The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-11-05

frank sad open nod Of prscssding Far ffsu
overlooking, then, the above mentioned treaty, We
purpose referring not only 10 ts general character,
but We shall reproduce In fall the two nclss whose
sophistcai intsrPrssa,,on spg' sss give BE
The text Of these 10. sord for sord, ~ fellowss-
And II Is serssd that the suhccts or citizens sf each
of the contracting parties their vcseis eeots she'll
not be liable 70 any embargo or dssnOs on the part Of
the ether for military expedition OF Other public
private purpose Whatever And IN all es-es Of seizure
detention for dsbts contracted offences com
mitsd by any citizen subject Of the party within
the jurisdiction OF the other the shA be msds and
prosecuted by order and authority o. au, only and
cording to the regusr Of proscclnxs usual In
such cases. The citzsns and subjects Of b,th parties
shall be allowed to employ such advocates solicitors
tares agents and factors they judge proper in
all their affairs and p all their trials NJ lss In which
they may be concerned before The tribunal. Of IN. other
sent ut the proceedings in such and a. the taking
Of all examinations and evidence which may BE- exhibited
1t shall be lawful for all and singular th- subjects Of
his Catholic Majesty. and tbs citizens people, sud in
hsbtaDts of the United States sail with their ships
with all OF liberty aud security "a iiBctoa
beirg made who tine proptetors u the merchandise
laden thereon from any port TO the places Of those who
hereafter shall he az enmy with hs Cath bic
Majesty and the United states II shall be likewise lag
full Tor the subjects and inhabitants aforesaid q sail with
the ships and merchandise before mentioned aud "a trade
with the liberty and security from the places ports
and Ravens Of There who enemies OF both either
party, without any opposition disturbances whstsoever
not only directly from the places Of the enemy afcre
mentioned TO neutral places but ALEC from place be-
logging enemy TO another place belangtng
enemy whether they be under ths jurisdiction OF tho
prince under several. and it is hereby stpu-
lated that free ships sha also give freedom TO goods and
that everything shall be deemed free and exempt which
shall be found board the ships belonging to the sub
ect Of either Of the contracting parties Though the
the whole sduas any part thereof shoad appertain
to the enemies Of either consoaud goods being Away
excepted 1t is also agreed that the same liberty be
tended to persons who are on board free ship So al
though they be enemies to either party they shall not be
made prisoners taken out Of that free ship unless
they soldiers and in actual service of the enemies
Intvso haSf nfvax t1.
struction and bearing of Article I. It will be mt
once noticed, that nothing in It, either directly
indirectly, relates 10 the matter in question. IL
provides for cases in which the trial Of crimes Of
fences, OF any character whatever, is concerned.
Our case, however, is Of an entirely different cha
racter No action, of any kind or description, can
be based upon the acts or words Of Mr. Smith, when
committed or spoken without the Spanish territory.
His expulsion from the territory is purely govern
mental act, whose nature and foundation we have
clearly and irrefutaby demonstrated in q former
article Besides it is to be remarked that far from
there being here any Remuneration Of the inalienable
rights Of sovereignty, can only di scover grace
favor concedirg 10 foreign country, to certain
extent and in certain specified csses, the pri
vege, and nothing more, that 10 enjoyed by the Oh
tizens or subjects of the country. So certain
Webster, (by no means slow in putting forth
pretepsions that have shadow of founia-
tion,) has clearly and plainly confessed the
same His words, taken from an official cor
respondence on another event of recent oc-
curIence in our island, admit that g Article
cannot be understood conferrin upon Foreigners
privilege which the natives of tho counsry do not
enjoy, for 1t Is not customary with nations to
cede similar privileges" which words, we repeat,
are so clear as to preclude all atary--words,
too, when carefully perused, we recommend to all
sophists, and to which we may perhaps again have
occasion to refer.
With reference to Article 10, we would begin
by Iemarking, that it also fails TO show that ex-
plicit remuneration of general and natural privileges
oh H1a H.
leges had been waived Besides, the tenor of the ar
tice, which applies to of general character,
has distinct object in view, and one upon
which 1T is entirely based, as any one at all
versed in the diplomatic history of the epoch
when the treaty was concluded must recoliect.
The new doctrine of maritime right laid down by
England kept ali the other cabinets in alarm. The
vital question for commerce whether or not the
flag covers the person and the goods over which il
floats, with the auxiliary question of the right of
search were matter of serious controversy between
the maritime powers, aud the subject of serious
dispute, which finally ended IN the of 1872 be-
tween England and the United States. Amid such
circumstances the governments took advantage of
every occasion which presented itself 10 set forth
their doctrines even though it entirely filed
for. and such is the spirit which dictated Article
10. ana which breathes throughout the whole of it,
especially, however, in the last sentence FROM it we
can readily perceive how far the negotators from
bestowing any attention upon matter eutirely
uncontrolled with the matter which they had in view,
as tn st which is at present the text of commen
taTies; sentences too which, when isolated from the
rest of their text may lend themselves to forced
Interpretation, clearly of 10 weight whatever.
The tenor and Specification of international agree
mept cannot be fairly udgedor reasonably interpret
ed, save with due regard to It's general spirit, ma
ture, objects and conditiCns for il is a maxim Of
law founded on natural reason an justice, ItclplH
est, niSi totd fge peTSpsStd. ana utqud plrttcidd
Gus pToposud, Judtcare Il responder If, then, the
treaty of 1885 IS the subject to be examined into
and snaly zed by us, and if we must take it as
understand 1
Of necessity refer TO Vattel, and see what is his
definition and explanation Of treaties, and their oh
ects and operation, as understood by the writer's of
international law The following extract is from
Vattels Claw Of Nations" paragraph 1863, chapter
XII i. book second -
Grotius divides treaties Into general classes The
frat tboee which turn merely things to which
already bound by the law Of and the second of
these by which We engage somsthipg more. The first
serves TO perfect right TO things to watch
had OILY imperfect right thai from thence forward
might require what before mad only foundation
to desire Office of hu oanty Such treaties became
very necessary among the ancient nations who,
have already oberved did not think thems elves bound
to perform any thing for the nations that not in the
number Of their allies They are even Of among the
most polite people, in order the better to the
that may be ed TO determine the and
degree of thee and to know what have
depend to regulate what cannot in general be deter.
mined by the law Of nature and TO prevent tao difficult
the power Of assistance in any nation mex
hauft,be IL Is prudent to ourselves q proper
right to succor that cannot be granted to all the world
OF this first class all the simple tresties of peace
and Iiendship when the engagements contracted in
them add nothing TO what men owe each other as bre
hren and as members Of the human society; asthoge
that permit commerce pastage &C.
This doctrine of the father of the science, being
admitted without distinction and without reserva-
tion, we shall enter into few explanations, which
we shall endeavor to render as brief as possbe,
consistent with the nature of the subject which we
are discussing.
According to the authors, (see vattel, book i.
chap. viii } and consistently with the custom Of
civilized nations, the faculty Of carrying on com
meIce, which flows from the law of nature Tor
rather from sociabiity and its duties) is nothing
more, with respect to International law, than
what is called an imperfect right. That is to say,
that even though nation possess in the abstract
the right to sell and buy, and the right to
traffic and trade, it nevertheless requires for the
exercise Of that right the consent of a foreign
country whenever IL seeks to exercise it beyond ts
own limits. This consent may be denied without