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JUS NECESSITATIS.

199

SUB-Section IV.

Right of Necessity.

Under the general rights of conservation, may also be included what has been called the jus necessitatis, the casus gentis extraordinarius, the casus extreme necessitatis ; under which, the more imperative right of self-preservation, may justify a nation in the nonfulfilment of an inferior legal obligation to another people; provided the former acts with great moderation and propriety, and indemnifies, as far as practicable, all such persons, as may have thereby suffered. Lampredi, Jur. Publ. univ. Theorem. Tom. 111. p. 143, P. III. Cap. VII. § 4. Fichte Grundlage des Naturrechts Th. II. § 65. Kant Metaphys. Anfangs-gründe des Rechtslehre, Einleitung S. XLVIII. Klüber, Part II. Tit. L. § 44.

Part II.

PARTICULAR AND OCCASIONAL LEGAL ATTRIBUTES, OR

RELATIONS OF NATIONS, EXISTING ONLY IN CERTAIN STATES.

We have hitherto considered what appear to be the principal, general, and permanent legal relations of states, existing in all circumstances. We proceed briefly to notice the particular and occasional legal

relations of nations, which exist only in certain states, and which, as we have seen, may be distinguished into the amicable or pacific, and the hostile.

SECTION FIRST.

Pacific Relations of Nations.

In their amicable relations, nations may have intercourse either in their collective or corporate capacity, as sovereign states, or in their individual capacity, through the members generally, of whom the state is composed.

SUB-SECTION I. Intercourse of Nations in their Collective or Corporate

Character.

Under this head of corporate national intercourse, although it relates to particular individuals, may be included the legal doctrine relative to the persons and families of sovereign princes, or monarchs, their births, marriages, and deaths; their mutual presents, their orders of rank and dignity, and the reception of foreign princes ; all of which matters of right rest almost entirely upon custom and usage. But the chief rights arising out of this. corporate national intercourse, are, the right of negotiation by public ministers, and the right of entering into treaties, and thereby legally binding other independent nations.

RIGHT OF NEGOTIATION BY MINISTERS.

201

ART. I.

Right of Negotiating particularly by Public

Ministers.

The interest of independent states, requires that from time to time, they should enter into negotiations with each other, not only in order to prepare and conclude treaties, but also to watch over the legal and political relations, which subsist between or among them. And without attempting any more accurate arrangement, the following appear to be the chief subjects, which may be discussed, under this head.

1. The different modes of negotiation. 2. The right to send, and obligation to receive, public ministers. The right of choice, the appointment and recall of ambassadors and other diplomatic agents, their number, and the union of several missions. 3. The character of public ministers, as distinct from commissioners, deputies, political agents, and secret emissaries, as well as from commercial consuls. 4. The powers of, and instructions to, public ministers; their functions and occupations; the distinctions among public ministers with reference to the extent of their powers, the duration of their mission, and the nature of the business with which they are charged. 5. The rank or grade of public ministers; the different classes of ministers, ambassadors, and subordinate diplomatic agents. 6. The person of the minister, his suite, the secretary of legation, and other persons employed

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by the embassy ; couriers, the family and the hotel of the ambassador. 7. The prerogatives or privilege of public ministers ; inviolability, exterritoriality, immunity from taxation generally, exemption from the laws, civil and criminal jurisdiction, and police of the country, to which they are sent. 8. The jurisdiction of ambassadors and other ministers, and power of surveillance over their suite, the right of domestic worship. 9. The right of ceremonial, title and rank among themselves, at home and abroad, and in relation to third parties ; etiquette at audiences, and public solemnities, visits of ceremony, military honours. 10. Termination of diplomatic missions ; decease of the minister.

ART. II.

Right of entering into and concluding Treaties, legally

binding on other Independent Nations.

Independent nations, it is plain, have the power of entering into contracts, as well as individuals, relying upon the observance of the principle of justice and general expediency, Pacta sunt servanda. These contracts, or treaties, it is also manifest, may embrace the whole range of international actions, not only those, which are strictly legal, and may be enforced by physical means, without any treaty or agreement, but also those, which it may be morally right for a nation to perform, but which do not admit of being otherwise, or without such consent, enforced, consistently with

CON

BINDING TREATIES.

203

justice and general expediency; and likewise those, which in point of moral rectitude, are of an indifferent nature. And, as independent states may renounce their rights, original or acquired, or limit them at pleasure, as well as undertake the performance of actions, which they cannot otherwise be compelled to perform, many actions which naturally are not so, may by paction, become legally susceptible of enforcement. But to constitute such a paction or treaty, and to create such a conventional obligation, there must be an acceptance of a proposal, a reciprocal consent, concerning the same object, distinctly and effectually declared, by words spoken or written, or by external actions ; for international law recognises no fictions.

Under this branch of international law, the following appear to be the principal subjects which may be properly treated ; corresponding to the doctrine of contracts, in the internal private law of states, or jurisprudence. 1. Conditions essential to the validity of a public treaty ; power of the persons acting, reciprocal and free consent, possibility of execution. 2. Inviolability of treaties. 3. The objects of public treaties and their different kinds ; special articles in treaties ; treaties of alliance in particular, alliances for peace and for war ; treaties of commerce concluded for the time of peace, or concluded for the time of war. 4. Operation and effects, and confirmation of treaties ; renewal and re-establishment of treaties. 5. Means of securing the execution of treaties ;. pledge, hostages, guarantee. 6. Interposition and mediation of third powers; concurrence and comprehension of third powers in treaties,

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