations of police and toll duties on vessels and merchan. dise passing to and from the sea, through the Netherlands, and by the different ports of the upper states on the Rhine. Wheaton's Elements of International Law, 3d ed. 243-247; his History of the Law of Nations in Europe and America, New York, 1815, 498-506.

Lawrence to and from the sea, and it has been discussed at large between the American and British governments. (c)1

6. Surrender of Fugitives.

When foreigners are admitted into a state upon free and liberal terms, the public faith becomes pledged for their protection. The courts of justice ought to be freely open to them as a resort for the redress of their grievances. But strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law. It has sometimes been made a question, how far one government was bound by the law of nations, and independent of treaty, to surrender, upon demand, fugitives from justice, who, having committed crimes in one country, flee to another for shelter. It is declared by some of the most distinguished public jurists, (d)

(c) Mr. Wheaton in his Elements of International Law, 3d ed. 248-257, and in his History of the Law of Nations, 506, 517, has given the substance of the arguments, pro and con, taken from congressional documents of the sessions of 1827 and 1828. It was insisted, on the part of Great Britain, that this right of passage was not an absolute natural right, but an imperfect right, restricted to the right of transit for purposes of innocent utility, to be exclusively determined by the local sovereign. The commissioners and diplomatists of the United States, in 1805, and afterwards, stated, as a principle of international law, that when any European nation took possession of any extent of sea-coast, that possession extended into the interior country to the sources of the rivers emptying into that coast and to their mouths, with the bays and entrances formed by their junction with the sea, and to all the tributary streams or branches, and the country they covered. The authority of Vattel, b. 1, p. 266, is in support of that principle in a qualified degree, and is to be confined to the rivers so far as they flow within the territory. Mr. Wheaton, in his Elements of International Law, 3d ed. 1842, very justly confines such a claim of dominion of the state to the seas and rivers entirely enclosed within its limits.

(d) Grotius, b. 2, c. 21, sec. 3, 4, 5, and Heineccius Com. h. t. Burlamaqui, ii. part 4, c. 3, sec. 23-29; Rutherforth, b. 2, c. 9, ii. 496; Vattel, b. 2, c. 6, sec. 76, 77. See Questions de Droit, tit. Etranger, par Merlin, for discussions on this subject in France. P. Voet, de Statutis, p. 297, says that the surrender of criminals is denied according to the usage of almost all Christian nations, except in cases of humanity (nisi ex humanitate), and Martens is of the same opinion. Martens, Law of Nations, b. 3, c. 3, sec. 23. The English decisions in support of the right and practice of surrender of fugitives charged with atrocious crimes, are Rex v. Hutchinson, 3 Keble, 785; Case of Lundy, 2 Vent. 314; Rex v. Kimberly, Str. 848; S. C. 1 Barnard. K. B. 225; Fitzgib. 111; East India Company v. Campbell, 1 Vesey. 243; Heath J. in Mure v. Kay, 4 Taunt. 34; Eunomus, Dialog. 3, sec. 67; Sergeant

1 The right to navigate great rivers is frequently made the subject of treaty. See the Reciprocity Treaty, now terminated, 10 U. S. St. at L. 1098, 1091, art. 4, as to the St. Lawrence; and generally,

treaties of the United States with Argentine Confederation, ib. 1005; Mexico, ib. 1031; Bolivia, 12 U. S. St. at L. 1003, art. 27; Paraguay, ib. 1091, art. 2, &c. Also Halleck, Int. L. ch. 6, § 28 et seq.

*37 that every *state is bound to deny an asylum to criminals, and, upon application and due examination of the case to

Hill's opinion (and his authority and learning as a lawyer were pre-eminent) given to government in 1792. See Edin. Review, No. 83, pp. 129, 139, 141. Lord Coke, however, held that the sovereign was not bound to surrender up fugitive criminals from other countries. 3 Inst. 180. The American decisions on the question are, in the Matter of Washburn, 4 Johns. Ch. 106; Commonwealth v. Deacon, 10 Serg. & Rawle, 125; Rex v. Ball, decided by Ch. J. Reid, at Montreal, and reported in Amer. Jur. 297; Case of José Ferreire dos Santos, 2 Brockenbrough, 493. Two of those, viz., that in 4th Johnson and before Ch. J. Reid, are for the duty of surrender, and the other two against it, unless specially provided for by treaty. Mr. Justice Story cites the conflicting authorities, both foreign and domestic, on this interesting question; but intimates no opinion. 3 Comm. on the Constitution, pp. 675, 676; Comm. Conflict of Laws, pp. 520-522. But afterwards, in The United States v. Davis, 2 Sumner, 486, Judge Story expressed great doubts whether, upon principles of international law, and independent of statute or treaty, any court of justice is authorized to surrender a fugitive from justice. In the spring of 1839, George Holmes, being charged with the crime of murder, committed in Lower Canada, fled into the State of Vermont, and his surrender was demanded by the Governor-General of Canada. Application was made by authority, in Vermont, to the President of the United States, who declined to act through an alleged want of power, and the case came back to the Governor of Vermont. After hearing counsel and giving the subject great consideration, Governor Jennison decided that it was his duty to surrender the fugitive. The case was afterwards, and before any actual surrender, carried up before the Supreme Court of that state upon habeas corpus, and elaborately argued in July, 1839, and the decision of the governor affirmed. The case was afterwards carried up to the Supreme Court of the United States, in the winter of 1840, and the court declared that they had no jurisdiction in the case. Holmes v. Jennison, 14 Peters, 540. Holmes was thereupon brought up before the Supreme Court of Vermont by habeas corpus, in April, 1840, and the question solemnly argued, and the decision was, that the state had no authority to surrender the prisoner, and he was accordingly discharged from custody. Case ex parte Holmes, 12 Vermont, 631. It may be here properly observed that, according to the official opinion of the Attorney-General of the United States, 1797, it was the duty of the United States to deliver up, on due demand, heinous offenders, being fugitives from the dominions of Spain, and that, as the existing laws of the Union had not made any specific provision for the case, the defect ought to be supplied. Opinions of the Attorneys-General, i. 46. But afterwards, in 1821, the then Attorney-General of the United States, in an elaborate opinion given to the President, declared that the modern usage and practice of nations had been contrary to the doctrines of the early jurists, and that it was not now the law and usage of nations to deliver up fugitives from justice, whatever may be the nature or atrocity of the crime, unless it be in pursuance of a treaty stipulation. Opinions, &c. i. 384-392. If there be no treaty, he was of opinion that the government of the United States could not act on the subject, without authority conferred by an act of Congress, and which it would be expedient to grant, as the law is imperfect as it stands. Ibid. ii. 832, 902. When it is declared as the settled rule, that the United States are not justified in the surrender of fugitives from justice, except in pursuance of a treaty stipulation, the United States are thus in effect declared, by national and state authorities, to be a safe asylum for all sorts of criminals, from all governments and territories, near or distant. So, a'so,

surrender the fugitive to the foreign state where the crime was committed. The language of those authorities is clear and explicit, and the law and usage of nations, as declared by them, rest on the plainest principles of justice. It is the duty of the government to surrender up fugitives upon demand, after the civil magistrate shall have ascertained the existence of reasonable grounds for the charge, and sufficient to put the accused upon his trial. The guilty party cannot be tried and punished by any other jurisdiction than the one whose laws have been violated, and, therefore, the duty of surrendering him applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive. The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety. The act of the legislature of New York, of the 5th April, 1822, c. 148, gave facility to the surrender of fugitives, by authorizing the governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. (a) Such a legislative provision was requisite, for the judicial power can do no more than cause the fugitive to be arrested and detained, until sufficient means and opportunity have been afforded for the discharge of this duty, to the proper organ of communication with the power that makes the demand. (b)1

all the high law authorities in Westminster hall, in the case of The Creole, gave their opinions, in the British House of Lords, in February, 1842, that the English law and international law did not authorize the surrender of fugitive criminals of any degree, and that the right to demand and surrender must be founded on treaty, or it does not exist.

(a) The N. Y. Revised Statutes, i. 164, sec. 8, 9, 10, 11, have adopted and continued the same provision.

(b) The Constitution of the United States has provided for the surrender of fugitive from justice as between the several states, in cases "of treason, felony, and other

1 Wheat. pt. 2, ch. 2, Dana's note 73. A judicial tribunal has not authority, in

dependently of statute or treaty, to make extradition of a criminal. It was done in